Mardis v. Superior Court In and For San Bernardino County

• Decision Date: 08 July 1963
• Citation: 218 Cal.App.2d 70,32 Cal.Rptr. 263
• Court: California Court of Appeals Court of Appeals
• Parties: James William MARDIS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent. Civ. 7318.

Page 263

32 Cal.Rptr. 263

218 Cal.App.2d 70

James William MARDIS, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN BERNARDINO, Respondent.

Civ. 7318.

District Court of Appeal, Fourth District, California.

July 8, 1963.

Charles E. Ward, Public Defender of San Bernardino County, and Grace M. Storey, Deputy Public Defender, for petitioner.

Lowell E. Lathrop, Dist. Atty. of San Bernardino County, and Milton C. Dawson, Deputy Dist. Atty., for respondent

CONLEY, Justice Assigned ^*

The petitioner is the defendant in criminal action No. 16718, pending in the County of San Bernardino, entitled 'The People of the State of California, Plaintiff v. James William Mardis, Defendant.' On March 6, 1963, a preliminary hearing was held in the Justice Court of the Barstow Judicial District, and the defendant was held to answer to the superior court. The transcript of the testimony on the preliminary hearing is before this court.

On March 18, 1963, the district attorney filed an information charging the defendant with the crime of possession of a firearm by a felon, Penal Code section 12021. By a timely motion petitioner sought to set aside the information pursuant to the provisions of section 995 of the Penal Code; the trial court denied the motion on April 5, 1963. Upon arraignment, the defendant entered a plea of not guilty, and his trial was set for May 27, 1963. Prior thereto, the petitioner filed a petition for a writ of prohibition; the order to show cause was issued, and the proceedings in the trial court were stayed pending a decision.

Petitioner claims that he was committed without reasonable or probable cause. This contention is predicated on the opinion of the petitioner that the only evidence upon which he was held to answer was the result of an unlawful search and seizure.

Prohibition is a proper means to test the right of the prosecution to proceed with the trial of a charge when the validity of an information is challenged on the ground that the defendant has been committed without reasonable or probable cause. (Polos v. Superior Court, 175 Cal.App.2d 210, 345 P.2d 981; Hendricks v. Superior Court, 197 Cal.App.2d 586, 17 Cal.Rptr. 364; Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929; Murphy v. Superior Court, 188 Cal.App.2d 185, 10 Cal.Rptr. 176; Code Civ.Proc. §§ 1102, 1103.)

A defendant is held to answer without reasonable or probable cause if his commitment is based entirely on incompetent and improperly received evidence. In such circumstances a trial court should grant a motion to set aside the information, and if it does not do so, a peremptory writ of prohibition is a proper remedy to prevent further proceedings. (Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23; People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1; Priestly v. Superior Court, 50 Cal.2d 812, 330 P.2d 39.)

It is obvious that the only proof which will authorize a magistrate to hold an accused person for trial, thus authorizing the filing of an information, must consist of legally competent evidence. It an essential element of the proof below was improperly admitted and was inadmissible by its nature under the laws of the state, the writ of prohibition would necessarily issue. (Priestly v. Superior Court, supra, 50 Cal.2d 812, 330 P.2d 39.)

Turning to the record of the preliminary examination, there can be no question that Mardis was previously convicted of a felony and served time therefor in the California State Prison. A certified copy of the record of the Department of Corrections was received in evidence without objection, and the first element of the offense was thus clearly proven.

L. A. Banks, a witness for the People, testified that he was a member of the California Highway Patrol and that on February 7, 1963, he was on duty in San Bernardino County. He recalled seeing the defendant at that time, apparently asleep under a cotton blanket in the back seat of a Cadillac automobile parked at the side of the highway, about three miles from Wildwash, 'just off of the paved portion of Highway 66-91'; the car was about 30 feet from the edge of the paved portion of the northwest side of the road. The officer was performing routine partrol work, and was particularly looking for the same, or a similar vehicle, described as a green sedan, possibly a Buick, as to which he had received an official report over his radio to the effect that shortly before an automobile of this type had been observed on the highway being operated in a fashion that led to the belief that it was being driven by a person under the influence of alcoholic liquor.

A highway patrol officer may properly act on the basis of information received through an official radio broadcast. (People v. Hupp, 61 Cal.App.2d 447, 450, 143 P.2d 84.) Motor vehicle patrol officers have important and specialized duties to perform for the preservation of the peace and quiet of the state and the well-being of thousands of travelers. They must act legally but also rapidly in order to carry out their assigned tasks. The people with whom they deal usually move very quickly over many miles of highway. Occasions arise for the rendering of aid of various kinds to motorists. In order to promote maximum safety for all users of the highways, the laws must be enforced, sometimes in unusual situations and under grave difficulties. There are many offenses and crimes which make themselves evident in addition to the offenses particularly relating to the operation of vehicles, and the general situation that presents itself by virtue of the mass movement of humanity on the roadways must be properly considered in applying basic criteria to the multiform situations which arise by virtue of the grafting of the automobile complex to our previously relatively quiet life.

The thought that necessarily must have activated Officer Banks in the performance of his duties in this case was the protection of the traveling public from the possibility of a drunken driver resuming his use of the highways.

When he arrived at the scene of the parked car he stopped his own vehicle and played his flashlight into the interior of the Cadillac, where he observed the defendant apparently asleep. He looked through the automobile from where he was standing, then moved over to the left front door, then walked around to the rear, examining the car, and on around to the righthand side, shining his light into the interior and observing the defendant and what was in the car itself. He then did the same at the right front window and walked on, repeating the operation twice by going around the car. He then opened the right front door and put his head in to look at the glove compartment, the door of which was at all times open.

At the instant of opening the automobile door he was assailed by a heavy odor of intoxicants in the car, apparently emanating from the beath of the defendant. The officer noted that there was a holster in the compartment, clearly visible; the compartment also contained some maps and papers. He drew the leather holster from the compartment. It contained a black revolver, which was of a size that could be concealed upon the person. He found that the pistol had six rounds of ammunition in it, and he removed the bullets and placed them and the gun in his pocket. He then awakened the defendant and had...