DocketNumber： Crim. 19363
Citation Numbers： 105 Cal. App. 3d 204, 164 Cal. Rptr. 296, 1980 Cal. App. LEXIS 1768
Judges： Caldecott, Poché
Filed Date： 4/29/1980
Status： Precedential
Modified Date： 11/3/2024
Opinion
Appellant Irvin Dewayne Harris was convicted, following a jury trial, of burglary, second degree and grand theft. The appeal is from the judgment. Prior to trial appellant’s motion to suppress evidence, made pursuant to Penal Code section 1538.5, was denied and appellant admitted a prior conviction of receiving stolen property, a violation of Penal Code section 496. Appellant was sentenced to state prison for the median term of two years on the burglary conviction. Imposition of sentence on the grand theft conviction was stayed pending finality of the conviction of burglary. Appellant was given 126 days credit for time served.
On July 20, 1978, at approximately 10:30 p.m., Officer Ralph Weiss received a report of an alarm at Capwell’s department store in the El Cerrito Plaza Shopping Center. Upon arriving at the scene, the officers checked the perimeter of the store and found it locked and intact. Officer Weiss called up the store manager, Robert Renko, so that they could enter and check the inside of the store together. On entering the store, the manager informed the officer that the interior rather than the exterior alarm had sounded. Suspecting that the burglary was still in progress they immediately left the store and Officer Weiss broadcast for additional cover. The broadcast was answered by Officer Dennis Cook, who reported that he had just observed someone run from the store through the mall. After exiting the store, Officer Weiss discovered that a large glass window on the north side of the building was broken and that a suitcase stuffed with Capwell’s merchandise was lying in the mall nearby.
The next policeman, Officer Mark Woltering, who was patrolling the area of the burglary, testified that about 11:30 p.m., he received a report that the suspect was in the vicinity of a medical building located on Fairmount. He left the patrol car and spotted a black female standing on the corner of Lexington and Fairmount. He asked the woman if she saw a black man running through the plaza, and she responded that she observed a man running down Lexington in a northerly direction. Officer Woltering began to search the area on the east side of Lexington. Meanwhile, the woman was “walking very slowly, looking about, seeing what.. .[the officer] was doing.” Approximately 10 minutes later, Officer Woltering observed a black male approaching him from the southerly direction on Lexington. The man was walking at a rapid pace and was breathing heavily. When Woltering walked out from between the houses, the man broke into a run, darting inside the yard of a house across the street. Officer Woltering shouted for him to stop, then went after him. After a chase, he was joined by Officer Maehler and together the officers succeeded in apprehending the man in the yard of a residence. At trial, Officer Woltering identified the suspect as appellant.
The store manager Renko reentered the Capwell’s building to determine whether anything was out of the ordinary inside. Inside the store,
In the early morning hours of July 21, 1978, Lieutenant William Edmunds of the El Cerrito Police Department observed the booking of appellant at the El Cerrito police station. During the booking process, appellant asserted that his name was “Wayne Jackson.” At the time of booking, appellant’s shoes were seized as evidence. Lt. Edmunds also participated in the booking of the woman, Sharon Devlin, whom Officer Weltering had spoken with at the intersection of Fairmount and Lexington Streets and who subsequently had been taken into custody. At the time of the booking, Devlin’s purse was searched. Inside the purse a wallet was found with a driver’s license and other identification indicating that it belonged to appellant Irvin Harris. Additionally, inside the wallet ostensibly belonging to appellant, was the photograph of an infant child with an inscription on the back reading, “To Sharon and Dewayne.” Furthermore, a key to room 10 at the Capri Motel in Berkeley was found, which was the address given by appellant as his residence at the time of booking.
After appellant’s apprehension, his shoes were delivered to a criminalist, John Patty, to examine for the presence of “trace evidence.” Patty examined the fragments microscopically and compared them with shards of glass taken from the broken window at Capwell’s. Examination revealed that the two samples had the identical refractive index and the identical density. Patty noted that approximately 8,000 different densities of glass were in existence and that the glass taken from the shoes was indistinguishable in any respect from that used by Capwell’s.
