People v. Gordon

• Decision Date: 13 October 1982
• Docket Number: Cr. 13989
• Citation: 136 Cal.App.3d 519,186 Cal.Rptr. 373
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerome GORDON, Defendant and Appellant.

Page 373

186 Cal.Rptr. 373

136 Cal.App.3d 519

The PEOPLE, Plaintiff and Respondent, v. Jerome GORDON, Defendant and Appellant.

Cr. 13989.

Court of Appeal, Fourth District, Division 1, California.

Oct. 13, 1982.

As Modified On Denial of Rehearing Oct. 26, 1982.

Hearing Denied December 29, 1982.

Quin A. Denvir, State Public Defender, and David Y. Stanley, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Anthony L. Dicce and Ramon M. de la Guardia, Deputy Attys. Gen., for plaintiff and respondent.

BORUNDA, ^* Associate Justice.

After jury trial, Jerome Gordon was found guilty of two counts of robbery (Pen.Code, § 211) while armed (Pen.Code, § 12022, subd. (a)), possessing concentrated cannabis (Health & Saf.Code, § 11357, subd. (a)), and cultivating marijuana (Health & Saf.Code, § 11358).

Gordon was sentenced on counts I and II to prison for the base term of five years plus one year for the use allegation. The sentence was stayed as to count I. He was sentenced to time served on counts III and IV.

Gordon appeals the judgment of conviction for counts I and II, the robberies.

In the afternoon of August 1, 1980, two black men came to the home of Joseph and Mary Lopes asking to use the telephone. After being admitted, the taller man displayed a pistol and ordered Mr. Lopes to lie on the floor. When Mrs. Lopes heard this command, she entered the kitchen area and was told to lie down next to her husband. Gordon said to Mrs. Lopes, "Lady, that's on account of your fucking son that we are here. Your son owes us a lot of fucking money." After the two men bound Mr. and Mrs. Lopes, Gordon entered the bedroom of Anthony Lopes (Anthony), their son. He came out of the room carrying a shoulder bag. They saw nothing else taken from the residence.

Anthony testified he lost $1,000, two pounds of marijuana and a shoulder bag from his bedroom. At trial, Joseph Lopes identified Gordon as the shorter of the two men. Mrs. Lopes identified Gordon as one of the two men who entered her home and took property from her son's room.

On August 15, 1980, the police searched Gordon's residence, seizing hashish, a wallet, a marijuana plant, a revolver and some tennis shoes.

Gordon contends his convictions for robbery should be reversed because the court admitted illegally seized evidence, the evidence was insufficient to sustain the robbery verdicts, the defense attorney performed ineffectively, the prosecutor engaged in improper conduct and the court failed to instruct properly.

The contentions concerning the suppression of evidence and the insufficiency of evidence merit particular attention in the context of this particular case.

THE COURT IMPROPERLY ADMITTED AS EVIDENCE AN ITEM WHICH HAD BEEN ILLEGALLY SEIZED

While executing a search warrant, Officer Johnny Mercer found Gordon's wallet on the kitchen counter of his home. Inside the wallet, he found several papers, including a map of the Lopes' residence. At the preliminary examination, the following exchange occurred:

"MR. SEELEY: Did you find anything else in the wallet that caught your attention?

"MR. CHASE: Objection, Your Honor. First, if you would take a look at the warrant you will find that that was not one of the items that was mentioned as being an item that was subject to search or that they were supposed to be searching for, I don't believe. There's no reason for them to look inside of a wallet. (Italics added.)

"THE COURT: That's true, but there was a request of the magistrate when they issued the warrant to be allowed to search for indicia of residency.

"MR. SEELEY: Was money included in that, Your Honor? I don't have a copy of--

"THE COURT: The following property: Vinyl carrying bag, shoes or footwear, blue steel revolver. That's it. Those three items were the things set forth that they were--that Detective Mercer requested in his affidavit they be allowed to search for. The objection's well taken. It will be sustained." (Italics added.)

Later in the preliminary examination, a further exchange concerning the wallet occurred:

"MR. CHASE: Your Honor, with respect to the 1538.5 motion which His Honor granted with respect to the items of identification that were found inside the wallet, I wish that that motion would go to anything that was found inside the wallet, Your Honor.

"MR. SEELEY: Your Honor, I really haven't presented the evidence at this time, but I think that the People are eventually going to be able to get that in. There's dual grounds for the search. We have a parole search.

