People v. Willmirth

• Decision Date: 28 December 1966
• Docket Number: Cr. 292
• Citation: 247 Cal.App.2d 513,55 Cal.Rptr. 678
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Edwin Earl WILLMIRTH, Defendant and Respondent.

Page 678

55 Cal.Rptr. 678

247 Cal.App.2d 513

The PEOPLE, Plaintiff and Appellant, v. Edwin Earl WILLMIRTH, Defendant and Respondent.

Cr. 292.

Court of Appeal, Fifth District, California.

Dec. 28, 1966.

[247 Cal.App.2d 514] Thomas C. Lynch, Atty. Gen., Nelson P. Kempsky, Raymond Momboisse, Deputy Attys. Gen., Sacramento, for appellant.

Gordon A. Olsson, Modesto, for respondent.

OPINION

CONLEY, Presiding Justice.

The state appeals from an order of the superior court setting aside an information, pursuant to section 995, subdivision 2, of the Penal Code, charging the defendant with possession, planting and cultivating marijuana. Based on the evidence received at the preliminary examination, the judge of the municipal court held that it appeared to him that the offense of violation of section 11530 of the Health and Safety Code had been committed, and that there was reasonable cause to believe that the defendant was guilty thereof. The defendant was there held to answer and the arraignment of the defendant followed the filing of the information in the superior court. It alleged that:

'The said EDWIN EARL WILLMIRTH, on or about the thirteenth day of June, nineteen hundred and sixty-six, at and in said County of Stanislaus, State of California, and prior to the filing of this information, did wilfully, unlawfully and feloniously have in his possession, and did plant and cultivate marijuana, cannabis sativa.'

At the outset, it should be borne in mind that evidence sufficient to hold a defendant to answer need not be so strong or convincing as the evidence necessary to convict after trial. The rule is thus expressed clearly and conclusively by the Supreme Court in the case of Bompensiero v. Superior Court, 44 Cal.2d 178, 183--184, 281 P.2d 250, 254, where it is said:

'Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Citation.) An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.'

(See also People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344.)

And, as is said in Lorenson v. Superior Court, 35 Cal.2d 49, 55, 216 P.2d 859, 863:

"If there is some evidence to support the indictment the courts will not inquire into its sufficiency * * *.' Greenberg v. Superior Court supra (19 Cal.2d 319, 121 P.2d 713), * * *.'

In Brown v. Superior Court, 234 Cal.App.2d 628, 633, 44 Cal.Rptr. 519, 523, this court observed:

'It is, of course, essential to keep in mind that the evidence at the preliminary examination of a felony charge does not have to be conclusive of guilt; it is sufficient if it induces a belief amounting to a strong suspicion that the defendants have committed the offenses charged. (Citations.)'

And the general rule is thus stated in Witkin, California Criminal Procedure, section 226, page 212:

'* * * reasonable or probable cause exists 'if there is sufficient proof to make it reasonable to believe that the defendant is guilty of the offense charged. * * * the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.' (Citations.)'

Let us review the evidence, which, in the opinion of the magistrate, justified holding the defendant to answer. Detective Sergeant William L. Sweeney testified that on June 13, 1966, he went to 434 Sunnyside Street in Modesto and viewed the back yard of the residence of the defendant at that address; that he walked into the back yard and made a complete preliminary search of the grounds on all sides of the house; at that time the defendant's wife, Joan Willmirth, was at home; on the north side of the house he observed nine marijuana plants growing; he asked the defendant's wife what the plants were. Detective Sweeney was on the staff of enforcement officers at the sheriff's office working in the fields of vice and narcotics to which he had been assigned since 1959; he was thoroughly familiar with the appearance of growing marijuana plants. He testified that he returned to the premises after 5:30 p.m. that same day; as he approached the dwelling he saw the defendant standing at the rear of the house with a water hose in his hand watering the cultivated area where the...