2 Cal.App.3d 681, 5188, People v. Coffman
|Citation:||2 Cal.App.3d 681, 82 Cal.Rptr. 782|
|Opinion Judge:|| Friedman|
|Party Name:||People v. Coffman|
|Attorney:|| John D. Barr, under appointment by the Court of Appeal, for Defendant and Appellant.  Thomas C. Lynch, Attorney General, Edsel W. Haws and Willard F. Jones, Deputy Attorneys General, for Plaintiff and Respondent.|
|Case Date:||December 16, 1969|
|Court:||California Court of Appeals|
Hearing Denied Feb. 11, 1970.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Thomas C. Lynch, Atty. Gen., by Edsel W. Haws and Willard F. Jones, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.
John D. Barr, Redding, for defendant-appellant.
FRIEDMAN, Acting Presiding Justice.
Defendant was convicted by a jury of three separate counts of second degree burglary. The first involved burglary of the 99 Club, a bar in Chico, in the early morning hours of June 9, 1968. The other two counts arose from burglaries of the Lee dwelling and the Shrader dwelling. He appeals from the judgment.
Initially, defendant charges lack of substantial evidence that he burglarized the 99 Club. On opening the bar the morning of June 9, the owner found that it had been burglarized. The following items were missing: 10 to 12 cellophane-wrapped sandwiches: 4 to 6 six-packs of Olympia beer; 1 unopened box of cigars, and 3 partially filled boxes of cigars; coins from a coinoperated shuffleboard game and from a cigarette machine.
Two witnesses had been parked in an automobile near the 99 Club in the early morning hours of June 9. They saw a man walk away from the bar carrying a carton of the kind in which beer is delivered. He placed the carton in a light-colored station wagon parked nearby, then returned to the bar and came back with a second carton with smaller packages in it. Both witnesses described the man an about 40 years of age, rather bald and heavy-set, and wearing white gloves. One of the witnesses identified defendant as the man; the other testified that defendant resembled the man. Both testified that the station wagon had a temporary paper license on the right rear window. One identified the station wagon as a Ford.
Some time after the burglary of the 99 Club, Officer Earl Summers examined a police investigation report containing information supplied by the two eyewitnesses. Thus he was familiar with the suspect's description and the appearance of the station wagon. On July 29 at approximately 11 p.m. Summers was on routine patrol and saw a light-colored 1962 Ford station wagon parked across the street from an apartment house situated behind the 99 Club. No other cars were parked in the vicinity. Defendant was seated behind the wheel of the station wagon. As Summers drove by, defendant turned his head away, preventing Summers from seeing his face. Summers turned around and drove toward the vehicle with his headlights on high beam. Defendant tipped his head, again preventing Summers from seeing his face. Summers stopped, went up to the station wagon and asked defendant what he was doing in the area. Defendant explained that he was waiting for his girl friend, Beverly Nutter, who lived in the apartment house across the street. When backup officers arrived, Summers went to the apartment house and found no person of that name living there. When Summers informed defendant of this fact, defendant told Summers that the woman's name was Betty instead of Beverly. At this point Summers realized
that defendant and his car answered the descriptions of the person and vehicle involved in the burglary of the 99 Club. He also observed scotch-tape marks, typical of marks left when a temporary license is removed, on the right rear window. They drove to the station, defendant following Summers in his car. Summers pulled out the 99 Club Burglary report to verify the descriptions. He then arrested defendant.
After the station wagon had been parked in the police station parking lot, an ammunition cartridge was seen in plain view on the floor of the rear compartment. Defendant then consented to a search of the car. As a result of the search the officers found a temporary paper license and soiled white gloves in the glove compartment, a fully loaded .32 caliber pistol, six rounds of ammunition, a box containing four cigars and a white cloth with two eyeholes cut out.
A search of defendant's apartment revealed a filled box and two partial boxes of cigars, also an empty Olympia beer case. The search of the apartment and a search of defendant's mother's house (the latter, with the mother's consent) uncovered property taken in the Lee and Shrader burglaries. The pistol found in his station wagon had been stolen from the Shrader home.
