People v. Fuller

• Decision Date: 17 January 1969
• Docket Number: Cr. 14013
• Citation: 74 Cal.Rptr. 488,268 Cal.App.2d 844
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Jefferson FULLER and Donald Richard Strieve, Defendants and Appellants.

Page 488

74 Cal.Rptr. 488

268 Cal.App.2d 844

PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Jefferson FULLER and Donald Richard Strieve, Defendants and Appellants.

Cr. 14013.

Court of Appeal, Second District, Division 5, California.

Jan. 17, 1969.

Hearing Denied March 12, 1969.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal for defendant Fuller.

Joseph O. Debus, Culver City, under appointment by the Court of Appeal for defendant Strieve.

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

DRUCKER, ^* Associate Justice pro tem.

Defendants were charged by information with five counts of burglary. A public defender was appointed to represent both. Motion pursuant to section 995 of the Penal Code was denied and defendants pleaded 'not guilty.'

Motions for separate trials and to suppress evidence were argued and denied.

Defendants and both counsel waived jury trial, and the cause was submitted upon the transcript of the preliminary hearing and the testimony at the trial.

The defendants were found guilty as charged on all counts, and the court found the burglaries to be of the first degree as to counts I and II, and second degree as to counts III, IV and V. They were sentenced to state prison on each count, the sentences to run concurrently.

Both defendants filed a notice of appeal.

The evidence pertaining to the burglaries, as developed at the preliminary hearing, is briefly stated:

FRED L. JOYNER retired on the night of February 14, 1967, and when he arose at 6 o'clock the following morning, he discovered that a window screen had been broken, that his house had been entered, and that his pants, a wallet and a camera had been stolen.

ETHEL S. ROSEN left her home on March 13, 1967, and returned at midnight to find that a bedroom window screen had been ripped open, and that all her jewelry, an expensive jeweled wristwatch and two television sets were missing.

TED. C. STEN left his residence on March 16, 1967, at 6:00 p.m., and when he returned at 10:45 p.m., he found that a bedroom window screen had been pulled loose and that a number of items were missing, including two guns, two television sets, and a fireplace lighter.

MADELINE SILVERMAN left her residence about midmorning of March 17, 1967, and returned at 9:15 in the evening. She saw that the rear door to the house and the small door to the garage were open. She also discovered that the screen in the utility room had been cut or pulled open, that the glass in the kitchen door had been shattered, and that furs, clothing, money, jewelry and other items were missing.

MARSHALL B. HAYNER left his house about 5:30 p.m., on March 24, 1967, and returned about midnight to find that the back door had been pried open and that a mink stole, some heirlooms and wedding rings and other items were missing.

At the trial the testimony of Police Officer John J. Hurlbirt revealed that defendant Strieve (under the name of Donald Williams) had been arrested by the Los Angeles Police Department for a burglary committed in the Palisades area. In checking him out they found a rent receipt, indicating that he rented an apartment with another man at 1600 East Ocean Boulevard, Long Beach. The rent receipt was made out to Donald Williams and Larry Denico, aliases for defendants Strieve and Fuller.

These two men had been apprehended for a burglary in the Long Beach area several months before, but were released because the victim agreed not to prosecute if her property was returned to her. Officer Hurlbirt knew this, and knew that the defendants were friends. Furthermore, he had been informed by the Los Angeles officers that two other men were involved with Strieve in the Palisades burglary, one of whom had driven the thieves to the scene in a 1956 pink and white Buick.

Because of this information, Officer Hurlbirt believed that Fuller may have been an accomplice in the Palisades burglary. Accompanied by Sergeants Lance and Donnell of the Los Angeles Police Department, he went to 1600 East Ocean Boulevard. A 1956 pink and white Buick was parked across the street.

Officer Hurlbirt had a picture of Fuller (alias Denico), which he showed to the manager, who said, 'Yes. That is Denico.'

The manager told the officers that Fuller's apartment (No. 5) was empty, but that they might find him visiting in another apartment (No. 3) occupied by Mr. and Mrs. Chariot and their small son. Officers Hurlbirt and Lance went to apartment number 3 and knocked. Mrs. Chariot opened the door. The officers identified themselves by badges and I.D. cards, said they were looking for Mr. Fuller, and asked to come in. She assented and stepped back, and the officers entered.

