61 Cal.Rptr. 714, Cr. 2722, People v. Chimel

Docket Nº:Cr. 2722
Citation:61 Cal.Rptr. 714
Opinion Judge:McCABE, Presiding Justice.
Party Name:People v. Chimel
Attorney:Keith C. Monroe, Santa Ana, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.
Judge Panel:KERRIGAN and TAMURA, JJ., concur.
Case Date:August 30, 1967
Court:California Court of Appeals

Page 714

61 Cal.Rptr. 714

PEOPLE of the State of California, Plaintiff and Respondent,

v.

Ted Steven CHIMEL, Defendant and Appellant.

Cr. 2722.

California Court of Appeal, Fourth District, Second Division.

August 30, 1967.

For Opinion on Hearing, see 67 Cal.Rptr. 421, 439 P.2d 333.

Page 715

Keith C. Monroe, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.

McCABE, Presiding Justice.

We conclude that though it was error to have charged in the information a violation of section 496 of the Penal Code because the magistrate, at the preliminary hearing, determined there was no evidence to bind defendant over to the Superior Court, such error was not prejudicial; although there was lack of probable cause to issue the warrant of arrest solely upon the allegations of the formal criminal complaint, the good faith attempt of the arresting officer to attempt to obtain a warrant of arrest, in combination with the personal knowledge of the arresting officer at the time of arrest, constituted probable cause for the arrest.

The defendant was accused by a complaint filed on September 13, 1965, in the Municipal Court of the Santa Ana-Orange Judicial District with the commission of a burglary in violation of section 459, Penal Code. 1 Upon presentation of the complaint

Page 716

to the judge of that court, a warrant of arrest was issued on September 13, 1965. Defendant was subsequently arrested at his home in the City of Santa Ana pursuant to the warrant in the late afternoon of that day. The arresting officer, one T. Del Coma of the City of Orange Police Department, at the time of the arrest of the defendant in his home, conducted a search of that residence and discovered a quantity of coins and other nuimismatic paraphernalia which he believed to be connected with the burglary for which the defendant was arrested and which he therefor seized. At the time of the arrest on September 13, Officer Del Coma was accompanied by police officers of the Santa Ana Police Department.

Later, and on September 16, 1965, a second criminal complaint was filed in the same court by a different officer which charged the defendant with the commission of two separate and independent offenses. 2 The defendant, who after the first arrest had been admitted to bail, was arrested by officers from the Santa Ana Police Department in the late afternoon of September 16, 1965, pursuant to a warrant of arrest issued on the second complaint. A search of the residence, incident to the second arrest ensued, during which additional coins and other items were seized.

After a preliminary hearing on October 14, 1965, before the judge of the Municipal Court, defendant was held to answer on the counts contained in the complaints charging the respective burglary offenses, but he was not held to answer to the count charging the buying and receiving of stolen property since in the opinion of the judge '* * * at the present time, there is no evidence sufficient to hold the defendant to answer on count two.' This determination on the preliminary hearing was orally accepted by the district attorney's office.

On October 29, 1965, the district attorney filed a three count information, two counts of which charged the respective burglaries

Page 717

for which the defendant had been held to answer and the remaining count charged the defendant with receiving stolen property in violation of section 496 of the Penal Code on February 2, 1965, the offense for which the defendant had not been held to answer at the preliminary hearing. 3 After defendant's motion under section 995 of the Penal Code was denied on November 19, 1965, the district attorney, by written notice of motion, sought to amend Count II of the information set forth below by deleting from that count the date of the '2nd day of February' and inserting in its place the '14th day of September.' This motion was granted by the court on January 14, 1966, presumably pursuant to section 1009, Penal Code.

