People v. Bustamonte, Cr. 6455

Citation76 Cal.Rptr. 17,270 Cal.App.2d 648
Decision Date14 March 1969
Docket NumberCr. 6455
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California,Plaintiff and Respondent, v. Robert Clyde BUSTAMONTE, Defendant and Appellant.

Guy O. Kornblum, San Francisco, under appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Kelly, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction, following a jury trial, of possession of a completed check with intent to defraud (violation of Pen.Code, § 475a). Defendant contends that the trial court erred in failing to grant his motions to suppress evidence taken in two separate searches of automobiles, and further that the trial court erred in denying his motion for a mistrial because of a comment on his silence made at the trial by a police officer testifying as a prosecution witness.

The Facts

On the morning of January 19, 1967, Charles Kehoe, owner of the Speedway Car Wash in Mountain View, discovered that the business office had been burglarized some time since he had closed on the previous day. A check-writing machine, known as a check protector, and a number of blank checks had been removed from the office.

On January 21, 1967, Joe Gonzales and Joe Alcala went with defendant to the Food Fair Market in Mountain View. According to the testimony of Gonzales, defendant filled out a check while they were in the parking lot. This check was a Speedway Car Wash check 'protectorized' in the amount of $63.75 and defendant made it out to a 'Joe Garcia' and signed it with Kehoe's name. Gonzales took the check into the market where he cashed it in the process of buying a carton of cigarettes. Kehoe identified the check payable to Garcia and stated the signature was not his. After cashing the check on January 21, defendant, Gonzales and Alcala went to defendant's home. Gonzales saw defendant and Alcala lean over the open trunk of defendant's parked Oldsmobile automobile and then the two returned to the truck where Gonzales was waiting, bringing with them two additional Speedway Car Wash blank checks. The amounts of money were filled in on the checks but no names or signatures were entered. The men next unsuccessfully attempted to cash another check at the Blue Bonnett Bar in Sunnyvale.

Gonzales testified that at some time before the incidents of January 21 defendant had shown him the check protector and some blank checks which were contained in the trunk of a Camaro automobile which had been rented by defendant.

On January 31, 1967, defendant, Alcala and Gonzales went to San Jose to find persons willing to use false identification for the purpose of cashing checks. At about 11:00 p.m. they picked up three other men. Attempts to cash checks at grocery stores and a bar were futile. During the evening they stopped at the Moonlite Shopping Center where Gonzales saw defendant take some checks from defendant's Renault automobile which was in the parking lot.

Police Officer James Rand of the Sunnyvale Department of Public Safety was in a police vehicle alone on routine patrol at approximately 2:40 a.m. on January 31, 1967. He observed an oncoming vehicle which had only one functioning headlight. Rand made a U-turn and also observed that the automobile in question did not have an automobile license plate light. He stopped the automobile which was a black 1958 Ford 4-door sedan. Six men were in the automobile at the time it was stopped, and Rand testified that defendant was in the front seat along with Alcala, and that Gonzales was driving. After Gonzales failed to produce a driver's license, officer Rand asked if any of the occupants of the Ford had identification. Only Alcala produced a driver's license and he indicated that the automobile belonged to his brother. Officer Rand asked the occupants to step out of the automobile. After the men were out of the car and after officer Rand was joined by officer Bissell and Captain Crabtree, he asked Alcala if he could search the car. According to officer Rand's testimony, Alcala replied 'Sure, go ahead.' Gonzales also testified that Alcala had given permission for the search and had actually aided the officers. Officer Rand and Captain Crabtree searched the Ford. Wadded up under the left rear seat they found three checks. Each of the checks was 'protectorized' in the amount of $67.34, each was signed with the name of Kehoe as maker, and each was a Speedway Car Wash check. One was payable to Robert Gomez and two were payable to Jino Anthony.

Later, pursuant to a search warrant, the Renault at the Moonlite Shopping Center and defendant's Oldsmobile in Sunnyvale were searched. Two checks were found in the Renault and the check protector and several blank checks were found in the Oldsmobile, along with a number of traffic citations naming defendant. A criminalogist testified that in his opinion the writing on the Speedway Car Wash checks was the writing of defendant.

