Bernstein v. Superior Court

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[S. F. No. 19348. In Bank. Dec. 16, 1955.]

SAMUEL BERNSTEIN, Petitioner, v. SUPERIOR COURT OF SAN MATEO COUNTY, Respondent.

COUNSEL

Nagle & Vale for Petitioner.

Edmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, Arlo E. Smith, Deputy Attorney General, and Keith C. Sorenson, District Attorney (San Mateo), for Respondent. [45 Cal. 2d 775]

OPINION

THE COURT.

By information petitioner was charged with one count of keeping and occupying a room for the purpose of horse race bookmaking and one count of recording and registering a bet on a horse race. (Pen. Code, § 337a, subds. 2, 4.) He moved to set the information aside on the ground that he "had been committed without reasonable or probable cause" (Pen. Code, § 995) in that the evidence against him had been illegally obtained and was otherwise insufficient. His motion was denied and he presented this petition to the District Court of Appeal to prevent further proceedings against him. The district court issued the alternative writ and the cause was thereafter transferred to this court.

[1] Petitioner's motion to set aside the information was denied on June 27, 1955, and his petition for prohibition was not filed in the district court until July 21, 1955, 24 days later. Section 999a of the Penal Code provides: "A petition for a writ of prohibition, predicated upon the ground ... that the defendant had been committed on an information without reasonable or probable cause, must be filed in the appellate court within 15 days after a motion made under Section 995 of this code ... has been denied by the trial court." Petitioner failed to comply with this section.

The alternative writ of prohibition is discharged and the peremptory writ is denied.