Pinizzotto v. Superior Court for Los Angeles County
| Decision Date | 02 January 1968 |
| Citation | 65 Cal.Rptr. 74,257 Cal.App.2d 582 |
| Parties | Steven Angelo PINIZZOTTO, Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 32352. |
| Court | California Court of Appeals Court of Appeals |
Alex Goldberg, Los Angeles, for petitioner.
No appearance for respondent Superior Court.
Evelle J. Younger, Dist. Atty., Harry Wood, Chief, Appellate Division, and Robert J. Lord, Deputy Dist. Atty., Los Angeles, for real party in interest.
Petitioner seeks a writ of prohibition to restrain the respondent court from taking further proceedings upon an information which charges him with possession of marijuana (Health & Saf. Code, § 11530).
Petitioner was arraigned upon a verified complaint filed in the municipal court and a preliminary examination was set. The People were not ready to proceed with the preliminary hearing at the time set and, upon petitioner's motion, the complaint was dismissed. Petitioner was rearrested immediately after he left the courtroom. His counsel and the deputy district attorney then entered into a stipulation that the dismissal might be set aside with the consent of the court and petitioner would not be rebooked. Petitioner was returned to the courtroom. A motion pursuant to the stipulation was made by the People and granted by the court. Preliminary hearing was reset for a later date at which time petitioner's counsel again moved to dismiss the action, this time on the ground that the court had no jurisdiction of the subject matter after the case had been dismissed. The motion was denied and the preliminary hearing was had on the original complaint. Petitioner was held to answer. The information was filed and a motion to set it aside on the ground that the petitioner had been committed without probable cause (Pen. Code, § 995) was denied. Petitioner then filed the instant petition for prohibition.
As grounds for the issuance of the writ the petition sets forth both statutory grounds for setting aside an information in the superior court on a motion under Penal Code, section 995, to wit: (1) that before the filing of the information petitioner had not been legally committed by a magistrate, and (2) that he had been committed without reasonable or probable cause. In respect to the first ground, the contention is that the original complaint was dismissed, no new complaint was filed, and that, in the absence of a complaint, the court had no jurisdiction and the consent, waiver, or estoppel of the parties could not confer jurisdiction. In respect to the second ground, the contention is that the only evidence presented at the preliminary hearing which would establish probable cause to believe petitioner was guilty of the crime charged was obtained by unlawful search and seizure incidental to his unlawful arrest and admitted over his objection on that and other grounds. We granted the alternative writ in the belief that there was merit in the latter contention.
The transcript of the preliminary examination reflects the following facts. About 12:45 a.m. on August 16, 1967, Police Officer Jackson O'Neal was staked out in a residential area in Downey surveilling the area near a 1955 Chevrolet which was parked on the street. He had information that the automobile was registered to a person who lived in another area of Downey and that a person in a white T-shirt had been seen near the car. A car drove into the area and pulled to a stop. Two persons exited from the vehicle and ran northbound across the street disappearing through a pedestrian passageway which led to a restaurant. In a matter of seconds, one person, subsequently identified as Paul Forster, ran back southbound toward the waiting car. He was wearing a white T-shirt. The officer turned up the lights of the police car and drove forward, whereupon Forster looked in the direction of the police car and then took an object from his right front pocket and threw it into a nearby area covered with ivy. The officer honked his horn. Forster stopped and approached the police car. The officer got out, conducted a pat-down search for weapons, and questioned him. Forster identified himself and stated that the occupants of the car were returning from Long Beach to their various homes in Downey. His explanation of the throwing gesture was that he had been combing his hair as he ran back to the car. The officer directed Forster to remain by the police vehicle, and requested a private citizen who had been riding with the officer in the police car to watch Forster and make a radio call for police assistance. The officer then proceeded to the car in which Forster had been riding which was about fifteen feet distant.
