People v. Sackett

AGEE, J.

—Defendant appeals following jury conviction of a violation of Penal Code, section 12021. (Possession of firearm by a felon.)

The preliminary examination in this matter was held on March 18, 1964 and, at the conclusion thereof, defendant was held to answer. Defendant thereafter moved the superior court to set aside the information under the provisions of Penal Code, section 995. This motion was granted by order of court made on April 24,1964.

The People appealed from said order and, on February 9, 1965, it was reversed by the Court of Appeal. (1 Grim. No. 4650.) The opinion (unpublished) was written by Presiding Justice Draper. The sole issue was whether the gun found on defendant’s person was the product of an illegal search. The opinion concluded: ‘ ‘ There is no basis for the claim of illegal search or seizure. ’ ’

The sole issue on the instant appeal is the same as that decided on the former appeal. The evidence introduced at the trial is substantially the same as that introduced at the preliminary hearing except that the trial evidence is much more detailed and all three police officers testified, whereas

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only the first officer at the scene (Peterson) testified at the preliminary hearing. No evidence at all was introduced at the trial by the defendant.

The facts as stated by Presiding Justice Draper on the prior appeal, are as follows: “At about midnight, a policeman [Peterson] was driving through a predominantly commercial area. He noticed a parked automobile occupied by three men. It was near premises in which the officer had previously investigated two burglaries. He drove around the block, and saw the driver [defendant] leave the car and go around the side of a building, in the general direction of an area the officer knew to open upon shops and offices. The man later returned to the parked car, entered it, and started the motor. The officer then stopped his car and walked to the parked automobile. He saw no registration slip, and inquired as to ownership. Sackett [defendant] produced a 1 temporary cashier’s receipt for registration’ which, however, did not bear the registered owner’s name. Sackett and one of his companions produced identification documents, and the officer, by radio, gave these names to headquarters. He was told that Sackett was on parole on a federal armed robbery conviction and was warned to use extreme caution. Other officers [Terry and Erieksen] arrived. The first patrolman [Peterson] shone his flashlight on the front windshield of the parked car, seeking to find the temporary registration slip required to be displayed thereon. At this time, he saw the butt of a revolver protruding from under the front seat. Sackett alighted from the ear at the officer’s request, and as he did so another revolver [fully loaded .38 caliber Smith & Wesson] fell to the street from his pants. He was then arrested. ’ ’