People v. Superior Court for Los Angeles County

• Decision Date: 29 April 1969
• Docket Number: Cr. 15805
• Citation: 77 Cal.Rptr. 646,272 Cal.App.2d 383
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Victor VEGA and Marija Kathleen Pitts, also known as Marija Lee Vega, Real Parties in Interest. The PEOPLE, Plaintiff and Appellant, v. Victor VEGA and Marija Kathleen Pitts, also known as Marija Lee Vega, Defendants and Respondents. Civ. 33804.

Page 646

77 Cal.Rptr. 646

272 Cal.App.2d 383

The PEOPLE, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent;

Victor VEGA and Marija Kathleen Pitts, also known as Marija Lee Vega, Real Parties in Interest.

The PEOPLE, Plaintiff and Appellant, v. Victor VEGA and Marija Kathleen Pitts, also known as Marija Lee Vega, Defendants and Respondents.

Civ. 33804.

Cr. 15805.

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

April 29, 1969.

Hearing Denied June 25, 1969.

Evelle J. Younger, Dist. Atty., Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for petitioner.

No appearance for respondent Superior Court of the State of California, for the County of Los Angeles.

Richard S. Buckley, Public Defender, Alan H. Simon and John L. McCormick, Deputy Public Defenders, for real party in interest Victor Vega.

No appearance for real party in interest Marija Kathleen Pitts.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Dist. Atty., Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., for plaintiff and appellant.

Richard S. Buckley, Public Defender, Lawrence R. Johnson, Alan H. Simon, and John L. McCormick, Deputy Public Defenders, for defendant and respondent Victor Vega.

No appearance for defendant and respondent Marija Kathleen Pitts.

WOOD, Presiding Justice.

Defendants were accused of violating section 11530 of the Health and Safety Code (unlawful possession of marijuana). Their motions to suppress evidence (Pen.Code, § 1538.5) and to dismiss the information (Pen.Code, § 995) were granted by a minute order dated September 23, 1968. The People petitioned this court (2d Civ. 33804) for a writ of mandate compelling the superior court to vacate the order granting the motion to suppress evidence, and the People appealed (2d Crim. 15805) from the order suppressing evidence and from the order setting aside the information and dismissing the case. This court ordered that the hearing on the petition be deferred until the hearing of the appeal.

Appellant-petitioner (People) contends that the seizure of marijuana was reasonable, and that the court erred in suppressing that evidence; and that the court erred in setting aside the information.

At the preliminary examination, defendants' motion to suppress evidence was denied, and the magistrate found that there was reasonable cause to believe that defendants were guilty of violating section 11530 of the Health and Safety Code. The evidence at the preliminary examination may be summarized as follows:

On July 20, 1968, about 2 or 3 a.m., officers Vanderplas and Mercer were in uniform (California Highway Patrol) in a 'marked' police car on Woods Avenue near First Street in East Los Angeles. They saw a Chevrolet automobile traveling northbound on Woods Avenue 'without any lights at all on'--the car was 'entirely dark.' The officers 'pulled in behind' the Chevrolet and displayed the red lights on the police car. When the red lights came on, the driver (Vega) of the Chevrolet appeared to shuffle the upper portion of his body abnormally, as though he were grabbing something on the front seat. The Chevrolet turned right on First Street and stopped. Defendant Vega was driving the Chevrolet, and defendant Pitts was in the front seat next to him. Officer Vanderplas got out of the police car and ran, with a lighted flashlight, toward the Chevrolet. He saw defendant Vega make a 'furtive movement' by 'leaning over slightly to the right and forward' and he saw defendant Pitts 'leaning slightly to her left and bending forward.' When he (officer) was next to the Chevrolet, he saw Vega pushing a white box under the front seat and Pitts putting a 'metallic tin' under the front seat by the box. At that time, the beam of the officer's flashlight was shining through a window of the Chevrolet. There were also fluorescent overhead street lights; and the headlights of the police car, which was parked half a carlength behind the Chevrolet, were on 'high beam.' Vega got out of the Chevrolet at the officer's request and Pitts said that she was very ill and was on the way to the hospital. The officer 'secured' Vega to the back of the Chevrolet and took the white box, which was protruding 2 or 3 inches, from under the front seat. The box contained cigarette wrapping papers and a brown leafy substance resembling marijuana. Defendants were arrested, and Officer Vanderplas searched the Chevrolet and found the tin can which Pitts had put under the front seat. (It is not clear from the record what, if anything, was in the can.)

The officers did not have a warrant of arrest or a search warrant. It was stipulated that the contents of the box included marijuana.

The superior court heard the motion to suppress evidence (Pen.Code, § 1538.5) and the motion to set aside the information (Pen.Code, § 995) and granted the motions by a minute order dated September 23, 1968. ¹ In response to an inquiry from the deputy district attorney after the decision was announced at the hearing of the motions, the judge said: 'I granted the 1538.5 first. Having done that, it left no evidence in this case on which the People could proceed. Therefore, I granted the 995. You can always appeal that order.' As previously stated, the People petitioned this court for a writ of mandamus compelling the superior court to vacate the (portion of the) order of September 23, 1968, granting the motion to suppress evidence, and appealed from said order setting aside the information.

In People v. MacLachlin, 271 Cal.App.2d ---, ---, 76 Cal.Rptr. 712, 716, filed April 1, 1969, the trial court, at the time it granted defendant's motion to suppress evidence (Pen.Code, § 1538.5), dismissed the case pursuant to defendant's motion to set aside the information (Pen.Code, § 995), 'instead of dismissing the case on its own motion' (Pen.Code, § 1385). The People petitioned this court for a writ of mandamus compelling the trial court to vacate the order granting the motion to suppress, and the People appealed from the order granting both motions. It was held therein that the trial court 'acted in exces of its jurisdiction in dismissing the case on defendant's motion under section 995, Penal Code.' The court reversed the portion of the order 'dismissing the case under section 995,' considered the merits of the petition for writ of mandamus, and issued a writ of mandamus directing the superior court to vacate the order granting defendant's motion to suppress evidence. In the present case, the trial court exceeded its jurisdiction in dismissing the case pursuant to defendants' motion to set aside the information.

With reference to the merits of the petition for a writ of mandamus herein, the petitioner (People) contends that the seizure of the marijuana was reasonable and that the court erred in granting defendants' motion, under section 1538.5 of the Penal Code, to suppress evidence (marijuana). Section 1538.5 provides in part as follows: 'A defendant may move * * * to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on the ground that: (1) The search or seizure without a warrant was unreasonable; * * *.'

In People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 496, 366 P.2d 823, 824, it was said: 'A search without a warrant is proper where it is incident to a lawful arrest based on reasonable cause to believe that the accused has committed a felony. Such a search is not rendered unlawful merely because it precedes rather than follows the arrest. (Citations.) Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty.'

In People v. Sanson, 156 Cal.App.2d 250, 319 P.2d 422, officers in a police car saw...