PEOPLE v. RISING SUN (1976)

Defendants Leonard Rising Sun and Robin Louis Black Cloud were charged in an amended information as follows: in Count I, with robbery in violation of Penal Code section 211; it was alleged that defendants had inflicted great bodily harm upon the victim. In Count II, defendants were charged with assault with a deadly weapon, in violation of Penal Code section 245(a). In Count III, it was alleged that defendants had committed burglary, in violation of Penal Code section 459, and it was further alleged that defendants entered the victim's premises with intent to commit theft and that they had inflicted great bodily harm upon the victim.

Prior to the filing of the amended information, there were proceedings in the juvenile court to determine the age of defendant Black Cloud and, if found to be a minor, whether he was amenable to treatment as a juvenile. The juvenile court found that Black Cloud was seventeen years of age, was a minor unfit for juvenile-court treatment, and certified him to the superior court for prosecution as an adult.

Both defendants pleaded not guilty to the charges in the amended information. Trial was by jury. On Count I, the jury found defendants guilty of robbery in the first degree; it found the bodily injury allegation true as to defendant Rising Sun, but not as to defendant Black Cloud. On Count II, the jury found defendant Rising Sun guilty, but found defendant Black Cloud not guilty. Both defendants were found guilty on Count III; the bodily injury allegation was found to be true as to defendant Rising Sun, but not as to defendant Black Cloud.

The trial court dismissed Count III in the interest of justice, after denying defendants' motions for a new trial. Probation was denied for both defendants. Defendant Rising Sun was sentenced to state prison for the term prescribed by law. Defendant Black Cloud was committed to the California Youth Authority for the term prescribed by law.

Defendants appeal from the judgments of conviction.

On October 8, 1974, the victim, Herell Wood, a forty-nine year old unemployed laborer, was living alone in a cabin on Box Canyon Road in the Santa Susanna Mountains in Ventura County. He testified at the trial that on that date he had received two unemployment compensation checks and had gone to a nearby town with a neighbor to deposit the checks in the bank and buy groceries and beer. Mr. Wood spent much of the day drinking beer. But by 7:30 p.m., he had returned to his cabin; while he was cooking his dinner, drinking beer and listening to his radio, he heard a knock on his front door.

Wood testified that when he opened the door he found the two defendants outside, with defendant Black Cloud carrying a gaff hook. The two defendants pushed their way into the cabin and defendant Rising Sun displayed a knife which he had removed from a scabbard attached to his belt. Defendants asked Wood if a person named Joe Soto was on the premises; Mr. Wood replied that he was not there, and that defendants knew that. Joe Soto was a former tenant who had lived in the cabin for a time.

Defendant Rising Sun asked for a beer; Mr. Wood said ‘no’ and was pushed down on his bed by defendant Rising Sun. Defendant Rising Sun then went to Mr. Wood's refrigerator, found some cans of beer, tossed one to Mr. Wood, one to defendant Black Cloud, and took one for himself. Defendant Rising Sun stated, according to Wood, that Wood should not lie to Indians, and that they were all going to drink together. Defendant Rising Sun then hit Wood on the forehead with the end of his knife.

For the next hour defendants sat and talked. Every so often defendant Rising Sun would hit Wood and, on one occasion, he pressed his knife into Wood's leg. Defendant Black Cloud, according to Wood, attempted to intervene. Defendant Rising Sun also forced Wood to eat some hot peppers and struck lighted matches near his face.

Defendant Rising Sun took pennies from Wood's piggy bank, removed Wood's wristwatch from his arm, and took his wallet which contained several dollars. Defendant Rising Sun then began to load in a sack the groceries Wood had purchased earlier in the day, and put two cans of tuna in his jacket. Defendants stated to Mr. Wood that he would be harmed further if he did not obtain fifty dollars for them. Defendant Black Cloud, who had been sitting watching the proceedings, then hit Wood on the head with his hook and also held a lighted cigarette to his check.

