19 Cal.3d 99, 19271, People v. James

Docket Nº:19271
Citation:19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135
Opinion Judge:[11] Mosk
Party Name:People v. James
Attorney:[7] Samuel P. James, in pro. per., Michael A. Kahn, under appointment by the Supreme Court, and Seymour I. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. [8] Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assi...
Case Date:March 15, 1977
Court:Supreme Court of California

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19 Cal.3d 99

137 Cal.Rptr. 447, 561 P.2d 1135

The PEOPLE, Plaintiff and Respondent,


Samuel P. JAMES, Defendant and Appellant.

Cr. 19271.

Supreme Court of California.

March 15, 1977.

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Samuel P. James, in pro. per.

Michael A. Kahn, San Francisco, under appointment by the Supreme Court, and Seymour I. Cohen, Torrance, under appointment by the Court of Appeal, for defendant and appellant.

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Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Russell Iungerich, Edward T. Fogel, Jr., and Carol Wendelin Pollack, Deputy Attys. Gen., for plaintiff and respondent.

John K. Van de Kamp, Dist. Atty. (Los Angeles), Harry B. Sondheim and George M. Palmer, Deputy Dist. Attys., as amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him of two counts of first degree burglary, one count of second degree burglary, and one count of armed robbery.

At 1:10 a.m. on Friday, September 6, 1974, Verta Kirk began her nightly work as cleaning woman in a small office building in Los Angeles. Ten minutes later she came upon defendant in the second-floor hallway. He ordered her to 'freeze,' but she retreated into the adjacent office of Congressman Hawkins and slammed the door, automatically locking it. Defendant kicked the door open, seized Mrs. Kirk, pressed a knife blade against her chest, and announced he had to kill her because she could identify him. She pretended to faint. He went through her pockets and took some 30 dollars and her driver's license from her wallet. He then threw water on her, and she pretended to revive. She told him she had a bad heart and asked him to leave, but he again said he would have to kill her.

Mrs. Kirk engaged defendant in conversation for approximately 45 minutes. Throughout this period she had ample opportunity to observe his features and appearance, as she was never more than two feet from him and the room in which they were talking was well lit. Finally defendant asked her how to get out of the building, and she said she would unlock the front door for him. As they were leaving, defendant entered another office, occupied by the Children's Television Workshop, and carried out a television set and a jacket. He discarded his knife into a nearby trash can, but told Mrs. Kirk he had a gun in his pocket and would shoot her if she tried to run. She saw 'something he was holding on me,' but could not identify the weapon.

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After they reached the street defendant signaled a passing car and it stopped at the curb. When he began talking with its occupants, Mrs. Kirk ran away. Defendant jumped into the car with the television set, and the car drove off.

Summoned promptly to the scene, police officers found the knife discarded by defendant; it was revealed to be a letter opener stolen from a third office in the building, occupied by Project SEED. 1 In addition, a checkbook belonging to that organization was found lying in the Children's Television Workshop. In the latter office the screen on a skylight leading to the roof had been either cut or torn, and there was a large amount of dirt on the carpet beneath. Access to the quarters of Project SEED had apparently been gained by breaking the molding of the door, and desk drawers in that office had been ransacked.

Los Angeles Police Officer Turner was assigned the investigation of the case. From other detectives he obtained the name of an individual who used a similar modus operandi, and prepared a 'mug shot lineup' of photographs of that person and five or six other men of similar appearance. A photograph of defendant James happened to be included. On Monday, September 9, 1974, Mrs. Kirk looked at the photographs, and picked out defendant as her assailant. To verify the identification Officer Turner showed Mrs. Kirk six additional photographs which were larger and clearer, and she again picked out defendant. 2

Defendant was arrested at his house on the following evening, and the stolen television set was found on his premises. The set was seized, and photographs of it were identified at trial by employees of the workshop.

