De Mond v. Superior Court of Los Angeles County

Citation19 Cal.Rptr. 313,368 P.2d 865,57 Cal.2d 340
Parties, 368 P.2d 865 William DE MOND, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The People, Real Party In Interest. L. A. 26621.
Decision Date20 February 1962
CourtUnited States State Supreme Court (California)

Lewis Graham, Los Angeles, for petitioner.

No appearance for respondent.

William B. McKesson, Dist. Atty., Harry Wood, Robert J. Lord, Los Angeles, and Harry B. Sondheim, Deputy Dist. Attys., Pacific Palisades, for real party in interest.

SCHAUER, Justice.

Defendant William De Mond seeks a writ of prohibition restraining the Superior Court of Los Angeles County from taking any further action upon an information charging him with the offense proscribed by section 10851 of the Vehicle Code. 1

Defendant contends that he was committed without reasonable or probable cause in that the evidence introduced at the preliminary examination was insufficient as a matter of law to warrant holding him to answer. We have concluded that the contention is without merit and that the writ should be denied.

By complaint filed in municipal court defendant was charged with grand theft of an automobile (Pen.Code, § 487, subd. 3) and violation of Vehicle Code, section 10851. After preliminary examination the committing magistrate dismissed the charge of grand theft but held defendant to answer on the charge of violating section 10851 of the Vehicle Code. Thereafter an information was filed in the superior court charging defendant with grand theft (Count I) and violation of Vehicle Code, section 10851 (Count II). Defendant moved to set aside the information on the ground that he had been committed without reasonable or probable cause (Pen. Code, § 995). The motion was granted as to Count I but denied as to Count II (i. e., Veh.Code, § 10851), and defendant entered a plea of not guilty to the latter charge. Defendant then filed the present petition for prohibition (Pen.Code, § 999a) on the ground that he was committed on Count II without reasonable or probable cause.

The principal witness for the People at the preliminary examination was Bert Baer, vice-president and manager of Hav-A-Kar Economy Car Rental, Inc. (hereinafter called Hav-A-Kar). Baer testified that on February 20, 1961, he rented a 1953 Pontiac to defendant. The printed 'Rental Agreement' signed by defendant specified that the agreed rental period was to be from February 20, 1961, to February 24, 1961, at a rate of $4 a day and 4cents a mile. 2 The witness testified that 'around the 1st of March' defendant telephoned him (returning a call by Baer) and told him that repair work on his own car, a Cadillac, was not finished and that he would need the Pontiac for another two or three days. Baer testified that he answered, 'All right, you bring it back in two or three days'; that he did not see or talk with defendant between that date and May 17 (when the Pontiac was repossessed); that defendant did not contact him in any way during that period; that he (Baer) tried to contact defendant by telephone five or six times after the March 1 conversation but both the business and home telephone numbers given to him by defendant had been disconnected; that he went to the business address given by defendant but found that defendant had moved from that address some time earlier; that he also went to 2509 Chislehurst Place, the home address given by defendant, but found no one there at the time; that he never gave defendant permission to keep the Pontiac beyond the two or three days requested and granted on March 1, and that he knew of no one at Hav-A-Kar who had been asked by defendant for any further extension of time; that defendant had never paid for the use of the car.

Sergeant Ellson of the Los Angeles Police Department, the investigating officer in the case, testified that on May 17, 1961, he found the Pontiac in question at 2509 Chislehurst Place; that he notified David Shane, the owner of Hav-A-Kar, and that Mr. Shane came with a driver and took the Pontiac away.

Defendant took the stand and testified that he had lived at 2509 Chislehurst Place for the previous 11 years; that on March 3, 1961, he moved from the business address which he had given Baer to a new address that to his knowledge his home telephone had never been disconnected; that he called Hav-A-Kar 'every twelve or fifteen days after I rented the car' and told David Shane that he was trying to get an adjustment from Cadillac because of a faulty transmission, and that Shane told him to keep the Pontiac until he was 'through with it.' On cross-examination defendant admitted that he called Hav-A-Kar on March 1, but denied that anyone told him at that time to keep the car for just two or three more days. He admitted that he had never paid for the use of the car and had driven it himself during the entire period involved. He further admitted that 'a week or ten days' before the car was repossessed on May 17 he found Shane's card in his mailbox with the following notation written on the back: 'Our car will be reported embelezed (sic) if not returned in next 24 hours. Your contract has expired and car will be reported to police as stolen, resulting in your arrest if not returned.' Defendant then testified that this card had been left in his mailbox the day after someone had disconnected the ignition coil on the car; that he called Shane and told him that 'as long as they took the ignition out of the car, they can come up and get the car,' but that no one came until 10 days later.

Section 872 of the Penal Code provides that the committing magistrate must hold the defendant to answer 'If * * * it appears from the (preliminary) examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof, * * *.' The order of commitment in the present case is phrased in the statutory language. 3

In Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 183-184(3), 281 P.2d 250, we stated that 'An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' The same rule applies to an information. Tested by this rule, there can be no doubt that the order of commitment in the present case is amply supported by the evidence. The gist of the offense proscribed by Vehicle Code, section 10851, is the taking or driving of a vehicle without the owner's consent and with the specific intent to deprive the owner, permanently or temporarily, of title to or possession of that vehicle. From the testimony of Bert Baer the...

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37 cases
  • People v. Slaughter
    • United States
    • California Supreme Court
    • March 22, 1984
    ...Cal.Rptr. 748; see Jones v. Superior Court (1971) 4 Cal.3d 660, 667, 94 Cal.Rptr. 289, 483 P.2d 1241; De Mond v. Superior Court (1962) 57 Cal.2d 340, 345, 19 Cal.Rptr. 313, 368 P.2d 865.) If he has not rendered findings, however, the reviewing court cannot assume that he has resolved factua......
  • People v. Singer
    • United States
    • California Court of Appeals Court of Appeals
    • June 28, 1963
    ...guilt of the accused.' (Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250, 254.) In De Mond v. Superior Court, 57 Cal.2d 340, 344, 19 Cal.Rptr. 313, 315, 368 P.2d 865, 867, the court quoted Bompensiero: "An indictment will not be set aside or a prosecution thereon prohibited i......
  • People v. Orin
    • United States
    • California Supreme Court
    • April 4, 1975
    ...of it.' (Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 183--184, 281 P.2d 250, 254; see also De Mond v. Superior Court (1962) 57 Cal.2d 340, 344, 19 Cal.Rptr. 313, 368 P.2d 865; § 872.) Under ordinary circumstances, it would frustrate the orderly and effective operation of our crimina......
  • People v. Uhlemann
    • United States
    • California Supreme Court
    • November 30, 1972
    ...court nor an appellate court may substitute its judgment on such matters for that of the magistrate (De Mond v. Superior Court, 57 Cal.2d 340, 345, 19 Cal.Rptr. 313, 368 P.2d 865). If the magistrate's findings are based upon subtantial evidence, they should be upheld on appeal.8 See Graham ......
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