While the foregoing action was taking place petitioner and a passenger had remained seated in the car waiting for Forster. Petitioner was in the driver's seat and the other passenger was in the right front seat. The officer asked for their identification and requested them to step out of the vehicle. They complied although questioning the officer as to what crime they had committed and whether he had a search warrant. The officer did not respond to their questions. In the course of the conversation petitioner stated that the car was registered to his father. He gave a story similar to that of Forster that they were returning from the beach area. He denied having 'anything in the vehicle that he shouldn't have.' When the officer asked him if he would mind if he looked in the vehicle, he stated, 'No, I don't care.' The officer then looked through the car with a searchlight. He found two screwdrivers but nothing 'of a suspicious nature.' A record check confirmed that the car was registered to a person with the same last name as petitioner.
Sergeant Denton arrived at the scene and shortly thereafter Officer Wyatt arrived. The only facts which Officer O'Neal communicated to them were that he had seen the two persons running northbound from the car and had seen Forster returning southbound, and that the latter threw something into the ivy. Sergeant Denton, among others, searched the area of the ivy and retrieved a piece of film like plastic material containing green leafy material that resembled marijuana. He then placed all three suspects under arrest after which Sergeant Denton and Officer Wyatt searched the car in which they had been riding. None of the three gave permission for the search. The officers found on the back seat of the car a piece of plastic material which was similar to the plastic material recovered in the area of the ivy. Upon opening the console glove box between the front seats with a screwdriver, Officer Wyatt found some seeds and burnt stems which appeared to be marijuana. Officer Wyatt took possession of the items. In booking petitioner at the police station Officer O'Neal made a search of petitioner's person and found in his shirt pocket a minuscule quantity of a green leafy substance which appeared to be marijuana. The officers had no warrants to arrest or search.
Exhibits introduced by the People were identified by Officer O'Neal and Sergeant Denton as the physical evidence found in the ivy (Exh. No. 1) and in the car (Exh. Nos. 2 and 4), and petitioner's shirt pocket (Exh. No. 3). Officer Foster, who had received some training in the identification of marijuana by microscopic examination, testified that he had examined the exhibits of plant substance under a microscope and was of the opinion that they were marijuana. No evidence was presented to account for the chain of possession between the time the physical evidence was recovered and the time of the hearing. In seeking to suppress the evidence as to the marijuana, petitioner's counsel also objected to the admission of the evidence found in the car on the ground that the People had failed to show the chain of possession from the time the evidence was taken into possession by Officer Wyatt, who did not testify, to the time of its identification at the hearing.
The magistrate must hold the defendant to answer where it appears from the competent evidence presented at the preliminary examination that a public offense has been committed and there is sufficient cause to believe the defendant had committed it. (Pen.Code, § 872.) Any incompetent evidence must be excluded from consideration. (Badillo v. Superior Court, 46 Cal.2d 269, 271--272, 294 P.2d 23.) When it is contended that commitment was without probable cause, the reviewing court must therefore determine: (1) What evidence in the record, if any, should have been excluded from consideration, and (2) whether the evidence remaining supports the magistrate's conclusion that there was sufficient or probable cause to believe that defendant was guilty of the charge against him. (People v. Cole, 255 Cal.App.2d[257 Cal.App.2d 588] ---, --- a, 62 Cal.Rptr. 874.) The first question must be determined in light of the exclusionary rules. The second question requires that the court, drawing every legitimate inference arising from the evidence in favor of the information, determine 'if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' (Rideout v. Superior Court, 67 Cal.2d ---, --- b, 62 Cal.Rptr. 581, 583, 432 P.2d 197.)
The essential elements of the crime of possession of marijuana are dominion and control thereof coupled with knowledge of its presence and narcotic character. (People v. Valenzuela, 174 Cal.App.2d 759, 762, 345 P.2d 270.) It is well established that the search of a place open to the public is not an unlawful search. (People v. Hilliard, 221 Cal.App.2d 719, 724, 34 Cal.Rptr. 809; People v. Reed, 210 Cal.App.2d 80, 83--84, 26 Cal.Rptr. 428; People v. Montes, 146 Cal.App.2d 530, 533, 303 P.2d 1064.) Applying these rules in the present case, it is clear that the contraband...
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