In re Newbern

SHEA, J. pro tem.* The petitioner in this case is the same individual with whom this court was concerned in a prior case. (In re Newbern, 168 Cal.App.2d 472 [335 P.2d 948].) As was stated in the opinion in that ease he is “a chronic alcoholic and has suffered numerous arrests for drunkenness. ’ ’ His numerous arrests demonstrate that Mr. Newbern is well known to several police departments. His numerous petitions for writs of habeas corpus demonstrate that he is not one “to sleep on his rights.”

The petition, as originally filed in this case, concerned two separate arrests; the first on February 28, 1959, and the second on March 6, 1959. Also it should be noted that there were two other separate petitions for writs of habeas corpus filed in this court. In each ease the writ was issued returnable in this court on a date certain. By stipulation all three were set for hearing on oral argument on the same day.

At the hearing, one of the petitions was dismissed because the questions raised therein had become moot. The other petition is the subject of a decision which will be filed concurrently with this one.

The petition in this case was filed by Mr. Newbern in propria persona. After the issuance of the writ, pursuant to the petitioner’s request, this court appointed counsel to represent him.

When the ease first came up for hearing it was acknowledged that there were several disputed factual issues. To resolve these issues, this court referred the matter to a referee to make findings on these factual issues. The issues to be determined by the referee were settled by stipulation of counsel for both sides. Thereafter a hearing was had and the referee’s report and findings were filed with this court in [864]due course. The matter was then placed upon a special calendar in this court for oral argument.

In his brief, counsel for the petitioner has presented no argument with respect to the circumstances arising out of the arrest of February 28, 1959. At the time of oral argument he advised this court that he would not urge any of the points concerning that arrest. We are, therefore, only concerned with the arrest of March 6, 1959, and its attending circumstances.

The recitals in the petition are to the following effect: Because the petitioner was successful in his prior application for a writ of habeas corpus before this court {In re Newbern, supra), he has incurred the ire of the members of the various police departments. They have dubbed him “Mr. District Court of Appeals.” They have singled him out and are determined to give him “a bad time.” He asserts that when he was arrested on March 6, 1959 (the same day that this court decided the former ease), he was taken to the police station and booked as a drunk. He protested to the police officers that he was not drunk and asked to be given an intoximeter test. This was refused. He then requested permission to call a doctor, at his own expense, for the purpose of obtaining a blood test. This was also refused. The finding of the referee, which is controlling on this point, is as follows: