People v. Superior Court (Smart)

The People seek a writ of mandate to compel the superior court to reinstate a charge of murder dismissed pursuant to Penal Code section 995. We agree that the murder charge was improperly dismissed.

Defendant/real party Kathline Smart was charged with the murder of her infant son, Matthew Smart. She was also charged with felonious child abuse (Pen. Code, § 273a, subd. (1)). After a preliminary hearing, the magistrate found that there was insufficient evidence to hold defendant to answer on the murder charge. Defendant was held to answer on charges of voluntary manslaughter (Pen. Code, § 192, subd. (a)) and felony child abuse.

The People thereafter filed an information in superior court charging defendant with murder and felony child abuse. The court granted defendant’s motion to set aside count I of the information (murder) in favor of a charge of manslaughter.

The People filed an appeal from the order setting aside count I of the information (Pen. Code, § 1238, subd. (a)(1); People v. Fraijo (1977) 78 Cal.App.3d 977, 980-981 [ 144 Cal.Rptr. 424 ]) but also filed the within petition contending that appeal was an inadequate remedy. We have determined that to avoid any…