People v. De Caro

• Citation: 123 Cal.App.3d 454,176 Cal.Rptr. 509
• Decision Date: 03 September 1981
• Docket Number: Cr. 19776,C
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gennaro A. DE CARO, Defendant and Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. Manfred and Anitaka ROTHBRUST, Defendants and Appellants. r. 19789.

Page 509

176 Cal.Rptr. 509

123 Cal.App.3d 454

PEOPLE of the State of California, Plaintiff and Respondent, v. Gennaro A. DE CARO, Defendant and Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. Manfred and Anitaka ROTHBRUST, Defendants and Appellants.

Cr. 19776, Cr. 19789.

Court of Appeal, First District, Division 2, California.

Sept. 3, 1981.

As Modified Sept. 23, 1981.

Hearing Denied Nov. 13, 1981.

James E. Leininger, William B. Gordon, San Jose, for defendant and appellant, De Caro.

Harry J. Delizonna, San Jose, for defendants and appellants, Rothbrust.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., John B. Moy, Nathan D. Mihara, Deputy Attys. Gen., for plaintiff and respondent.

TAYLOR, Presiding Judge.

In these consolidated matters, the codefendants, G. A. De Caro and Manfred and Anitaka Rothbrust, appeal ¹ from orders suspending sentences and granting probation after each entered nolo pleas as set forth below, ² to a charge of presenting a false insurance claim (former Ins. Code, § 556, subd. (a)). De Caro and Rothbrusts contend on appeal that their motion to suppress should have been granted as: 1) the entry of Kollinzas into the De Caro home by a ruse was unlawful and violated De Caros' reasonable expectations of privacy; 2) without the observations made by Kollinzas, there was no probable cause for the issuance of the search warrant for the De Caro home. For the reasons set forth below, we have concluded that since there was sufficient probable cause for the issuance of the search warrant for the De Caro residence, the orders must be affirmed.

The record reveals the following pertinent facts:

At 2 a. m., on November 30, 1974, the Rothbrusts reported to the San Jose police a burglary at their home on Clovis Avenue. The stolen items included: two 17-inch color television sets, a Sharp 17-inch microwave oven, a Nikkormat camera with its case and several lens, a Century Mark binocular, cassette, recorder and several lens, a man's Bulova quartz white gold wristwatch, two Panasonic AM-FM radios, a Royal electric typewriter, and three Polaroid XL-70 cameras with accessories. In December 1974, Hartford Insurance paid the Rothbrusts $6,002.91 in settlement of their original claims for $8,441.73.

On November 15, 1975, the Rothbrusts reported to the San Jose police a burglary from their truck while parked at the Valley Fair Shopping Center. The items taken included a 17-inch Sony woodgrain color television, a General Electric microwave oven, a Sony portable radio and tape recorder, a Nikon-type camera (serial $ 7624155) and lens. Hartford Insurance paid the Rothbrusts $1,866.84 for this loss and subsequently cancelled the insurance.

On February 7, 1976, Mrs. Rothbrust reported that her purse had been snatched; it contained her driver's license, $20 in currency, and about $928 worth of jewelry. Chubb-Pacific paid $521.50 for this loss.

On July 17, 1976, the Rothbrusts reported another burglary at their home. The property taken included: a Sansui turntable, receiver and tape cassette; a platter; a silver coffee set; silver for 8; a Johnson CB radio; a home base station; an Omega Seamaster chronometer; an 1/4 carat diamond ring; a Nikon motor drive and an Olympic coin collection. Chubb-Pacific paid the Rothbrusts $2,571.43 on this claim.

On November 14, 1976, De Caro, a San Jose police officer, reported a burglary at his residence at 1853 Blossom Hill Road in San Jose. The 27 missing items included: a Polaroid 360 camera; a Superscope cassette recorder; a .38 Colt Special Cobra; a 19-inch color Sony television; a Panasonic portable radio (model $ RF 388); a Sansui receiver (QRX 7001), a Sansui turntable (SR-3080) and cassette recorder (SC-3000); two Jensen speakers (model 6); Heil speakers (AMT 18); headphones; a Sony Beta Max and timer; Sony videotape; a locked gray metal cash box; a men's Rolex GMT master watch; a Nikkormat camera and lens; $300 in cash; one man's gold ring with 1/2 carat diamond; an electric typewriter; a microwave oven; a sterling silver service for 10; and checkbooks with cancelled checks for 1975-1976. Select Insurance paid De Caro $8,544 of his claim of $12,000 on his homeowners policy.

On December 26, 1976, Mrs. Rothbrust reported a third burglary of their home. The stolen items included: a Litton microwave oven; a Beta Max audiotape unit; a 12-inch GM portable color television; a 19-inch Sony color television. Chubb-Pacific paid Mrs. Rothbrust $3,301.01 for the above loss and paid an additional $413 to a glass company for repairs.