A neighbor of Mr. Wood's, Mr. O'Driscoll, who lived nearby, had arrived home about 7:30 p.m., and had noticed unusually loud sounds of a radio emanating from the Wood cabin. O'Driscoll also heard loud voices, and recognized one as that of Wood. O'Driscoll called the Ventura County Sheriff's Department to determine whether they had jurisdiction in the Box Canyon area; he found out that they did, but did not tell them anything else. Mr. O'Driscoll heard Wood shout, ‘Don't hit me anymore.’ O'Driscoll again called the sheriff, and this time asked them to investigate. Sergeant Galitz and Deputies Cooney and Jackson responded to the call.

Galitz and Cooney testified at the trial that as they approached the Wood cabin, they heard defendants threatening Wood concerning fifty dollars. They also heard blows being struck, announced their presence and kicked in the front door, which was locked. According to Wood, defendants fled into a closet upon hearing the officers outside. They were taken into custody and their weapons were found in the closet by the deputies after their arrest.

Herell Wood was transported to a hospital, where he stayed for two days for treatment of a broken nose and other injuries inflicted by defendants.

The defense introduced evidence that defendant Rising Sun, aged twenty-four years, and defendant Black Cloud, aged seventeen years, were American Indians who were living at an American Indian Movement camp located near the Wood Cabin; that they had spent the day drinking wine and beer and smoking marijuana. Defendant Rising Sun's blood alcohol level, determined after his arrest, was .14 percent. After their arrest, the defendants were advised by Sergeant McCoy of their rights with respect to custodial interrogation, I.e., their Miranda rights. (See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.) Defendants indicated they would like to speak to an attorney, but Sergeant McCoy continued to interrogate the defendants.

In response to this interrogation, defendants told McCoy that they had met the victim, Wood, bleeding about the face, while they were on their way down the canyon and that he had invited them into his cabin for a beer. At the trial, defendants testified in their defense and admitted visiting Wood, but denied that they had formed any intent of robbing or beating him before entering his cabin. Their account of the events on the premises included admissions of striking Wood and taking money. Defendants also testified that Wood had offered money and food for the children in residence at the Indian camp, who were not getting enough to eat.

After defendants had testified, a hearing was held outside the presence of the jury to determine whether their statements to McCoy, made after Miranda warnings had been given, were voluntary and could be used for impeachment. There is no dispute regarding the intention of the interrogating officer, McCoy. He testified: ‘There was a dual purpose (for continuing questioning), as I explained previously. One was to—for our information as to what had occurred and also with the thought in mind that it could be used for impeachment should he at some later stage take the stand and change his testimony.’

At the conclusion of the hearing, the trial judge ruled that the statements were given without coercion and permitted their introduction into evidence to impeach the testimony of the two defendants.

Prior to the decision of the California Supreme Court in People v. Disbrow (1976) Cal., 127 Cal.Rptr. 360, 545 P.2d 272, Miranda-defective statements of a criminal defendant were held admissible as prior inconsistent statements to impeach such defendant as a witness even though such statements were not admissible to prove the truth of the matters stated in such statements because of their being obtained in violation of Miranda. The authorization for impeachment admissibility was established by the United States Supreme Court in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and followed by the California Supreme Court in (People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844.)

In Disbrow, the California Supreme Court overruled Nudd and held that California decisional law would no longer follow Harris. The Disbrow court stated that the prosecution is precluded from using any extra-judicial statement of a defendant, whether inculpatory or exculpatory in nature, either as affirmative evidence or for purposes of impeachment, if obtained during custodial interrogation in violation of Miranda.

The Disbrow court rejects Harris on state constitutional grounds. Disbrow interprets the self-incrimination privilege provided by article I, section 15 of the California Constitution as prohibiting Any use against a defendant of his statement secured in violation of Miranda. Disbrow, therefore, gives the state constitution's privilege-against-self-incrimination clause a broader interpretation than Harris gives the federal constitution's self-incrimination-privilege clause. Disbrow recognized that the effort to give a Miranda-defective statement limited admissibility—as impeachment evidence only—was doomed to failure. The Disbrow Court reasoned that giving to the jury a limiting instruction as to the use of a defendant's statement obtained in violation of Miranda would require, in the words of Judge Learned Hand, ‘a mental gymnastic which is beyond, not only (the jury's) powers, but anybody's else.’ (Nash v. United States (2d Cir., 1932) 54 F.2d 1006, 1007.)

