Opinion
Rehearing Denied Dec. 12, 1960.
Hearing Granted Jan. 18, 1961.
Opinion vacated 12 Cal.Rptr. 859, 864.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. of Los Angeles County, Harry Wood, Robert J. Lord, and Harry B. Sondheim, Deputys Dist. Attys., Los Angeles, for appellant.
Russell E. Parsons, Harry E. Weiss, and Daniel Busby, Los Angeles, for respondents.
WOOD, Presiding Justice.
The defendants in each of the two above entitled cases made a motion, under section 995 of the Penal Code, to set aside the information in each respective case. The substance of each motion was that the defendants had been committed without probable cause in that the search warrant, under which searches were made, was issued without probable cause, the searches were illegal, and the evidence was illegally obtained. The motions were granted. The People appeal from the orders setting aside the informations.
In three counts of an information (No. 222421) defendant Audrey Louise Brown was accused of violating section 337a, subdivisions 1, 2, and 4, of the Penal Code (bookmaking, occupying house with paraphernalia for purpose of bookmaking, and recording bets). In that information defendant Mollie Mae Thomas was accused of violating section 337a, subdivision 5, of the Penal Code in that on September 25, 1959, as owner of a house at 1118 West 47th Street, in Los Angeles, she permitted defendant Brown to occupy the house for purpose of recording bets on horse races. Also, it was alleged therein that defendant Brown had been convicted of violating section 337a of the Penal Code, a felony.
In another information (No. 222422) the defendants Lionel Keener and Eula Keener were accused, in count 1, of violating section 337a, subdivision 1, of the Penal Code (bookmaking). In count 2 of that information the defendant Lionel Keener was acccused of violating section 337a, subdivision 2, of the Penal Code in that on September 25, 1959, he occupied a house at 1131 West 47 th Street, in Los Angeles, for the purpose of recording bets. In count 3 the defendant Eula Keener was accused of violating section 337a, subdivision 4, of the Penal Code (recording bets). Also, it was alleged therein that Lionel Keener had been convicted of violating section 337a of the Penal Code, a felony.
On September 24, 1959, Honorable Arthur S. Guerin, Judge of the Municipal Court of Los Angeles Judicial District, issued a search warrant directed to any sheriff, marshal, or policeman in Los Angeles County, which stated in substance, as The affidavit in support of the search warrant was made by R. E. Hatter on September 24, 1959. The affidavit stated in substance, as follows: Affiant says he has and there is just, probable, and reasonable cause to believe and he does believe there is now in possession of Lionel Kenner (Keener), Fred D. Thomas, Jr., and Luther W. Price on premises at 1131 and 1118 West 47th Street, and 1738 West 43rd Street, the following personal property: (1) Bookmaking paraphernalia consisting in part of betting markers, scratch sheets, racing forms, business machines, and other memoranda relating to bookmaking activities; (2) Typewriters, business machines, and guns. Affiant is a Los Angeles police officer and is an expert in the manner in which bookmaking activities are commonly conducted in Los Angeles County. Said personal property described in the affidavit, to wit: bookmaking paraphernalia constitutes evidence which tends to show that a felony, bookmaking, a violation of section 337a of the Penal Code, has been committed, and that Lionel Kenner, Fred D. Thomas, Jr., and Luther W. Price committed it. Said personal property described in the affidavit, to wit: typewriters, business machines, and guns constitutes evidence which tends to show that a felony, receiving stolen property, a violation of section 496 of the Penal Code has been committed, and that said Kenner, Thomas, and Price committed it. Affiant has been advised by an informant on September 18, 1959, whose identity cannot be revealed without endangering the safety of said informant, that a dwelling located at 1131 West 47th Street is being used as a phone spot, and a dwelling at 1118 West 47th Street is being used as a back office. Said informant has advised affiant that both of these locations are operated under the direction of said Kenner, Thomas, and Price. The informant stated that Thomas has in his possession many stolen items, namely, typewriters, adding machines, and guns; and that some of those items have been transferred by Thomas from 1738 West 43rd Street, Los Angeles, to 1131 and 1118 West 47th Street. The informant has advised affiant that said three persons operate from 10 to 15 cash rooms in the Newton and University Division (of the police department), and that Thomas manages the operations at 1131 and 1118 West 47th Street; and that 1118 West 47th Street contains a secret passageway which will allow the escape of said persons in case of investigation. The informant has given information to officers in the past which has led to four arrests of persons charged with bookmaking, and in each arrest the persons were alleged to be in control of or operating a back office or phone spot, and the persons arrested were held to answer at preliminary hearings. As a result of the information the officers have conducted an investigation which has revealed that the telephone at 1131 West 47th Street, AXminster 4-6061, is registered to Eula Hall; the records of Southern California Gas Company indicate that said Eula Hall receives service in the name of Eula Kenner at said 1131 West 47th Street; that Eula Hall, also known as Eula Kenner, is the wife of Lionel Kenner. Affiant has ascertained from the Department of Motor Vehicles that license HGC 093 is a 1955 A return to the search warrant, made by Police Officer McIntosh of the Los Angeles Police Department, states that, pursuant to said search warrant, he searched the premises at 1131 West 47th Street on September 25, 1959, about 4:30 p. m., and recovered 186 sheets of betting markers, 5 National Daily Reporters, 2 telephone bills, 1 gas bill, 2 parlay books, 18 tout sheets, 2 adding machines, and 4 telephones.