On March 24, 1977, the Rothbrusts reported a fourth burglary of their home. The stolen items included: a pickup truck with camper shell; a tool box containing brickmason's tools; two Johnson CB radios and microphones; a Tennelec police scanner; a Singer Athena sewing machine (model 2000) in a brown case; a Montgomery Ward one-inch power drill and brown belt sander; a Skil brand worm drive saw; a Black and Decker brand router; a Powercraft wrench set and drive set; a Blaupunkt AM/FM radio and cassette player (model CH 4090) and a case of 32 cans of Astroshield auto polish. Farmers Insurance settled the claim with the Rothbrusts.

In May 1977, in response to an anonymous letter, the San Jose Police Department began an investigation. Sergeant McCready ascertained that: 1) contrary to the information on the insurance claim form, De Caro could not prove that he had purchased the items at the time and place indicated; 2) McCready also could not verify many of the De Caro purchases and the amounts; 3) De Caro had listed a number of items at greatly inflated (25%) prices; and 4) De Caro had reported purchases that could not be verified because the stores listed never carried the item, or listed items that did not exist. ³ McCready also discovered that the serial number on the stolen .38 was wrong. McCready found it strange that De Caro made no attempt to follow up on the status of his burglary, despite the loss of his weapon and the size of the loss.

From J. W. Connell, ⁴ De Caro's insurance adjuster, McCready learned that: 1) De Caro had purchased the Sansui receiver, turntable and cassette recorder from Mr. Robertson at 1665 Clovis Avenue; 2) Mr. Robertson had done some repair work on the De Caro residence on a separate property damage claim. McCready ascertained that 1655 Clovis did not exist, and that Robertson was Rothbrust. Further, the M & R Construction Company that had done the repair work on the De Caro home was owned by Rothbrust, who resided at 1659 Clovis. The Rothbrusts and the De Caros were friends.

McCready then investigated the Rothbrusts and learned of the five burglary and theft reports detailed above. McCready compared the Rothbrust and De Caro property loss lists and noticed a strong similarity: 19 of 27 items were similar as to make and manufacturer, and 7 were identical.

On June 13, 1977, at the request of Mrs. Rothbrust, McCready visited the Rothbrust home to help them with a burglary investigation and insurance claim. At the Rothbrust home, McCready saw several items that matched 7 of the 27 items that had been reported stolen from the De Caro residence, as well as items previously reported stolen by the Rothbrusts in 1975 and 1976, namely: 1) a Sansui receiver (model QRX-7001) and 2) turntable (SR-3080); 3) a 19-inch Sony portable color television set; 4) a Panasonic portable radio; 5) a Sony Beta Max video with a digital timer; and 6) a Sony AM/FM radio cassette. The Sansui receiver QRX-7001 appeared by make and model number on De Caro's list, and by make on the Rothbrusts' report of July 17, 1976. The Sansui turntable also appeared in De Caro's report by make and model number and by make on the Rothbrusts' July 17, 1976, report. The 19-inch portable Sony color television set model KCV-1941R appeared in De Caro's report and on Rothbrusts' report on December 26, 1976, by make and model number. The Panasonic portable model No. RF-388 appeared in De Caro's report and the Rothbrusts' report on November 30, 1974. The Sony Beta Max and its digital timer appeared in De Caro's report and the Rothbrusts' December 26, 1976, report.

McCready also ascertained that the Rothbrusts were receiving replacements in kind or money from more than one insurance carrier for the same items reported as stolen. Given the similarity and identity of items, McCready believed that the Rothbrusts had given some of the replaced property items to De Caro. Also, De Caro's burglary report appeared "too ... canned."

Late in May of 1977, McCready asked for the assistance of Constantine Kollinzas, an investigator for the Insurance Crime Protection Institute. Kollinzas then provided McCready with the copies of the claims filed by the Rothbrusts and paid by several of the insurance companies as to the losses described above.

In June 1977, McCready, who knew that the De Caro home was for sale, asked Kollinzas to go to the De Caro home by posing as a prospective buyer and check whether any of the stolen or missing items were there. McCready instructed Kollinzas to visit the De Caro home with a licensed real estate agent and to take a routine walk through the home and observe only what was in plain view. Kollinzas received a list of the items and memorized it. McCready cautioned Kollinzas not to disturb anything and not to look in any closets or drawers.

On June 20, 1977, Kollinzas arranged the visit with Michael Balalis, a broker with whom Kollinzas had dealt once before. Balalis did not know about the investigation and believed that Kollinzas was a bona fide potential purchaser. Balalis testified that if he had been aware of the true purpose of Kollinzas' visit, he would not have made it possible.

Balalis called De Caro's broker and learned that the De Caro home had been listed with the multiple listing service. By doing so, De Caro...