In light of Disbrow, we hold that the trial court's ruling, admitting in evidence for impeachment purposes the extrajudicial statements of defendants, secured by the interrogating officer, McCoy, in violation of defendants' Miranda rights, constitutes prejudicial and reversible error.

Defendant Rising Sun also contends that the trial court erred by instructing the jury pursuant to CALJIC 2.62¹ (as modified). The instruction given was: ‘It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. In this case each defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to that defendant are the more probable. In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or By itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.’ (Emphasis added.)

Defendant Rising Sun argues that the last sentence of the instruction containing the words, ‘by itself,’ is an erroneous statement of law, and that the instruction is confusing and misleading in its entirety. This defendant finds CALJIC 2.62 similar to CALJIC 2.61, which has been amended to exclude the words, ‘by itself,’ after such words were found by People v. Vargas (1973) 9 Cal.3d 470, 477, 108 Cal.Rptr. 15, 509 P.2d 959 to make CALJIC 2.61 a defective instruction. This defendant concedes that there has been no similar holding with respect to CALJIC 2.62.

The Vargas court, however, was considering a different situation. CALJIC 2.61 read as follows prior to Vargas: ‘In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove every essential element of the charge against him, and no lack of testimony on defendant's part will supply a failure of proof by the People so as to support By itself a finding against him on any such essential element.’ (Emphasis added.)

In Vargas the California Supreme Court determined that a jury might conclude from this instruction that they Could consider a defendant's failure to testify along with other evidence, in determining guilt, and that CALJIC 2.61 was therefore an erroneous statement of law.

CALJIC 2.61 deals with the situation where a defendant does Not take the stand and testify at his trial. CALJIC 2.62, however, deals with the defendant who does testify. CALJIC 2.61 is concerned with the rule enunciated in Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Griffin held that it is a violation of the Fifth Amendment and the Fourteenth Amendment to the United States Constitution for an instruction to be given at trial concerning a defendant's failure to testify or for the prosecution to comment upon such failure as indicative of guilt.

When a defendant does take the witness stand, however, he waives his Fifth Amendment right not to incriminate himself, and no Griffin situation is presented. (People v. Thornton (1974) 11 Cal.3d 738, 760, 114 Cal.Rptr. 467, 523 P.2d 267; People v. Perez (1967) 65 Cal.2d 615, 620—621, 55 Cal.Rptr. 909, 422 P.2d 597 (cert. granted (1968) 390 U.S. 942, 88 S.Ct. 1055, 19 L.Ed.2d 1131, and writ dismissed (1969) 395 U.S. 208, 89 S.Ct. 1767, 23 L.Ed.2d 212); People v. Ing (1967) 65 Cal.2d 603, 610—611, 55 Cal.Rptr. 902, 422 P.2d 590.) A jury Is entitled to weigh his testimony as it would that of any witness, and may use it in determining guilt. CALJIC 2.62 correctly reminds the jury that the burden of proving guilt does not shift from the prosecution, despite defendant's testimony; this is a correct statement of the law. We find no error in the CALJIC 2.62 instruction.

Defendant Black Cloud makes several arguments applicable only to himself, and we now consider them.

He first argues that the trial judge, who determined that he was not amenable for treatment as a juvenile and certified him to the superior court for prosecution as an adult offender (pursuant to Welf. & Inst.Code s 707), employed improper criteria in making this determination, and that his conviction should thus be reversed.

At oral argument, on its own motion, this court raised the question of whether, on an appeal from a judgment of conviction, a defendant may raise the point that he was a minor and that the juvenile court erred in making a finding that he was unfit for juvenile court proceedings and ordering him tried as an adult, without having made a motion to set aside the information under Penal Code section 995. We requested that the parties submit, in writing, their views on this question and this has been done.

