Garcia

Petitioner Edgardo Garcia requests the issuance of a writ of mandate directing the trial court to vacate its order denying his motion to set aside count 3 of the information pursuant to Penal Code section 995, and to enter a new order dismissing count 3 of the information. The question presented is whether the trial court erred in granting the People’s request to reopen the preliminary hearing, pursuant to section 995a, subdivision (b)(1), for the purpose of permitting the court, sitting as a magistrate, to hear new evidence before ruling on defendant’s motion to set aside count 3 of the information, which alleges a felony violation of section 148. We hold that the trial court erred, on these facts, by allowing the prosecutor to present revised testimony in order to fill an evidentiary vacuum concerning the gravamen of the offense. We will therefore issue a peremptory writ of mandate vacating the respondent superior court’s order denying petitioner’s section 995 motion with respect to count 3, and directing respondent court to enter an order dismissing count 3 of the information.

STATEMENT OF THE CASE AND FACTS

The Pending Charges

Petitioner is a defendant in a…