People v. Heard

• Decision Date: 23 October 1968
• Docket Number: Cr. 14334
• Citation: 72 Cal.Rptr. 374,266 Cal.App.2d 747
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Andrew HEARD, Defendant and Respondent.

Page 374

72 Cal.Rptr. 374

266 Cal.App.2d 747

The PEOPLE of the State of California, Plaintiff and Appellant, v. Andrew HEARD, Defendant and Respondent.

Cr. 14334.

Court of Appeal, Second District, Division 2, California.

Oct. 23, 1968.

Hearing Denied Dec. 18, 1968.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant.

Richard S. Buckley, Public Defender, and James L. McCormick, Deputy Public Defender, for defendant and respondent.

HERNDON, Associate Justice.

The People appeal from an order granting defendant's motion to set aside an information under Penal Code, section 995. We have concluded that the order must be reversed.

Initially, it may be noted that respondent errs when, citing People v. Superior Court etc., 264 A.C.A. 199, 200, 204, 70 Cal.Rptr. 362, he argues that we are bound by the findings of fact impliedly made by the superior court and that we may reverse its determination only if we conclude that the People have sustained their 'burden of proof' and demonstrated that the superior court 'did not have substantial evidence in the record justifying (its) rulings.' The true rule is exactly the converse.

The appellate court in People v. Superior Court, supra, was considering a petition for writ of mandate filed by the People pursuant to the provisions of section 1538.5, subdivision (o) of the Penal Code. A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. However, in considering a motion to dismiss under Penal Code, section 995, the superior court is sitting as a reviewing court and is bound by the rules enunciated in Perry v. Superior Court etc., 57 Cal.2d 276, 283--284, 19 Cal.Rptr. 1, 6, 368 P.2d 529, 534:

'Although the magistrate, in reaching his decision (to hold an accused to answer following a preliminary hearing), may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, Such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. (Citation.)' (Emphasis added.)

The propriety of this rule is particularly apparent when, as in the instant case, the superior court sitting as a court of review under Penal Code, section 995 is asked to consider a terse and limited record of a preliminary hearing involving an issue that may be relitigated in a full and adversary hearing either at the time of trial or at a hearing upon a defendant's motion to suppress evidence under Penal Code, section 1538.5. As aptly stated in Badillo v. Superior Court etc., 46 Cal.2d 269, 271--272; 294 P.2d 23, 25:

'No problem is presented in applying this rule (excluding illegally obtained evidence) in cases involving searches and seizures in which the facts bearing on the legality of the search or seizure are undisputed and establish as a matter of law that the evidence is or is not admissible. In many cases, however, the evidence before the magistrate bearing on this issue may be in conflict or susceptible of conflicting inferences or consist Only of the testimony of prosecution witnesses, and under these circumstances the court in ruling on a motion to set aside the information will frequently not be in a position to make a Final determination as to the admissibility of the evidence. 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 basis of all of the evidence bearing on the issue.' (Emphasis added.)

The undisputed testimony given at defendant's preliminary hearing in the instant case provides ample support for the magistrate's order requiring him to answer to the charges against him. Officer Whitefield of the Los Angeles Police Department testified that on the night of February 19, 1967, at approximately 11:30 p.m., he noticed defendant seated alone in a car which was parked in a poorly lighted location. The officer observed that defendant fitted the reported description of the person who had committed an armed robbery at 8:45 p.m. that night at a location about one mile therefrom. The robber had been described as a male Negro, approximately six feet tall, 175--180 pounds, well dressed in light colored clothing, with processed hair.

Since the defendant had chosen to park his car in an area where the light was poor, the officer asked him to step from his car in order to guard against sudden assault and to more accurately judge defendant's height and weight than was possible while he remained seated. As indicated, defendant matched the physical description given and he was well dressed in a white shirt and light coat. His hair was processed.

Because the perpetrator of the reported robbery had been armed, the officer properly patted defendant down for lethal weapons before proceeding with his investigation. Appellant was found to be armed with a concealed pistol and a tear gas gun in violation of Penal Code, sections 12025 and 12420.

On the basis of the foregoing summary of the evidence, we conclude that the instant case requires application of the long established California rule relating to temporary detentions. ¹ 'In this state * * * we have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. (Citations.)' ² (People v. Mickelson, 59 Cal.2d 448, 450--451, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660.

Although it does not appear that there was ever a federal rule to the contrary (cf. People v. Cowman, 223 Cal.App.2d 109, 112 et seq., 35 Cal.Rptr. 528), any doubt on this question was dispelled by the recent United States Supreme Court decision in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1802, 20 L.Ed.2d 889, 909, which held:

'It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest. Moreover, a perfectly reasonable apprehension of danger may arise long before the officer is possessed of adequate information to justify taking a person into custody for the purpose of prosecuting him for a crime. Petitioner's reliance on cases which have worked out standards of reasonableness with regard to 'seizures' constituting arrests and searches incident thereto is thus misplaced. It assumes that the interests sought to be vindicated and the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the analysis of the reasonableness of particular types of conduct under the Fourth Amendment. See Camara v. Municipal Court, etc., supra (387 U.S. 523, 534, 536--537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).

'Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he...