People v. James

Opinion

LILLIE, J. Defendant and Virgil Smith were charged with possession of a shotgun with a barrel less than 18 inches (§ 12020, Pen. Code). Motions under sections 1538.5 and 995, Penal Code, were denied. The cause was submitted for trial on the transcript of the testimony taken at the preliminary hearing, and defendant was found guilty as charged. He appeals from orders denying his motions. Since the orders are not separately appealable (§ 1237.5, Pen. Code), we treat the notice of appeal as one from the judgment which permits review of such orders. (See People v. Jasso, 2 Cal.App.3d 955, 962 [82 Cal.Rptr. 229].)

On October 19, 1969, Officers Saitman and his partner, in uniform and in a black and white police vehicle, responded to a “Silent Burglar Alarm” at 1807 East 103d Street. While there Officer Saitman noticed that across the street the front door of 1810 East 103d Street, the Black Panther headquarters, was open. Through the open door he saw defendant who the officers believed matched the description of a suspect wanted for the shooting of a police officer the night before; the description he had received was of a male Negro, approximately 19 to 20 years old, 5' 8" to 5' 10", wearing a green Army type jacket and Russian Cossack type hat. Officer Saitman had been one of those who responded to the original shooting call the night before. 1810 East 103d Street (Black Panther headquarters) was thus described by the officer: “the whole block is all business buildings. 1810 is just a normal type business building, has a front door leading to the sidewalk. The door was open.” Inside the building was a small room 10 by 15 feet with a partition leading to a larger back room. [466]The officer did not know whether the building was open to the public but he did know it was not open to the police. After parking approximately 75 feet west of the Black Panther headquarters, he and his partner in uniform proceeded to walk up to 1810 East 103 d Street, then entered the building through the front door which was “completely open, all the way” and to which there was no screen door and no hallway; as they entered he told defendant, who was either seated on or next to a desk, that he matched the description of a suspect wanted in the shooting of Officer Moen; codefendant Smith, seated at a desk directly behind the open door, said, “You pigs can’t come in here”; Officer Davis told him they were there because defendant matched the description of the suspect and that he (defendant) was under arrest. Smith then got up, walked to the partition, reached behind it and said, “If you come back here there is háble to be some shooting”; Smith appeared to have his hand on something and when he retracted it the officer heard something bang against the partition. At this point defendant walked to the partition followed by Officer Saitman who saw defendant grab a 12-gauge sawed-off shotgun, the slide action of which defendant was holding as he pulled the gun up to his body. As the officer started to follow defendant he told him to stop, that he was under arrest but defendant kept walking; the officer grabbed the gun out of defendant’s hands. Both men were then placed under arrest. At the time the officers entered the premises only Smith and defendant were in the room but while they were there four female Negroes walked in.