Malone

Opinion on rehearing. Petitioner seeks a writ of prohibition to prevent further proceedings upon an indictment charging him with receiving stolen property (Pen. Code, § 496) and alleging three prior felony convictions.

The prosecution had been initiated by a complaint charging petitioner with burglary and with receiving stolen goods. At the preliminary hearing the district attorney “stipulated” that both charges were to be tried as misdemeanors. Defense counsel joined in the “stipulation.” The magistrate then inquired whether defendant waived formal arraignment “on these counts as misdemeanors.” Defendant entered a not guilty plea and the case was set down for a jury trial in the municipal court.

At the time of the preliminary hearing the magistrate was aware of a “parole hold” lodged against petitioner, that is, that he had at least one prior felony conviction. Actually, petitioner had three priors. According to the People’s return to our order to show cause, the district attorney later discovered some aggravating features of defendant’s activity. The new information prompted the district attorney to file a second complaint and to seek a felony indictment at the hands…