After his arrest defendant gave the following version of the events to Officer Turner: On the night in question he had been walking in the vicinity of the building where the crimes were committed. He stopped a car and asked for a ride home. The driver agreed to do so for $1.50, but said, 'First I want to rip off this building where I work.' Defendant went to the front door of the building, and entered when someone opened it from the inside. He admitted following Mrs. Kirk into Congressman Hawkins' office and seeing her faint, but denied taking her money. He stated that he picked up the letter opener and held it in his hand while he told Mrs. Kirk not to call the police, but denied touching her with it.

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Finally, he admitted taking the television set and departing with it in the car. 3

Defendant first contends the evidence of the stolen television set in his house was obtained by an illegal search and seizure. Our guiding principles are well settled. Inasmuch as the search herein was conducted without a warrant, the burden was on the People to establish justification under a recognized exception to the warrant requirement. (People v. Rios (1976) 16 Cal.3d 351, 355--356, 128 Cal.Rptr. 5.) The People relied on consent, which constitutes such an exception. (People v. Michael (1955) 45 Cal.2d 751, 753.) In that event, however, the People had the additional burden of proving that the defendant's manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. (People v. Johnson (1968) 68 Cal.2d 629, 632, 68 Cal.Rptr. 441.) 4 The voluntariness of the consent is in every case 'a question of fact to be determined in the light of all the circumstances.' (People v. Michael, supra, 45 Cal.2d at p. 753, 290 P.2d at p. 854; accord, People v. Reyes (1974) 12 Cal.3d 486, 501, 116 Cal.Rptr. 217.)

The People introduced the following evidence on this issue at the hearing on defendant's motion to suppress: After Mrs. Kirk identified defendant as her assailant, Officer Turner obtained his current address and requested Officer Ferraro to effectuate the arrest. The latter was given a photograph of defendant, and was advised that a handgun had been used in the robbery and a television set had been stolen from the Children's Television Workshop. At 10 p.m. on September 10, 1974, Officer Ferraro and three other policemen went to defendant's house. Officer Ferraro knocked on the door; defendant answered, and the officer recognized him from his photograph. Officer Ferraro testified he

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then directed defendant to step outside and down the front stairs. After giving his name, defendant was placed under arrest and handcuffed. Officer Ferraro told defendant that he was conducting a robbery investigation, and asked if he could look in the house for items taken. Defendant appeared to have no difficulty understanding the request, and answered 'Yes' or 'Yeah.' As soon as the officer stepped through the front door he saw the missing television set, bearing an identification tag in the name of the Children's Television Workshop.

Defendant gave a different version of these events; in particular, he testified that Officer Ferraro neither asked for nor received his permission to enter the house. But the trial court, by denying the motion to suppress, impliedly found that the officer's testimony was true and that defendant voluntarily consented to the search. (Evid.Code, § 402, subd. (c); People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385.)

Our role in reviewing the resolution of this issue is limited. The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings--whether express or implied--must be upheld if supported by substantial evidence.' (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 587; accord, People v. Ruster (1976) 16 Cal.3d 690, 701, 129 Cal.Rptr. 153.)

Defendant contends that the foregoing testimony of Officer Ferraro, even if true, does not constitute substantial evidence to support the implied finding of voluntariness because it was assertedly undermined by six additional facts shown in the record. We conclude that in the circumstances of this case the matters relied on by defendant neither singly nor in combination require a finding of coercion as a matter of law.

To begin with, defendant stresses that at the time of giving consent he was both under arrest and in handcuffs. He cites three California cases as authority for the relevance of these facts: Castaneda v. Superior Court (1963) 59 Cal.2d 439, 443, 30 Cal.Rptr. 1; People v. Shelton (1964) 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, and People v.

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Wilson (1956) 145 Cal.App.2d 1, 7. The cases are not controlling, however, because each involved additional significant circumstances which are not here present. Thus in Castaneda the defendant was arrested and placed in handcuffs at a house some distance from his own. Although he purported to give the officers permission to search his house, he thereafter led them on a classic wild goose chase. 5 We overturned a finding of consent, reasoning (59 Cal.2d at p. 443, 30 Cal.Rptr. at p. 33, 380 P.2d at p. 643) that defendant 'repeatedly attempted to lead the officers away from his home,...

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