People v. Eitzen

• Decision Date: 19 November 1974
• Docket Number: Cr. 12392
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Joseph Dean EITZEN, Defendant and Respondent.

Page 772

117 Cal.Rptr. 772

43 Cal.App.3d 253

PEOPLE of the State of California, Plaintiff and Appellant, v. Joseph Dean EITZEN, Defendant and Respondent.

Cr. 12392.

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

Nov. 19, 1974.

Rehearing Denied Dec. 19, 1974.

Hearing Denied Jan. 15, 1975.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Timothy A. Reardon, Alvin J. Knudson, Deputy Attys. Gen., San Francisco, for plaintiff and appellant.

Clarence B. Knight, Millbrae, for defendant and respondent.

SIMS, Associate Justice.

The People have appealed (Pen.Code, § 1238, subd. (a)(1)) from a decision granting the defendant's motion to dismiss pursuant to Penal Code section 995, four counts of a six count amended information. It is concluded that the three issues raised by the parties must be resolved as follows: the prosecutor was not precluded from charging four counts of grand theft because the magistrate failed to hold the defendant to answer three of those charges; the uncontradicted evidence produced at the preliminary hearing was sufficient to show reasonable and probable cause to hold the defendant to answer the four charges in the amended information which were dismissed; and the evidence does not show as a matter of law that the charges were barred by the statute of limitations. The dismissal of the four counts must be reversed.

At the preliminary examination it was stipulated that the defendant, Joseph Eitzen, was employed as a deputy sheriff in the San Mateo County sheriff's office from July 16, 1962, until September 23, 1969, and that during the period from his first appointment until March 1, 1968, he was assigned badge number 254, and thereafter until he terminated his employment, number 239. ¹

The prosecutor produced four firearms capable of being concealed upon the person, each of which was marked with the initials 'J.E.' and the numbers '54'. ²

Exhibit 4, an Hy Hunter .22 caliber derringer, serial number 19019, was identified by its former owner as a weapon which was taken from him by a San Mateo County deputy sheriff when he was arrested on September 24, 1966, for discharging a weapon within the city limits of Redwood City. Preliminary hearing was held on that charge and a second charge of carrying a concealed weapon, and he was convicted of the latter charge. He saw the gun in court at his preliminary hearing, he knew that it would be confiscated, did not care what happened to it, and never made any request or claim to get his gun back. He never sold or transferred the gun to the defendant or anyone else.

Exhibit 5, an Iver Johnson .38 caliber revolver serial number G 7785, was identified as a weapon which was seized from a vehicle in connection with an arrest effected November 17, 1966. The officer who made the arrest and seized the revolver indicated that a property receipt with identifying numbers had been prepared for the weapon. He testified that he turned the gun over to the defendant as a deputy sheriff.

Exhibit 6, an Hy Hunter Frontier .22 caliber revolver, serial number 20248, was identified as a gun taken for a vehicle in connection with an arrest made August 6, 1966. The officer who seized the weapon testified that he placed the gun in the evidence locker of the sheriff's office and never saw it again.

Exhibit 7, an Sturm, Ruger & Company, Incorporated Black Hawk .357 caliber revolver, serial number 76684, was identified as a weapon seized from the person of an individual arrested September 18, 1966. The officer testified it was placed in the evidence locker of the sheriff's office by his partner in effecting the arrest.

On October 7, 1972, pursuant to a search warrant issued the preceding day on an affidavit which disclosed that a confessed burglar had alleged that he sold stolen goods to the defendant, a search was made of defendant's residence. The officers discovered and seized a television set answering the description of that set forth in the search warrant. The search failed to turn up other items set forth in the warrant consisting of a man's gold Florentine diamond ring, an antique clock, a man's Omega yellow gold Florentine wrist watch, a Gorham sterling silver serving set, a Reed and Barton silver ice bucket, a yellow gold pocket watch and chain, and an antique, double barrel, side by side .410 caliber pistol with exposed hammers. In searching for these items an officer entered an unimproved portion of the basement where he observed a cabinent or dresser propped up against the wall near a concrete slab on which the heater was located. On opening the top drawer he observed four handguns. No other items were found in the cabinet. He examined them and took the serial numbers because he thought from the location in which they were discovered they might be stolen guns. ³ The officer testified that all four guns, which were those described above, were subsequently seized on execution of a second search warrant. The record, however, which included the affidavit made to secure the second search warrant, indicates, and the parties so acknowledged in argument before the magistrate, that the serial numbers of the guns were checked during the course of the first search and the .357 caliber revolver, exhibit 7, was seized then, because information was relayed to the officer that the gun had been logged as evidence in a San Mateo County sheriff's office case, and because it was inscribed with the initials of the defendant, known to have been a former deputy sheriff, and numbers corresponding to his badge number.

