Barber

An information filed in respondent superior court charges that “On or about October 21, 1990” petitioners violated “Penal Code Section 278.5(b).” Petitioners (defendants) seek a writ of prohibition restraining further prosecution (Pen. Code, § 999a) after the superior court denied their motion to dismiss on the ground that the preliminary hearing evidence does not support the charge. (Pen. Code, § 995.) We conclude that defendants’ conduct does not, as a matter of law, constitute a violation of Penal Code section 278.5, and shall grant relief.

In reviewing an order denying a motion to set aside an information on the ground of insufficiency of the evidence, we may not substitute our judgment for that of the magistrate as to the weight of the evidence or the credibility of witnesses. Every legitimate inference must be drawn in favor of the information, and as long as there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it, the prosecution must be allowed to proceed. (See Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [ 62 Cal.Rptr. 581 , 432 P.2d 197 ].) However, where there is no evidence at the…