Pittman v. Superior Court

FILES, P. J.

By information petitioner was charged with two offenses: count I, a violation of Penal Code section 245, subdivision (b) (assault with a deadly weapon upon a peace officer); count II, a violation of Penal Code section 330 (gaming) . Before pleading, petitioner moved the superior court to dismiss both counts, pursuant to Penal Code section 995, upon the ground that he had been committed without reasonable or probable cause. That motion was denied. Thereupon petitioner commenced this proceeding under Penal Code section 999a for a review of that decision.

The magistrate’s commitment is based entirely upon the testimony of a single witness, Deputy Sheriff Barrier, which is here summarized.

At about 12:20 a.m. on June 10, 1967, Deputy Barrier and five other officers of the vice detail approached a vacant house at which they had been told (by informants not identified in the record) that there would be gambling. Through the windows the officers observed six men playing “a low ball stud game ’ ’ with cards. They forced entry, without prior warning, because their informants had said that those who had played cards there in the past had been armed, and the officers believed their lives would be in danger if they announced themselves before entering. As Officer Barrier entered he held his badge in his left hand and announced, “Sheriff’s vice officers.” Thereupon petitioner withdrew a Derringer pistol from the waistband of his trousers, pointed it at Barrier and said: “ ‘Don’t touch me or I will fire.’ ” Other officers, with weapons drawn, ordered petitioner to drop his gun, which he did.

Barrier then approached petitioner to handcuff him. Petitioner struck out with his fist, but missed the officer. In the scuffle Barrier, another officer and petitioner fell to the floor, and petitioner kicked Deputy Barrier “in the groin area.” The deputies then succeeded in handcuffing petitioner. Subsequent examination showed that the Derringer was loaded.

With respect to the gaming charge the commitment

[797]

lacks legal cause in that there is no evidence that the card game was played for money, checks, credit or other representative of value.

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