People v. Goldberg

• Decision Date: 25 October 1984
• Docket Number: Cr. 43615
• Citation: 207 Cal.Rptr. 431,161 Cal.App.3d 170
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gabriella Rebekka GOLDBERG, Defendant and Appellant.

Page 431

207 Cal.Rptr. 431

161 Cal.App.3d 170

The PEOPLE, Plaintiff and Respondent, v. Gabriella Rebekka GOLDBERG, Defendant and Appellant.

Cr. 43615.

Court of Appeal, Second District, Division 4, California.

Oct. 25, 1984.

Hearing Denied Jan. 23, 1985.

Lawrence William Steinberg, Beverly Hills, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert F. Katz and Paul C. Ament, Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant, along with three codefendants, ¹ was charged with several crimes in connection with a break-in and theft at the home of a wealthy elderly woman. Upon trial by jury, defendant was found guilty of first-degree burglary (Pen.Code, § 459) and conspiracy to commit burglary (Pen.Code, § 182); she was acquitted on a third count, and all remaining counts were dismissed at various stages of the proceedings. She has appealed the two convictions; we affirm.

The victim, Mary O'Hildebrandt, lived alone in a large house. Defendant was her dressmaker, and occasionally visited her to make fittings. On some of these visits, defendant stayed overnight.

One such occasion was the night of the charged crimes, January 5, 1981. After Ms. O'Hildebrandt had asked defendant to lock up the house and both had gone to bed, O'Hildebrandt was attacked, blindfolded, and beaten by a masked person. During the next few hours, she heard two or more people moving furniture about the house, and at one point heard a drawer of cutlery crash to the floor and defendant say, "I'm so sorry."

At three o'clock the next morning, police found defendant lying bruised, gagged and loosely hogtied in an adjacent driveway. O'Hildebrandt, found tied in her house, was in far worse physical condition, and required hospitalization. There were no signs of forced entry.

Missing from the house were numerous items of furniture, kitchenware, china, silver and jewelry. Subsequently, some of these items were observed in the home of defendant's daughter (one of the original codefendants), and defendant herself sold others to two dealers in bullion and precious metals. The police obtained a warrant for defendant's arrest, and upon serving it at her home, found some of the stolen items there.

Defendant testified that she was a co-victim, rather than perpetrator, of the crimes, and that the items she possessed were either her own or had been given or lent to her by Ms. O'Hildebrandt.

I

When defendant was arrested and her home searched, the police found her in possession of many of the items stolen from O'Hildebrandt on the night of the crimes. Recognizing that these items were recovered as the fruit of her arrest, defendant challenges the arrest, attacking each link in the chain of probable cause that led to it. She also challenges the scope of the search itself. To deal with these contentions it is necessary to recite the underlying facts in some detail.

A few months after the crimes, Ms. O'Hildebrandt received several phone calls from a Hector Mendez. Mendez told her that he had some of the stolen items, and named defendant and Penny Whitley (defendant's daughter and one of the original codefendants) as the thieves. He offered to return one of the stolen rings in exchange for the $57 necessary to retrieve it from the shop where he had pawned it. He also mentioned that he was broke and needed a job and a place to live; he advised O'Hildebrandt not to contact the police.

O'Hildebrandt agreed to send a friend of hers to meet Mendez for the exchange. However, contrary to Mendez's instructions, she contacted the police, who dispatched an undercover officer to pose as her representative at the meeting. At the prescribed time and place, the officer met with Mendez and as soon as Mendez produced the pawn ticket arrested him for extortion and receiving stolen property.

The ring was recovered from pawn, and found to fit the description O'Hildebrandt had given. Upon questioning, Mendez stated that Whitley and her roommate, Roxanne McCawley, ² had told him that defendant and McCawley perpetrated the crimes, and that his own role was nothing more than an attempt to act as a "good citizen" in accordance with his probation officer's advice.

On June 9, 1981, police officer Bernard Melekian prepared Ramey ³ arrest-warrant affidavits for defendant, Whitley and McCawley. Each affidavit stated as follows: "Your affiant has obtained information from those who have knowledge of [the January 5 crimes], whose reports are attached here and incorporated by reference. He has reviewed each of these written reports and statements. They were prepared by persons known to your affiant to be law enforcement officers (and others). These reports and statements consist of 12 pages. These reports and statements contain information from victim(s), witnesses, and others concerning the commission of the criminal offense(s) for which a warrant of arrest is being sought. Each of these documents is presently on official-record of a law enforcement agency."

