Yonchar v. Superior Court

[136]

NOURSE, J. pro tem.

*

Pursuant to the provisions of section 999a of the Penal Code, petitioner seeks writ of prohibition to prevent the respondent court from proceeding with the trial on four out of five counts of an information filed against him. The basis of his contention as to each count is that all of the evidence relating to those counts was procured by the People through an unreasonable search and seizure.

By count I of the information, petitioner is charged with performing an abortion upon one Snow, by count II he was charged with abortion upon one LeMonds, by count III he was charged with abortion upon one Alberti, by count IV an abortion upon one Zeiger and by count V with an abortion upon one Roos.

Pursuant to section 995 of the Penal Code, petitioner moved the respondent court to dismiss the first four counts of the indictment. He made no attack upon the fifth count. His motions having been denied he filed his petition here. We have reached the conclusion that a peremptory writ of prohibition must issue.

Following are the undisputed facts: One Galindo, a police officer in the city of Los Angeles, assigned to investigations of abortions, was advised by one Beckett that he had taken one Roos (the abortee named in the fifth count) to petitioner; that he paid petitioner $350 and that petitioner had performed an abortion upon Roos who afterwards became ill and was hospitalized. He was likewise so advised by Roos. Beckett and Roos also advised Galindo that petitioner’s wife had made some notations containing the names of both Beckett and Roos on a small piece of paper 2 or 3 or 4 inches “in some shape or another.” The officer also found in the police records information indicating that an anonymous phone call had been received by the police stating that the anonymous caller’s girl friend had been aborted by petitioner and that that girl friend had been in turn referred by another girl who had been aborted by him. Galindo with other officers then went to petitioner’s office where they placed petitioner under arrest charging him with abortion.

They asked petitioner where he kept his records regarding any patients that he had treated. Petitioner said that his files were contained in a separate office immediately in front of the consultation office and that he had no objection if Galindo (the arresting officer who testified at the preliminary) had a conversation with his accountant in the file section of the