We have determined that the question of whether the juvenile court erred in making a finding of unfitness and ordering that defendant Black Cloud be tried as an adult cannot be raised for the first time on appeal from the judgment of conviction in the adult court. This is in accord with the recent holding of this court in People v. Wong (1976) Cal.App., 127 Cal.Rptr. 552, although contrary to expressions found in People v. Browning (1975) 45 Cal.App.3d 125, 119 Cal.Rptr. 420.

It is our view that an attack upon the validity of a juvenile court's section 707 order (Welf. & Inst.Code s 707) must first be made either by application for a writ or by a motion to set aside the information or indictment under Penal Code section 995,² and that, failure to make such motion, precludes defendant from raising the issue on appeal because of Penal Code section 996.³

Browning stated, by way of dicta, that the question of the validity of a juvenile court's order of unfitness could be raised for the first time on an appeal from a judgment of conviction in the adult court. Browning predicates its view primarily upon a theory of ‘inappropriateness' for a magistrate to question the validity of a juvenile court's finding of unfitness made pursuant to Welfare and Institutions Code section 707, or for a grand jury to do so. Browning also emphasized the fact that the People did not question the contention that a juvenile defendant had the right to a review of the juvenile court's order on an appeal from his criminal conviction in the adult court.

Similar to Browning is People v. Allgood (1976) 54 Cal.App.3d 434, 126 Cal.Rptr. 666. Although stating that ‘(w)e entertain some doubt as to whether the earlier orders of the juvenile court may be reviewed on this appeal from the judgment of the superior court in a regular criminal proceeding,’ and that ‘(i)t would appear that review of the juvenile court's orders would more properly be by a petition for extraordinary writ, if an appeal therefrom was not available or was an inadequate remedy’ (Allgood, supra, 54 Cal.App.3d 434, at p. 439, 126 Cal.Rptr. 666, at p. 669), the Allgood court proceeded to review on the merits the juvenile court's finding of unfitness and order of certification to the superior court for trial as an adult. Allgood's determination to review the validity of the juvenile court's finding of unfitness and order of certification was predicated on the view that ‘refusal to review on procedural grounds would only relegate the defendant to a further application for extraordinary relief—this time for ineffective counsel in the original juvenile court proceedings— . . .’ (Allgood, supra, 54 Cal.App.3d 434, at p. 440, 126 Cal.Rptr. 666, at p. 670.) We do not find this dicta of Allgood any more persuasive than that of Browning.

But even accepting the merits of the ‘inappropriateness' position, it does not follow that the invalidity of the juvenile court order cannot be reached in a motion before the superior court, made under Penal Code section 995, even though no attempt is made first to assert the invalidity of the order at the preliminary examination or before the grand jury prior to an indictment. Penal Code section 995 does not require that a defendant seek to establish the illegal commitment by a magistrate prior to the motion made before the superior court. That presuperior court action is not mandated as a prerequisite to a valid motion under Penal Code section 995, appears to follow from an analysis of Penal Code section 996. Section 996 provides specifically for an attack upon the legality of the defendant's commitment After the grand jury proceedings leading to an indictment, and After the preliminary examination leading to an information, since the motion is one to set aside the indictment or the information.

We recognize that there is no direct appeal by a minor defendant from an order of the juvenile court, made pursuant to Welfare and Institutions Code section 707, declaring the minor to be an unfit and improper subject to be dealt with under the Juvenile Court Law and directing his prosecution under the general law. This was the holding of In re Brekke (1965) 233 Cal.App.2d 196, 43 Cal.Rptr. 553. Brekke is based upon the fact that Welfare and Institutions Code section 800, which sets forth those juvenile court orders, decrees and judgments which are appealable, does not mention an unfitness order made under section 707. But the absence of a right of direct appeal from an unfitness order does not result in an absence of appellate review. A juvenile court's order of a minor's unfitness is reviewable by writ. (Donald L. v. Superior Court (1972) 7 Cal.3d 592, 102 Cal.Rptr. 850, 498 P.2d 1098; Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 91 Cal.Rptr. 600, 478 P.2d 32.)

