Curry

The People appeal (Pen. Code, § 1238, subd. (a)(1)) from an order dismissing the information pursuant to Penal Code section 995.

By information defendant Milton Curry was charged with possession of cocaine. (Health & Saf. Code, § 11350.) The evidence was seized from defendant’s home and person on December 13, 1982, pursuant to a search warrant.

The warrant was issued on December 10, 1982, upon the sworn affidavit of Detective Nettles of the Los Angeles Police Department. The sworn affidavit incorporates by reference an “attached statement of probable cause.”

Defendant moved to quash the search warrant, the motion being heard by the magistrate who issued the warrant, as provided by Penal Code section 1538.5, subdivision (b). (People v. Sanchez (1972) 24 Cal.App.3d 664, 682-684 [ 101 Cal.Rptr. 193 ].) The sole ground for defendant’s motion was that the third page of the referenced statement of probable cause was missing from the court file. Notwithstanding a continuance, the police, the prosecutor’s office and the clerk’s office had been unable to find the page or a copy. The magistrate vividly recalled this particular affidavit, however, and the circumstances…