People v. Burke

• Decision Date: 21 September 1956
• Docket Number: Cr. 5898
• Citation: 301 P.2d 241,47 Cal.2d 45
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert BURKE, Defendant and Appellant.

Page 241

301 P.2d 241

47 Cal.2d 45

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert BURKE, Defendant and Appellant.

Cr. 5898.

Supreme Court of California, In Bank.

Sept. 21, 1956.

Rehearing Denied Oct. 17, 1956.

Cletus J. Hanifin, El Monte, for appellant.

Edmund G. Brown, Atty. Gen., and Robert S. Rose, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendant appeals from a judgment of conviction of violation of section 11500 of the Health and Safety Code by possession of marijuana. He contends that the judgment should be reversed because evidence which he asserts was illegally obtained was admitted over his objection.

The people do not appeal, but they ask reversal of the judgment for the purpose of having defendant's sentence increased. They contend that the trial court erred in ordering that the charge of a prior conviction of violation of section 11500 of the Health and Safety Code, a misdemeanor, which was alleged in the information and admitted by defendant, be 'stricken (in efect, set aside or dismissed) in the interest of justice,' and in sentencing defendant to the county jail. It is the position of the People that section 11712 of the Health and Safety Code (hereinafter quoted), which provides the punishment for violation of section 11500, requires that one who admits a prior conviction 'of any offense described in this division (div. 10, Health & Saf. Code)' be sentenced to state prison. Specifically, they request 'that the judgment be reversed and the case remanded with directions to enter judgment in accordance with (the People's construction of) * * * Section 11712.'

We have concluded that the arguments of both parties are without merit.

Claimed Illegal Search and Seizure

Defendant was tried by the court without a jury. The following facts appear from the testimony of John Storer, a narcotic inspector: 'At approximately 11:00 o'clock p.m.' on March 28, 1955, Inspector Storer and three other officers, without warrant, went to defendant's apartment 'To make a narcotic investigation.' Also 'at approximately 11:00 o'clock p.m.' on that date Storer arrested defendant. When the arrest took place in relation to the other events herein described does not appear from the record; according to defendant's opening brief it took place following the discovery of the narcotics hereinafter described.

The officers had 'prior information that narcotics were used on those premises.' The source of this prior information does not appear.

The officers knocked and 'defendant came to the door and opened it a small distance and asked who was there, and Inspector Hollingsworth stated, 'We are officers. We would like to talk to you.' The defendant stepped back and said, 'Just a moment.' He opened the door, turned on the light, and we walked into the room. I then asked him if his name was Robert Burke and he said it was.' Defendant did not state that the officers could enter the apartment 'but his implication was plain. * * * Officer Hall asked him if he had ever been arrested for narcotics, and the defendant said * * * he had been arrested in 1950. Officer Hall then asked him, 'Do you have any narcotics here at the present time?' And the defendant said no. Officer Hall then said, 'You don't mind then if we search your apartment do you?' And the defendant said, 'No, go ahead."

In their ensuing search of defendant's apartment the officers found leafy marijuana and partially smoked marijuana cigarets. Defendant freely admitted to the officers that the material was marijuana, that he had purchased it a week before, and that he had smoked some of it.

The marijuana was admitted in evidence over defendant's objection that it was obtained in violation of the exclusionary rule enunciated in People v. Cahan (1955), 44 Cal.2d 434, 282 P.2d 905. The trial court in admitting the evidence declared, 'There was certainly no need for a search warrant here, because the defendant, according to the testimony of this witness, consented to the search, and the officers had a reasonable ground to believe a crime was committed there.'

It is defendant's position that there was no showing of reasonable cause to justify the arrest without warrant, and thereby to justify the search without search warrant as incident to a lawful arrest, since Inspector Storer testified merely that the officers had 'prior information that narcotics were used on those premises,' without disclosing the source of such information. (See Willson v. Superior Court, (1956), 46 Cal.2d 291, 294 P.2d 36; People v. Boyles (1955), 45 Cal.2d 652, 656, 290 P.2d 535 (since the court must determine whether the arresting officer acted upon reasonable cause, the officers must testify to the information upon which they acted).)