If a minor has been subjected to a prosecution as an adult as a result of an Invalid juvenile court order, is his commitment by the magistrate following a preliminary examination any less an illegal commitment than a magistrate's commitment based upon other types of errors occurring either during or before the preliminary examination? The law is well established that errors occurring during the preliminary examination make for an unlawful commitment. Thus, if the magistrate disregards substantial rights guaranteed to a defendant, the resulting commitment is unlawful. (People v. Elliot (1960) 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 (failure to exclude unauthorized persons from the courtroom pursuant to Pen.Code s 868); People v. Harris (1967) 67 Cal.2d 866, 64 Cal.Rptr. 313, 434 P.2d 609 (denial of right to counsel); Rogers v. Superior Court (1955) 46 Cal.2d 3, 291 P.2d 929 (preliminary examination based entirely on hearsay or incompetent evidence); People v. West (1973) 31 Cal.App.3d 175, 107 Cal.Rptr. 127 (evidence admitted as result of an illegal arrest, search and seizure).)

Matters that occur prior to grand jury proceedings and a resulting indictment may cause the indictment to be defective and subject to attack under Penal Code section 995. Thus, in People v. King (1967) 66 Cal.2d 633, 58 Cal.Rptr. 571, 427 P.2d 171, defendants were indicted as a result of investigation proceedings conducted by the Insurance Commissioner. Defendants were required to testify at the administrative proceedings pursuant to a statutory grant of immunity. The court held that the statutory grant of immunity to defendants deprived the court of jurisdiction to proceed and made the indictment subject to being set aside by a motion under Penal Code section 995. There would appear to be no fundamental difference between a preliminary examination based upon an invalid order of the juvenile court with respect to a minor, and a preliminary examination that results in an illegal commitment of a defendant based upon matters occurring during or before the preliminary examination such as are exemplified by the Elliot, Harris, Rogers and West cases, Supra. The substantial rights of the defendant have been disregarded in each situation, making the resulting commitment unlawful and subject to attack under Penal Code section 995.

Since we hold that the issue of the validity or invalidity of a juvenile court order of unfitness may be reached by a motion under Penal Code section 995, it follows that such issue is waived if defendant goes not make such a motion, or does not see a review of the juvenile court proceedings by the writ method prior to his conviction, and he is precluded by such waiver from obtaining relief on an appeal of his conviction.

The law is settled that if the defendant fails to move to set aside the information, even fundamental defects of constitutional magnitude are waived. ‘We hold that the failure to move to set aside the information (Pen.Code, s 995) bars the defense from questioning on appeal any irregularity in the preliminary examination (Pen.Code, s 996). We thereby follow a long line of decisions in both this court and the Courts of Appeal, uniformly holding that section 996 forecloses an attack on the preliminary examination in the absence of a motion under section 995. (Citations.)’ (Fn. omitted.) (Harris, supra, 67 Cal.2d 866, at p. 870, 64 Cal.Rptr. 313, at p. 315, 434 P.2d 609, at p. 611.)

The rationale for holding that a failure to challenge the legality of a commitment by a section 995 motion constitutes a waiver of the right to assert illegality thereafter has been stated as follows: ‘The Legislature has provided defendants in criminal cases with a statutory opportunity to test the legality of their commitment, and it is not an undue burden to expect defendants who wish to raise this issue to proceed by filing a timely motion under section 995. When an illegally committed defendant pursues his statutory remedy, the courts will, without hesitation, invalidate his commitment. (Citation.) But to permit a defendant to question the legality of his commitment for the first time on appeal would enable him to secure a reversal of his judgment of conviction Even though he was found guilty after an errorless trial.’ (Harris, supra, 67 Cal.2d 866, at p. 870, 64 Cal.Rptr. 313, at p. 316, 434 P.2d 609, at p. 612.) (Emphasis added.)

