People v. Baker

• Decision Date: 06 December 1968
• Docket Number: Cr. 15310
• Citation: 267 Cal.App.2d 916,73 Cal.Rptr. 455
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edwin Alfred BAKER, Defendant and Appellant.

Page 455

73 Cal.Rptr. 455

267 Cal.App.2d 916

The PEOPLE, Plaintiff and Respondent, v. Edwin Alfred BAKER, Defendant and Appellant.

Cr. 15310.

Court of Appeal, Second District, Division 1, California.

Dec. 6, 1968.

Rehearing Denied Dec. 27, 1968.

Hearing Denied Jan. 29, 1969.

Richard S. Buckley, Public Defender of Los Angeles County, and James L. McCormick, Deputy Public Defender, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Lawrence K. Keethe, Deputy Attys. Gen., for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of receiving stolen property.

In an information filed in Los Angeles on March 21, 1967, defendant was charged in count 1 with having burglarized the residence of Gayle E. Drum on January 27, 1967, and in count 2 with having received property which had been stolen from Gayle E. Drum. Defendant pleaded not guilty and made a motion under section 1538.5 of the Penal Code. The cause came on for trial and the matter was submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing. Defendant was found guilty of receiving stolen property (count 2) and not guilty of burglary (count 1). At the time of sentencing the proceedings were suspended, defendant was fined $350 and probation was granted for four years. A timely notice of appeal was filed.

Appellant asserts now that the appeal was taken because the trial judge erred in not granting his motion to suppress the evidence under section 1538.5 of the Penal Code.

A resume of some of the facts is as follows: on February 17, 1967, at about 4:15 p.m. Officer Brown, a police officer of elevent years experience in the Los Angeles Police Department and then working out of the Detective Bureau, Burglary--Auto Theft Division, Special Squad, went to defendant's residence at 5727 Harold Way, Apartment 3. Officer Brown was accompanied by Officer Smith of the same division. Officer Brown had two warrants for the arrest of defendant for certain violations of the vehicle laws. At the time of the arrest the officers had heard from Sergeant Wheeling of the robbery division that defendant was a burglar and had two stolen furs in his apartment. Officer Brown upon arriving at the Baker apartment knocked on the door and defendant replied to the knock. Officer Brown asked defendant if he was the person named in the warrants and he replied that he was. The officers identified themselves and placed defendant under arrest and advised him of his constitutional rights. Defendant was partly dressed when he came to the door. He made inquiry as to the amount of the bail and when advised that it was $77 he asked if he might make a telephone call. He stepped back into a living room and the officers stepped in behind defendant. The telephone call was not completed and defendant asked if he could put on a shirt and received an affirmative reply from Officer Brown. On the living room floor in plain sight was an eight millimeter movie projector with an orange or yellow painted area at its base and it appeared as if something, such as a serial number, had been scratched off the surface of the painted area. Officer Brown stated that the Los Angeles City Board of Education, to identify property belonging to the schools, commonly painted an area at the base of movie projectors with yellow or orange paint and stamped thereon a serial number. Officer Brown formed the opinion that the projector might well have been stolen property. There was also a small television set on a coffee table in the room. Officer Brown asked defendant to whom the projector and television set belonged and defendant stated they belonged to a bartender friend of his but remained silent as to the man's name. Officer Brown then asked defendant if he might search the apartment and defendant said, 'Yes, you can search my apartment.' Shortly thereafter Officer Smith found Lawrence Higbee in the apartment and the latter stated that he knew nothing about the projector or the television set.

In the defendant's bedroom Officer Brown found two labels, one bearing the name Firman, and the other bearing the name Pelta and three monogram-type initials, G.E.D., which appeared to have been removed from some garment. In the closet of the bedroom Officer Brown found 155 reels of eight millimeter film of pornographic nature. In the living room closet in a shopping bag on the floor the officer found a fur stole from which the label inside the lining appeared to have been removed. There also was another movie projector in that closet. Officer Brown formed the opinion that the projector on the living room table and the fur stole were stolen property.

Officer Brown then asked defendant if he might search defendant's car which was parked in the street and defendant said, 'Yes, you can,' and gave the car key to the officer. In the trunk of the car the officer found a second fur stole also with the label removed. The labels found in the defendant's bedroom were rectangular in shape while the three initials G.E.D., each one on a separate piece of cloth, were diamond-shaped. It appeared to the officers that the three diamond-shaped...