People v. Beasley

• Decision Date: 13 April 1967
• Docket Number: Cr. 5309
• Citation: 58 Cal.Rptr. 485,250 Cal.App.2d 71
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. McFarland BEASLEY and Terry Vance Reed, Defendants and Respondents.

Page 485

58 Cal.Rptr. 485

250 Cal.App.2d 71

The PEOPLE of the State of California, Plaintiff and Appellant, v. McFarland BEASLEY and Terry Vance Reed, Defendants and Respondents.

Cr. 5309.

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

April 13, 1967.

Rehearing Denied May 2, 1967.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, for appellant.

Coleman F. Fannin of Grydyk & Fannin, Richmond, for respondent, McFarland Beasley.

Thomas J. Sheahan, of Calfee, Westover & Sheahan, Richmond, for respondent, Terry Vance Reed.

ELKINGTON, Associate Justice.

The People appeal from an order setting aside an information (Pen.Code, § 995) and from a certain order suppressing evidence.

Following a preliminary hearing commencing November 18, 1964, at which defendants were held to answer a charge of receiving stolen property, the District Attorney of Contra Costa County, on December 4, 1964, filed a two-count information charging that defendants Beasley and Reed did, on or about August 28, 1964, burglarize premises located at 588 Spring Street, Richmond, California; and (in the alternative) did buy and receive certain property, i.e., a Miller Falls saw and an Olivetti calculator, which had been stolen, and which were known by them to have been stolen.

The facts as developed at the preliminary examination are essentially without dispute.

Edward L. Ridgel, a concrete contractor, operated a place of business at 588 Spring Street, Richmond, California. When he went to this place of business on the morning of August 28, 1964, he found the door to his office broken down. This was an inner door since the office was enclosed in a large metal building. The metal siding had been ripped away from the building in two different places. The office door had been locked the day before and Mr. Ridgel had given no one permission to enter. A Miller Falls power saw and an Underwood-Olivetti calculator, both identifiable by serial number, were missing from the office; both had been in the office when it was locked up the previous day. Mr. Ridgel reported the burglary to the Richmond police at about 7:30 a.m. of the day of discovery. The police subsequently put information regarding the stolen property on the police teletype.

At about 4 p.m. on the afternoon of August 28, 1964, Inspectors Victor L. Short and Gerald J. Shaughnessy of the San Francisco Police Department entered the San Francisco Loan Office, a pawnshop, while on routine pawnshop patrol. As of the date of the preliminary hearing on this matter, November 18, 1964, Inspector Short had been a member of the police department for 23 years and assigned to the pawnshop detail for 12 years. Inspector Shaughnessy had been a member of the force for 15 years and assigned to the pawnshop detail for 5 years.

After entering the pawnshop the inspectors observed defendants Reed and Beasley talking to the clerk, Ruth Schneider, at the loan counter near the rear of the store. The officers were in plain clothes and they stood around for several minutes, observing activities in the shop. Defendants were talking to the clerk regarding a power saw which was on the counter. The officers then heard the clerk ask Reed for identification and heard him reply that he had none.

At this point the police officers stepped forward, identified themselves as such, and began to question defendants as to the nature of the transaction being carried on by them. Inspector Short testified that he had been assigned to the pawnshop detail for some 12 years. He testified that he suspected defendant Reed was using a fictitious name when Reed could not (or at least did not) produce identification. The inspectors noted that while only defendant Reed was actually negotiating with the pawnbroker both Reed and Beasley were standing together and it was obvious they were together.

After identifying themselves, Inspector Short engaged defendant Reed in conversation and Inspector Shaughnessy separately engaged defendant Beasley in conversation. Short asked Reed what the transaction was and Reed replied that he was pawning the saw on the counter. When asked if the saw was his, he replied that it was. Inspector Short looked at the pawn book immediately in front of Reed, pointed at it and asked if that was Reed's signature on the ticket. He replied that it was. The name signed was that of a William Carter, 928 Fillmore Street. Inspector Short then asked Reed if he had any identification and he said he had none.

