People v. Bradford

• Citation: 28 Cal.App.3d 695,104 Cal.Rptr. 852
• Decision Date: 14 November 1972
• Docket Number: Cr. 9367,9673
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Roy James BRADFORD, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. Morris ERVIN, Defendant and Appellant.

Page 852

104 Cal.Rptr. 852

28 Cal.App.3d 695

PEOPLE of the State of California, Plaintiff and Respondent, v. Roy James BRADFORD, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. Morris ERVIN, Defendant and Appellant.

Cr. 9367, 9673.

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

Nov. 14, 1972.

Hearing Denied Jan. 24, 1973.

LeRue J. Grim, San Francisco, for appellants.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Criminal Div., William E. James, Asst. Atty. Gen., Appeal Section, Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

KONGSGAARD, ^* Associate Justice.

Following a trial by jury defendants Ervin and Bradford were convicted of violating Penal Code sections 211 (robbery); 245, subdivision (a) (assault with a deadly weapon); 245, subdivision (b) (assault with a deadly weapon on a peace officer); and 12020 (possession of a sawed-off shotgun). A third codefendant, Brown, was charged with the same offenses but the jury was unable to reach a verdict on any of the charges against Brown and a new trial was ordered for him.

Prior to trial defendants Bradford and Brown moved to suppress evidence under Penal Code section 1538.5. Defendant Ervin did not join in the motion to suppress. After a hearing the motion to suppress evidence was denied. Defendants' primary attack on appeal is aimed at the denial of the motion to suppress, defendant Bradford contending the court should have granted the motion to suppress while defendant Ervin contends he had inadequate representation because his counsel failed to join in the motion to suppress.

Statement of Facts

On August 1, 1969, shortly after 10 a.m., Edward Avanzino withdrew $29,550 from his bank to be used for the purpose of cashing payroll checks at his liquor store in San Francisco. He proceeded from the bank to the store and was about to enter his store when he was confronted by three gunmen carrying shotguns and a pistol. Avanzino identified the men carrying the shotguns as defendants Bradford and Ervin. The gunmen took the cash, knocked Avanzino to the ground and fired a pistol shot. Upon arising Avanzino observed the three enter a Mustang automobile and take off. He immediately ran to his own vehicle and proceeded to chase them. As Avanzino pursued the Mustang, shotgun blasts were fired at him by the occupants, and pellets hit the windshield of his vehicle.

Meanwhile police officers Busalacchi and Adams, who were on patrol duty in the general area of the robbery, received a radio call advising them of a robbery at Avanzino's liquor store. Shortly thereafter these officers observed the Mustang travelling at a high rate of speed, followed by a vehicle which they recognized as belonging to one of the owners of the liquor store. The officers joined in the chase.

Officer Busalacchi observed four people in the Mustang during the chase, one of whom leaned out of the car and fired approximately four shots from a handgun at the pursuing police vehicle. The highspeed chase continued for several minutes until the Mustang finally came to a halt in the 1100 block of Palou Avenue. At this point two individuals alighted from the Mustang and one of them, later identified as Ervin, levelled a handgun at Busalacchi and fired two shots. The officer returned the fire and in the ensuing melee Officer Busalacchi was struck by a shotgun blast fired by defendant Bradford. After these shots defendant Bradford was seen running across the street toward a building identified as either 1050 or 1060 Palou. Officer Adams attempted pursuit of Bradford but lost sight of him and returned to his police vehicle where he radioed for assistance and an ambulance for his wounded partner, Busalacchi.

In the meantime the Mustang, with the remaining occupants, took off from the 1100 block of Palou Avenue and once again Edward Avanzino pursued it. Approximately one block away at 1055 Oakdale, Avanzino's vehicle collided with the Mustang broadside. Avanzino saw two men exit from the Mustang. One of them identified as defendant Ervin pointed a shotgun at Avanzino and then disappeared into a building at 1055 Oakdale avenue with his companion.

An array of police officers responded to the call for assistance; several went to the area of the 1000 block of Palou Avenue while others went to 1055 Oakdale. In the area of the 1000 block of Palou a search by the officers revealed an expended shotgun casing and empty cartridge on the sidewalk, a shotgun lying behind a hedge at 1040 Palou and a portion of a shotgun barrel outside 1030 Palou. A search of the inside of the premises at 1030 C Palou disclosed a sawed-off shotgun, a card bearing the name of defendant Bradford and a coat similar to that worn by a gunman wielding the shotgun with seven live shotgun shells in a pocket.

