O'NEAL

By petition for writ of mandate and/or prohibition filed in propria persona, Darrell Thomas O’Neal attacks the superior court’s denial of his motion to set aside the information pursuant to Penal Code section 995.

The primary issue presented is whether a magistrate who reviews a defendant’s record in setting bail at the arraignment is disqualified from presiding over the defendant’s preliminary hearing due to section 1204.5, which allows consideration of a defendant’s arrest or conviction record only for specified situations, including a bail application.

For the reasons discussed below, we conclude that, although it is the better practice to utilize different judges for the two hearings, no absolute disqualification exists. Therefore, the writ is denied.

The facts are simple and undisputed. Petitioner was arrested on April 6, 1985. On April 10, a complaint was filed charging petitioner with two counts of attempted murder (§§ 664/187), two counts of assault with a deadly weapon on a peace officer (§ 245, subd. (b)), one count of assault with a firearm (§ 245, subd. (a)(2)), and one count of being an ex-felon in possession of a firearm (§ 12021). It was further alleged…