People v. Galan

• Citation: 209 Cal.Rptr. 837,163 Cal.App.3d 786
• Court: California Court of Appeals
• Decision Date: 17 January 1985
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Gabriel GALAN et al., Defendants and Appellants. A021008.

Page 837

209 Cal.Rptr. 837

163 Cal.App.3d 786

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry Gabriel GALAN et al., Defendants and Appellants.

A021008.

Court of Appeal, First District, Division 3, California.

Jan. 17, 1985.

Rehearing Denied Feb. 6, 1985.

Hearing Denied March 14, 1985.

Philip H. Pennypacker, Conflicts Administrator in Association with Leland Nerio, San Jose, Deborah Tuttelman, Berkeley, Philip Pennypacker, Conflicts Administrator in Association with E. John Compatore, Santa Clara, for defendants and appellants.

John K. Van de Kamp, Atty. Gen. of the State of Cal., Thomas A. Brady, Cynthia Choy Ong, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Associate Justice. ^*

Defendants Henry G. Galan (Henry), Manuel G. Galan (Manuel) and Robin G. Fox (hereafter appellants) appeal from their respective judgments of conviction entered on guilty pleas.

On the evening of October 27, 1981, an anonymous call was made to the San Jose Police Department reporting a shooting incident at 1221 Ribisi Circle. Responding to a radio dispatch from the department, Officers Gonzales and Rives each proceeded to that address to investigate. Arriving at the condominium complex simultaneously, they parked their cars in the alleyway where each condominium garage fronts and where the address of each unit is posted. The front doors of the complex face a large grassy area and other condominium units. There is no street that goes by the front doors of the complex and there are no walkways between the individual units. While there is access to the back of each unit through the garage, in order to get to the front of the units one must walk around the entire building.

When the officers arrived the garage door was wide open. Through an open door at the rear of the garage, officers could look into a small patio area and also into the residence through a sliding glass door. Approaching this open back door in the garage the officers, by the aid of a flashlight, saw a bullet hole and found a slug in the door jamb.

Officers Gonzales and Rives were joined by recently arrived Officer Torres (all of whom were in uniform) and the three entered the patio through this open door. Once in the patio they saw people inside the house running around. Noticing the police officers, Manuel came to the door. Officer Torres, who knew the Galan brothers due to a previous shooting incident, announced that they were investigating a reported shooting and requested entry into the residence. Manuel refused and demanded that the officers leave. As Manuel was attempting to lock the doors and draw the drapes, the officers saw a handgun on the kitchen counter. Thereupon, the officers forced the door open and entered.

Officer Torres entered the residence first and observed heading upstairs, an unidentified male whom he attempted to pursue, but Manuel and Fox intervened and prevented him from doing so. Fox and Manuel verbally and physically attacked Officer Torres; Fox delayed Manuel's arrest but was ultimately removed by Officer Rives and then Officer Torres was able to subdue, handcuff and arrest Manuel. Henry, who was also downstairs, was arrested without resistance by Officer Gonzales. Officer Torres then proceeded to the kitchen and took possession of the gun.

After the downstairs area was secured, Officer Rives, using Manuel as a shield, went upstairs to get hold of the fourth person. Rives could not locate anyone upstairs, but noticed that the window was left open. While upstairs, the officer saw drugs and drug paraphernalia (i.e., multi-colored rolled up balloons, some with straws, a scale, a food grinder and a white powdery substance) in plain view.

Officer Hafley of the Narcotics Unit of the San Jose Police Department confirmed that the balloons seized in appellant's apartment contained heroin. It was his opinion that the numerous balloons of heroin and the drug paraphernalia indicated that the narcotics found in the apartment was possessed for the purpose of sale. His examination of Henry and Manuel revealed that they were under the influence of heroin at the time of their arrest.

Based upon this evidence, five criminal offenses were charged against the appellants as follows: Count I charged all three appellants with possession of heroin for sale (Health & Saf.Code, § 11351) and alleged that they were armed with a firearm (a pistol) (PEN.CODE, § 12022¹, subd. (a)). Count II charged that Henry and Manuel were under the influence of heroin at the time in dispute (Health & Saf.Code, § 11550). Count III accused all three appellants of obstruction of a public officer in the performance of his duty ( § 148). Count IV charged Manuel with assault on a peace officer ( §§ 240-241). Lastly, count V charged Henry with possession of a concealable firearm ( § 12021, subd. (a)).

