Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 081415-2
THE COURT:Following a preliminary hearing, the magistrate held petitioner James Toland to answer on one count of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), but not on 10 counts of lewd acts on a child of 14 or 15 years of age under Penal Code section 288, subdivision (c)(1). Real party in interest then brought a motion to reinstate those charges under Penal Code section 871.5. Respondent court partially granted the motion and reinstated nine counts, prompting petitioner to bring a motion to dismiss, arguing that the magistrate’s factual findings precluded reinstatement. The trial court denied petitioner’s motion and he renews that challenge here by way of writ of prohibition. Our review of the parties’ briefs and the record leads us to conclude that petitioner is plainly entitled to writ relief.
Under Penal Code section 871.5, the district attorney may seek reinstatement of charges after the preliminary hearing if they are supported by the evidence adduced at that hearing: “Absent controlling factual findings, if the magistrate dismisses a charge when the evidence provides a rational ground for believing that defendant is guilty of the offense, his ruling is erroneous as a matter of law, and will not be sustained by the reviewing court.” (People v. Slaughter (1984) 35 Cal.3d 629, 639-640.) But, the district attorney may not “ignore the magistrate’s findings of fact and charge the defendant with an offense or offenses which the magistrate has expressly found never took place.” (Jones v. Superior Court (1971) 4 Cal.3d 660, 666.) Here, the magistrate made extensive, conscientious, and specific factual findings why petitioner did not commit the alleged lewd acts with the requisite specific intent, which was the basis for the magistrate’s conclusion “that the evidence [was] insufficient to support a reasonable suspicion” that petitioner committed the reinstated charges.
In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Petitioner’s right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.) Therefore, let a peremptory writ of prohibition issue restraining respondent court from further proceedings on the nine reinstated counts other than dismissal.
This decision shall be final as to this court within five (5) court days. (Cal. Rules of Court, rule 8.490(b)(3).)