People v. Azevedo
Decision Date | 22 July 1963 |
Docket Number | Cr. 8519 |
Citation | 32 Cal.Rptr. 748,218 Cal.App.2d 483 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE, Plaintiff and Appellant, v. Daniel James AZEVEDO, Defendant and Respondent. |
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and James W. Powell, Dist. Atty., San Luis Obispo, for appellant.
Andrew Renetzky and Harry C. Murphy, San Luis Obispo, for respondent.
The People have appealed from an order of the superior court granting the defendant's motion to set aside an information. The information contained three counts, the offenses charged being respectively burglary (Pen.Code, § 459), receiving stolen property (Pen.Code, § 496), and grand theft (Pen.Code, §§ 484, 487.) The defendant's motion was made under the provision of section 995 of the Penal Code that the information must be set aside, on the motion of the defendant, by the court in which he is arraigned when the defendant has been committed without reasonable or probable cause.
The evidence as set forth in the reporter's transcript of the preliminary examination will be summarized. Raymond Childers testified that he resided in Atascadero with his wife and his two sons, Arthur and John. In February of 1962, Arthur was 15 years old and John was 17 years old. When Mr. Childers returned to his home about 5:10 p. m. on February 19, 1962, he went into the barn and discovered that an impact wrench and a drill were missing. On February 22, 1962, he went to the building which contained his gun room, unlocked the door and entered. He had not theretofore been in that room at any time after he found articles missing from the barn. Seven or eight guns were no longer there, one of which was a 'Schneider, double barrel, hammerless shot gun' bearing serial number 919. Ammunition boxes had been opened and 'various things were moved from wherever' the witness usually kept them. When deputy sheriffs arrived, it was found that a window had been removed. In response to an inquiry as to what he observed, Mr. Childers testified: 'The window--the hinges were torn from the wood, it looked like that the window had been brought down and then just pried the hinges off.' The building was secured by means of two locks, the keys to which Mr. Childers always had in his possession. He had given no one permission to enter the building and take the missing items. He later recovered his impact wrench at a garage in the vicinity.
Sergeant Dudley of the Sheriff's Office of San Luis Obispo County testified that he talked to the defendant on several occasions after the property of Mr. Childers was taken. In a telephone conversation on May 28, 1962, he asked the defendant whether he was in possession of a Schneider ten gauge double barrel shotgun, and the defendant replied that he was. Sergeant Dudley further testified: The defendant further said that at first John Childers had wanted the defendant to lend him $45 on the shotgun and the impact wrench, but the defendant said that he would lend him $25 'for the gun and if he didn't pay him back in 30 days, he would consider the gun his.'
On June 3, 1962, Sergeant Dudley talked to the defendant at a residence in Atascadero. He related the conversation in part as follows: The officer testified that the gun which the defendant delivered to him on June 3 was 'a double barrel, ten gauge Schneider shot gun, hammerless, bearing serial number 919.'
After the defendant had been arrested, Sergeant Dudley talked to him in jail on either June 14 or June 15. With respect to that occasion, the officer testified as follows: * * *'The defendant said that the articles, with the exception of the shotgun, were unloaded at the residence of another person and placed in the garage. The officer further testified as follows: Sergeant Dudley also testified as follows: The officer further stated that the defendant said that John asked him where they could sell the impact wrench and he replied that a particular garage employee would probably buy it. They went to the garage in Atascadero and there John Childers sold it to another man for $16. Sergeant Dudley said that during his conversation with the defendant at the jail, no promises were made to the defendant and no use was made of threats or coercion.
While under cross-examination Sergeant Dudley testified that the defendant never used 'these exact words' that he knew the articles had been stolen. The officer testified in part: Another portion of the cross-examination of Sergeant Dudley as to the defendant's statement made at the jail relating to what occurred on the Childers' premises was as follows:
The governing law was stated by this court in People v. Platt, 124 Cal.App.2d 123, at pages 130-131, 268 P.2d 529, at page 534, as follows: 'The evidence necessary to justify an order holding a defendant to answer to the superior court is not subject to the same test as that before a trial jury in a criminal action, and reasonable or probable cause may be found for holding to answer although the evidence does not establish the defendant's guilt beyond a reasonable doubt. All that is required is a reasonable probability of the defendant's guilt. (Davis v. Superior Court, 78 Cal.App.2d 25, 27, 177 P.2d 314.) 'Reasonable or probable cause,' required to uphold the commitment of a defendant Pen.Code, § 995, exists if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. (People v. George, 95 Cal.App.2d 425, 429, 213 P.2d 33; People v. Thomas, 90 Cal.App.2d 491, 494, 203 P.2d 567.)
The only offense named in the order of commitment was a violation of section 459 of the Penal Code (burglary). But under section 739 1 of the Penal Code the district attorney was authorized to charge by information the...
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