People v. Cook

• Court: California Court of Appeals
• Writing for the Court: WIENER; COLOGNE, Acting P. J., and STANIFORTH
• Citation: People v. Cook, 185 Cal.Rptr. 576, 135 Cal.App.3d 785 (Cal. App. 1982)
• Decision Date: 15 September 1982
• Docket Number: Cr. 15000
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Gene COOK, Defendant and Appellant.

Page 576

185 Cal.Rptr. 576

135 Cal.App.3d 785

The PEOPLE, Plaintiff and Respondent, v. Robert Gene COOK, Defendant and Appellant.

Cr. 15000.

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

Sept. 15, 1982.

Frank Offen, Oakland, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Garrett Beaumont and Linda A. Cabatic, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Associate Justice.

Defendant Robert Gene Cook appeals after a jury convicted him of burglarizing an attached garage and enclosed patio at the residence of Michael Van Horn in Stanislaus County. We reject his several contentions and consequently affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Michael Van Horn was awakened in the early morning hours of August 6, 1980 by loud knocking on his back door. Without opening the door, Van Horn looked through the window and saw a man he later identified as George Billingham standing outside. Billingham explained in a loud voice that he was lost, and asked for directions to Oakdale. He then changed his mind and asked how to get to Woodward Reservoir. Van Horn provided the directions. During the conversation, Billingham turned his head periodically looking in the direction of Van Horn's garage, which was connected to the house.

After Billingham left, Van Horn heard an engine start and, looking through the front window of his house, saw an older model half-ton van in poor condition drive out of his driveway and down the street. Apparently suspicious, Van Horn phoned the sheriff's department before he returned to bed.

On awakening the next morning, Van Horn noticed several items missing from an enclosed patio area next to his garage including two chairs and a clock radio. He also discovered the front door to the garage was open and that a tool box had been taken from the garage. He immediately notified the sheriff's office of the burglary.

Shortly thereafter, Deputy Sheriff Welch arrived to interview Van Horn. Van Horn explained about his nocturnal visitors, described the van he had seen and provided Welch with a description of the stolen property. Welch proceeded immediately to Woodward Reservoir, encountering a van matching Van Horn's description. He approached the van, looked through the front windshield and observed two chairs, a clock radio and a tool box of the types which Van Horn reported stolen. In addition, Welch saw three persons sleeping inside the van. One of the occupants, Debra Coe, awoke and left the van via the rear doors. Welch asked her to awaken the other two occupants and Coe complied. Welch went to the van's rear doors and knocked. Someone inside said, "Yeah." Welch then opened the doors and defendant Robert Gene Cook emerged along with a companion, Elvis Goss. Welch asked to whom the van belonged and Cook replied it was his. Welch asked for permission to search the van and Cook consented as long as Welch did not "tear it up."

George Billingham then approached Welch and asked what was going on. After being informed that all four were together, Welch explained they would have to be detained for a burglary investigation. Following a search for weapons, Welch placed all four individuals in the back of his patrol car. He then entered the van, seized the two chairs, the clock radio and the tool box, and radioed a request that Van Horn meet him at Woodward Reservoir. Van Horn arrived five minutes later, identified his property, and confirmed that Billingham was the person who had appeared at his door earlier that morning. The four individuals were then arrested. After waiving his Miranda rights, Cook told Welch that the tool box belonged to a friend, and that the chairs and clock belonged to his cousin who was camping at the reservoir. Cook declined to give his cousin's name. He also denied having stopped earlier that morning to ask directions to Woodward Reservoir.

Cook was booked into the Stanislaus County Jail at 12:40 that afternoon. On the following day, August 7, at approximately 1:30 p. m., Cook, Billingham and Goss were brought to a room in the jail to enable Detective Larry Hersey to photograph the soles of their shoes. This was necessary because several different shoeprints had apparently been found near the Van Horn garage. During the photographic session, one of the suspects asked Hersey what he was doing and why they were being held. Hersey explained they had been arrested on suspicion of burglarizing the Van Horn residence. Goss then remarked about some hitchhikers they had picked up, intimating the hitchhikers might somehow be involved in the burglary. Cook added that he also remembered the hitchhikers. Hersey responded that the report on the incident mentioned nothing about hitchhikers in Cook's van. Cook then started to explain but Hersey cut him off, noting if Cook wished to say anything, he would have to be advised of his Miranda rights. When Cook indicated a desire to talk, Hersey gave him the Miranda warning. Cook followed the warning with a statement concerning two hitchhikers who they picked up shortly after leaving the Van Horn home, to which they had gone seeking directions. The hitchhikers were allegedly dropped off before they reached the Woodward Reservoir. Cook did not recall seeing the hitchhikers carrying anything other than perhaps a sleeping bag. During Cook's recitation, Billingham and Goss indicated agreement with the substance of Cook's story.

