People v. Harvey, Cr. 3370

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; DOOLING and DRAPER
• Citation: 319 P.2d 689,156 Cal.App.2d 516
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rufus HARVEY, Sr., Defendant and Appellant.
• Docket Number: Cr. 3370
• Decision Date: 02 January 1958

Page 689

319 P.2d 689 156 Cal.App.2d 516 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Rufus HARVEY, Sr., Defendant and Appellant. Cr. 3370. District Court of Appeal, First District, Division 2, California. Jan. 2, 1958.
Rehearing Denied Jan. 31, 1958.
Hearing Denied Feb. 26, 1958.

Page 690

[156 Cal.App.2d 518] Loyd W. Carter, Benjamin M. Davis, Lionel Browne, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Dep. Atty. Gen., Francis W. Collins, Dist. Atty. of Contra Costa County, Rudd Seller, Deputy Dist. Atty., Martinez, for respondent.

KAUFMAN, Presiding Justice.

Appellant was charged by information with the possession of marijuana in violation of Health and Safety Code, section 11500. This appeal is taken from the judgment of conviction entered on a jury verdict and from the order of the court denying appellant's motion for a new trial.

On July 2, 1956, this court reversed a prior decision of the trial court on the same count. 142 Cal.App.2d 728, 299 P.2d 310. The Supreme Court denied a hearing on August 2, 1956. On receipt of the remititur, the clerk of the Superior Court of Contra Costa County calendared the matter for a new trial. Appellant, through his counsel, moved a withdraw his plea of not guilty and to dismiss, vacate and set aside the prior information (No. 5704), which motions were granted on September 4, 1956. On the same date, the District Attorney filed a new information (No. 6032), identical with No. 5704 and based upon the same 'evidence' as the first complaint. A motion to dismiss the new information was made and denied. Appellant entered a plea of not guilty, and the trial proceeded. The issue, on this appeal, as on the prior one, is the legality of the arrest and search and seizure.

The first question is whether the doctrine of the law of the case is applicable here. It is well established that the doctrine applies to criminal cases as well as civil (People v. Walker, 76 Cal.App. 192, 244 P. 94; People v. Marshall, 209 Cal. 540, 289 P. 629) and to questions involving the admissibility of evidence. United States v. Davis, D.C., 3 F. Supp. 97. The rule is applicable where the facts are substantially identical and appear under the same circumstances. Leese v. Clark, 20 Cal. 387; Klauber v. San Diego Street Car Co., 98 Cal. 105, 32 P. 876; Nieto' Heirs v. Carpenter, 21 Cal. 455. To determine its applicability we have examined the record submitted on the prior appeal. Sharon v. Sharon, 79 Cal. 633, 22 P. [156 Cal.App.2d 519] 26, 131; Eversdon v. Mayhew, 85 Cal. 1, 21 P. 431, 24 P. 382; Stanton v. French, 91 Cal. 274, 27 P. 657; Otten v. Spreckels, 183 Cal. 252, 191 P. 11.

After an analysis of that record, we have concluded that the facts here are substantially the same as those of People v. Harvey, 142 Cal.App.2d 728, 299 P.2d 310, 311, wherein they were stated as follows:

'On the evening of October 28, 1954, Police Officers Aiello and Russo of the Pittsburg Police Department were instructed * * * to go on a 'stake-out' in the vicinity of appellant Harvey's residence. They were told that appellant had been under surveillance by the department for some time and that he was believed to be dealing in narcotics. They were to observe appellant's residence and appellant if he should appear. If they believed that 'something was wrong' they were instructed to place appellant under arrest.

'About 8:30 p.m., the police officers arrived at the stakeout. They concealed themselves across the street from appellant's residence behind a tree. A few minutes later appellant arrived * * * in a 1950 Cadillac * * * and apparently stood by it a little while. A blue coupe approached and parked just behind appellant's car. Appellant walked up to the occupant of the coupe, who remained in his car, and talked with him several minutes. The Coupe then drove away. Appellant walked across the street toward his residence. He looked at something that was on the windshield of another car and then disappeared from the officers' view.

'A few minutes later the officers saw appellant coming down an outside flight of stairs from his upstairs apartment. Appellant stood for a few seconds at the foot of his stairs looking up and down the street with his hands in his overcoat pockets. He

Page 691

crossed the street to where the officers were standing behind the tree. Appellant looked up and down the street. The officers then decided to take him into custody. Officer Russo testified: 'We thought something was wrong.'

'The officers testified that they identified themselves as officers, showed their police badges and asked appellant to take his hands out of his pockets. Appellant did not comply but backed off from the officers. A struggle ensued. Three other officers arrived and appellant was subdued. All of the police officers were in civilian clothes. Officer Russo took a package from appellant's hand which was later found to contain marijuana.

[156 Cal.App.2d 520] 'At the trial the package containing marijuana taken from appellant at the time of his arrest was introduced into evidence. Marijuana was also found after his arrest in the Cadillac car driven by appellant and traces of marijuana were found on the clothing worn by him when he was arrested. This was also introduced into evidence.'

In the instant case, timely and proper objections were made to the introduction of the evidence.

On the former appeal, the appellant contended that the marijuana was attained by an illegal search and seizure, with which the court agreed, pointing out at page 731 of 142 Cal.App.2d, at page 312 of 299 P.2d, as follows: 'When the officers stepped from behind the tree and approached the defendant with the avowed purpose of placing him under arrest they had no legal ground for arresting him. His conduct up to that time was such as any man may legally engage in on a public street without arousing suspicion of misconduct. He had parked his car, talked to a person in another car, looked at something on the windshield of a third car, gone into his house, left his house again with his hands in his pockets, crossed the street and stood on the sidewalk looking up and down. These were...