Opinion
Petitioner, charged by information with a violation of section 273a, subdivision (1) of the Penal Code (willful cruelty toward child) seeks a writ of prоhibition to restrain respondent superior court from taking any further action in this matter other than to grant defendant’s motion to set aside the information. Petitioner contends (1) that his commitment is illegal because the magistrate, by denying him a continuance, denied him his right tо counsel, and (2) that he had been committed without reasonable or probable cause. 1
*670 The record reveals that the matter was set for preliminary hearing on April 28, 1980. At the time called, Deputy Public Defender Gary Faldesy appeared and advised the court that because of a calendaring error, Deputy Public Defender Noel Marcovecchio, who had been assigned the case, was not present in court. Faldesy, who was Marcovecchio’s supervisor, moved for a continuanсe to permit Marcovecchio, who had prepared the case, to represent petitioner at the prеliminary hearing.
Assistant District Attorney William Fazio, representing the People, objected to a continuance on the ground that hе had summoned a witness from Monterey and that his other witness, one Dr. Sanchez, was a busy pediatrician. Fazio contended that Faldеsy was competent to proceed to represent petitioner at the hearing. Faldesy objected on the ground that he was unfamiliar with the facts and circumstances of the case, had never spoken to the petitioner, whom he had met in thе courtroom but 10 minutes earlier, that he did not know whether Marcovecchio had planned to call witnesses on petitionеr’s behalf, and that he was totally unprepared to proceed. The magistrate thereupon suggested that the preliminary hеaring commence with the witness from Monterey, and that the proceeding then be continued to another date when the other witness could be called. Faldesy pointed out to the magistrate that because of his total ignorance of the facts аnd circumstances of the case, his participation would deny competent representation to petitioner, еven as to the one witness, who could be the crucial witness.
The request for a continuance was denied, and although Faldesy infоrmed the magistrate that he would not participate and would remain silent, the magistrate ordered the preliminary hearing to proceed. The prosecution called the witness from Monterey and the pediatrician who had treated the victim. Although codefendant’s counsel cross-examined the witnesses, called one witness on behalf of his client, and argued the matter, Faldеsy remained silent. At the conclusion of the hearing, petitioner was held to answer to the superior court.
It is settled that the prеliminary hearing is a critical stage of the criminal process at which the defendant has a right to the “guiding hand of counsel”
(Coleman
v.
Alabama
(1970)
Although a defendant represented by the public defender is not entitled to be represented by any particular аttorney within that office, he is entitled to be represented by some attorney acting in his behalf
(People
v.
Locklar
(1978)
We are cognizant of the need to expedite criminal proceedings “to the greatest degree that is consistent with the ends of justice” (Pen. Code, § 1050), and we recognize that the People, as well as the defendant, have the right to a preliminary examination at the earliest possible time (Pen. Code, § 859b). However, neither section 859b nor section 1050 precludes the magistrate from еntertaining an oral motion for continuance for good cause, such as that made by Faldesy at the earliest oppоrtunity.
Of course, we do not condone abuses in the making of such motions, but there was no showing of any such abuse here.
2
When the right of a defendant to representation by counsel is involved, the legislative policy in favor of prompt disposition of criminal cаses, however commendable, must not be permitted to transcend any of the basic elements of due process of law
(People
v.
Maddox
(1967)
A рretrial challenge by extraordinary writ on the ground of denial of counsel at the preliminary examination does not require а showing *672 of prejudice. If the issue is raised before trial, prejudice is presumed and the information is dismissed (People v. Pompa-Ortiz, supra, 27 Cal.3d, pp. 529-530). The matter can then be returned to the magistrate for proceedings free of the claimed defects (People v. Pompa-Ortiz, supra, p. 529; Pen. Code, § 999).
We conclude that under the cirсumstances shown here, petitioner had not been legally committed by a magistrate and that petitioner was entitled to relief under section 995. In light of our conclusion, we do not reach the issue of whether petitioner had been committed without reasоnable or probable cause.
Let a peremptory writ of prohibition issue to restrain respondent court from taking any further action in the proceedings against petitioner, other than to grant the motion to dismiss the information, and to proceed according to law (Pen. Code, §§ 995, 997).
Miller, J., and Smith, J., concurred.
Notes
Penal Code section 995 provides: “The ... information must be set aside by the court in which the defendаnt is arraigned, upon his motion ... [H] If it be an information: [IT] 1. That before the filing thereof the defendant had not been legally committed by a magistrate. [II] 2. That the defendant had been committed without reasonable or probable cause.”
Marcovecchio rеpresented to the court hearing the motion to dismiss that at the time the preliminary hearing was called, he was in fact in Monterey gathering evidence on behalf of petitioner, believing that the preliminary hearing was set for May 29, 1980, the date marked on his calendar.