The remainder of each affidavit consisted of 12 pages of unsworn police reports, prepared by Melekian and other named officers. The reports recited the above-described information regarding Mendez, the circumstances of the January 5 crimes and those of a prior burglary that had occurred at O'Hildebrandt's house in October 1980. The reports mentioned defendant's presence at the house during both burglaries, that she had initially been suspected then apparently exonerated of the October burglary, and that the October burglary remained unsolved.

At 5:30 p.m. on June 9, the magistrate who was to be presented with these affidavits examined Mendez under oath. (See Pen.Code, § 1526.) In the examination, Mendez essentially repeated, with elaboration, his involvement as described in the police reports, and he tended on the whole to exonerate himself. He also stated that he obtained O'Hildebrandt's ring from the Whitley-McCawley apartment, and that he helped both women move large amounts of furs and furniture to a storage locker.

The magistrate appended a note to the affidavits, stating that he had examined Mendez and found him to be "reliable." At 10:00 p.m. he issued arrest warrants for Whitley and McCawley. Pending receipt of more information, however, he declined to issue a warrant for defendant's arrest.

The Whitley/McCawley warrants were served at 10:30 p.m. As a result of these arrests, Melekian appended and incorporated a supplemental police report to the affidavit in support of defendant's arrest. According to the supplemental report, various items of O'Hildebrandt's property were found at the Whitley and McCawley homes, ⁴ still more were found at a storage locker to which Whitley took the police, and Whitley detailed defendant's involvement in the crimes.

Presented with this supplemental affidavit, the magistrate issued a warrant for defendant's arrest at 4:36 a.m., June 10. Upon serving the warrant, police saw, inter alia, O'Hildebrandt's antique chair in defendant's home and recovered more stolen items in a consent search.

(a) Defendant first contends that the arrest of Mendez was illegal and that the fruits of that arrest could therefore not be used in the Ramey affidavits. We do not reach the contention that Mendez should have been Mirandized ⁵ before being asked to produce the pawn ticket, since a defendant has no standing to challenge the violation of a third-party's Miranda rights. (People v. Varnum (1967) 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772.) We do reach the contention that the police lacked probable cause for the arrest, however, since an arrest is a seizure of the person within the meaning of the Fourth Amendment (Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889), and evidence obtained in violation of the Fourth Amendment is inadmissible in California "whether or not it was obtained in violation of the particular defendant's constitutional rights." (People v. Martin (1955) 45 Cal.2d 755, 761, 290 P.2d 855; see also, People v. Hackett (1981) 115 Cal.App.3d 592, 595, 171 Cal.Rptr. 320.) ⁶

It is doubtful whether the police had probable cause to arrest Mendez for attempted extortion. Extortion is the obtaining of property with consent induced by the "wrongful use of force or fear" (Pen.Code, § 518), and there is no indication here that Mendez used force or fear to induce O'Hildebrandt to part with the price of the pawn ticket. Rather, the inducement was O'Hildebrandt's assumed desire to recover her property.

However, at the time Mendez met the undercover officer, if not before, there was ample cause "to lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion" that he was guilty of receiving stolen property. (People v. Lewis (1980) 109 Cal.App.3d 599, 608, 167 Cal.Rptr. 326.) By his own admissions to O'Hildebrandt, Mendez possessed her ring while knowing it had been stolen from her, and moreover, tried to sell it to her for the price of the pawn ticket. Thus, he was a "person who ... receives any property which has been stolen ..., knowing the property to be stolen," and he did his best to be a "person who ... sells ... any such property ... knowing the property to be so stolen...." (Pen.Code, § 496, defining the crime of receiving.)

The fact that Mendez was arrested for extortion, as well as receiving, is of no consequence. "The fact an officer may place a person under arrest for the wrong offense does not invalidate the arrest and require exclusion of evidence seized incident to the arrest, if the officer nonetheless had probable cause to arrest the person for another offense. [Citations.]" (People v. Lewis, supra, 109 Cal.App.3d 599, 609, 167 Cal.Rptr. 326; In re Donald L. (1978) 81 Cal.App.3d 770, 775-776, 146 Cal.Rptr. 720.)

(b) Defendant argues that even if the circumstances surrounding Mendez's arrest were properly included in the Whitley and McCawley...