People v. Griffin

• Citation: 58 Cal.Rptr. 707,250 Cal.App.2d 545
• Decision Date: 28 April 1967
• Docket Number: Cr. 12603
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Calvin GRIFFIN, Beatrice Nelson, and Willy Robinson, Defendants and Appellants.

Page 707

58 Cal.Rptr. 707

250 Cal.App.2d 545

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Calvin GRIFFIN, Beatrice Nelson, and Willy Robinson, Defendants and Appellants.

Cr. 12603.

Court of Appeal, Second District, Division 5, California.

April 28, 1967.

Malcolm H. Harris, Los Angeles, for appellants, Griffin and nelson.

Kendall E. Nungesser and Gladys Towles Root, Los Angeles, for appellant, Robinson.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

Defendants Billie Calvin Griffin, Beatrice Nelson and Willie Robinson, each were found guilty of a violation of section 11530 (possession of marijuana) of the Health and Safety Code. They appeal claiming:

1. That the search and seizure which led to the discovery of the narcotic was illegal; and

2. That the evidence was insufficient to support the convictions.

The matter was tried to the court on the following stipulation:

'MR. FUKUTO: At this time, then, your Honor, the People will offer to stipulate that the People's case-in-chief may be submitted to the Court on the testimony taken at the time of these defendants' preliminary hearing; that the testimony of Witnesses John Howard Ryan, (sic) Jr., Arthur J. Bascom, and Theodora Dayian, D-a-y-i-a-n, as recorded in the transcript of that preliminary hearing, shall be deemed to be the evidence before this Court, and specifically we will not submit to the Court under this stipulation the testimony of Willie Robinson given at the preliminary hearing, given on page 62, but the Court may read and consider that testimony with the same force and effect as though the witnesses therein named were here called, sworn, and testified to the matters contained in the transcript; that all stipulations entered into at that time are renewed for the purpose of this proceeding.

'The People's Exhibit No. 1, with all its subdivisions, which were received into evidence at the preliminary hearing, are received in evidence in this proceeding, bearing the same number, Subject to any lawful objection or motion to suppress, and both sides reserving the right to present further testimony.

'So stipulate?

'MR. LANG. So Stipulate.

'MR. SPINDELL: So stipulate.' (Emphasis added.)

All of the facts bearing on the legality of the seizure were presented by the People at the preliminary hearing where a proper objection to the introduction of the contraband in evidence was made and overruled. There was no further objection at the trial.

The testimony at the preliminary hearing was as follows: Deputy Sheriff Ryon was cruising in his car at about 10:30 a.m. on August 19, 1965. This was a few days after the so-called Watts riots, in the heart of the former riot area. He received a call that there was a man with a gun at 1327 East 75th Street. He drove to the address which was just around the corner from where he had received the call. As he arrived he was confronted by a lady downstairs who told him that there was a man upstairs who had a gun and who had threatened her with it. She identified an upstairs apartment where the man was supposed to be. Ryon proceeded up the stairs. The door of the apartment in question was open. Defendant Beatrice Nelson stood in the door. Ryon's gun was drawn, as was the gun of Deputy Dayian who was immediately behind. Ryon asked Beatrice Nelson whether she minded if he came in and she said 'No.'

From that point on Ryon's recital of the events which led to the discovery of marijuana is somewhat conflicting. No attempt was made at the preliminary hearing to reconcile these conflicts which, perhaps, had surprised the prosecutor. Since the matter was submitted on the transcript of the preliminary hearing and there was no objection to the admission of the narcotics in the superior court, the People possibly did not think it worthwhile to attempt a reconciliation of Ryon's testimony.

On direct examination Ryon said that after Beatrice Nelson gave him permission he 'entered the location and observed' Robinson and Griffin running into a bedroom. This he later corrected and said that they were 'heading toward the bedroom, not running * * *' He immediately proceeded toward the bedroom, but as he reached the bedroom door Griffin 'just backed away' and went to some other part of the house. He followed Robinson into the bedroom, where he observed one Hollins with a rifle in his hand.

On cross examination this portion of the entry was described a little differently: Ryon was able to observe Griffin, who was heading toward the bedroom, through the open door of the apartment before he entered. He did not see Robinson who 'must have been in the bedroom.' Hollins was at the bedroom door, going into the bedroom.

