People v. Mejia

272 Cal.App.2d 486 (1969) THE PEOPLE, Plaintiff and Respondent,

v.

SY MEJIA, Defendant and Appellant.

Crim. No. 15905. California Court of Appeals. Second Dist., Div. One.

Apr. 30, 1969. Richard H. Levin, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and George J. Roth, Deputy Attorney General, for Plaintiff and Respondent.

LILLIE, J.

Defendant was charged with a violation of the Dangerous Weapons Control Act ( 12021, Pen. Code) and [488] three prior felony convictions (Dyer Act [1946]; violations, section 211, Penal Code [1947], section 11500, Health and Safety Code [1953]). After his arraignment defendant moved to suppress the evidence under section 1538.5, Penal Code, and to dismiss under section 995, Penal Code; both motions were denied. Defendant then entered a plea of not guilty. By stipulation the cause was submitted on the transcript of the testimony taken at the preliminary hearing. After the commencement of the trial, the court had read and considered the transcript and the People had rested their case defendant sought to reargue the issue of unlawful search and seizure; noting that a motion to suppress the evidence pursuant to section 1538.5, Penal Code, and a motion to dismiss under section 995, Penal Code, had been made prior to trial and denied, the trial court refused to permit the reargument. Defendant was found guilty as charged; the court made no finding on the allegations of the three prior felony convictions. Defendant appeals from the judgment.

Around 12:30 in the morning on March 21, 1968, several police vehicles responded to "a burglary there now" radio call; they arrived at the location within five minutes. About 75 feet from the location where the burglary was reported to be in progress Officer Michael saw defendant walking on the street away from the premises; no other pedestrians were in the area. Defendant was illuminated by a spotlight from the black and white police vehicle but he paid no attention to it and continued walking carrying a coat over his left arm and a package beneath the coat. Officer Michael got out of the police car approximately 25 feet behind defendant and started to follow him; another officer got out in front of defendant and told him to "Hold it for a minute." Defendant then walked toward the curb and the officer and as he did so dropped the package from his left side which, when it hit the curb and parkway, made a metallic sound and split open, and continued walking. Officer Michael was 5 to 10 feet behind defendant; when he "got there"--where the package lay--it was split open revealing the grips of a weapon, portions of a clip and .45 caliber rounds; he then arrested defendant on suspicion of burglary after which he picked up the package, which lay about 4 feet from where he had arrested defendant, made an examination of the contents and found a .45 caliber automatic. Defendant denied "knowledge of possession of the package." Officer Gelb made an examination of the fingerprints on the gun and identified them as belonging to defendant;