Gascon v. Superior Court In and For Los Angeles County, Cr. 23728

• Citation: 337 P.2d 201,169 Cal.App.2d 356
• Decision Date: 03 April 1959
• Docket Number: Cr. 23728
• Court: California Court of Appeals
• Parties: Ronaid Anthony GASCON, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF LOS ANGELES, Respondent.

Page 201

337 P.2d 201

169 Cal.App.2d 356

Ronaid Anthony GASCON, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF LOS ANGELES, Respondent.

Cr. 23728.

District Court of Appeal, Second District, Division 1, California.

April 3, 1959.

Hearing Denied May 27, 1959.

Robert A. Ortiz, Los Angeles, for petitioner.

William B. McKesson, Dist. Atty., and Lewis Watnick, Deputy Dist. Atty., Los Angeles, for respondent.

NOURSE, Justice pro tem.

Pursuant to the provisions of 999a of the Penal Code, petitioner seeks a writ of prohibition predicated upon the grounds that there was no competent evidence before the committing magistrate to establish probable cause for his being held to answer and that the respondent court erred in denying his motion, made pursuant to section 995 of the Penal Code, to set aside the information. We have concluded that the peremptory writ of prohibition should issue as prayed for.

The facts as established by the evidence taken before the committing magistrate are: About 8 p. m. on January 7, 1959, two police officers of the city of South Gate observed an automobile lawfully parked on Hildreth Street near the intersection of Firestone in the city of South Gate. This is a commercial and industrial area but both Hildreth and Firestone are well lighted and a liquor store facing on Firestone a short distance from the intersection was open. The officers observed a woman sitting in the car and approached the car and questioned her. She stated she was waiting for her boy friend who had gone to the liquor store to purchase some cigarettes. At that time the officer saw the defendant approaching the parked car. They intercepted him before he reached it. They questioned him, asking where he had been to which he replied that he had been to the liquor store to purchase some cigarettes for his girl friend. They asked him his name and he gave it. They asked him whether he had been 'busted' before, to which he answered in the affirmative. They asked him several other questions but did not ask him for his driver's license. He appeared nervous while being questioned. After questioning, the officers told petitioner they were going to search him, whereupon defendant attempted to flee. He was overtaken when he had gone 25 to 35 feet but during his flight he threw some objects from his sweater pocket which included a small tinfoil package which the officers later recovered. It was found to contain marijuana.

At the time of the incident above recounted, defendant was at liberty on bail but the officers did not know this fact and had no reason to suspect that the defendant had committed a crime nor did they have any search warrant or warrant for his arrest. At the preliminary hearing, over timely objections, the marijuana was admitted into evidence. This evidence constituted the only proof of the corpus delicti.

That the officers did not have probable cause to arrest petitioner is not disputed by the People nor could it be for he was lawfully upon the public streets at night and had not committed any acts which would tend to arouse suspicion prior to his flight. People v. Brown, 45 Cal.2d 640, 290 P.2d 528; People v. Simon, 45 Cal.2d 645, 650-651, 290 P.2d 531; People v. Harvey, 142 Cal.App.2d 728, 731, 299 P.2d 310.

If probable cause had existed for the petitioner's arrest it would be of no moment that they attempted a search of defendant's person before making the arrest rather than afterward. People v. Simon, supra. There being no probable cause for arrest, if the officers had carried out their threat to search petitioner's person and had found the contraband in the...