Cagle

Defendant Deborah Lorraine Cagle was charged in an information with possession of marijuana (Health & Saf. Code, § 11530). She entered a plea of not guilty and moved to set aside the information under Penal Code section 995 and to suppress evidence under Penal Code section 1538.5. The motions were argued and decided at a superior court hearing on December 31, 1970. The court denied the motion to set aside the information, granted the motion to suppress evidence and ordered the case dismissed pursuant to Penal Code section 1385. The People appeal as permitted by Penal Code section 1238, subdivision (7).

The record before us is a sloppy one from beginning to end. Reference to the superior court file has failed to clarify it. On appeal, both parties assume the motion to suppress was heard and determined in the superior court on the testimony of one witness, called by the defendant, and the transcript of the testimony taken at the preliminary hearing. The assumption is not supported by the record.

A motion to suppress evidence is a de novo hearing in the superior court. (Pen. Code, § 1538.5, subd. (i).) The transcript of the testimony taken at the preliminary examination is…