Chism

This is a petition for writ of mandate by a defendant in a criminal action seeking to compel the superior court to return the action to the magistrate who presided at the preliminary examination for resumption of those proceedings and determination of the issue of probable cause after the superior court determined on a People’s motion under Penal Code section 871.5 that the magistrate erroneously dismissed the action at the preliminary examination on other grounds before ruling as to probable cause.

The sole issue presented is whether respondent exceeded its authority under Penal Code section 871.5 when, after granting the People’s motion, it proceeded to rule on the issue of probable cause on the basis of the preliminary transcript and ordered defendant immediately arraigned rather than returning the action to the magistrate who conducted the preliminary for resumption of those proceedings and a determination as to probable cause.

Penal Code section 871.5 compels the conclusion that respondent exceeded its authority.

On May 1, 1981, a felony complaint was filed charging petitioner and Kevin Esteen with murder in violation of Penal Code section 187. The complaint also…