Search of the Ford

At the time that officer Rand and Captain Crabtree searched the Ford automobile and discovered the three completed checks, there was a total of three police officers and three police vehicles on the highway near the stopped automobile. The occupants were asked to step out of the car and at one point Gonzales was told to stand by the car; at another time Alcala was told to back away from the area of the search. Gonzales was also given a citation for the missing lights and for his failure to produce a driver's license. According to Gonzales' testimony, the police cars did not have the passengers hemmed in. No one was under arrest at the time of the search and none of the individuals had been advised as to any constitutional rights. After testimony was taken in chambers on the constitutionality of the search, the court ruled that there had been consent to the search and the motion of defense counsel to suppress the evidence was denied.

Defendant, relying on Parrish v. Civil Service Commission, 66 Cal.2d 260, 57 Cal.Rptr. 623, 425 P.2d 223, 1 now contends that Alcala's consent to the search was obtained in a coercive atmosphere, that the consent was therefore involuntary and the subsequent search consequently illegal. Although we agree with defendant that it is inconsequential that the search involved Alcala's constitutional rights rather than the rights of defendant (see People v. Perez, 62 Cal.2d 769, 775--776, 44 Cal.Rptr. 326, 401 P.2d 934), we conclude that his basic argument is without merit. As the court stated in People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 854: 'Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.' (See also Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641.) In the instant case the prosecution met the necessary burden of showing consent (see Castaneda v. Superior Court, supra, at p. 444, 30 Cal.Rptr. 1, 380 P.2d 641) since there were clearly circumstances from which the trial court could ascertain that consent had been freely given without coercion or submission to authority. Not only officer Rand, but Gonzales, the driver of the automobile, testified that Alcala's assent to the search of his brother's automobile was freely, even casually given. At the time of the request to search the automobile the atmosphere, according to Rand, was 'congenial' and there had been no discussion of any crime. As noted, Gonzales said Alcala even attempted to aid in the search.

Defendant also argues that there could be no voluntary consent to the search without prior advice to Alcala that he had a legal right to refuse permission to search the car. Defendant particularly relies on the federal cases of United States v. Blalock (E.D.Pa.1966) 255 F.Supp. 268 and United States v. Nikrasch (7 Cir.), 367 F.2d 740, which stand for the proposition that subjects of investigation should be advised of their rights to insist on a search warrant. This rule as it applies in the federal courts has not been adopted as the governing rule by the courts in California. As we stated in People v. Linke, 265 A.C.A. 322, 340, 71 Cal.Rptr. 371, 382: 'the courts have rejected the argument that consent will be ineffective in the absence of a warning to the person addressed of his rights under the Fourth Amendment.' (See People v. Davis, 265 A.C.A. 367, 374, 71 Cal.Rptr. 242; People v. Cirilli, 265 A.C.A. 685, 688, 71 Cal.Rptr. 604; People v. Slade, 264 A.C.A. 227, 229, 70 Cal.Rptr. 321; People v. MacIntosh, 264 A.C.A. 834, 838--839, 70 Cal.Rptr. 667; People v. Richardson, 258 Cal.App.2d 23, 31, 65 Cal.Rptr. 487; People v. Dahlke, 257 Cal.App.2d 82, 87, 64 Cal.Rptr. 599; People v. Campuzano, 254 Cal.App.2d 52, 57, 61 Cal.Rptr. 695; People v. Chaddock, 249 Cal.App.2d 483, 485, 57 Cal.Rptr. 582; People v. Roberts, 246 Cal.App.2d 715, 729, 55 Cal.Rptr. 62.) The basic premise behind the California rule was stated in People v. MacIntosh, supra, 264 A.C.A. at page 838, 70 Cal.Rptr. at page 670: 'When permission is sought from a person of ordinary intelligence the very fact that consent is given * * * carries the implication that the alternative of a refusal existed.' 2

Search of the Oldsmobile

At the trial of the case, defense counsel moved to suppress the evidence (including the check protector) taken from defendant's 1956 Oldsmobile on the ground that the affidavit supporting the search warrant was insufficient. The motion was denied and the evidence was admitted. Defendant contends that it was error for the trial court to deny this motion since the affidavit did not provide probable cause for the issuance of the search warrant. The affidavit 3 in question was signed by officer John Tomac and...

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