People v. Harris

• Decision Date: 29 April 1980
• Docket Number: Cr. 19363
• Citation: 164 Cal.Rptr. 296,105 Cal.App.3d 204
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Irvin Dewayne HARRIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 296

164 Cal.Rptr. 296

105 Cal.App.3d 204

PEOPLE of the State of California, Plaintiff and Respondent, v. Irvin Dewayne HARRIS, Defendant and Appellant.

Cr. 19363.

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

April 29, 1980.

Hearing Denied June 25, 1980.

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Quin Denvir, State Public Defender, Deborah Long, Deputy State Public Defender, San Francisco, for defendant-appellant.

CALDECOTT, Presiding Justice.

Appellant Irvin Dewayne Harris was convicted, following a jury trial, of burglary, second degree and grand theft. The appeal is from the judgment. Prior to trial appellant's motion to suppress evidence, made pursuant to Penal Code section 1538.5, was denied and appellant admitted a prior conviction of receiving stolen property, a violation of Penal Code section 496. Appellant was sentenced to state prison for the median term of two years on the burglary conviction. Imposition of sentence on the grand theft conviction was stayed pending finality of the conviction of burglary. Appellant was given 126 days credit for time served.

On July 20, 1978, at approximately 10:30 p. m., Officer Ralph Weiss received a report of an alarm at Capwell's department store in the El Cerrito Plaza Shopping Center. Upon arriving at the scene, the officers checked the perimeter of the store and found it locked and intact. Officer Weiss called up the store manager, Robert Renko, so that they could enter and check the inside of the store together. On entering the store, the manager informed the officer that the interior rather than the exterior alarm had sounded. Suspecting that the burglary was still in progress they immediately left the store and Officer Weiss broadcast for additional cover. The broadcast was answered by Officer Dennis Cook who reported that he had just observed someone run from the store through the mall. After exiting the store, Officer Weiss discovered that a large glass window on the north side of the building was broken and that a suitcase stuffed with Capwell's merchandise was lying in the mall nearby.

Officer Cook testified that he received a broadcast of the Capwell's burglary at approximately 11 p. m. Cook remained in his patrol unit and took up a position in the northwest parking lot, observing the north side of the building. Shortly after arriving, as the headlights of his vehicle illuminated the building, Officer Cook observed a man running from the building southbound through the mall. The man dropped a suitcase and fled south. Officer Cook immediately broadcast that he had a suspect in view and "directed another patrol unit to get to the south side of the plaza to seal him off." Momentarily, Cook saw the man return running back northbound in his direction. He pursued the suspect in his patrol car closing to within seven to ten feet of the suspect. The man looked over his shoulder at the patrol car and his face was brightly illuminated by the headlights of the vehicle. As appellant approached the gateway to an adjacent medical building, Officer Cook got out of the patrol car, drew his weapon and directed appellant to stop. Appellant spun around with his hands in the air, then darted down a flight of stairs. Cook took a "very good look" at the suspect and identified him as appellant at trial.

The next policeman, Officer Mark Woltering, who was patrolling the area of the burglary, testified that about 11:30 p. m., he received a report that the suspect was in the vicinity of a medical building located on Fairmount. He left the patrol car and spotted a black female standing on the corner of Lexington and Fairmount. He asked the woman if she saw a black man running through the plaza, and she responded that she observed a man running down Lexington in a northerly direction. Officer Woltering began to search the area on the east side of Lexington. Meanwhile, the woman was "walking very slowly, looking about, seeing what . . . (the officer) was doing." Approximately 10 minutes later, Officer Woltering observed a black male approaching him from the southerly direction on Lexington. The man was walking at a rapid pace and was breathing heavily. When Woltering walked out from between the houses, the man broke into a run, darting inside the yard of a house across the street. Officer Woltering shouted for him to stop, then went after him. After a chase, he was joined by Officer Maehler and together the officers succeeded in apprehending the man in the yard of a residence. At trial, Officer Woltering identified the suspect as appellant.

