Buckley

This is an appeal by the People from an order dismissing the information pursuant to Penal Code 1 section 995. The evidence which was introduced at the May 11, 12 and June 3, 1983, preliminary hearing may be summarized as follows:

At approximately 8:30 p.m. on the evening of January 11,1983, members of the Oakland Police Department conducted a search pursuant to warrant at 1717 Peralta Street, Oakland. The purpose of the search was to uncover evidence of illegal drug trafficking. Entry into the residence was made at about 8:35 p.m. Since the officers were aware of the hazard of the operation, they were armed and also wore Oakland Police Department raid jackets. The raid jackets are of navy blue color with large yellow letters “Police” on the front and “Oakland Police” on the back. In addition, the victim, Officer Irizarry, wore a baseball cap with “Oakland Police Department” insignia on it.

The front door of 1717 Peralta is located on an alleyway. While the alleyway was narrow and fairly dark, it received some light from the street so that the features of a person could be recognized in the alley.

At the time the officers entered the residence, there were two people,…

I respectfully dissent.

My colleagues and I agree that in a straight murder prosecution (i.e., one without a special circumstance allegation), the degree of the crime need not be charged and the magistrate need not make any finding with respect to the degree of the murder. (See majority opn., ante, pp. 520-521.) We also all recognize that where routine enhancements are charged—such as those that if found true add years to sentences—the magistrate must pass on the sufficiency of the evidence to hold the defendant to answer to the enhancement. (People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 761-762 [ 191 Cal.Rptr. 1 , 661 P.2d 1081 ].) And we all acknowledge that this rule applies where the ultimate enhancement—a special circumstance— is involved. (Ramos v. Superior Court (1982) 32 Cal.3d 26, 33-34 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ]; accord People v. Superior Court (Mendella), supra, 33 Cal.3d at pp. 761-762.)

I part company with my colleagues at the point at which they conclude that when a special circumstance is charged the magistrate has no obligation to determine whether there is sufficient cause to believe the defendant is guilty of murder in the first degree.…

This is an appeal by the People from an order dismissing the information pursuant to Penal Code [1] section 995. The evidence which was introduced at the May 11, 12 and June 3, 1983, preliminary hearing may be summarized as follows:

At approximately 8:30 p.m. on the evening of January 11, 1983, members of the Oakland Police Department conducted a search pursuant to warrant at 1717 Peralta Street, Oakland. The purpose of the search was to uncover evidence of illegal drug trafficking. Entry into the residence was made at about 8:35 p.m. Since the officers were aware of the hazard of the operation, they were armed and also wore Oakland Police Department raid jackets. The raid jackets are of navy blue color with large yellow letters "POLICE" on the front and "OAKLAND POLICE" on the back. In addition, the victim, Officer Irizarry, wore a baseball cap with "Oakland Police Department" insignia on it.

The front door of 1717 Peralta is located on an alleyway. While the alleyway was narrow and fairly dark, it received some light from the street so that the features of a person could be recognized in the alley.

At the time the officers entered the residence, there…