California, United States of America
The following excerpt is from People v. Murray, 21 Cal.App.3d 864, 99 Cal.Rptr. 55 (Cal. App. 1971):
The function of the trial court in reviewing an order of the magistrate made pursuant to section 995 is stated in People v. Heard, 266 Cal.App.2d 747, 749--750, 72 Cal.Rptr. 374, 375--376:
'However, in considering a motion to dismiss under Penal Code section 995, the superior court is sitting as a reviewing court and is bound by the rules enunciated in Perry v. Superior Court, 57 Cal.2d 276, 283--284, 19 Cal.Rptr. 1, 368 P.2d 529: 'Although the magistrate, in reaching his decision (to hold an accused to answer following a preliminary hearing), may weigh the evidence, resolve [21 Cal.App.3d 867] conflicts, and give or withhold credence to witnesses, Such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. (Citation.)' (Italics added.)
The propriety of this rule is particularly apparent when, as in the instant case, the superior court sitting as a court of review under Penal Code section 995 is asked to consider a terse and limited record of a preliminary hearing involving an issue that may be relitigated in a full and adversary hearing either at the time of trial or at a hearing upon a defendant's motion to suppress evidence under Penal Code section 1538.5. As aptly stated in Badillo v. Superior Court, 46 Cal.2d 269, 271--272, 294 P.2d 23:
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