After numerous continuances, the matter finally came to trial on July 5, 1966. The defendant, by his counsel, out of the presence of the jury, initially objected to the jurisdiction of the trial court on the second count of the information. This objection was overruled and the matter proceeded to trial on that date. At the conclusion of the week-long jury trial on July 12, 1966, the district attorney moved out of the presence of the jury to dismiss the second count of the information. Asserting the presentation of this count to the jury constituted prejudicial error, the defendant's counsel moved for a mistrial. After argument on both motions, the court granted the motion to dismiss as to the second count, but denied the defense motion for a mistrial. The jury later returned a verdict of guilty as to each of the remaining counts and judgment was accordingly entered. The appeal follows from the judgment of conviction.

In the absence of a contention by defendant that the evidence is insufficient to sustain the judgment of conviction, we must perforce consider each of the appellant's contentions en seriatum.

The appellant objects initially to the jurisdiction of the trial court to entertain charges against him as to Count II which, at the arraignment, the municipal court had specifically refused to bind him over on this charged offense. In this assertion the appellant is correct.

Such an examination, commitment and order of commitment is a prerequisite to the duty of the district attorney to file an information (art. I, § 8, Calif. Const.)

Page 718

against the defendant 'which may charge the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.' (Pen.Code, § 739; see also Pen.Code, § 872.)

Before the affirmative duty of the district attorney arises under the foregoing statutory provisions, the Constitution requires that a person be held to answer in the Superior Court only after a prior determination to that effect by either a magistrate or grand jury. This requirement of a prior determination acts as a safeguard or bulwark against unwarranted invocations of the untrammeled power and authority of the state against the accused individual by overzealous prosecuting officials.

The Supreme Court noted in Parks v. Superior Court, 38 Cal.2d 609, 612, 241 P.2d 521, 523: 'As to the Palmer transaction the magistrate discharged the petitioner [defendant] on the ground that the evidence showed no public offense had been committed. Such a procedure would be contrary to the protection afforded by the constitutional provision and is not within the permissive powers under the code section. Those powers depend on the issuance of an order of commitment. No exception to this dependence may be made because of the circumstance that the defendant in the same proceeding was charged and heard on two separate, unrelated and unconnected transactions. As indicated in the Bird case (People v. Bird, 212 Cal. 632, 300 P. 23), the constitutional provision would be nullified if by this device the district attorney might proceed without first having obtained an order of commitment.

'It follows from the foregoing that in the absence of the required commitment the inclusion in the information of the charge of grand theft based on the Palmer transaction was unwarranted and contrary to the provisions of the Constitution and section 739 of the Penal Code.'

The same result follows herein. While there may be no constitutional prohibition to the filing of an information 'charging a different but related crime shown by the evidence taken before the magistrate bearing on the same transaction involved in the commitment order', [Emphasis added.] (People v. Downer, 57 Cal.2d 800, 810, 22 Cal.Rptr. 347, 353, 372 P.2d 107, 113; Mulkey v. Superior Court, 220 Cal.App.2d 817, 824, 34 Cal.Rptr. 121; People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636), herein there was a complete absence of evidence adduced at the preliminary hearing to bind defendant over to the Superior Court on Count II. At this preliminary hearing evidence was introduced, which most favorably construed in the prosecution's favor, indicates a reasonable possibility the defendant might have been guilty of the Pulati and Money Vault burglaries, but failed to indicate a violation of section 496, Penal Code [Count II] in the absence of some substantial evidence to indicate defendant 'received' the property or if 'received', defendant's knowledge that the property was stolen. (See People v. Salazar, 210 Cal.App.2d 89, 26 Cal.Rptr. 456; People v. Boyden, 116 Cal.App.2d 278, 253 P.2d 773; People v. McClain, 115 Cal.App. 512, 1 P.2d 1023.) It follows therefore, that the information as to the second count was invalid. (People v. Kellin, 209 Cal.App.2d 574, 576, 25 Cal.Rptr. 925; see also People v. Rosborough, 178 Cal.App.2d 156, 166, 2 Cal.Rptr. 669.)

Defendant urges the arrest warrants obtained and served on September 13th and 16th, respectively, were constitutionally invalid. The attorney general 'concedes that the two warrants for appellant's arrest were defective under the Giordenello-Aguilar test' (sic, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; see also Barnes v. State of Texas, ...

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