Appellant presented an alibi defense at trial supported mainly by his own testimony. He stated inter alia that on July 20, 1978, the day of the burglary, he and Sharon Devlin, his girlfriend, resided at the Capri Motel in Berkeley. He and Ms. Devlin, together with her pet poodle, left the motel that night and traveled on BART to the El Cerrito station, arriving at about 9:30. Their intention was to go bowling. On the BART platform at El Cerrito, however, the two began to argue and appellant left Ms. Devlin standing there. Nevertheless, just after the
After the “argument” appellant caught a bus back to Berkeley and went to the motel. He remained in the motel for about 20 minutes, then took a San Pablo bus and returned to El Cerrito. He got off the bus near Lexington Street in El Cerrito and noticed several police cars cruising on Fairmount and Lexington. When one of the officers approached him, appellant decided to flee because he was frightened about the prospect of being taken into custody on the traffic warrant. He was apprehended and arrested after a brief chase. Appellant denied that he had been to the El Cerrito Capwell’s store that day and specifically that he had burglarized the store that evening.
On cross-examination appellant admitted, however, that he had given various false statements to the police; that he and Ms. Devlin had been to the Capwell’s store several days before and that at that time she had tried on one of the mink coats; and that at the time of the crimes, Ms. Devlin was pregnant with his child. Moreover, he was evasive as to why he gave his wallet to Ms. Devlin while in the middle of an argument on the BART platform.
I
The Search of Ms. Devlin’s Purse
Appellant’s principal contention on appeal is that the trial court committed prejudicial error by denying his motion to suppress the evidentiary items seized from Ms. Devlin’s purse during the booking procedure. More specifically, appellant claims that the seizure in question was unlawful on two grounds: (a) that Ms. Devlin’s antecedent arrest was unlawful because it was not based upon probable cause; (b) aside from the legality of the arrest, the warrantless search of the purse was impermissible under United States v. Chadwick (1977) 433 U.S. 1 [53 L.Ed.2d 538, 97 S.Ct. 2476], and its progeny, especially United States v. Schleis (8th Cir. 1978) 582 F.2d 1166, and People v. Pace (1979) 92 Cal.App.3d 199 [154 Cal.Rptr. 811]. As we shall explain below, both of these arguments are meritless and must fail.
It is, of course, well established that a peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a felony (Pen. Code, § 836, subd. 3). Reasonable or probable cause to arrest exists if the facts and circumstances known to the arresting officers would cause a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an offense has been committed and the accused is guilty thereof. (People v. Martin (1973) 9 Cal.3d 687, 692 [108 Cal.Rptr. 809, 511 P.2d 1161]; People v. Gomez (1976) 63 Cal.App.3d 328, 333 [133 Cal.Rptr. 731]; People v. Lurie (1967) 257 Cal.App.2d 98, 100 [64 Cal.Rptr. 637].) While no exact formula exists for determining probable cause and each case must be decided on the facts and circumstances presented to the officers at the time they were requested to act (People v. Ingle (1960) 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577]; People v. Ferguson (1963) 214 Cal.App.2d 772, 775 [29 Cal.Rptr. 691]), it has been held that in order to justify a warrantless arrest the officer must be able to point to specific and articulable facts which reasonably warrant his suspicion that an offense has been or is being committed. (People v. Superior Court (Johnson) (1971) 15 Cal.App.3d 146, 151 [92 Cal.Rptr. 916]; People v. Martin, supra, 9 Cal.3d 687 at p. 692.) We believe when viewed in light of the aforegoing principles the instant record contains sufficient facts to sustain the detention, questioning and ensuing arrest of Ms. Devlin and as a consequence the trial court’s finding of probable cause must be upheld.
The evidence demonstrating probable cause is set forth in the transcript of the suppression hearing conducted on January 11 and 12, 1979, at which both Officer Woltering and Officer Maehler provided extensive testimony with regard to the circumstances leading to Ms. Devlin’s arrest.
Consistent with his trial testimony, Officer Woltering testified at the preliminary hearing that at approximately 11:30 on the night of July 20, 1978, he received a broadcast of a burglary at Capwell’s at the El Cerrito Plaza. The suspect was reported to have run from the shopping center lot to the adjacent medical building located at Fairmount and Lexington Streets. When Woltering and his partner arrived at the intersection roughly one minute after receiving the broadcast, they saw a woman (later identified as Ms. Devlin) standing on the corner with a
Officer Maehler, the other officer testifying at the suppression hearing, stated that on the night of the burglary he operated near the intersection of Fairmount and Lexington and that he too, observed Ms. Devlin walking in the same general area. After appellant’s arrest he was told by Officer Woltering that Ms. Devlin had given false information as to the direction the suspect was fleeing. With this knowledge in mind, Officer Maehler approached Ms. Devlin and requested some identification. Ms. Devlin responded that she had none and informed him that her name was “Lynn Jackson.” He next asked for her address and she replied that it was 2833 Chancellor Street in Richmond, a location approximately five or six miles away.
