People v. Gephart

Decision Date12 June 1979
Docket NumberCr. 8793
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Glen Forrest GEPHART, David Dewayne Hryn, and Thomas Lee Grossen, Defendants and Appellants.

Michael E. Kilpatrick, Sacramento, under appointment by the Court of Appeal, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones, and Edmund D. McMurray, Deputy Attys. Gen., for plaintiff and respondent.

REYNOSO, Associate Justice.

A jury found defendants Gephart, Grossen and Hryn guilty of the crime of armed robbery in violation of Penal Code section 211.

Defendants assert that the Siskiyou County Superior Court erred when it determined that a prior order of another court, the Stanislaus County Superior Court, granting a motion under Penal Code section 1538.5 suppressing evidence, was not binding as to the same evidence as it relates to different charges filed in Siskiyou County. Consequently, they argue that the court erred in failing to suppress the evidence in the Siskiyou County proceeding.

The salutary legislative purpose of section 1538.5, which we detail below, does not require its application to subsequent prosecutions on different charges. Public policy favors full litigation of issues. Accordingly, we hold that the Siskiyou court was not bound by the prior determination. 1

1. Procedural Setting

The defendants were originally arrested 2 in the City of Turlock, Stanislaus County. A preliminary hearing was held before the justice court, Turlock Judicial District. After the preliminary hearing, the magistrate suppressed certain evidence but held the defendants to answer for a violation of Penal Code section 496.1 (receiving stolen property). Defendant Hryn was also held to answer for the violation of Health and Safety Code section 11350. On December 4, 1975, a hearing was held in the Stanislaus County Superior Court. The judge granted the motion under Penal Code section 1538.5 as to all of the evidence seized, and thereafter dismissed the action pursuant to Penal Code section 995.

The defendants were subsequently accused of a robbery committed in Siskiyou County. After preliminary hearings, Gephart, Grossen and Hryn were held to answer for a violation of Penal Code section 211 (armed robbery). The robbery in Siskiyou County was separate and distinct from the charges which had been dismissed in Stanislaus County. In the Siskiyou proceedings, defendants filed motions under Penal Code sections 1538.5 and 995. The preliminary hearing transcript and the transcript of the 1538.5 hearing in Stanislaus County were exhibits at the Siskiyou hearing. The parties stipulated to their admission. The Siskiyou Superior Court then ruled that the determination in the Stanislaus proceedings on the motion under Penal Code section 1538.5 had no effect on the Siskiyou proceedings. The court granted the motion under Penal Code section 1538.5 as to evidence which was seized from defendants' vehicle, but denied the motion as to other evidence. Defendants' motion under Penal Code section 995 and their nonstatutory motion to suppress a statement were denied.

In the jury trial which took place in May 1976, defendants Gephart, Grossen and Hryn were found guilty of the crime of armed robbery in violation of Penal Code section 211.

2. The Evidence

Helen Martin and Barbara Hunt were employed in Fort Jones, California, at the Fort Club. At approximately 12:30 a. m. on October 6, 1975, as they were closing the club, a man knocked at the door and asked whether he could purchase some cigarettes. The man left, then returned to buy more cigarettes. When allowed in, he pulled out a gun, pulling the clip back as he entered. A smaller man entered with him wearing a ski mask, and also carrying a gun. Upon being told that there was no safe, the men took $30 from Martin and $10 from Hunt and left.

Shortly after the robbery, Martin identified a picture from a photographic lineup as the man who did not wear a mask. A sergeant in the Siskiyou County Sheriff's office testified that the photograph identified by Martin was a photograph of Hryn. At trial Martin identified Hryn as the man in the robbery who did not wear a mask. On cross-examination, she stated that Hryn looked very familiar, but that she could not positively identify him. The description given the police by Martin after the robbery was of a man 5' 11 tall, 185 pounds, blonde hair, and wearing a long-sleeved plaid shirt. The parties stipulated that when booked into the Stanislaus County jail, defendant Hryn's height was 5' 10 , his weight 160 pounds.