The remaining weapons, exhibits 4, 5 and 6, were seized on October 17, 1972, pursuant to a search warrant issued and executed that day.

The confessed burglar testified that from February 1971 until August 1972 he saw the defendant frequently and discussed selling him stolen goods, such as jewelry, silverware, and fur coats. He testified he sold the defendant the items mentioned in the first search warrant, and that the defendant had told him that if he ran into any pistols that were good he would take them.

I

The preliminary examination was conducted upon an amended complaint which contained ten counts, charging the following offenses: I, receiving the stolen television set in violation of section 496 of the Penal Code; II, receiving the stolen ring; III, theft of the .22 caliber derringer (exhibit 4) from the former owner in violation of subdivision 3 of section 496 of the Penal Code; IV, embezzlement of the same derringer from the former owner, and the county; V and VI, similar charges with respect to the .38 caliber revolver (exhibit 5); VIII and VIII, similar charges with respect to the .22 caliber revolver (exhibit 6); and IX and X, similar charges with respect to the .357 caliber revolver. Each of counts III through X contained an allegation reading 'said offense having been discovered on or about October 7, 1972.'

After hearing the evidence reviewed above the magistrate overruled the defendant's objections to the qualifications of the magistrate who issued the search warrants, and to the validity of the second search warrant and the evidence on which its issuance had been predicated (see fn. 3 above). On the merits he held the defendant to answer on the first four counts.

The prosecutor originally filed a 15 count information which charged the defendant with receiving the television and the ring (counts I and II), with one count of theft from the owner and two counts of embezzlement with respect to each of the four weapons (counts II through XIV), and one count of conspiracy with respect to the television (count XV). The defendant filed a demurrer to the information raising the statute of limitations, multiple statements of the same offense, and impropriety of the conspiracy count. Thereupon the People filed an amended information in which the three counts relating to each of the weapons were consolidated into one count of theft reading in effect, 'That the said (defendant), on and between (November 11, 1966, or a later date) and September 23, 1969, . . . did wilfully, unlawfully and feloniously take the property of another consisting of a (description), a firearm, said offense having been discovered on or about October 7, 1972.'

Defendant's demurrer, as applied to the amended information, was overruled and the matter was continued for argument on the defendant's motion to dismiss the theft and conspiracy counts pursuant to the provisions of section 995 of the Penal Code. The court's decision and order reads, 'We find we must agree with the magistrate and grant defendant's motion as to Counts III, IV, V and VI. Further, the prosecution has not met its burden as to the statute of limitations. As to the conspiracy charge, it's highly technical; however, at this stage of the proceedings, it may stand.'

Penal Code section 739 provides in relevant part, 'when a defendant has been examined and committed, as provided in Section 872, it shall be the duty of the district attorney of the county in which the offense is triable to file in the superior court of that county within 15 days after the commitment, an information 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. . . .' (Emphasis assed.) These provisions authorize the prosecutor to charge any offense disclosed by the evidence at the preliminary examination which is related to the charge for which the defendant has been held to answer even though the magistrate concluded impliedly or otherwise that the evidence did not show probable cause that such offense had been committed. (Parks v. Superior Court (1952) 38 Cal.2d 609, 613--614, 241 P.2d 521; People v. Zeihm (1974) 40 Cal.App.3d 1085, 1089--1090, 115 Cal.Rptr. 528; People v. Duncan (1974) 40 Cal.App.3d...