Wondering what the woman was doing walking her dog at midnight five or six miles away from her home, Maehler inquired what she was doing in the area. She stated that she had taken BART to El Cerrito Plaza station and that she was waiting for a friend who was arriving from San Jose on BART. Believing her story to be incredible (because BART does not run to San Jose; because dogs are not allowed through the BART turn-stiles; and because when stopped she was walking away from the station) Maehler then asked what the name of her friend was and how she got the dog onto the train. When the woman could not come up with the name of the alleged friend she was waiting for in the middle of the night in an area where a burglary was reported, Maehler informed her that unless she could provide some identification, she would be taken into custody. She then pulled out a California driver’s license which indicated a completely different name and a Salinas address. Taking into account all the circumstances, including the fact that a burglary had been committed and that among the items stolen were
We conclude that the evidence set out above provided probable cause for Ms. Devlin’s arrest on two separate grounds. One, in the situation presented Officer Maehler was justified in his belief that Ms. Devlin had knowingly given Officer Woltering false information so as to facilitate appellant’s escape from arrest. Such conduct on the part of Ms. Devlin constituted a felony, accessory after the fact in violation of section 32 of the Penal Code.
(b) The Booking Search
Appellant next contends that even if Ms. Devlin’s arrest was lawful, the booking search of her purse at the police station was illegal without a search warrant and as a consequence certain evidentiary objects found in the purse were inadmissible in evidence. Appellant’s contention may not be accepted for a variety of reasons.
It is well established principle deeply ingrained in our criminal law that an arrested person and his belongings may be searched without a warrant both as incident to the arrest (Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]) and/or as incident to the booking procedure (People v. Munsey (1971) 18 Cal.App.3d 440, 448 [95 Cal.Rptr. 811]; People v. Superior Court (Fuller) (1971) 14 Cal.App.3d 935, 945 [92 Cal.Rptr. 545]; People v. Tennessee (1970) 4 Cal.App.3d 788, 792 [84 Cal.Rptr. 697]; People v. Lurie, supra, 257 Cal.App.2d 98, 103). As our Supreme Court put it in People v. Ross (1967) 67 Cal.2d 64, 70 [60 Cal.Rptr. 254, 429 P.2d 606], re
Appellant’s reliance on United States v. Chadwick, supra, 433 U.S. 1, and the case authorities decided thereunder, is obviously misplaced. In Chadwick, the United States Supreme Court held only that the warrantless search of a double-locked footlocker which had been taken from the defendant’s car and placed in a distinct building, was not justified under the automobile exception rule because it was not incident to an automobile search; was under the exclusive control of the federal agents; and there was no danger whatever that it or its contents could be removed before a valid search warrant could be obtained. The court also held that the search of the footlocker was not warranted as incident to an arrest either because the search was remote in time or place or no exigency existed, the search having been conducted more than an hour after the federal agents had gained exclusive control of the footlocker and long after the defendants were securely in custody. The
“Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218 (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 U.S., at 367, or no exigency exists.” (United States v. Chadwick, supra, 433 U.S. at pp. 14-15 [53 L.Ed.2d at pp. 550-551].)
The proposition that Chadwick left the well-established exceptions to the warrant requirement intact, gained further support in United States v. Schleis, supra, 582 F.2d 1166, where the federal Court of Appeals stated inter alia that “[t]he Fourth Amendment warrant clause has long been subject ‘to a few specifically established and well-delineated exceptions.’ Katz v. United States, 389 U.S. 347,. . .(1967). We do not read the Court’s decision in Chadwick as representing a departure from such a long-standing approach. Indeed, the Court in Chadwick recognized and reaffirmed both the Edwards [United States v. Edwards (1974) 415 U.S. 800, 39 L.Ed.2d 771, 94 S.Ct. 1234] and the Chimel exceptions to the warrant requirement.” (Schleis, at p. 1171; italics added.)
