People v. Grey

Decision Date10 February 1972
Docket NumberCr. 19433
Citation23 Cal.App.3d 456,100 Cal.Rptr. 245
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Robert Dale GREY, Defendant and Appellant.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert F. Katz, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Originally, defendant was charged in superior court case No. A--109191 with one count of theft and one count of receiving stolen goods, both counts relating to a 1964 Chevrolet Chevelle, the property of Edward Taylor. In superior court case No. A--109664 he was similarly charged, in two counts, both relating to a 1968 Chevrolet Corvette, the property of Robert Arshan. Subsequently the two cases were consolidated, under the lower number, with the two counts of former A--109664 becoming counts III and IV of the consolidated information. Defendant's motions to dismiss the information under section 995 of the Penal Code, and his motion to suppress evidence under section 1538.5 of the Penal Code were denied; his motions to sever the consolidated information and his motion to dismiss the prosecution under section 1382 of the Penal Code were also denied. He pled not guilty. After a trial by jury he was found guilty on the two counts charging receiving stolen goods and not guilty of the theft charges. His motion for a new trial was denied; proceedings were suspended and he was given probation on certain conditions, including service of 100 days in the county jail. He has appealed; we affirm.

Because it is not (and could not be) contended that the evidence against him, if legally acquired and properly admitted, does not sustain the verdicts, we need, at this point, merely summarize the People's case:

Defendant, a man named James Brown (and perhaps a man named Dietrich) were engaged in stealing automobiles, stripping them, exchanging parts, repainting and other conduct leading to the ultimate sale of the stolen cars or their parts. The police were first led to investigate the ring by the interrogation and arrest of Brown. Brown's statements, and papers found in Brown's possession, led to investigation of defendant and his arrest.

I

It is contended that the arrest of Brown was illegal and that that arrest contaminated all the subsequent investigation under the 'fruit of the poisoned tree' doctrine. We conclude that the arrest of Brown and the interrogation that followed were legal. 1

Late on the evening of March 5, 1969, police officers were directed to investigate a 'cut-up' Mustang automobile at a given address, which it developed was Brown's home. On arrival, they found Brown about to drive away. His answers to their questions gave rise to the suspicion that he was not telling the truth. Inspection, at Brown's invitation, of cars on the premises and a radio report on license numbers, clearly gave the officers reasonable grounds to arrest him for car theft. Nothing in the record suggests that the pre-arrest interrogation was other than investigatory, nor that Brown's constitutional rights were infringed.

II

During the interrogation of Brown, he resorted to a briefcase, from which he removed sundry papers in an attempt to explain his connection with the cars found at his home. When Brown opened the briefcase, the officers were able to see that it contained other papers and license plates. When Brown was booked at the jail, the officers (as part of the booking process) opened the briefcase and inventoried its contents. Among other things, they thus found a document which led to the discovery of the theft of the 1968 Chevrolet involved in counts III and IV and to the connection of both Brown and defendant with that theft.

The arrest and search took place prior to the decision in Chimel. Even if we assume (as defendant suggests) that search of the briefcase--as distinguished from a search of Brown's person and clothing--was not a legitimate part of the booking process, 2 the officers were entitled to believe, from what they had seen earlier, that the briefcase contained (as it in fact did) Brown's records relating to his business of stolen cars. Under those circumstances, the search of the briefcase was, under Pre-Chimel law, a search incident to the arrest.

III

As above indicated, papers found in Brown's briefcase led the officers to investigate the theft of the 1968 Chevrolet and to suspect defendant's connection therewith. Pursuing that investigation, on June 11, 1969, Officer Sechrengost of the California Highway Patrol went to defendant's place of business, where defendant and Dietrich conducted the business of repairing and dealing in used cars. The officer first sought from defendant's landlord (Doig) permission to search the premises and received a somewhat equivocal permission. He then demanded a similar permission from Dietrich, basing his demand on the provisions of section 2805 of the Vehicle Code, as that section then read. 3 Dietrich consented, but over the objection of defendant. The search disclosed evidence material to the People's case.

Defendant claims that section 2805 was unconstitutional as violative of the Fourth Amendment. 4 We disagree. Defendant relied in the trial court, and relies here, on Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930, and on See v. City of Seattle, (1967) 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943. While the argument is not without merit, we are not persuaded that it is valid in the case at bench. Camara concerned a warrantless search of a private residence in an effort to discover violations of the local building codes. See involved a routine search of all business establishments to ferret out possible violations of the first safety laws. In neither case was the place involved of a kind differing from other residences and business establishments. In neither case does the record show any public interest in governmental searches that would set these places apart from other places in the same community. But it is a matter of which we may take judicial knowledge that, while most establishments engaged in repairing vehicles, dismantling vehicles or selling used vehicles are honestly conducted, that kind of business is frequently utilized as a 'front' by persons engaged in the very kind of illegal business herein involved. Examination of the Vehicle Code discloses elaborate provisions for the registration and licensing of such businesses, designed to segregate the honest business man from the thief and the fence. 5 We think that this serves to distinguish the authority given by section 2805 from that purportedly given by the ordinances considered in Camara and in See. To repeat, those ordinances were directed at All residences and at All business establishments, whether or not requiring any special permit or creating any special public danger; section 2805 (and its companion section 10656) are part of a statutory scheme directed at a special and well known evil. Absent some authority closer in point, we are inclined to hold that a state may impose on the licensing of a business, so fraught with public danger, a requirement that its premises be open to orderly inspections. 6

IV

As we note above, defendant originally was charged, by the two original counts in case number A--109191, with offenses relating to the 1964 Chevelle. That information was filed on August 21, 1969. Sundry continuances were granted, either at the request of, or with the consent of, defendant, until January 13, 1970. On that date, the prosecution, over the objection of defendant, consolidated the two counts from case number A--109664, which had theretofore been set for trial on February 27, 1970. The People represented that they were prepared to go to trial at once on the consolidated information; defendant represented that, although he was prepared to proceed on the two original counts of case number A--109191, he was not ready to proceed on the two other counts thus interjected into the case. As a result, and over defendant's objection to continuing the original counts, the entire case was continued until January 27, 1970. Thereafter other continuances resulted in the case finally coming on for trial on March 13, 1970.

Apart from the consolidation, the latest date on which the original information in case number A--109191 could have been tried was January 23, 1970. 7 Thus, unless the consolidation provided a 'good cause' for the additional delay, the provisions of section 1382 of the Penal Code were violated. 8 But we think that defendant's contention is without merit on two grounds: (1) The consolidation quite clearly was proper on its merits, since the evidence concerning defendant's involvement in the two Chevrolets was so interwoven that it made a single trial a matter both of time saving and of convenience for defendant as well as for the People. Since it was defendant who expressed an inability to proceed after the consolidation, we cannot say that the trial court erred in finding that there was 'good cause' for the additional delay. (2) Where, as here, the section 1382 contention is raised on an appeal after judgment, defendant must show not only the delay and lack of good cause, but he must also show prejudice by the delay. (People v. Wilson (1963) 60 Cal.2d 139, 152, 32 Cal.Rptr. 44, 383 P.2d 452.) As we explained in People v. Rodriguez (1971) 15 Cal.App.3d 481, 484, fn. 2, 93 Cal.Rptr. 182, the language in People v. Archerd (1970) 3 Cal.3d 615, 640, 91 Cal.Rptr. 397, 477 P.2d 421, on which defendant relies, applies only to a pre-trial writ application and not to an appeal after judgment. Had the motion to dismiss been granted on January 13, 1970, or at any later date during that spring, the People could have refiled and started the statute running again. (Pen.Code § 1387...

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