This same reasoning is applicable to the juvenile court order of unfitness. To permit a defendant minor convicted in the superior court to question the validity of the juvenile court's order of unfitness, made pursuant to Welfare and Institutions Code section 707, ‘for the first time on appeal would enable him to secure a reversal of his judgment of conviction Even though he was found guilty after an errorless trial.’ (Harris, supra, 67 Cal.2d 866, at p. 870, 64 Cal.Rptr. 313, at p. 316, 434 P.2d 609, at p. 612.) (Emphasis added.) There should be no quarrel with the philosophy that ‘we give effect to a statutory pattern that affords an accused full opportunity to question the legality of his commitment, but in the interest of the efficient administration of justice conditions that right upon its timely assertion.’ (Harris, supra, 67 Cal.2d 866, at pp. 870—871, 64 Cal.Rptr. 313, at p. 316, 434 P.2d 609, at p. 612; fn. omitted.)

Defendant Black Cloud also contends that the trial court committed prejudicial error when it refused to give to the jury ‘Defendant's Special Instruction #1,’ which read as follows: ‘Mere presence at the scene and failure to take steps to prevent a crime do not establish the aiding and abetting; the proof must show not only aiding the actor but also sharing the criminal intent.’ A notation on the instruction, apparently made by the trial court, indicates that it was refused because it was covered by CALJIC 3.01. The court had instructed the jury pursuant to CALJIC 3.00, which defined principles, and had then given 3.01, which states: ‘A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.’

Both CALJIC 3.00 and 3.01 make reference to the requirement of ‘knowledge’ on the part of one accused of aiding or abetting, and we conclude that this sufficiently informs the jury, contrary to defendant's contention, of the intent required to aid or abet. A somewhat similar argument on behalf of a defendant was made and rejected by the court in People v. Herrera (1970) 6 Cal.App.3d 846, 852—853, 86 Cal.Rptr. 165.

Since we are reversing the judgments of conviction, we must deal with the status of Count III, the burglary count, which was dismissed by the trial court pursuant to Penal Code section 1385, after denying defendants' motions for new trial. Section 1385 authorizes a dismissal by the court in furtherance of justice. But section 1385 requires that the reasons for the dismissal be set forth in an order entered upon the minutes. A dismissal is invalid if the reasons are not set forth in the minutes, and it is not sufficient that such reasons are contained in the reporter's transcript of the oral proceedings. (People v. Borousk (1972) 24 Cal.App.3d 147, 100 Cal.Rptr. 867; People v. Beasley (1970) 5 Cal.App.3d 617, 85 Cal.Rptr. 501.) The minute order dismissing Count III in the case at bench recites the following: ‘The court on its own motion orders the burglary offense, Count III be dismissed in that no useful purpose would be served in the interest of justice.’ The reporter's transcript reveals that during the oral proceedings on defendants' motions for new trial, the trial court expressed an opinion that the evidence was insufficient to prove the intent for the burglary count and that on a retrial it would be unlikely that the evidence as to intent would be any different. We do not consider that the reason stated in the minutes containing the order of dismissal ‘that no useful purpose would be served’ is sufficient to sustain the order of dismissal. Although the order of dismissal of Count III must be set aside, this does not preclude a future dismissal of Count III accomplished pursuant to the provisions of Penal Code section 1385.

The judgments appealed from are reversed. The order dismissing Count III of the amended information is vacated and set aside.

FOOTNOTES

1.  All numbering of instructions refers to those contained in California Jury Instructions (Criminal) (3rd Ed., 1970.)

2.  Penal Code section 995 provides, in pertinent part, that an information must be set aside by the court in which the defendant is arraigned, upon his motion, if ‘before the filing thereof the defendant had not been legally committed by a magistrate,’ or ‘(t)hat the defendant had been committed without reasonable or probable cause.’

3.  Penal Code section 996 provides as follows: ‘If the motion to set aside the indictment or information is not made, the defendant is precluded from afterwards taking the objections mentioned in Section 995.’

JEFFERSON, Associate Justice.

KINGSLEY, Acting P.J., and DUNN, J., concur.