People v. Edgar

• Citation: 383 P.2d 449,32 Cal.Rptr. 41,60 Cal.2d 171
• Decision Date: 09 July 1963
• Docket Number: Cr. 7359
• Court: California Supreme Court
• Parties: , 383 P.2d 449 The PEOPLE, Plaintiff and Respondent, v. Robert Eugene EDGAR, Defendant and Appellant.

Page 41

32 Cal.Rptr. 41

60 Cal.2d 171, 383 P.2d 449

The PEOPLE, Plaintiff and Respondent, v. Robert Eugene EDGAR, Defendant and Appellant.

Cr. 7359.

Supreme Court of California, In Bank.

July 9, 1963.

Harold L. Hammond, Public Defender, James E. Marks, Deputy Public Defender, Hill & Dalton and Charles V. Moore, Eureka, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Michael J. Phelan and Albert W. Harris, Jr., Deputy Attys. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

A jury found defendants Edgar and Hollowell guilty of extortion (Pen.Code, § 520), and conspiracy to commit extortion. (Pen.Code, § 182.) In committing these crimes, defendants arranged for Hollowell to take a flashlight picture of the victim, O'Connell, in a compromising position with defendant Edgar in the front seat of O'Connell's car at night. On the basis of O'Connell's testimony as to what occurred in the car, the jury also found Edgar guilty of oral copulation. (Pen.Code, § 288a.) At the trial Edgar admitted being present in the car and signaling Hollowell to take a picture through the windshield as O'Connell leaned over him. He denied, however, that he intended to let O'Connell commit an act of oral copulation and testified that no such act took place. He appeals only from the part of the judgment convicting him of violating section 288a of the Penal Code.

Edgar contends that the picture taken by Hollowell was illegally obtained by police officers and that therefore the trial court erred in admitting it into evidence to corroborate O'Connell's testimony. Although the picture does not show with certainty which version of what occurred in the car was correct, the jury could interpret its depiction of the relative positions of Edgar and O'Connell as persuasive evidence in support of O'Connell's testimony. Had it been excluded from evidence, it is reasonably probable that the jury would have entertained at least a reasonable doubt that Edgar violated section 288a in carrying out his plan to commit extortion against O'Connell. Accordingly, if the trial court erred in admitting the picture into evidence, the error was prejudicial and the part of the judgment appealed from must be reversed. (See Cal. Const., art. VI, § 4 1/2; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)

The trial court properly heard evidence on the admissibility of the picture outside the presence of the jury, 'for the admissibility of the evidence presented a question of law for the court.' (People v. Gorg, 45 Cal.2d 776, 780, 291 P.2d 469, 471.) There is no substantial dispute as to the facts. The picture was one of three pictures that police officers secured from Edgar's mother. The other two were found to be irrelevant. Edgar lived with his mother and stepfather, and after his arrest, his mother visited him in jail. A deputy sheriff overheard their conversation. Edgar told his mother that there were pictures at home that might be important to his case and asked her to hide them until he told her what to do with them. The deputy sheriff told the police officer in charge of the case about the conversation, and he and another officer went to Edgar's home. They arrived about 10 or 15 minutes before Edgar's mother returned from the jail and were admitted by Edgar's stepfather. When Edgar's mother arrived they told her they knew about the pictures and asked her for them. She told the officers she did not know what she should do and that she thought she should consult an attorney. The officers talked to her for from 15 to 30 minutes and told her two, there, or four times that if she did not deliver the pictures to them, they would be forced to take her to the police station, book her for withholding evidence, obtain a search warrant, and come back and get the pictures. The trial court found that as a result of these statements Edgar's mother went into another room, returned with the pictures, and gave them to the officers. The trial court also found, however, that the officers had a right to arrest her for concealing evidence (Pen.Code, § 135) and therefore concluded that they did not act unlawfully in compelling her to choose between submitting to arrest and giving them the pictures.

Edgar correctly contends that the officers did not have a right to arrest his mother and that therefore they secured the pictures by an unlawful assertion of authority over her. (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, and cases cited.)

Penal Code section 135 provides that 'Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.' A peace officer may make an arrest without a warrant for a misdemeanor only if 'he has reasonable cause to believe that the person to be arrested has committed * * * (the offense) in his presence.' (Pen.Code, § 836.) Edgar's mother neither violated nor attempted to violate section 135 in the officers' presence. 'In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end; preparation alone is not enough, and some appreciable fragment of the crime must have been accomplished. (Citations.)' (People v. Gallardo, 41 Cal.2d 57, 66, 257 P.2d 29, 35.) Edgar's mother did no more than return home from the jail. At most the officers had reasonable cause to believe that she intended to violate section 135 in the future. She obviously did not intend to hide or attempt to hide the pictures in their presence. It is equally clear that she did not conceal the pictures within the meaning of the statute by her initial refusal to give them to the officers. To hold otherwise would make it a crime for a person merely to assert the right to have a magistrate determine whether police officers are entitled to seize evidence from his home. (See Tompkins v. Superior Court, 59 A.C. 75, 78, 27 Cal.Rptr. 889, 378 P.2d 113.) Were there a right to arrest persons for insisting on search warrants and...