Rideout

Phillip Rideout and Ronald Perry seek prohibition restraining the Santa Clara County Superior Court from taking any further action upon an information charging them with transportation of marijuana (Health & Saf. Code, §11531).

Following a preliminary hearing on the charge the committing magistrate held petitioners to answer. The information was filed, and a motion to set it aside on the ground they were committed without probable cause (Pen. Code, § 995) was denied. Petitioners thereafter filed the instant petition for prohibition based on the same ground (Pen. Code, § 999a).

The sole witness for the People at the preliminary hearing was Police Officer Bernard Hazen, who testified to the following effect:

About 1 p.m. on January 5, 1967, Officer Hazen observed a ear being driven with a defective license plate light. He flashed his red light to direct the car to stop and pulled over behind it. The driver emerged without being asked to do so, met the officer in front of the police car, and identified himself as George Oliver. 1

The officer walked over to the car Oliver had been driving to check its registration and to obtain identification from the passengers. One Lopez was…

I dissent.

The writ of prohibition should issue if at the preliminary no evidence is introduced sufficient to establish probable cause that the accused committed the charged crime. That means that there must be some evidence upon which men of ordinary caution and prudence might believe the accused to be guilty. There must be a rational and reasonable basis for that belief. (Lorenson v. Superior Court, 35 Cal.2d 49, 56 [ 216 P.2d 859 ] ; People v. Ketchel, 59 Cal.2d 503, 532 [ 30 Cal.Rptr. 538 , 381 P.2d 394 ] ; Robison v. Superior Court, 49 Cal.2d 186, 188 [ 316 P.2d 1 ].) Prohibition should be denied only when the evidence offers some rational theory to support the inference of guilt. (Jackson v. Superior Court, 62 Cal.2d 521, 525 [ 42 Cal.Rptr. 838 , 399 P.2d 374 ].) In essence, the test is was there “ ‘some evidence’ . . . which, if unexplained . . . would . . . warrant a conviction by a trial jury.” (Dong Haw v. Superior Court, 81 Cal.App.2d 153, 158, 159 [ 183 P.2d 724 ].) This means that there must be some evidence in regard to each element of the crime, and in narcotic cases this refers primarily to the element of scienter. (Garabedian v. Superior Court, 59 Cal.2d 124,127…