Thomas

This is an appeal by the People, pursuant to Penal Code section 1238, subdivision (7) from an order of the superior court granting the defendant and respondent’s motions to suppress pursuant to Penal Code section 1538.5 and for dismissal.

Defendant was charged by an information with having been in possession and control of an automatic pistol capable of being concealed upon the person and having a barrel of less than 12 inches in length, after having previously been convicted of the felony of burglary, in violation of the Dangerous Weapons’ Control Law. (Pen. Code, § 12021.) Defendant’s preliminary examination was conducted on April 6, 1970, after which his motion pursuant to Penal Code section 1538.5 was heard on June 18, 1970.

Robert W. Diton was called as a witness and testified. Both sides rested. Defendant’s motion to suppress the evidence was granted and the information was dismissed and the defendant was discharged.

Robert W. Diton, a Los Angeles police officer, was on duty March 11, 1970, when he received a radio call to “go to 4214 South Avalon, man with gun.” The officer answered the call and went to the address and spoke to one Tenolia Pilot, who resided at…