Other officers arriving at 1055 Oakdale were told by Avanzino that suspects had run into the building at 1055 Oakdale. Officers entered these premises and discovered defendant Ervin in the bathroom and Brown lying under a bed. Shotgun shells were also found by the officers in these premises.

Questions Presented

1. Did the lower court err in denying defendant Bradford's motion to suppress evidence?

2. Was defendant Ervin denied effective aid of counsel by the failure of his attorney to join or participate in the motion to suppress?

3. Was the evidence sufficient to support the convictions of defendants for assault with a deadly weapon?

I

Defendant Bradford claims that the search of his apartment at 1030 C Palou was illegal as the police had no specific information that would justify a search of his apartment. He also claims the illegal search produced incriminating evidence which was so prejudicial to his case that the judgment should be reversed. The People contend the search without a warrant was justified under the emergency circumstances that existed.

Prior to the trial defendant Bradford made a motion to suppress the evidence under Penal Code section 1538.5. This motion was denied and defendant Bradford now seeks a review of the validity of the search and seizure pursuant to subdivision (m) of section 1538.5. Such review is made on the basis of the record made at the special hearing of the motion pursuant to section 1538.5 and may be sought notwithstanding there was no objection to the introduction of the seized material at the trial. (People v. Medina (1972) 26 Cal.App.3d 809, 815, 103 Cal.Rptr. 337; People v. Hubbard, 9 Cal.App.3d 827, 832, 88 Cal.Rptr. 411; People v. Superior Court, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21; see also People v. O'Brien (1969) 71 Cal.2d 394, 402, 79 Cal.Rptr. 313, 456 P.2d 969.)

In reviewing a determination of a trial court on a Penal Code section 1538.5 motion, the function of the reviewing court is to determine whether there was substantial evidence to support the trial court's findings. (People v. Superior Court, supra, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21; People v. Superior Court (1970) 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; People v. Superior Court, 264 Cal.App.2d 165, 166, 70 Cal.Rptr. 362.) 'This rule, however, is not applicable in cases involving searches and seizures in which the facts bearing on the legality of the search are undisputed and establish as a matter of law that the evidence is or is not admissible. . . .' (People v. Superior Court, supra, 3 Cal.App.3d at p. 488, 83 Cal.Rptr. at p. 780.)

In the instant case the essential facts regarding the issue in question are undisputed; accordingly, the question whether the physical evidence found in the search of Apartment C at 1030 Palou was admissible is a question of law.

At the Penal Code section 1538.5 hearing the People introduced as evidence the transcript of the grand jury proceedings in the case which included testimony by Avanzino, Officers Adams, Magnani, Wydler, Dagitz, Inspector Fogarty, and John Williams, a criminologist in the police department. In addition, Magnani, Fogarty, and Wydler testified in person at the hearing by prearrangement with defense counsel so that they could be cross-examined. Since it is upon this evidence that the denial of the 1538.5 motion must be justified, the specific information elicited at the hearing is summarized below.

Avanzino's testimony was to the effect that he chased the car with four suspects in it, they shot at him during the chase, and several of them disappeared into the building at 1055 Oakdale. He said nothing about the building at 1030 Palou. Busalacchi added the information that the shootout was on Palou Avenue with a handgun and shotgun, but said nothing about the particular building in question. Officer Adams said he was shot at in the vicinity of 1067 Palou and saw one of the suspects pause on the grass behind 1066 Palou and then disappear between 1040 and 1066 Palou. Officers Dagitz and Williams said nothing about the shootout or search at 1030 Palou except that the area was a federal housing project with several apartments per floor. Other testimony was to the effect that there were four apartments per floor or possibly 8--10 units per building. Fogarty's testimony before the grand jury indicated that there were four apartments per floor or possibly 8--10 units per building. Fogarty also testified that he had conducted a search at 1030 Palou and found a shotgun under a mattress, and a card with Roy Bradford's name on it in a desk or desk drawer.

The information elicited during the cross-examination of Magnani, Wydler and Fogarty at the hearing was as follows: Officer Magnani testified he received a radio communication from the officers that there had been a chase and shootout that ended in the 1000 block of Palou. The only specific information he received was that several of the suspects were in the building at 1055 Oakdale.

Officer Wydler testified that he responded to the location where the car was abandoned, and although he went to 1055 Oakdale, he never...