People v. Hill

• Decision Date: 12 November 1974
• Docket Number: Cr. 17037
• Court: California Supreme Court
• Parties: , 528 P.2d 1 The PEOPLE, Plaintiff and Respondent, v. Charles Edwin HILL, Jr., et al., Defendants and Appellants. In Bank

Page 393

117 Cal.Rptr. 393

12 Cal.3d 731, 528 P.2d 1

The PEOPLE, Plaintiff and Respondent, v. Charles Edwin HILL, Jr., et al., Defendants and Appellants.

Cr. 17037.

Supreme Court of California,

In Bank.

Nov. 12, 1974.

Constantine P. Matthews, Upland, under appointment by the Supreme Court, John D. Taves, Upland, under appointment by the Court of Appeal, Paul R. Falzone, Thomas H. Frankel and David M. Weetman, Davis, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendants appeal from judgments entered upon pleas of guilty of murder (Pen.Code, § 187), stipulated to be of the second degree. ¹ The pleas of guilty were entered following denials of motions, inter alia, to suppress items of evidence obtained as the result of searches and seizures and to suppress a witness' identification of defendant Hill. (§ 1538.5.) ²

Defendants contend (1) that the trial court committed prejudicial error in refusing to suppress various items of evidence seized as the result of unlawful searches and (2) that the trial court incorrectly ruled that a witness' identification of Hill was not tainted by an allegedly impermissible photographic identification procedure (see Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247). Defendant Schnabel addi tionally contends that a statement he made immediately prior to his arrest and which he sought to suppress is inadmissible because it was obtained without compliance with the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We hold (1) that although the denial of defendants' motion pursuant to section 1538.5 was correct with respect to most of the challenged evidence, the trial court should have suppressed certain items seized in violation of Fourth Amendment proscriptions and (2) that the claims of error concerning the witness' identification evidence and the alleged violation of defendant Schnabel's Miranda rights may not properly be raised on this appeal because defendants failed to secure a certificate of probable cause as required by section 1237.5 and California Rules of Court, rule 31(d). We further hold that since defendants' pleas of guilty were entered following the erroneous denial of their motion to suppress certain items of evidence, they are entitled to the relief hereinafter provided.

On the evening of December 17, 1970, Stephen Paul Smith, the murder victim, and David Lee McElhinney drove to a Juanita Street residence owned by Amelia Hernandez for the purpose of purchasing a quantity of marijuana. They arrived at approximately 6 p.m. and were admitted after Smith identified himself. They stepped into a livingroom which was dimly lit by what appeared to be a candle; the shades were drawn and there was no other artificial lighting. Immediately thereafter a man appeared in the doorway to an adjoining bedroom, pointed a revolver at Smith and McElhinney and ordered them to lie on the floor. McElhinney could see only the silhouette of the gunman because of the poor lighting conditions in the room. None of the features of the gunman was discernible. McElhinney promptly complied with the gunman's order but Smith protested. McElhinney, lying on the floor, heard a scuffle and briefly glimpsed Arthur 'Tudy' Hernandez run from the bedroom. At this point a shot was fired and Smith fell to the floor across McElhinney's legs. Moments later McElhinney's wallet was removed from his pocket and he was rolled over onto his back by one of the assailants. The barrel of a revolver was pointed directly at his right eye and the beam of a flashlight was directed into his left eye. McElhinney Elhinney was questioned as to the whereabouts of Smith's wallet and then was rolled back onto his stomach. After locating Smith's wallet two men ran out through the back door of the house and fled. During the few seconds before his vision was impaired by the flashlight and the gun barrel, McElhinney caught a glimpse of the upper portion of the face of his assailant.

Immediately after the two assilants had fled Arthur Hernandez entered the room and he and McElhinney carried Smith outside, placed him in an automobile owned by Mrs. Annette 'Sparky' Hernandez and drove to a hospital. Prior to reaching their destination Mrs. Hernandez was allowed to leave the automobile, as it was her husband's wish that she not become involved in whatever ensued. ³ Smith was dead upon arrival at the hospital, and McElhinney and Hernandez were questioned by sheriff's deputies. Hernandez was arrested that same evening and charged with the murder of Smith. ⁴

At approximately 6:30 p.m. on the evening of the murder, some 12 miles from the murder site, defendants were arrested in an unrelated incident. Highway Patrol Officer Quaschnick had observed a Pontiac automobile as it failed to make a required stop. Quaschnick followed and the Pontiac was accelerated to speeds well in excess of the lawful limit. The car finally came to a stop after having taken evasive action with Quaschnick in pursuit. The Pontiac was driven by Hill and Schnabel was a passenger therein.

