McAlister

Pursuant to section 1238 of the Penal Code, the People appeal from an order of the Sacramento County Superior Court setting aside four counts of a five-count grand jury indictment on the alternative grounds that either (1) the district"attorney failed to inform the grand jury of alibi witnesses whose statements tended to negate the charges against the defendant, or (2) if these witnesses were brought to the attention of the grand jury, it abused its discretion by failing to subpoena them.

The following evidence was presented to the grand jpry:

On January 10, 1974, Linda H., a student, attended an evening ski club class at California State University, Sacramento. About 7:15 p.m. she went to the ladies’ rest room. As she was leaving, she was confronted by a man at the door who pushed her against the wall and backed her into the main area of the rest room with a knife at her throat. The man ordered her into a bathroom stall, turned her around (still holding the knife at her throat), and told her to remove her clothes. The rest room was lighted, and the man’s face was uncovered. He forced her to remove her sweater and began handling her breasts. He then told her to pull…