People v. Dutch, Cr. N

• Decision Date: 06 September 1967
• Docket Number: Cr. N
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie Lee DUTCH, Defendant and Appellant. o. 12494.

Page 727

61 Cal.Rptr. 727

254 Cal.App.2d 163

The PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie Lee DUTCH, Defendant and Appellant.

Cr. No. 12494.

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

Sept. 6, 1967.

Hearing Denied Nov. 1, 1967.

Paul M. Posner, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant appeals from the judgment entered following a jury trial that resulted in his conviction on three counts of an information, each charging him with the crime of robbert. The jury determined that the robberies were of the first degree and that appellant was personally armed during the commission of one of these crimes. Appellant admitted his prior conviction of possession of marijuana.

By way of assignments of error appellant contends that (1) articles obtained during an alleged illegal search and seizure were improperly received in evidence against him; (2) he was denied effective assistance of counsel by reason of his counsel's failure to object to the introduction of the allegedly illegally seized evidence; and (3) the court erred in accepting jury verdicts finding appellant guilty of first degree robbery on two counts in which there was a finding that he was not armed. Each of these contentions is without merit.

'Defendant did not object at any point in the trial to the admission of evidence on the ground that it was obtained by an unlawful search and seizure, and she may not raise the matter for the first time on appeal. (Citations.)' (People v. Richardson, 51 Cal.2d 445, 447, 334 P.2d 573, 575.)

'Except in certain circumstances not present here, the admissibility of evidence will not be reviewed on appeal in the absence of a sufficient objection in the trial court. (Citations.)' (People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 765, 402 P.2d 834, 837.)

Appellant, however, argues that the rule enunciated in these cases was established following the decision in People v. Cahan, 44 Cal.2d 434, 442, 282 P.2d 905, 50 A.L.R.2d 513, wherein California adopted the exclusionary rule as a 'judicially declared rule of evidence' rather than under compulsion of a federal constitutional mandate. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) Therefore, his argument continues, this rule should now be discarded since the receipt of illegally obtained evidence is prohibited by substantive federal law. (Mapp v. Ohio, supra.) This argument is unpersuasive since our Supreme Court in People v. Robinson, supra, 62 Cal.2d at p. 894, 44 Cal.Rptr. 762, 402 P.2d 834, specifically cited Henry v. State of Mississippi, 379 U.S. 443, 447--449, 85 S.Ct. 564, 13 L.Ed.2d 408, thereby demonstrating its full awareness of the constitutional nature of an accused's rights in this regard and its conclusion that our long established 'procedural rule serves a legitimate state interest.' (Henry v. State of Mississippi, supra, at p. 447, 85 S.Ct. at p. 567.)

Similarly, People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, the decision most strongly relied upon by appellant, lends no support to either of his first two assignments of error. As to his initial contention the court squarely stated at pages 462--463, 34 Cal.Rptr. at page 865, 386 P.2d at page 489:

'Since defense counsel made no objection to the admission of the heroin, the trial judge was not called upon to resolve the conflict between the testimony of Mrs. Santa Maria and that of the police as to her consent to their entry, nor was he called upon to determine whether the police had probable cause to arrest defendant. The absence of any objection at the trial likewise precludes defendant from obtaining resolution of these issues on appeal. (People v. Rojas, 55 Cal.2d 252, 260, 10 Cal.Rptr. 465, 358 P.2d 921, 85 A.L.R.2d 252; People v. Richardson, 51 Cal.2d 445, 447, 334 P.2d 573.) Defendant contends that even though no objection was raised at the trial, this court may reverse a conviction if undisputed evidence shows an infringement of defendant's constitutional rights. (See People v. Millum, 42 Cal.2d 524, 267 P.2d 1039.) Defendant admits, however, that the lawfulness of the officers' entry into the apartment involves a conflict in the testimony.'

In the instant case there is nothing in the record tending to show that appellant's arrest and the incident search were in any way improper or illegal. Officer Park of the Los Angeles Police Department was asked if he had arrested appellant at a designated address on a certain date. When he answered in the affirmative, further inquiry developed the fact that a shotgun similar to the one used in these robberies was discovered on the premises as were various items of property which had been stolen in the robberies. In addition, false identification papers and pawn tickets were found in one of the upstairs bedrooms in a suit of clothing which appellant conceded was his. He freely admitted that he had obtained and used the false driver's license in connection with his pawning of certain other items of lot taken in the robberies.

No objection having been made to the introduction of this evidence, and in the absence of testimony, conflicting or otherwise, that would tend to suggest the illegality of appellant's arrest or the search conducted incident thereto, no ruling thereon was required of the trial court. Therefore, there is nothing before us properly falling within the scope of appellate review.

Nevertheless, appellant argues in support of his second assignment of error that the evidence received at his preliminary hearing demonstrated at least a justiciable question as to the propriety of his arrest and search and that the failure of his counsel to raise such issue deprived him of his right to effective representation of counsel. This argument, however, indicates a misunderstanding of the decision in Ibarra. As the court noted in Ibarra, 60 Cal.2d at page 465, 34 Cal.Rptr. at page 866, 386 P.2d at page 490: 'In the present case The record demonstrates that defendant's counsel Did not know of the rule that defendant could challenge the legality of the search and seizure even though he denied that the heroin was taken from him and asserted no proprietary interest in the premises that were entered. (Citations.)' (Emphasis added.)

Further, the court in Ibarra disposed of the Attorney General's argument 'that counsel's failure to object to the introduction of the heroin into evidence may have reflected a considered judgment' by pointing out at page 466, 34 Cal.Rptr. at page 867, 386 P.2d at page 491: 'Counsel's statement to the court Makes perfectly clear that his decision Reflected, not judgment, but unawareness of a rule of law basic to the case; a rule that reasonable preparation would have revealed.' (Emphasis added.)

No such lack of knowledge is shown by the instant record. Appellant's defense counsel gave appellant a most careful and able defense. He was effective in every particular and his decision not to object to the receipt of the evidence appears a reasonable, and partially successful, trial tactic. In three of the five counts of robbery charged against appellant, he had been positively identified as one of the robbers. In the other two counts he had not been identified and the prosecution's case was based upon inferences to be drawn from the fact that loot taken from these robberies was found in the residence where appellant was arrested; as was the weapon used in all of the...