In any event after Ryon entered the bedroom, he observed Robinson 'stuffing something unknown to me * * * underneath the mattresses, in between the box springs and the mattress.' He told Hollins to drop the rifle, which command was obeyed. He told Robinson to put up his hands. Robinson kept fiddling with something in his belt and withdrew a butcher knife which he dropped. ¹

Hollins and Robinson were ordered into the living room where they were arrested by another officer. Ryon searched under the mattress and discovered numerous new suits of clothing and a brown bag containing a quantity of marijuana.

A later search of Robinson and Griffin revealed marijuana debris in their trouser pockets. Griffin's trousers also contained an Alpine cigarette package with a half-smoked marijuana cigarette in it.

Both Nelson and Griffin were questioned after warnings which complied with the requirements of People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. ² The only matters favorable to the prosecution which were developed were these: Griffin acknowledged that he had lived in the apartment in question for a week and a half and that Beatrice Nelson lived there with him. He knew what marijuana looked like, but disclaimed any knowledge that there had been any in the apartment. Nelson agreed that she had been living in the apartment. She too said that she recognized marijuana, but had never seen the narcotics found under the mattress.

At the trial each of the defendants testified. Defendants Nelson and Robinson also produced one Patricia Garnett, a babysitter, who had spent the preceding night in the apartment in question and left just before the police arrived. It is quite clear that the trial court gave very little credence to any of the defense testimony.

The baby-sitter testified that she and Beatrice Nelson slept in the living room. Defendant Nelson's children were in one bedroom, no one occupied the one where the clothing and the marijuana were found. Sometime after midnight a woman by the name of Janie came to the apartment. ³ Nelson was cleaning up the kitchen at the time, Janie went into the kitchen to talk to her, left the kitchen, went to the bedroom and was observed putting a package under the mattress. After Janie left the baby-sitter told Nelson about the package. Nelson did not say anything. This was admitted by Nelson when she testified, but she 'really didn't think about it' at the time and forgot to look under the mattress to see what it was because of a disturbance later that night when someone tried to break into her apartment.

The marijuana debris in Robinson's pocket was explained as follows: At about 9:00 a.m. Janie and Robinson came into the apartment, Janie put what looked like a marijuana cigarette into Robinson's pocket, but he took it out and returned it to her.

Griffin attempted to explain the marijuana debris in his pants as follows: He had been out drinking and had 'wasted a drink' on his pants. He came home about 10:00 a.m. and grabbed a pair of bermuda shorts from the pile of clothing in the bedroom and 'about that time the police came.' He could not explain the marijuana cigarette in the package of Alpine cigarettes. His testimony suggested that it was planted by the police.

The Failure to Object in the Superior Court.

Normally the failure to object to the admission of the contraband in the superior court would preclude us from determining the merits of any contention that it was illegally obtained. (People v. Decker, 155 Cal.App.2d 165, 169--170, 317 P.2d 135.) The stipulation set forth at the beginning of this opinion is perhaps susceptible to the construction that by its very language it resubmits to the superior court all objections and motions made before the magistrate. While we doubt whether that was really the intent, the benefit of any uncertainty should go to defendants. We strongly recommend that in these cases where there is a submission on the preliminary transcript, the stipulation be phrased in such a way that the record is not booby-trapped with possibilities for error in matters to which the attention of the trial court is never directed.

The Legality of the Search and Seizure.

The Attorney General urges that Ryon's entry into the apartment was consented to by Nelson. This approach opens up a host of problems. Even if an implied finding of consent had support in the evidence--two officers with drawn guns!--we would still be faced with the question, left undecided in People v. Henry, 65 Cal.2d 842, 845 ^*, 56 Cal.Rptr. 485, 423 P.2d 557 whether the People can rely on consent in the absence of proof that defendant Nelson was advised of her constitutional right not to consent. ⁴

When Deputy Ryon entered the apartment in question he had a report from a person who claimed to be the victim of a felony, a violation of section 245 of the Penal Code--assault with a deadly weapon. ⁵ There was no need to phrase the accusation more precisely. (People v. Kilvington, 104 Cal. 86, 92--93, 37 P. 799.)

If Ryon was authorized to make an arrest, the entry without consent was legal although not all the requirements prescribed by section 844 of the...