People v. Joseph, Cr. 5910

• Decision Date: 03 September 1957
• Docket Number: Cr. 5910
• Citation: 314 P.2d 1004,153 Cal.App.2d 548
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Octave JOSEPH, Defendant and Appellant.

Page 1004

314 P.2d 1004

153 Cal.App.2d 548

The PEOPLE of the State of California, Plaintiff and Respondent, v. Octave JOSEPH, Defendant and Appellant.

Cr. 5910.

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

Sept. 3, 1957.

Gladys Towles Root, Eugene V. McPherson, Joseph A. Armstrong, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Herschel T. Elkins, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

On September 11, 1956, an indictment was returned by the Grand Jury of Los Angeles County wherein defendant was accused of the crime of violation of Section 11500 of the Health and Safety Code in that he unlawfully had in his possession a preparation of heroin. On October 1, 1956, the indictment was amended by adding thereto an allegation of two prior felony convictions, viz., burglary and violation of Section 11500 of the Health and Safety Code, upon each of which convictions defendant served prison terms in California.

Following denial of a motion under Penal Code Section 995, defendant entered a plea of not guilty and denied the prior convictions. Trial by jury was duly waived and it was stipulated that the People's case might be submitted on the transcript of the testimony taken before the Grand Jury and the exhibits refered to therein, the appellant reserving his right to object to such testimony on the grounds of res judicata, unlawful arrest and unlawful search.

Defendant was adjudged guilty, his motion for a new trial was denied, and he was sentenced to state prison. From the judgment of conviction and the order denying his motion for a new trial defendant prosecutes this appeal.

The record reflects that prior to the return of the indictment herein, a complaint was filed against defendant in the Municipal Court of the Los Angeles Judicial District, wherein he was accused of the same offense charged in the subsequent indictment. On August 1, 1956, a preliminary examination was held before Municipal Judge Joseph L. Call, at which evidence was presented, and at the conclusion of the hearing thereon the charge against defendant was dismissed on the ground that there was no reasonable or probable cause for his arrest.

Thereafter, a second complaint was file in the aforesaid municipal court, and on August 21, 1956, a second preliminary hearing was held before Municipal Court Judge William R. Gallagher, again resulting in a dismissal of the charge against defendant.

The following will serve as a fair epitome of the evidence given in this prosecution. On the night of July 23, 1956, Wallace R. Chittenden, a Los Angeles City Police officer was 'working a night-watch radio car'. About 11:55 p. m. he observed defendant standing alone near the corner of 33rd and San Pedro Streets. As the officer rounded the corner, defendant started to walk away. The latter had his left hand 'cupped' to his side. As the police car driven by Officer Chittenden approached defendant, according to the testimony of the officer, 'As we pulled up to Mr. Octave (defendant) he turned to face the police car and as he did, he made a throwing motion with his left hand, and at the same time I observed, from behind him, he was turned slightly facing us, observed served from his rear a white paper bindle fly over toward the car and land on the street.'

Officer Chittenden kept the object under observation until he recovered it. During this time no one was standing in the vicinity of the defendant. The bindle contained heroin. The officer further testified as follows:

'Q. (By defendant's counsel) Now, Mr. Chittenden, when you saw this defendant at 11:55 on July the 23rd, you did not see an object leave his hand or hands, did you? A. No, ma'am, I didn't see it leave his hand.

* * *

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'Q. And at no time did you see an object in his hand, did you? A. No, not in his hand.

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'Q. (By the deputy district attorney) All right. Did you see an object in the air after you observed the throwing motion? A. Yes, I did.

'Q. And where was this object? A. It was coming from directly behind the defendant, in the area where his hand was.

'Q. From where his hand was? A. Yes.'

Sworn as a witness in his own behalf defendant testified that on the occasion here in question he had just emerged from a liquor store; that he had no narcotics in his possession. In answer to a question, 'Did you throw anything by means of a paper or a package or anything from your hand as you were walking on the street and immediately before your arrest?' defendant answered, 'No.'

Appellant's sole ground for reversal of the judgment and order herein is that the dismissal of the charge against him at the aforesaid preliminary examinations in the municipal court on the ground that there was no probable cause for arresting him was res judicata as to that issue in the present action. In this regard appellant urges that '* * * the doctrine of res judicata and collateral estoppel compels the finding that there was no probable cause for an arrest where the exact evidence on the subject is again submitted. In other words, there would need to be some new or different evidence or the finding would become the law of the case on the facts presented.'

It is true, as urged by appellant, that the doctrine of res judicata has been applied in California in criminal cases, but always under circumstances different from those with which we are here confronted (People v. Beltran, 94 Cal.App.2d 197, 203-205, 210 P.2d 238, and cases therein reviewed). In ...