Louis Arndt, of the Siskiyou County sheriff's office, testified that on October 9, 1975, after waiving his rights under Miranda defendant Grossen indicated that he had a feeling that he was involved in the robbery. On December 5, 1975, after a further Miranda waiver, Grossen indicated that he may have been in the bar during the robbery. Arndt further testified that Larry Lewis, a fellow prisoner in the Stanislaus County jail, stated that he overheard Gephart and Grossen discussing the matter and that they indicated that Grossen was in the bar, and Gephart was in the car. Larry Lewis had previously denied that he so advised Arndt.

James Puthoff, a Turlock police officer who was present at the defendants' arrest, testified that Hryn was wearing a red and black checkered shirt and Levis upon arrest. A gun, which operates by pulling the clip back, seized from Hryn upon arrest, was admitted as evidence.

Detective sergeant John Johnson of the Turlock police department interviewed Gephart and, after a Miranda waiver, was told by Gephart that he and Grossen picked up hitchhikers Hryn and Disney near the California-Oregon Border. All of them had proceeded to Redding where they stayed overnight and then went on to Berkeley and finally to Turlock.

For the defense Ms. Town testified that she gave defendants Gephart and Grossen a ride to Yreka on October 3, 1975, because they were going by bus to Medford, Oregon. Ms. Gephart, defendant Gephart's mother, testified that Gephart and Grossen left for Medford on October 3, 1975, and returned that evening with a car. They left and she did not see them again until after they were arrested.

Defendant Gephart testified. On October 3, 1975, he went to Medford with Grossen and bought a car. On the way back, they picked up two hitchhikers, Hryn and Disney. They returned to his parents' home in Orofino, where he picked up some clothing and left. Gephart and Grossen picked up Hryn and Disney anew in a bar where they had left them and then drove to Redding. From Redding they drove to Berkeley. They began using drugs heavily, and drove from Berkeley to Hayward and back. On October 6, 1975, they drove to Turlock. He denied the conversation alleged to have been overheard by Larry Lewis.

Defendant Grossen also testified. His testimony was similar to Gephart's on the route they took to Turlock and their usage of drugs. He also denied the conversation alleged to have been overheard by Larry Lewis. He denied being at the Fort Club. He further denied that he made admissions to Arndt.

Similarly, defendant Hryn testified. He agreed with his fellow defendants on the route taken and the usage of drugs. He further testified that he did not have the gun when picked up by Gephart and Grossen, and that he could not recall where or when he got the gun. He also denied being in the Fort Club.

The defense introduced testimony from Doctors O'Neill and Gasman on diminished capacity. Dr. O'Neill testified that the heavy use of drugs by defendants caused some brain damage, but that they were capable of forming the specific intent necessary to commit a robbery. Dr. Gasman found no brain damage in defendant Gephart, and believed he could form a specific intent, although his capacity would be affected. He also found that Grossen could form a specific intent but that his capacity would be diminished. And he found that defendant Hryn's capacity would be diminished.

Defendants' principal challenge to their conviction lies in the argument that evidence, once suppressed, should stay suppressed. That is, the ruling of a superior court on the admissibility of evidence in a Penal Code section 1538.5 acts either as res judicata or as collateral estoppel. In reaching our conclusion that the argument fails, we review the nature and purpose of Penal Code section 1538.5 as well as the doctrines of res judicata and collateral estoppel.

3. The Statutory Setting

A brief review of statutory procedure will place section 1538.5 in perspective. Under the statutory scheme of Penal Code sections 995, 999a, and 1538.5, an accused may have up to seven opportunities to challenge the validity of a temporary detention, arrest, or search and seizure: (1) The accused can move to suppress the evidence obtained at the preliminary hearing (Pen.Code, § 1538.5, subd. (f)); (2) If the motion is denied and the accused is held to answer, a motion may be made in the superior court to set aside the information for lack of probable cause on the ground that the evidence is the product of an illegal search (Pen.Code, § 995); (3) Upon the denial of a motion under Penal Code section 995, a defendant may file a petition for a writ of prohibition to stay the trial on the ground that the evidence is the product of an illegal search (Pen.Code, § 999a); (4) A special hearing de novo in the superior court on the validity of the search is proper (Pen.Code, § 1538.5, subd. (i)); (5) An adverse determination may be reviewed by means of a petition for a writ of prohibition or mandate in the appellate court (Pen.Code, § 1538.5, subd. (i)); (6) If prior to trial the opportunity for a section 1538.5 motion did not exist or the accused was not aware of the grounds for...

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