Appellant’s additional argument that the booking search of Ms. Devlin’s purse at the police station was invalid without a search warrant
One, as mentioned earlier and further discussed below, Chadwick centered upon, and its holding was limited to, personal property not immediately associated with the person of the arrestee, rather than a woman’s purse which under California law is considered a normal extension of a person subject to search. (People v. Flores (1979) 100 Cal.App.3d 221, 230 [160 Cal.Rptr. 839]; People v. Edwards (1971) 22 Cal.App.3d 598, 602 [99 Cal.Rptr. 516].) As a consequence, Chadwick is inapplicable to the present instance as a matter of law. The case at bench falls rather within People v. Belvin (1969) 275 Cal.App.2d 955 [80 Cal.Rptr. 382] and cases following Belvin. In Belvin, the officers went to the address of the defendant, a parole violator. They arrested her in her bedroom and took her for security reasons to the living room. In the meanwhile her purse, which was left on the floor of the bedroom, was searched by one of the officers in the bedroom. The search yielded several rolls of coins and two balloons of heroin in the zippered compartment of the purse. In upholding the validity of the search as incident to a lawful arrest, the Belvin court reasoned that an arrestee’s personal articles such as a purse, wallet or coat actually in use, though not necessarily on his person at the moment of the arrest, serve as possible sources of concealed weapons and of evidentiary items. Their search thus serves the dual function of security and legitimate investigation. Based upon the above rationale the court concluded that “defendant’s purse, apparently in use by her at the time of her arrest, legally amounted to an extension of her person and could be searched on her arrest. Whether the search of the purse took place before or after defendant’s physical removal to another room we consider wholly fortuitous.” (People v. Belvin, supra, 275 Cal.App.2d at p. 959; accord: People v. Flores, supra, 100 Cal.App.3d at p. 230.) By analogy, we hold that since the purse carried by Ms. Devlin at the time of her arrest is to be regarded as an extension of her person for the purposes of search, and since the person of an arrestee can be searched without a warrant either on the place of the arrest or at the police station, it is immaterial whether the search of Ms. Devlin’s purse was effected at the place of her arrest or shortly after at the police station.
Two, it bears special emphasis that Ms. Devlin’s purse was searched as an integral part of the booking process. As pointed out earlier, the
Three, People v. Pace, supra, 92 Cal.App.3d 199, one of the main authorities cited by appellant, is not controlling in the case at hand for two major reasons. First, Pace is factually distinguishable from the case at bench. It involved an “on the spot” search of a lunchbox. By contrast, the present case deals with the entirely distinct issue of a booking search conducted at the police station. As noted before, the booking search has the additional objectives of preventing the introduction of weapons and contraband into the jail and of making an inventory of the prisoner’s personal property in accordance with the specific mandate of the statute, issues not involved in either Chadwick or Pace.
Secondly, inasmuch as Pace could be interpreted as authority to abolish a certain type of warrantless search [i.e., search of containers incident to an arrest], we believe Pace does not properly reflect the applicable law.
To begin with, it is to be noted that while apparently predicated on Chadwick, Pace goes beyond that case and arrives at a conclusion which is not justified under Chadwick. As indicated earlier, Chadwick makes it clear that it does not intend to alter the well established exceptions to the warrant requirement, especially the search incident to an arrest which has been repeatedly upheld by an unbroken line of cases [see discussion, ante]. While Chadwick concludes that when luggage or other personal property of the suspect is reduced to the exclusive
Moreover, as eloquently stated in Flores, “although the Pace court recognizes the continuing viability of the Chimel rule governing searches incident to arrest (id., at p. 207), it nevertheless fails to consider and discuss the permissible scope of searches of property associated with the person of the arrestee (or normal extensions) as distinguished from the ‘area “within his immediate control.”’” (People v. Flores, supra, 100 Cal.App.3d at p. 232, fn. 5.)
In view of our conclusion it is unnecessary to decide whether appellant’s contention should be rejected for the additional reason that the legality of the booking search was not raised in the proceedings below and as a result the issue is not properly before us. (Cf. Lorenzana v. Superior Court (1973) 9 Cal.3d 626 [108 Cal.Rptr. 585, 511 P.2d 33] with People v. De Santiago (1969) 71 Cal.2d 18 [76 Cal.Rptr. 809, 453 P.2d 353].)