Defendant's claim of inadequate evidence of the 99 Club burglary is bottomed on the 'fungible' character of the cigars and beer case found in his car and apartment. He argues that such articles may be purchased anywhere and supports his argument by his own testimony that he smokes cigars. Possession of goods taken from the burglarized premises is a material fact. (People v. Citrino, 46 Cal.2d 284, 288.) The law does not demand positive identification of the goods as a prerequisite to jury consideration. The prosecution may prove the defendant's possession of items resembling and which may actually be the stolen ones; such evidence supplies a substantial basis for a finding of possession. (People v. Hickok, 198 Cal.App.2d 442, 444--445, 17 Cal.Rptr. 875; People v. Harsch, 44 Cal.App.2d 572, 576; 12 C.J.S. Burglary § 51, p. 724.) The brands and shapes of the four varieties of cigars found in defendant's automobile and apartment corresponded precisely with those missing from the 99 Club: a full box of Dutch Masters Panatellas, one part box of Dutch Masters Presidents and two part boxes of Roi-Tan Panatellas. Defendant's possession of articles corresponding to the stolen property and the eyewitness testimony of his activities outside the 99 Club at the approximate time of its burglary form substantial evidence of guilt.
Defendant contends that his arrest was illegal, hence that any evidence produced thereafter was inadmissible. Apparently this contention
is aimed particularly at the items found in his car immediately after his arrest. The objection is unavailable on appeal, for defendant's trial counsel did not object when these items were offered in evidence. The objection would have been unavailing in any event. Officer Summers had adequate reason to question defendant as the latter sat in his parked car. (People v. Mickelson, 59 Cal.2d 448, 450, 30 Cal.Rptr. 18.) Thereafter, a cumulative series of suspicion-evoking circumstances and insights occurred, so that by the time of the arrest the officer had reasonable cause to believe that defendant was the person who had burglarized the 99 Club. (See People v. Koelzer, 222 Cal.App.2d 20, 24--28, 34 Cal.Rptr. 718.) The warrantless arrest was therefore lawful. (Pen.Code, § 860, subd. 3.) Defendant's consent, which preceded the search of his station wagon, was valid because it was not connected with an illegal arrest. Made after a valid consent, the search was lawful. (See People v. Johnson, 68 Cal.2d 629, 632, 68 Cal.Rptr. 441; Witkin, Cal. Evidence (2d ed. 1966) §§ 77, 79.)
Lastly, defendant charges inadequate representation by his court-appointed trial counsel (who does ont represent him on appeal). The claim is premised on the attorney's failure to raise the objection of an illegal search when the prosecution offered stolen articles uncovered in a warrantless search of defendant's apartment. The following articles were found in the search of defendant's apartment: (1) a full box of Dutch Masters cigars and two of the partially filled boxes, as well as an Olympia beer case, all apparently stolen from the 99 Club; (2) a portable television set, rifle, shotgun, clock-radio and travel alarm, all later identified as stolen from the Lee dwelling.
Defendant was a parolee at the time of the events. The day after his arrest a Chico police officer investigating the burglaries phoned John Ransom, a parole agent at the Redding office of the Department of Corrections. He asked Ransom to accompany the police in a search of defendant's apartment in Corning. Ransom agreed and instructed the officer to obtain defendant's apartment key from his personal belongings at the jail. Three police officers met Ransom at the apartment. Ransom then conducted a search with the three officers following him as he moved through the apartment. This procedure, he testified, was 'standard in (his) department.' At the time of the search he knew that defendant was under arrest for burglary. 1
People v. Denne, 141 Cal.App.2d 499, 507--510, held that prevailing Fourth Amendment standards of 'reasonable search' do not apply to searches of a parolee by parole officers. The Denne cases was followed by this court in people v. Hernandez, 229 Cal.App.2d 143, 150, 40 Cal.Rptr. 100, 104, 8 A.L.R.3d 1092 (cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725), which stated the following rule: 'For the purpose of maintaining the restraints and social safeguards accompanying the parolee's status, the...
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