"THE COURT: There's a booking search I presume and a parole search. I'm not going to make any ruling as to the contents of the wallet other than I've suppressed it in this hearing. (Italics added.)

"MR. SEELEY: We intend to reoffer that in Superior Court under a different basis."

The superior court reviewed the excerpts from the preliminary transcript and concluded "there wasn't any formal motion to suppress or to return." The court also found there was no unambiguous ruling by the magistrate to put the People on notice that a de novo hearing was required. The court cited People v. Freeman, 95 Cal.App.3d 917, 157 Cal.Rptr. 454, in support of its decision.

Penal Code section 1538.5, subdivision (a)(2), provides:

"(a) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds:

"...

"(2) The search or seizure with a warrant was unreasonable because (ii) the property or evidence obtained is not that described in the warrant."

Gordon objected to the wallet on grounds "that was not one of the items that was mentioned as being an item that was subject to search." This language is clearly a motion to suppress pursuant to Penal Code section 1538.5, subdivision (a)(2)(ii).

In People v. O'Brien, 71 Cal.2d 394, 79 Cal.Rptr. 313, 456 P.2d 969, the court made the following statement (p. 403, fn. 5, 79 Cal.Rptr. 313, 456 P.2d 969):

"Although the statute contemplates that the issue will be raised by motion, a defendant who does so by the traditional procedure of objecting to the admission of the evidence on Fourth Amendment grounds should not be penalized merely for using the wrong words; such an objection, rather, should be construed whenever possible as a motion under subdivision (h)."

We find a motion to suppress the wallet and its contents was made and ruled upon. The magistrate's ruling binds the superior court. "Section 1538.5, subdivision (j), is plain. The conclusion of the committing magistrate, in view of the failure of the People to follow the procedure set forth in the statute for relitigating de novo the validity of the seizure, '[is] binding on the people ....' " (Eiseman v. Superior Court, 21 Cal.App.3d 342, 348, 98 Cal.Rptr. 342.)

We distinguish the present case from People v. Freeman, supra, 95 Cal.App.3d 917, 157 Cal.Rptr. 454. In Freeman, the following occurred (at p. 921, 157 Cal.Rptr. 454):

"Just prior to resting at the preliminary hearing, the People moved that the wallet and contents be received into evidence. Defense counsel objected to the introduction of the exhibit on the ground there was an unlawful detention when the officer told appellant to stop. The magistrate stated: 'The motion to introduce the evidence will be denied at this time.' Appellant was nevertheless held to answer based on the other evidence."

The superior court reviewed the transcript of the preliminary examination and made this ruling:

" 'I have read the transcript with special emphasis on the part that you are making the matter concerned here, and it's my ruling that there was no 1538.5 motion at the preliminary hearing; there has been no 1538.5 motion and there has never been an order by the court suppressing that evidence.' [Fn. omitted.] We affirm the trial court's ruling."

The court goes on (at p. 922, 157 Cal.Rptr. 454):

"The statutory sanction which prevents the People from introducing relevant evidence in superior court because of a ruling by a magistrate at a preliminary hearing is a severe one. In order to invoke such severe sanction, there should be strict compliance by the defendant with subdivision (f) and an unambiguous ruling by the magistrate sufficient to put the People on notice that a de novo hearing in superior court must be sought. [Citation.]"

In this case, counsel interposed an objection and made specific reference to section 1538.5. The court's ruling was unambiguous. "I'm not going to make any ruling as to the contents of the wallet other than I've suppressed it in this hearing." The word "suppress" in a criminal case is peculiar to a 1538.5 motion. The response by the People to the court's decision supports a finding they were aware a motion to suppress had been granted.

The People failed to proceed pursuant to section 1538.5, subdivision (j), providing for reconsideration of the motion before trial; since no motion was made, the superior court was bound by the decision of the magistrate, and the wallet (exhibit 25) and its contents should have been suppressed. Among the items in the wallet was a map of the Lopes' residence (exhibit 25A) and a rent receipt (exhibit 25B).

The stipulation at trial by counsel that a valid parole search of Gordon's apartment occurred does not aid the People on this issue. The stipulation did not refer to the wallet and it is unclear from the record the specific requirements of the parole search.

However, a review of the entire record satisfies us the error in failing to suppress the map or the rent receipt did not result in a miscarriage of justice. Absent the map, the jury had an eyewitness identification by Mr. and Mrs. Lopes, the fingerprint from the atlas in Anthony's room, the shoe print from outside the house, as well as the firearm...