On June 15, 1982, appellants filed a motion to dismiss the information per section 995 and to suppress evidence pursuant to section 1538.5, both of which were denied. Thereupon, appellants Henry and Fox pled guilty to simple possession of heroin (Health & Saf.Code, § 11350), a lesser included offense of count I, and other charges were dismissed; Manuel pled guilty to possession of heroin for sale (count I) and the other charges were dismissed. Thereafter, Fox and Henry were placed on probation for three years, and Manuel was sentenced to state prison for the mid-term of three years, but execution of sentence was suspended pursuant to Welfare & Institutions Code section 3051 and he was committed to the civil rehabilitation program as a narcotic addict.

Appellants' principal contention on appeal is that their judgment of conviction should be reversed because (1) the warrantless entry and search of both the garage and the apartment was unlawful, and (2) the erasure of the police tapes on which the call of the anonymous informer was recorded destroyed material evidence and thereby deprived appellants of due process of law. (People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361.) Appellant Fox additionally claims that her conviction should be reversed for the further reasons that an unreasonable delay occurred between the filing of the complaint and the arrest and that the evidence was insufficient to support the possession of heroin charge against her. We reject appellants contentions and affirm the judgments.

Entry of Garage

Appellants first argue that the entry of the garage without a search warrant was unlawful because it rested on the uncorroborated tip of an anonymous informer which failed to constitute sufficient probable cause for the intrusion of the premises. (Aguilar v. Texas (1964) 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723; People v. Hill (1974) 12 Cal.3d 731, 760-761, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Abbott (1970) 3 Cal.App.3d 966, 971, 84 Cal.Rptr. 40.) In the alternative, appellants allege that even if probable cause existed, the prosecution's failure to comply with the knock and notice requirement of the statute rendered the garage search unlawful. ( § 844; ² People v. Bradley (1969) 1 Cal.3d 80, 81 Cal.Rptr. 457, 460 P.2d 129; People v. Bruce (1975) 49 Cal.App.3d 580, 122 Cal.Rptr. 648; see also People v. Kanos (1969) 70 Cal.2d 381, 74 Cal.Rptr. 902, 450 P.2d 278.)

Appellants' first contention fails since the garage was not protected by the constitutional safeguards proscribing unreasonable searches and seizures. It is well settled that in determining what is a constitutionally protected area the test is whether the person has exhibited a subjective expectation of privacy which is objectively reasonable and if so, whether that expectation has been violated by unreasonable government intrusion. (People v. Edwards (1969) 71 Cal.2d 1096, 1100, 80 Cal.Rptr. 633, 458 P.2d 713; Burkholder v. Superior Court (1979) 96 Cal.App.3d 421, 427, 158 Cal.Rptr. 86; see also Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 636-638, 108 Cal.Rptr. 585, 511 P.2d 33; People v. Bradley, supra, 1 Cal.3d at 84-85, 81 Cal.Rptr. 457, 460 P.2d 129.) Although a detached garage on occupied residential property may be entitled to constitutional protection against unreasonable police searches (People v. Medina (1972) 7 Cal.3d 30, 40, 101 Cal.Rptr. 521, 496 P.2d 433; People v. Bruce, supra, 49 Cal.App.3d 580, 587-588, 122 Cal.Rptr. 648), it is well established that the determination of whether a person may harbor a reasonable expectation of privacy with respect to a specific place depends on the totality of the facts and circumstances (North v. Superior Court (1972) 8 Cal.3d 301, 308-312, 104 Cal.Rptr. 833, 502 P.2d 1305; Phelan v. Superior Court (1979) 90 Cal.App.3d 1005, 1011, 153 Cal.Rptr. 738); the doctrine of "constitutionally protected area" cannot serve as a talismanic solution to every Fourth Amendment problem (Katz v. United States (1967) 389 U.S. 347, 350-352, 88 S.Ct. 507, 510-512, 19 L.Ed.2d 576; People v. Medina, supra, 7 Cal.3d at p. 41, 101 Cal.Rptr. 521, 496 P.2d 433). Consistent therewith, it has been held that the garage of a condominium apartment which is available to all tenants and readily accessible by the members of the general public, does not fall within the protective umbrella of the Fourth Amendment and the warrantless search of such premises cannot be invalidated on either constitutional or statutory grounds.

The cases saliently on point are People v. Terry (1969) 70 Cal.2d 410, 77 Cal.Rptr. 460, 454 P.2d 36 and People v. Szabo (1980) 107 Cal.App.3d 419, 165 Cal.Rptr. 719. In Terry, similar to the case at bench, the police officers made a warrantless entry into the garage of an apartment complex and discovered marijuana in plain view in defendant's car. Contending that the warrantless entry of the garage violated his constitutional rights, defendant (a tenant of the apartment) sought to suppress the contraband seized in his car. In rejecting defendant's...