Meanwhile Inspector Shaughnessy was talking to the defendant Beasley. Inspector Shaughnessy had asked Beasley to step to the side, some 20 feet from the others, which he voluntarily did. When asked what he was doing in the shop Beasley said that he was with Mr. Reed who was pawning his saw. When asked whose saw it was, he replied that it was Reed's uncle's or father's or someone like that. Beasley also stated he had no identification on him. About this time Inspector Shaughnessy observed a slip of paper in Beasley's shirt pocket which looked like an automobile registration slip. The inspector asked what the piece of paper was and Beasley voluntarily handed it to him when the officer asked if he could see it. The slip was indeed an automobile registration slip and had the name McFarland Beasley on it. When asked about the automobile registration slip, Beasley, who had previously, when asked, given a name other than Beasley, replied that he had found it, that he was not McFarland Beasley, that he did not own an automobile, and that he did not own the automobile listed on the slip.

The parties then changed partners, following police practice, in order to compare stories. Beasley told Inspector Short that his name was James Moore and that he lived at 1606--16th Street, Oakland, California. When Inspector Short asked if he had any identification, he said that he did not. When asked what he knew about the saw, Beasley replied, 'We picked it up this date.'

In response to inquiry by Inspector Shaughnessy, defendant Reed said his name was William Carter and his address was 928 Fillmore Street. Asked where he got the saw, Reed said that he had bought it in Richmond that morning for $5. When Inspector Shaughnessy asked Reed what Beasley's name was, Reed refused to tell him. When asked if there was some reason why he wouldn't tell Beasley's name, Reed replied, 'I won't tell you.' The officer then asked, 'Can't you tell me his name, is it Joe, Pete, Mike?' Reed replied, 'His name is Pete.' Inspector Shaughnessy said, 'Is that his name?' Reed then replied, 'Well, you said it and that is his name.'

Following these conversations Inspectors Short and Shaughnessy placed defendants Reed and Beasley under arrest for suspicion of violating Penal Code section 496 (receiving stolen property). It was later during the booking process that the officers learned defendants' true names. The saw being pawned had the same serial number as that stolen from Mr. Ridgel.

The transcript of testimony taken at the preliminary examination also indicates that the police later made a search of Beasley's automobile in the course of which the missing calculator was found. Confessedly this search was illegal and the calculator was not introduced in evidence at the preliminary examination. Additionally the transcript indicates that the police questioned and obtained incriminating statements from defendants after their arrest. This interrogation was clearly in violation of the later announced rule of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which under Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, must apply to this as yet untried case. (See also People v. Rollins, 65 A.C. 731, 56 Cal.Rptr. 293, 423 P.2d 221.)

On December 21, 1964, defendants noticed a motion to suppress evidence, which motion was, on January 11, 1965, granted, among other things, as to the Miller Falls saw and the automobile registration slip which had been in Beasley's possession. This is one of the appealed from orders. Such an order suppressing evidence is not appealable. (People v. Gershenhorn, 225 Cal.App.2d 122, 124--125, 37 Cal.Rptr. 176; People v. Justice Court, 185 Cal.App.2d 256, 258, 8 Cal.Rptr. 176; Witkin, Cal.Crim. Procedure (1963) Appeal, § 667, p. 654.)

All parties agree that the order suppressing evidence is not appealable. Defendants contend, however, that in determining whether they 'had been committed (by the magistrate) without reasonable or probable cause' on their later Penal Code section 995 motion to dismiss, the trial court, and now this court, must exclude from consideration the evidence which had been suppressed. They insist that the trial court's order suppressing evidence has the characteristics of a final order in the sense that once made, it is beyond the power of the trial court to reconsider or to modify or set aside. They support this proposition by no authority.

We do not agree with this contention. A motion to suppress evidence is a means provided by our practice for determining the question of admissibility of evidence in advance of the time it would ordinarily be offered. It is no more than an orderly means of preliminarily disposing of evidentiary issues which otherwise would be determined by motions, objections and rulings later during the trial. An order suppressing evidence, at least insofar as we are here concerned, is the equivalent of an order sustaining an objection to the same evidence, and is subject to the same procedural rules. These rules allow the trial court to reconsider, modify or set aside its order at any time prior to submission of the cause. (Code Civ.Proc., § 128, subd. 8.)

In its later consideration of the motion to dismiss under Penal Code section 995 the trial court was obliged to make its determination whether defendants had been committed by the magistrate without...