A return to the search warrant, made by Police Officer R. E. Hatter, states that, pursuant to said search warrant, he searched the premises at 1118 West 47th Street on September 25, 1958, about 4:30 p. m., and recovered 18 pads and 101 sheets of professional type (ABC) betting markers, 3 National Daily Reporters, 2 revolvers and ammunition therefor, 1 adding machine, 1 typewriter, 3 telephones, and 1 pair of handcuffs.
On December 3, 1959, the defendants Brown and Thomas filed a notice of motion to quash and set aside the search warrant on the grounds (1) that the basis for the probable cause for the warrant as indicated in the affidavit (attached to the warrant) is hearsay information 'from an undisclosed confidential'; (2) the place to be searched and the property to be found were described in uncertain terms; and (3) there was no qualification of the Officer Hatter (affiant) as an expert in the field of bookmaking other than his own statements. It does not appear that defendants Keener filed a notice of motion to quash and set aside the search warrant, or that they made an oral motion to quash and set it aside. It does appear that their counsel participated in the oral proceeding for an order quashing the search warrant, and it appears that the judge who presided therein (Judge William H. Rosenthal) considered that the motion was made by all the defendants. At the beginning of the proceeding the judge said that the two Immediately thereafter, the preliminary examination in the case of People v. Keener and Keener was held. Prior to calling a witness therein, counsel made a motion that the transcript and the record on the motion to quash the search warrant 'be marked Defendants' A and received as part of the evidence in this particular case as Defendants' A.' The motion was granted. At that preliminary examination, Officer McIntosh was called as a witness by the People. It was stipulated that he was an expert in the manner in which bookmaking The informations hereinabove referred to were filed on December 10, 1959. Defendants were arraigned in Department 100 of the Superior Court on December 17, 1959, and the cases were continued to December 23 for pleas. The minutes of December 23 recite: 'Each defendant makes motion under 995 Penal Code,' and the hearing on the motion (of each defendant) is continued to December 28. On December 28 the matter of hearing the motions was transferred to Department 112. The judge of that department said that the cases were there for hearing under section 995 of the Penal Code. When the case of defendants Brown and Thomas was called counsel for those defendants made a motion to dismiss the information on the grounds that there was no probable cause for the search, the search was illegal, the evidence was illegally obtained, and the evidence was insufficient 'to hold' the defendants to answer. Counsel for defendants did not make an argument with respect to the motion. The deputy district attorney argued to the effect that the officers acted upon reliable information, and upon a valid search warrant; that the issuance of the search warrant was a judicial act; that the officers were entitled to rely upon that judicial act and to make the arrest; that the motion to quash the search warrant had been heard and denied in the magistrate's court; and that the motion in the superior court under section 995 of the Penal Code should be denied. The trial judge, in making his ruling, said that the motion 'to set aside' the information would be granted. (It is to be noted that the judge referred to the motion in proper language of the code section as a motion 'to set aside' the information, and that he did not refer to it as a motion 'to dismiss' as stated in the motion of defendants' counsel.) The minute order states that 'Defendant's motion to dismiss under Section 995 Penal Code is argued and granted.' Since section 995 does not provide for a dismissal, and since the judge used the words 'to set aside,' it is apparent that the clerk inadvertently used the word 'dismiss' and that the minute order should be construed as meaning the motion 'to set aside' the information is granted. It appears that the basis for the ruling of the court, setting aside the information under section 995 of the Penal Code, was that the name of the informant was not stated.
In the case of defendants Lionel and Eula Keener similar proceedings were had upon the motion under said section 995, and a similar ruling was made therein.
It is to be noted that in the preliminary examinations, excluding reference to the transcript regarding the motion to quash the search warrant, no request was made that the name of the informant be Coy v. Superior Court,
People v. Thornton,The orders are reversed.
FOURT and LILLIE, JJ., concur.