Cook and Billingham were both charged with the burglary. Cook was tried separately. He testified at trial and admitted that the two previous statements he gave to police were fabrications. His testimony admitted stopping at the Van Horn house for directions. While Billingham went to the door, Goss and Coe allegedly left to go to the bathroom. Cook said he got out to fix a windshield wiper. When Goss and Coe returned, Cook saw them throwing several items into the back of the van. He admitted suspecting the items were stolen, but refrained from saying anything because he didn't want to get involved. He explained he lied to police in his two previous statements because he did not want to implicate the others, and because he was concerned as to what they might do to him if he did.

The jury convicted Cook of first degree burglary. (Pen.Code, §§ 459 and 460.)

DISCUSSION

Cook's major contention relates to an unreasonable delay in arraignment during which an allegedly involuntary statement was made. He also alleges an unreasonable search of his van, an erroneous instructional omission, inadequate assistance of counsel and the insufficiency of the evidence to sustain a first degree burglary conviction. We address these contentions seriatim.

Unreasonable Delay in Arraignment

Penal Code section 825 provides in relevant part, "The defendant must in all cases be taken before the magistrate without necessary delay, and, in any event, within two days after his arrest, excluding Sundays and holidays ...." (See also Cal.Const., art. I, § 14.) The Supreme Court has emphasized, however, that "[t]hese provisions do not authorize a two-day detention in all cases. Instead, 'a limit [is placed] upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute' and of the Constitution. (See Dragna v. White (1955) 45 Cal.2d 469, 473 [289 P.2d 428]; People v. Stroble (1951) 36 Cal.2d 615, 624-626 [226 P.2d 330].) ... '[T]he only permissible delay between the time of arrest and bringing the accused before a magistrate is the time necessary: to complete the arrest; to book the accused; to transport the accused to court; for the district attorney to evaluate the evidence for the limited purpose of determining what charge, if any, is to be filed; and to complete the necessary clerical and administrative tasks to prepare a formal pleading. [Citations.]' (People v. Williams (1977) 68 Cal.App.3d 36, 43, fn. omitted .)" (People v. Thompson (1980) 27 Cal.3d 303, 329, 165 Cal.Rptr. 289, 611 P.2d 883.)

In this case, the complaint charging Cook with burglary was filed at 8:01 a. m. on Friday, August 8. He was presumably arraigned shortly thereafter, meaning that approximately 45 hours elapsed between his arrest and the arraignment. Although this period falls within the two-day statutory maximum, Cook argued to the trial court there was no reason he could not have been arraigned on the morning of August 7. He renews his objection here, pointing to the fact the photographic session held later on the morning of the 7th resulted in his making inconsistent statements which were used to impeach his testimony at trial. Cook complains his statements were not totally voluntary since they constitute a product of the arguably unreasonable delay in arraignment. He contends that had he been arraigned on the 7th and a lawyer appointed, he would not likely have made any incriminating statements while the shoe photos were being taken.

While the rule is arguably different in case where the delay exceeds the two-day statutory period (see People v. Williams (1977) 68 Cal.App.3d 36, 43, 137 Cal.Rptr. 70), Cook bears the burden of producing evidence suggesting that the arraignment delay in this case was unreasonable. ¹ (People v. Johnson (1978) 85 Cal.App.3d 684, 689, 149 Cal.Rptr. 661.) We believe he has met that burden here to the best of his ability by pointing to the fact that all of the evidence linking him to the burglary was in the possession of the sheriff's office at the time Cook was arrested. The circumstances of this case were relatively simple, allowing an inference that the 45-hour delay was not necessary for case evaluation and the performance of administrative details. (See People v. Williams, supra, 68 Cal.App.3d at p. 43, 137 Cal.Rptr. 70.)

Faced with this showing, the People were unable to demonstrate any justification for their...