People v. Martinez, Cr. 9169

• Decision Date: 28 July 1964
• Docket Number: Cr. 9169
• Citation: 228 Cal.App.2d 739,39 Cal.Rptr. 839
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Albert Valencia MARTINEZ, Defendant and Respondent.

Page 839

39 Cal.Rptr. 839

228 Cal.App.2d 739

The PEOPLE of the State of California, Plaintiff and Appellant, v. Albert Valencia MARTINEZ, Defendant and Respondent.

Cr. 9169.

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

July 28, 1964.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. (Los Angeles County), Harry Wood and Harry Sondheim, Deputy Dist. Attys., for plaintiff and appellant.

Paul Augustine, Jr., San Gabriel, under appointment by the District Court of Appeal, for defendant and respondent.

WOOD, Presiding Justice.

By information filed by the District Attorney of Los Angeles County the defendant was accused of the crime of violation of section 23105 of the Vehicle Code, a felony, in that he unlawfully drove a vehicle upon a highway while addicted to the use and under the influence of narcotic drugs.

Defendant made a motion under section 995 of the Penal Code to set aside the information 'on the basis of illegal arrest.' The motion was granted.

The People appeal from the order setting aside the information.

Section 995 provides, in part, that an information must be set aside, upon defendant's motion, if before the filing of the information the defendant had not been legally committed by a magistrate; or if the defendant had been committed without reasonable or probable cause.

The transcript of the preliminary examination shows in substance as follows:

Deputy Sheriff Miller testified to the following effect: On March 4, 1963, about 4 p. m., while he was driving a police car he saw the defendant driving a 1956 Buick automobile south on Holmes Avenue near 55th Street in Los Angeles. A woman was in the right front seat of the Buick. Two other officers were in the police car with Officer Miller, and two officers were in another police car that was following the Miller car. The two police cars followed the defendant as he continued southbound on Holmes Avenue from 55th Street. When the three cars were near 68th Street, Officer Miller drove beside the defendant's car, and the two officers who were riding with Officer Miller identified themselves by displaying their badges outside the car windows, and they asked the defendant to pull over to the curb, and they stated further that they would like to talk to him. Immediately thereafter, the defendant put his hand to his mouth, and it seemed to Officer Miller that the defendant swallowed something, but the officer did not see any object in defendant's hand or mouth. The defendant parked his car just north of 70th Street on Holmes Avenue. The Miller car stopped on the left side of defendant's parked car, and the other police car stopped behind defendant's car. Then the five officers went to defendant's car. Officer Miller asked defendant his naem, and he replied, 'Albert Martinez.' The officer (witness) asked defendant if he was ever known as 'Foo Man Chu.' He replied, 'Yes.' Foo Man Chu was known to the officer as a 'narcotic violator.' The officer asked defendant to get out of the car and to put his hands on the car roof. The officer made a 'pat-down' search of defendant, outside his clothing, to determine whether there was any weapon on him. After this search the officer asked him whether he had used narcotics, and also stated, 'I would like to look at your arms; will you roll your sleeves up.' Thereupon he rolled up his sleeves, and the officer observed four fresh puncture wounds on his right arm, and five fresh wounds on his left arm.

The officer observed that defendant's eyes were pin-pointed, his mouth was dry, his eyelids were 'droopy,' and the whites of his eyes had a grayish, discolored effect. In the opinion of the officer the defendant was under the influence of narcotics. The officer arrested him for violation of narcotic laws. The defendant had not committed any driving violation in the officer's presence.

In response to questions on cross-examination, Officer Miller testified that the officers did not have a search warrant or a warrant of arrest.

On re-direct examination, the deputy district attorney asked Officer Miller to relate the circumstances leading up to the arrest. In response thereto, he testified further, as follows: During the course of an investigation of a suspected heroin dealer on the day of this arrest, a deputy sheriff of the narcotic detail was 'conducting a surveillance of' a single residence at 5541 Duarte Street. That place had been named by three reliable informants as a place of narcotic activity. A deputy sheriff, who was watching this place, had radio equipment with him. He radioed to Officer Miller that a brown 1956 Buick had approached the location, parked in the street in a southbound direction, a female had remained in the car, and the drive who was a Mexican man had entered the house, and within three minutes he had returned to the Buick and driven south on Duarte, turned east on 56th Street, and then turned south onto Holmes Avenue. It was at this place (56th and Holmes) that Officer Miller first saw defendant, and from this place the officers followed him to the place of arrest.

Upon further cross-examination, counsel for defendant asked if any of the three informants had gone with the witness to the location. When he replied that one of them had 'driven' the officers to the vicinity and pointed out the place, counsel asked the name of that informant. He replied that his name was Bobby Camerino. He testified further that this informant had given information which had resulted in several arrests, and the witness believed that one or two convictions resulted therefrom. Defense counsel did not ask for the name of either of the other informants, but he referred to them as A and B. The witness testified further that A had given information resulting in an arrest and...