Is a motion under section 995 of the Penal Code a determination of a factual issue relating to the merits of the case?

[117 Cal.App.3d 796] As stated in Kohn v. Superior Court, supra, 239 Cal.App.2d at pages 430-431, 48 Cal.Rptr. 832, a ruling on a motion under section 995 of the Penal Code does not constitute a determination of a factual issue relating to the merits of the case. Such a ruling "... merely reviews the evidence. It does not substitute its judgment as to the weight thereof ... nor does it resolve conflicting factual contentions.... The function ... involves the determination of a legal issue only.... It is not enough that a judge make a determination which relates to contested fact issues. He must have actually resolved or determined conflicting factual contentions relating to the merits prior to trial before the right to disqualify is lost."

While it is true that a trial judge, in determining whether to accept or reject a

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