The store manager Renko reentered the Capwell's building to determine whether anything was out of the ordinary inside. Inside the store, Renko observed that several pieces of luggage were lying on the floor next to the womens' fur case on the first floor. Furthermore, he discovered that several of the display cases in the jewelry department were broken, and that approximately $16,000 worth of items had been taken. Additionally, he ascertained that certain items of infant clothing along with one piece of luggage had been stolen.

In the early morning hours of July 21, 1978, Lieutenant William Edmunds of the El Cerrito Police Department observed the booking of appellant at the El Cerrito Police Station. During the booking process, appellant asserted that his name was "Wayne Jackson." At the time of booking, appellant's shoes were seized as evidence. Lt. Edmunds also participated in the booking of the woman, Sharon Devlin, whom Officer Woltering had spoken with at the intersection of Fairmount and Lexington Streets and who subsequently had been taken into custody. At the time of the booking, Devlin's purse was searched. Inside the purse a wallet was found with a driver's license and other identification indicating that it belonged to appellant Irvin Harris. Additionally, inside the wallet ostensibly belonging to appellant, was the photograph of an infant child with an inscription on the back reading, "To Sharon and Dewayne." Furthermore, a key to room 10 at the Capri Motel in Berkeley was found, which was the address given by appellant as his residence at the time of booking.

After appellant's apprehension, his shoes were delivered to a criminalist, John Patty, to examine for the presence of "trace evidence." Patty examined the fragments microscopically and compared them with shards of glass taken from the broken window at Capwell's. Examination revealed that the two samples had the identical refractive index and the identical density. Patty noted that approximately 8,000 different densities of glass were in existence and that the glass taken from the shoes was indistinguishable in any respect from that used by Capwell's.

Appellant presented an alibi defense at trial supported mainly by his own testimony. He stated inter alia that on July 20, 1978, the day of the burglary, he and Sharon Devlin, his girlfriend, resided at the Capri Motel in Berkeley. He and Ms. Devlin, together with her pet poodle, left the motel that night and traveled on BART to the El Cerrito station, arriving at about 9:30. Their intention was to go bowling. On the BART platform at El Cerrito, however, the two began to argue and appellant left Ms. Devlin standing there. Nevertheless, just after the BART train had arrived at the El Cerrito station, appellant gave Ms. Devlin his wallet to take care of for him. He did so (allegedly) because he had an outstanding traffic warrant and he was afraid that if stopped he might be arrested on the warrant were he to be identified.

After the "argument" appellant caught a bus back to Berkeley and went to the motel. He remained in the motel for about 20 minutes, then took a San Pablo bus and returned to El Cerrito. He got off the bus near Lexington Street in El Cerrito and noticed several police cars cruising on Fairmount and Lexington. When one of the officers approached him, appellant decided to flee because he was frightened about the prospect of being taken into custody on the traffic warrant. He was apprehended and arrested after a brief chase. Appellant denied that he had been to the El Cerrito Capwell's store that day and specifically that he had burglarized the store that evening.

On cross-examination appellant admitted, however, that he had given various false statements to the police; that he and Ms. Devlin had been to the Capwell's store several days before and that at that time she had tried on one of the mink coats; and that at the time of the crimes, Ms. Devlin was pregnant with his child. Moreover, he was evasive as to why he gave his wallet to Ms. Devlin while in the middle of an argument on the BART platform.

I The Search Of Ms. Devlin's Purse

Appellant's principal contention on appeal is that the trial court committed prejudicial error by denying his motion to suppress the evidentiary items seized from Ms. Devlin's purse during the booking procedure. More specifically, appellant claims that the seizure in question was unlawful on two grounds: (a) that Ms. Devlin's antecedent arrest was unlawful because it was not based upon probable cause; (b) aside from the legality of the arrest, the warrantless search of the purse was impermissible under United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, and its progeny, especially United States v. Schleis (8th Cir. 1978) 582 F.2d 1166, and People v. Pace (1979) 92 Cal.App.3d 199, 154 Cal.Rptr. 811. As we shall explain below, both of these arguments are meritless and must fail.

(a) Ms. Devlin's Arrest

It is, of course, well established that a peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a felony (Pen.Code, § 836, subd. 3). Reasonable or probable...