People v. Markin
| Decision Date | 27 August 1973 |
| Docket Number | Cr. 22938 |
| Citation | 109 Cal.Rptr. 609,34 Cal.App.3d 58 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Barry Lee MARKIN, Defendant and Respondent. |
Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Acting Head, App. Div., and Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.
Richard S. Buckley, Public Defender, Harold E. Shabo, and Martin Stein, Deputy Public Defenders, for defendant and respondent.
Defendant was charged with possession of hashish in violation of Health and Safety Code section 11530 (now section 11357). The People appeal from an order setting aside the information under Penal Code section 995.
Defendant was picked up by police as he was in Manhattan Beach Boulevard attempting to hitchhike at about 2:20 a.m. on October 23, 1972. 'He was stumbling, having great difficulty just maintaining his balance'; his speech was slurred; his eyes were red and watery; and he smelled of alcohol. His shoes had not been pulled all the way on. The arresting officer concluded that defendant was 'under the influence of an intoxicant and unable to care for his own safety or that of others,' a violation of Penal Code section 647, subdivison (f).
The officer testified that he transported defendant to the police station where he carried out 'a booking search on his person.' Inside the wrapper of a cigaret package the officer found a plastic bag containing a brown substance. Upon testing, the material was found to be one and a half grams of hashish.
At the preliminary hearing, defense counsel objected to introduction of the cigaret package and the plastic bag with its contents, saying 'they (the police) could have given him the opportunity to sober up, since he was simply under the influence.' The municipal court overruled the objection and afterward denied a motion to dismiss made on the same ground.
The superior court, hearing defendant's motion to set aside the information, took judicial notice that there are several detoxification centers in Los Angeles County, where law enforcement agencies take people found under intoxication. The court stated
The court then dismissed the information.
That ruling can only be interpreted as a holding that the search of defendant at the police station was unlawful, precluding the use of the hashish in evidence over objection at the preliminary examination. Defendant's attorneys seek to uphold that decision in this court upon the theory that subdivision (ff) of Penal Code section 647 required the arresting officer to deliver defendant to a treatmet facility without searching his person.
Penal Code section 647, subdivision (f) provides that a person '(W)ho is found in any public place under the influence of intoxicating liquor . . . in such a condition that he is unable to exercise care for his own safety or the safety of others' is guilty of disorderly conduct, a misdemeanor.
Subdivision (ff) was added, effective March 4, 1972 (Stats.1971 Ch. 1581, § 1). It provides:
The subdivision also provides that it is inapplicable in certain circumstances not material here.
Defendant urges that the new subdivision is mandatory in that it provides that the officer 'shall' place the individual in civil protective custody. He further urges that the 1971 amendment has the effect of removing simple alcoholic intoxication from the category of public offenses. We do not reach those issues to decide this case.
The arresting officer was not asked why he took respondent to the police station rather than to a detoxification center. As the issue is presented here, that is not a material matter.
It is necessary to point out first, that in passing upon the motion to dismiss under Penal Code section 995, '(e)very legitimate inference that may be drawn from the evidence must be drawn in favor of the information.' (Rideout v. Superior Court (1967), 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 583, 432 P.2d 197, 199.) The evidence showed that respondent was in such condition that the officer was entitled to take him into custody for one purpose or another. From the fact that the officer took respondent to the police station and conducted a booking search, the magistrate was entitled to infer the officer's purpose was to keep respondent in custody for the time being. 1 Had the officer...
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State v. Morrill
...State v. Johnson, 7 Wash.App. 527, 534, 500 P.2d 788 (1972), adopted, 82 Wash.2d 156, 508 P.2d 1028 (1973); People v. Markin, 34 Cal.App.3d 58, 61, 109 Cal.Rptr. 609 (1973). As we have already said, if the facts contained in Marchetti's affidavit are proved beyond a reasonable doubt at tria......
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People v. Martin
...v. Velasquez, 53 Cal.App.3d 547, 126 Cal.Rptr. 11.) All legitimate inferences are drawn in favor of the information. (People v. Markin, 34 Cal.App.3d 58, 109 Cal.Rptr. 609.) Since we have found there is sufficient evidence to support a conviction beyond a reasonable doubt and a dismissal un......
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People v. Longwill
...arrested for intoxication only, and no further proceedings are desirable.' The People contend on the authority of People v. Markin (1973) 34 Cal.App.3d 58, 109 Cal.Rptr. 609, that 'once the officer arrests a person for public intoxication, it is likely that the suspect will be incarcerated.......
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People v. Moran
..."accelerated" booking search in the field. 2 This view finds support in the Longwill court's footnote reference to People v. Markin (1973) 34 Cal.App.3d 58, 109 Cal.Rptr. 609 and People v. Superior Court (Colon) (1972) 29 Cal.App.3d 397, 105 Cal.Rptr. 695. The court observed that "both (of ......