It was not necessary here, however, for the People to show that the search and seizure were reasonable as incident to a proper arrest, for they showed that defendant freely consented to the search of his apartment which disclosed the evidence which defendant has since claimed was illegally obtained. It was not unreasonable for the officers, without any show of force or coercion, to call upon the suspected defendant at his home, or to ask him questions, or to accept defendant's statement, 'No, go ahead,' in answer to the inquiry, 'You don't mind then if we search your apartment do you?' Under the circumstances here, as under those in People v. Michael (1955), 45 Cal.2d 751, 754, 290 P.2d 852, a holding that as a matter of law defendant acted because of an unlawful assertion of authority by the officers would be unjustified. (See also People v. Martin, (1955), 45 Cal.2d 755, 761, 290 P.2d 855.)

Defendant relies upon Amos v. United States (1921), 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, and Johnson v. United States (1948), 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. The officers here did not come to defendant's home, as it was determined that they came in the Amos case, (at page 317 of 255 U.S., at page 267 of 41 S.Ct.), 'demanding admission to make search of it under Government authority.' And as was said in People v. Michael (1955), supra, at page 753 of 45 Cal.2d at page 853 of 290 P.2d concerning the Johnson case and other cases, '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. Since the cases that have determined this question under varying factual circumstances are difficult if not impossible to reconcile (citations), and may reflect imperfectly the factual situations before the courts that decided them, they point to no compelling solution in the present case.' We conclude that defendant has shown no ground for reversal of the judgment.

The People's Request for Reversal Based on the Trial Court's Claimed Violation of Section 11712 of the Health and Safety Code

Section 11712 of the Health and Safety Code (as amended 1953) provides: 'Any person convicted under this division (div. 10, which includes § 11500) for having in possession any narcotic * * * shall be punished by imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years.

'If such a person has been previously convicted of any offense described in this division * * * the previous conviction shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or is admitted by the defendant, he shall be imprisoned in the state prison for not less than two years nor more than 20 years.' (Italics added.)

The information alleged and on arraignment for plea defendant admitted a prior conviction of 'Violation of Section 11500, Health and Safety Code * * *, a misdemeanor.' When defendant came before the court for sentence his counsel requested that upon the showing made 'the Court in this particular case strike the prior for the purposes of sentencing'; the prosecuting attorney did not oppose this request; ¹ and the court ordered that 'the (charge of) prior conviction (is) stricken in the interest of justice' and sentenced defendant to the county jail.

The procedure of 'striking,' or setting aside or dismissing, a charge of prior conviction (or any of multiple counts or allegations of an indictment or information) at the time of sentence is not expressly provided for by statute but it is commonly used in trial courts, not only where the prior conviction has not been legally established, but also where the fact of the conviction has been shown but the trial court has concluded that 'in the interest of justice' defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of that fact. (See, recognizing procedure of dismissing charges of prior conviction, In re Bartges (1955), 44 Cal.2d 241, 244-245, 282 P.2d 47; People v. Coyle (1948), 88 Cal.App.2d 967, 973, 200 P.2d 546; People v. Ysabel (1938), 28 Cal.App.2d 259, 260, 82 P.2d 476; People v. Chadwick (1906), 4 Cal.App. 63, 74, 87 P. 384, 389.)

The power to strike or dismiss the proceeding as to a prior conviction is within the power referred to in section 1385 of the Penal Code, which provides that 'The court may, either of its own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. * * *' The authority to dismiss the whole includes, of course, the power to dismiss or 'strike out' a part. (Cf. People v. Superior Court (1927), 202 Cal. 165, 173, 259 P. 943.) The striking or dismissal of a charge of prior conviction (regardless of whether it has or has not been admitted or established by evidence) is not the equivalent of a determination that defendant did not in fact suffer the conviction (see People v. Simpson (1944), 66 Cal.App.2d 319, 329, 152 P.2d...