II
Prior Conviction
Appellant was charged in the information with a prior conviction for receiving stolen property committed in 1976. Relying on People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1] and its progeny, appellant moved to exclude the prior conviction from evidence. After weighing the factors laid down in Beagle the trial court denied the motion. Appellant now claims that the denial of the motion constituted reversible error. We disagree.
In Beagle, our Supreme Court determined that section 788 of the Evidence Code does not embody a mandatory rule requiring the trial
Applying these elements to the instant facts, the prior conviction for receiving stolen property was a crime involving a dishonest act which bore on appellant’s veracity as a witness. Moreover, the prior was not identical to the offense charged and was not remote in time. Finally, and even more significantly, the admission of the prior conviction did not deter appellant from testifying on his behalf at the trial. Since it is thus clear that the Beagle factors were fully satisfied and since appellant as a witness testifying in his own case is not entitled “to a false aura of veracity” (People v. Beagle, supra, 6 Cal.3d at p. 453), the admission of appellant’s prior conviction must be held manifestly correct.
We briefly note that People v. Fries (1979) 24 Cal.3d 222 [155 Cal.Rptr. 194, 594 P.2d 19], a case relied upon heavily by appellant, is clearly distinguishable from the present instance. In Fries, the prior robbery conviction was identical with the offense for which the defendant was tried. Furthermore, for fear of impeachment the defendant in Fries refused to testify at the trial and as a consequence the jury was precluded from hearing the defendant’s version of the case. By contrast, in the case at bench, appellant did testify at the trial and the prior conviction admitted for impeachment purposes, though containing a similar element, was not identical with the offenses for which appellant was tried. Finally, while Fries reiterates that offenses such as robbery and burglary are somewhat less relevant on the issue of credibility than are crimes such as perjury (People v. Rollo (1977) 20 Cal.3d 109, 118 [141 Cal.Rptr. 177, 569 P.2d 771]), Fries does not portend to diminish much less overrule the guidelines and policy considerations laid down in Beagle.
CALJIC No. 2.62 Instruction
Upon request of the prosecution, the trial judge instructed the jury per CALJIC No. 2.62, which permits the jury to draw inferences against the defendant from his failure to explain or deny evidence against him.
Appellant’s precise constitutional attack has been recently rejected by the California Supreme Court in People v. Saddler (1979) 24 Cal.3d 671 [156 Cal.Rptr. 871, 597 P.2d 130], which held that CALJIC No. 2.62 neither violates the Griffin rule, nor improperly singles out the testimony of a criminal defendant for special consideration by the jury. Appellant’s alternative argument that CALJIC No. 2.62 was not supported by evidence in the present case is not tenable either. The record is replete with instances where appellant was called upon to explain certain questions pertaining to his guilt and was not able to do so. For example, appellant failed to provide persuasive explanation why he was in the vicinity of Lexington and Fairmount Streets in El Cerrito at the time of his arrest. Moreover, appellant was unable to explain at trial how his shoes had become embedded with shards of glass identical in composition to the glass used by Capwell’s in its plate-glass windows which were broken during the burglary.
Good Time/Work Time Credit.
Appellant contends that Penal Code section 4019 entitles him to credit for “good time/work time,” in addition to the time already credited against his sentence pursuant to Penal Code section 2900.5, for time spent in presentence custody attributable to the charges of which he stands convicted. Subject to his showing eligibility for this credit in point of fact, he is entitled to it as a matter of law. (People v. Sage (1980) 26 Cal.3d 498 [162 Cal.Rptr. 450, 606 P.2d 757].) This conclusion requires the remand ordered below.
The judgment of conviction is affirmed. The cause is remanded to the trial court with directions to determine any additional sentencing credit to which appellant is entitled consistent with the views expressed in this opinion, to resentence him as necessary, and to modify the abstract of judgment accordingly. The court is further directed to transmit a certified copy of any modified abstract of judgment to the Department of Corrections and other appropriate authorities.
Christian, J., concurred.
Section 32 provides that: ‘‘‘‘Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” (Italics added.)
The instruction given to the jury reads as follows: “It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of counsel. In this case, defendant has elected to and has testified as to certain facts. If you find that he failed to explain or deny any fact or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, then you may take that failure into consideration as tending to indicate the truth of that evidence and as indicating that among the inferences that may be reasonably drawn from that those unfavorable to the defendant are the more probable. In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence. The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt or by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt.”