Opinion
Hearing Granted May 23, 1972.
Opinion on pages 608 to 610 omitted
HEARING GRANTED
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Jr., Dist. Atty., Harry Wood, Appellate Division Head, and Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.
Hollopeter & Terry and Don H. Terry, Pasadena, for defendant and respondent.
CLARK, Associate Justice.
The People appeal form orders granting defendant's motion for a new trial and dismissing the action against him.
Defendant was arrested and charged with selling marijuana. After an extensive preliminary examination, the magistrate dismissed the complaint on the ground that, while there was probable cause to believe defendant had committed the offense charged, he had established the affirmative defense of entrapment. The People then obtained an indictment on which defendant was tried and convicted, but the court granted a new trial and dismissed the action on the basis of Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, which was decided shortly after defendant's trial.
The People's sole contention on appeal is that the rule of Jones v. Superior Court, supra, does not compel the result reached by the trial court in dismissing the action. The contention is correct.
The magistrate in Jones held the defendants to answer to only one of several offenses charged in the complaint, stating that he did not believe the testimony on which the additional charges were based. When the People nevertheless included the dismissed courts in a subsequent information, the Supreme Court ruled that, if the magistrate in the preliminary hearing makes a specific finding of fact adverse to the People, they may not ignore that finding by later alleging the dismissed counts in the information.
Contrary to the holding of the trial court in the case before us, the Supreme Court did not question the historic right of the People to initiate new proceedings charging the same offense by fresh complaint or indictment after a dismissal by the magistrate. (See Ex Parte Fenton (1888) 77Cal. 183, 19 P. 267; People v. Prewitt (1959) 52 Cal.2d 330, 341 P.2d 1.)
Here, the People did not proceed in a manner prohibited by Jones but rather obtained a grand jury indictment following the magistrate's dismissal, as still permitted by Fenton and Prewitt, supra.
The orders appealed from are reversed.
LILLIE, Acting P. J., and THOMPSON, J., concur.