Quaschnick alighted from his patrol car and ordered Hill out of the Pontiac. Hill complied and explained his attempt to flee by stating that he did not wish to be stopped as he did not have his driver's license in his possession. Quaschnick thereupon arrested Hill for reckless driving, handcuffed him and placed him in the patrol car.

While the foregoing was taking place Officers Smith and Sharp arrived at the scene in response to Quaschnick's radio report of his pursuit of the Pontiac. Smith alighted from his patrol car and observed Schnabel who stepped out of the Pontiac and walked towards Smith. Smith ordered Schnabel to halt and then conducted a pat-down search for weapons. During the course of the pat-down, Smith observed a large roll of money protruding from Schnabel's jacket pocket. Smith asked Schnabel the source of the money and Schnabel replied 'Wheeling and dealing.' Smith also felt a hard, square object in Schnabel's pants pocket which, upon removal, appeared to be a matchbox about three inches long secured by rubber bands. The box seemed unusually heavy and when Smith shook it he heard a rattling sound. Smith opened the box and saw six .32 caliber bullets. He placed Schnabel under arrest for suspicion of armed robbery.

Hill told Quaschnick that his name was Gary Pond and that the registration and other evidence of ownership of the Pontiac were in the vehicle. While Smith was occupied with Schnabel, Quaschnick approached the Pontiac, the left front door of which had not been closed by Hill. Quaschnick directed the beam of his flashlight onto the rear seat to ascertain whether any other persons were in the vehicle. He observed on the rear seat a cellophane-wrapped package of a size and shape which caused him to believe that it might contain marijuana. He also observed on the front floorboards two wallets, miscellaneous scattered papers, and three hand-rolled cigarettes protruding from a pouch. At this point Quaschnick and Smith conferred for the first time. After relating to each other what they had observed, they decided to call for the sheriff to assist with an investigation into possible robbery or narcotic offenses. Quaschnick radioed for assistance and then returned to the Pontiac and noticed that the vehicle identification plate on the open front door appeared to have been tampered with. ⁵

When Sheriff's Officer Thurlow arrived, Quaschnick informed him of all that had trainspired. Thurlow looked into the Pontiac and seized the hand-rolled cigarettes; he broke one open and observed what he believed to be marijuana. ⁶ He also examined the vehicle identification plate. Thurlow arrested both Hill and Schnabel for possession of marijuana (Health & Saf.Code, § 11530) and auto theft (Veh.Code, § 10851). He also removed the roll of bills from Schnabel's pocket and counted it; there were 85 bills having a total value of $1,878.

At approximately 7:30 p.m. on the evening in question, Lieutenant Ringstad of the sheriff's department arrived at the Juanita Street residence to investigate the shooting. ⁷ Accompanied by other officers, Ringstad proceeded to the front porch and, after first peering through the windows with the aid of a flashlight, knocked on the door and loudly identified himself. When no response was received one of the other officers entered the house through an unlocked rear door and admitted Ringstad through the front door. The officers searched the entire house and seized a variety of articles. ⁸ There was no warrant for this search.

The following morning Ringstad was informed of defendants' arrest, of the large amount of money found on Schnabel, and of bloodstains observed on the hands of one of the defendants. Ringstad was also advised by other officers that upon a search of the chase route officers had found an identification card belonging to one of the two victims of the robbery and murder at the Juanita Street residence. A further search of the chase route disclosed two wallets, an automatic pistol, a revolver, and an identification card belonging to McElhinney. Ringstad then proceeded to the garage where the Pontiac had been stored. After personally inspecting the vehicle he requested that an exhaustive search be conducted by a criminalist. ⁹ This search also was conducted without first obtaining a warrant.

Officers had learned of Annette 'Sparky' Hernandez' role in the events surrounding the homicide during their interview with Mr. Hernandez and McElhinney after the two of them brought Smith's body to the hospital. An address book taken from Schnabel after his arrest contained an H Street listing for 'Sparky and Tudy Hernandez.' ¹⁰ On the day following...