People v. Evans, Cr. 1432

• Decision Date: 13 November 1959
• Docket Number: Cr. 1432
• Citation: 175 Cal.App.2d 274,345 P.2d 947
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Johnnie Edward EVANS, Defendant and Respondent.

Page 947

345 P.2d 947

175 Cal.App.2d 274

PEOPLE of the State of California, Plaintiff and Appellant, v. Johnnie Edward EVANS, Defendant and Respondent.

Cr. 1432.

District Court of Appeal, Fourth District, California.

Nov. 13, 1959.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for appellant.

Edward L Bracklow, San Diego, for respondent.

GRIFFIN, Presiding Justice.

Defendant was charged by information with the unlawful possession of a narcotic, to wit, marijuana. The trial court dismissed the information under Section 995, Penal Code, on the grounds that the only evidence against defendant was the product of an illegal search conducted incident to an arrest unauthorized by law.

The evidence presented at the preliminary examination in the Municipal Court showed that on April 18, 1959 at about 1:45 a. m., Police Officer Kennedy observed the defendant and another person crossing Third Avenue at 'E' Street against a red light and in front of approaching traffic. Officer Kennedy, who was sitting in his police car at the time, stated that possibly the light facing defendant was yellow when he stepped off the curb but it immediately turned red. The officer was seated in his car which was stopped near the cross-walk in the second land of traffic. He parked his car nearby and requested defendant and his companion to recross the street to the vehicle, which they immediately did. When the defendant came up to him the officer observed that he was staggering. A closer and more careful examination of defendant by flashlight revealed that his eyes were bloodshot. The pupils were dilated and insensitive to light. There was an odor of alcohol on his breath. When asked for identification, defendant handed Officer Kennedy his Navy ID card which disclosed that defendant was 19 years old. Defendant was arrested by the officer for 'drunk minor,' and he was so informed. During the immediately ensuing search of defendant's person, a package was found in his right front trouser pocket which the officer could not identify by feel, so he removed it and found it to be marijuana. The defendant appeared nervous after this discovery and later explained to the officer that a stranger had given him this package just before the arrest, saying, 'Here, you can have this.' The defendant also stated that he did not know that the package contained marijuana. The officer asked him where he obtained the liquor he was drinking and he said an older sailor had purchased it for him. They were taken to jail in the police car.

It is now well settled that on hearing a motion to dismiss the case under Penal Code, Section 995, the Superior Court may not reweigh the evidence or substitute its judgment as to the credibility of witnesses for that of the committing magistrate. People v. Jackson, 146 Cal.App.2d 553, 556, 303 P.2d 767; People v. Flanders, 140 Cal.App.2d 765, 768, 296 P.2d 13.

In Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23, 25, the court stated:

'* * * Accordingly, the information should not be set aside on the ground that essential evidence was illegally obtained if there is any substantial evidence or applicable presumption to support a contrary conclusion (citations), and in such cases the ultimate decision on admissibility can be made at the trial on the...