Young v. Superior Court In and For San Joaquin County

• Decision Date: 24 August 1967
• Citation: 253 Cal.App.2d 848,61 Cal.Rptr. 355
• Court: California Court of Appeals Court of Appeals
• Parties: George YOUNG, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN JOAQUIN, Respondent, The PEOPLE of the State of California, by their Attorney, Laurence DRIVON, District Attorney for the County of San Joaquin, Real Party in Interest. Civ. 11606.

Page 355

61 Cal.Rptr. 355

253 Cal.App.2d 848

George YOUNG, Jr., Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN JOAQUIN, Respondent The PEOPLE of the State of California, by their Attorney, Laurence DRIVON, District Attorney for the County of San Joaquin, Real Party in Interest.

Civ. 11606.

Court of Appeal, Third District, California.

Aug. 24, 1967.

Hearing Denied Oct. 19, 1967.

Kim & Rishwain, by Frank Kim, Stockton, for petitioner.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, and Edsel W. Haws, Deputy Attys. Gen., Sacramento, for real party in interest.

PIERCE, Presiding Justice.

Petitioner, George Young, Jr., seeks a writ of prohibition to prohibit the trial of a count in an information charging him with an attempt to receive stolen goods.

Two questions are presented: (1) Should the information have been set aside under Penal Code section 995 upon the ground that Young had not been legally committed by a magistrate inasmuch as entrapment (so it is contended) was shown as a matter of law? (2) Since the goods attempted to be 'received' were not in fact stolen (although Young thought they were) can he be guilty of a criminal attempt?

The record of the preliminary hearing shows the following:

On January 26, 1967 Baker, a deputy district attorney and Roop, a police officer, placed two television sets and a portable record player, all three items the property of By prearrangement it was planned that McNeer, a special investigator for the Department of Alcoholic Beverage Control, and one Vino, a police informer, were to contact Young, indentify the property as stolen and see if Young would purchase it. The two men, pursuant to that plan, did seek out Young at a bar owned by the latter, did inform Young in the vernacular that they possessed stolen goods and asked Young if he could help them. Young, first in doubt as to his acquaintanceship with Vino, later asked to see what they had and was shown the three items. He then asked what they wanted and whether it was a local job. He was told the goods were from an Oakland job. Young left, returned later with a woman who got into his automobile with him, the two drove off and McNeer and Vino followed. After driving around for awhile Young stated he thought they were being followed by police. A rendezvous close by was suggested by Young but the appointment was not kept. Later McNeer and Vino again went to Young's bar. There Young was again importuned to make the purchase, a second meeting a block away was arranged, that appointment was kept, the property was transferred into the trunk of Young's car, Young paid McNeer $65. Young was arrested a short time thereafter. A complaint was filed, a preliminary hearing was held and petitioner was held to answer.

the City of Stockton, none of them having ever been shown to have been [253 Cal.App.2d 850] stolen, into Baker's station wagon and covered them with a blanket.

At the preliminary hearing and again on the Penal Code section 995 motion both contentions (stated as the questions before us above) were raised. Although the magistrate held Young to answer he made the following statement:

'THE COURT: This is a case preconceived by the Police Department in order to go out and get this man to buy this merchandise. Now, this whole thing originated in the mind of the Police Department and the District Attorney as far as I'm concerned. I'm not trying this case. * * * I'm not satisfied that the law is you can go out and you come into a--people can got out and buy something legitimately, go out here and say now here, this is stolen and I want you to buy it and you can put a man in jail for it and find him guilty of it, I don't buy that. Now, if the court says I'm wrong, I'm wrong, but right now if I ever sat on the Appellate Court I would never hold that, that's not the policy of the law, is to trap people into doing something. That's what you've done in this case. * * * If this case of entrapment was tried before me I would so hold as a matter of law but I mean that's not before me at this level, I'm not trying it.'

RE THE ENTRAPMENT ISSUE

It is obvious from the foregoing that the committing magistrate believed (1) that entrapment had been proved as a matter of law but that (2) it was not his function to consider that defense at the preliminary hearing. His conclusion was incorrect. Penal Code section 995 provides that an information must be set aside by the court in which the defendant is arraigned if it appears either (1) that the defendant has not been legally committed by a magistrate or (2) if the defendant has been committed without reasonable or probable cause.

In Jennings v. Superior Court (1967) 66 A.C. 904, 59 Cal.Rptr. 440, 428 P.2d 304, our Supreme Court issued a writ of prohibition under that section where the preliminary hearing had disclosed the following facts: Defendant was charged with possession of narcotics. The testimony of the police officers considered alone established probable cause without question. Defendant-petitioner, however, showed that a material witness, not present but almost certain to be available if a short continuance were granted would impeach the officers' testimony and prove a 'frame.' The magistrate made it clear that he disbelieved the police officers' testimony in material The Supreme Court held that, although informations would not be set aside for 'some irregularity or minor error in procedure,' it had been the magistrate's duty to grant the short continuance, under the facts disclosed, hear the proffered evidence and then determine the question of probable cause; that there had been a denial of petitioner's substantial rights and a denial of procedural due process.

respects, but he said: 'Now whether the man was, in fact, framed * * * I don't see how that would affect this preliminary at this stage.' He denied the motion for continuance and held defendant to answer. The trial court denied the Penal Code section 995 motion.

The Jennings case is similar to this case. In both, the committing magistrates mistook their powers and obligations of evidence evaluation. The similitude is, however, incomplete. In Jennings, the defendant was necessarily prejudiced, and procedural due process violated, Because the defendant was prohibited from having an opportunity to prove his defense. Here defendant has been prejudiced only If the committing magistrate's opinion as to the fact of entrapment was correct.

Entrapment exists where the crime is actually planned (instigated) by the police rather than originating in the mind of the defendant and defendant is lured into the commission of the crime. '(W)here a defendant has a preexisting criminal intent, the fact that when solicited by a decoy he commits a crime does not show entrapment * * *.' (People v. Benford, 53 Cal.2d 1, 10, 345 P.2d 928, 934.)

The question in the instant case is a close one. But we remember first that to raise that which is usually a question of fact to become a matter of law for judicial determination the summation of facts must be such that reasonable minds cannot differ--the conclusion must, to the reasonable mind, be inevitable. Here reasonable minds could not differ that the police Lured the defendant (that is conceded) but was he just a susceptible person or one already possessed of a Mens rea just awaiting an opportunity to receive stolen goods under mistakenly 'safe' conditions from one with whom he had dealt before--in short, was he a 'fence?'

We have concluded, not without dubiety, that reasonable minds could, under this record, reach the latter conclusion. That conclusion seems fortified when we remember secondly that a committing magistrate searches not for proof beyond a reasonable doubt but for probable cause. And that conclusion precludes our holding there was entrapment as a matter of law. But that does not close the book in the decision of this matter.

RE THE STOLEN GOODS ISSUE

The law considers...