People v. SUPERIOR COURT (SCHULTZ)

Kenneth I. Clayman, Public Defender, Steven Lipson and Brian A. Vogel, Senior Deputies, Michael C. McMahon, Chief Deputy Public Defender, for Real Party in Interest.

Under California law, felonies may be prosecuted by means of indictment or information. (Pen.Code, §§ 682, 737.) [1] Ordinarily, an information cannot be filed in superior court unless a magistrate has first issued a commitment order after a preliminary hearing. (§ 738.) Section 997 establishes an exception to this rule. It provides that when a trial court grants a motion to set aside an indictment or information under section 995, it may, as an alternative to discharging the defendant, direct that an information be filed by the district attorney, conditioned upon a subsequent hearing before a magistrate.

In this proceeding, we must determine whether the "resubmission" procedure established by section 997 conflicts with article I, section 14 of the California Constitution, which provides in part, "Felonies shall be prosecuted as provided by law, either by indictment, or, after examination and commitment by a magistrate, by information." (Italics added.) We conclude that section 997 is consistent with the…