People v. Miller

The People appeal from an order setting aside an information (Pen. Code, § 1238, subd. (a) (1)), granted on defendant’s motion made pursuant to Penal Code section 995. The information was in two counts charging defendant with (count I) possessing marijuana, a felony, in viola *223 tion of Health and Safety Code section 11530 and (count II) possessing marijuana for sale, a felony, in violation of Health and Safety Code section 11530.5.

The reporter’s transcript indicates the motion was made on the sole ground that defendant had been committed by the magistrate without reasonable and probable cause. To rule on the motion, the court read the transcript of the preliminary hearing, ruled that the contraband was seized as the result of an unlawful search and granted the motion. Defendant and the trial court relied to a great extent upon our holding in People v. Lingo (1970) 3 Cal.App.3d 661 [ 83 Cal.Rptr. 755 ], However, that case is thoroughly distinguishable, both procedurally and factually.

Procedurally, that case involved a superior court order suppressing evidence pursuant to Penal Code section 1538.5 and an order made thereafter dismissing the case pursuant to Penal…