Officer Hurlbirt did not have a search warrant, so he asked if they might search the apartment, and Mrs. Chariot said, 'Yes.' Shortly thereafter Sergeant Lance found Fuller in the bathroom, arrested him as a burglary suspect, and immediately informed him of his constitutional rights. Fuller stated that he understood his rights.

During a search of the apartment the officers found two or three large jewelry boxes containing various types of jewelry, 'maybe twenty to thirty necklaces and earrings, and so forth, * * *' They also found a butane fireplace lighter, like the one described in the 'Sten' burglary report.

Mrs. Chariot said that the items were not hers and that they came from Fuller's apartment.

On April 5, 1967, Officer Anthony Maletich of the Long Beach police had a conversation with Fuller at the Los Angeles County main jail, at which time he advised Fuller of his constitutional rights, enumerating them in detail. Fuller said that the Los Angeles police had already told him of his rights, and that he did not have to say anything else without an attorney.

Officer Maletich had a copy of the Rosen burglary report, and he showed it to Fuller who said that he remembered the beautiful watch he had taken out of the home because there were so many different stones in the bracelet that he thought it was phony.

The following day Officer Maletich talked with both defendants at the same time and place. He began by advising them of their constitutional rights. When asked if he understood these rights, Strieve said, 'Yeah, I've been told this twice by the L.A. police, that anything I do tell you would be strictly hearsay.'

The officer had the reports of the five Long Beach burglaries, which he showed to the defendants. Strieve told him that in the Silverman burglary he had cut the screen with a screwdriver and then with the handle of the screwdriver broke the window out of the door and thereby entered. When Fuller was asked if this is what happened, he nodded his head affirmatively.

When shown a copy of the Sten burglary report, Strieve stated that Fuller, after tearing away a screen, used a jimmy on the locking device of the window, raised it and crawled in, and then let Strieve in. Fuller corroborated by saying he was the one who jimmied the window and crawled through.

Similar confessions were made with regard to the Rosen and Hayner burglaries.

As to the Joyner burglary, Strieve said that they had acquired a key and entered through the door.

With regard to their modus operandi, they stated that 'they would hit between three and four burglaries a night. They would always try to work the better residences of the city * * * and that they always work between 6:00 and 9:00 p.m., and that they had various fences * * * that when they would burglarize a home they would take the articles and put them in a sheet or pillow case and place them somewhere near the house and then drive by and pick it up later. They always dressed in street clothes * * * later they would change their clothes when they returned to their vehicle which was normally a block away * * * they felt by doing this * * * it would lessen their chance of being apprehended.'

When asked the approximate number of burglaries they had committed, the reply was: 'Between 25 and 30 in the three months they had been working together.'

They also told about the disposition they had made of some of the stolen articles.

Identification officers of the Long Beach Police Department testified that fingerprints found at the scene of the Rosen burglary were identified as those of Strieve.

Defendants are represented by separate counsel on appeal, but for the most part they raise the same issues, i.e., that the court erred (1) in admitting evidence obtained by illegal search and seizure; (2) in admitting the confessions of defendants in violation of their constitutional protection as set forth in the Miranda decision; and (3) in denying the motion that defendants be tried separately. They also argue that they should have been represented by separate counsel. Fuller also asserts there was no probable cause for his arrest.

Defendants challenge the legality of the search of Mrs. Chariot's apartment and maintain that the arrest of Fuller and the evidence and confessions that followed 'were fruits of the poisonous tree,' and therefore, inadmissible.

At the hearing on the motion to suppress evidence, the testimony indicated that the officer's request for permission to enter Mrs. Chariot's apartment, as well as permission to search the apartment, was freely granted. There was no assertion of authority, or demand for entry into the apartment. The trial court concluded that the consent was 'clear as crystal' and denied the motion. Mrs. Chariot's constitutional rights were not violated when she freely consented to an entry and search. (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.)

Fuller urges that Mrs. Chariot should have first been advised of her right to refuse consent, as suggested in People v. Wilson, 145 Cal.App.2d 1, 7, 301 P.2d 974, but acknowledges that People v. Roberts, 246 Cal.App.2d 715, 55 Cal.Rptr. 62, has rejected this contention. In Rob...