People v. Hill
| Decision Date | 01 May 1973 |
| Docket Number | Cr. 5510 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Edwin HILL, Jr. and Gerald Meyer Schnabel, Defendants and Appellants. |
Constantine P. Matthews, Upland, for defendant ant appellant Charles E. Hill, Jr.
Paul R. Falzone, David M. Weetman and Thomas H. Frankel, Davis, for defendant and appellant Gerald Meyer Schnabel.
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.
Arthur 'Tudy' Hernandez, Charles Edwin Hill, Jr. and Gerald Meyer Schnabel were charged in an information with the murder of Stephen Paul Smith(Pen.Code, § 187) and robbery (Pen.Code, § 211). Hill and Schnabel were also charged with possession of marijuana (Health & Saf. Code, § 11530). Their motions to set aside the information (Pen.Code, § 995) and to suppress evidence (Pen.Code, § 1538.5) were denied. Pursuant to a plea bargain (Pen.Code, § 1192.5) by which the other charges were dismissed, Hill and Schnabel entered pleas of guilty to murder in the second degree and were sentenced to state prison. In this appeal from the judgments of conviction they seek further review of the admissibility of certain evidence. (Pen.Code, § 1538.5(m).) Hernandez was tried by jury and convicted of murder in the first degree. His appeal is not now before us. 1
About 6:00 p. m. on December 17, 1970, Stephen Paul Smith and David Lee McElhinney arrived at 25978 Juanita Street, Bryn Mawr. Smith parked his 1970 Volkswagen van behind a white Chevrolet in front of the house. His purpose was to buy a large quantity of marijuana; McElhinney was along for the ride. They went through the gate and up to the porch; Smith knocked. Annette 'Sparky' Hernandez opened the door a few inches and asked who was there. Smith identified himself and said McElhinney was all right. She opened the door and they stepped into a small living room.
It was dark inside because the shades were drawn and the electricity was off. The only light came from two candles in the corner of the room. As McElhinney started to sit down on a sofa, he heard a metallic click. Looking up, he saw a man silhouetted in a bedroom doorway across the room, pointing a revolver directly at him. He could not tell whether or not this man was wearing a mask, and could not identify him. The man told him to lie down on the floor. At this point he was understandably frightened and immediately complied.
As McElhinney lay prone on the floor with his face toward the wall to his left, he heard a scuffle behind him and heard Smith saying, He turned his head and saw Hernandez run out of the bedroom with his hands behind his back, spitting something out of his mouth.
There was a shot, and McElhinney felt Smith's body fall across his legs. Smith, crying in pain, said, 'Oh, my God, I'm shot.' McElhinney heard a voice saying, 'What did you shoot him for?' and another voice answer,
McElhinney's wallet was removed from his pocket; he was then rolled onto his back; a gun was held to his right eye, and a penlight to his left. He was asked where Smith's wallet was. When he said he did not know, he was rolled back onto his stomach. Someone asked Smith for his wallet; a voice, said, 'I got it,' and the two men ran out the back door.
McElhinney and Tudy Hernandez placed Smith in his Volkswagen, but were unable to start it because they could not find the keys. They transferred him to Sparky's white Chevrolet, in which they drove to Loma Linda Hospital. As they approached the emergency entrance, Tudy and Sparky agreed that she should not get involved, and Sparky got out of the car. Hernandez and McElhinney accompanied Smith into the hospital. He was either dead on arrival or died soon afterward.
San Bernardino county Sheriff's homicide detectives Ron Telles and Gene Rogers arrived at the hospital to investigate. Rogers talked to McElhinney and Telles talked to Hernandez in separate rooms. Later both men were taken to the courthouse for further interrogation. Tudy Hernandez was booked that night on suspicion of murder.
Defendants Hill and Schnabel were arrested by Highway Patrol and Sheriff's officers around 6:30 p. m. about 12 miles away from the murder site in an incident that at the time seemed unrelated to Smith's murder. Evidence was taken from their car both at the scene of the stop and again the following day at a garage where the car had been impounded.
Sheriff's officers searched Smith's car and the house where he was shot the same evening, without a warrant, and seized evidence.
Hill and Schnabel made statements to each other and to Detectives Hardy and Rogers at the jail on December 18. These statements were all ordered suppressed as violative of defendants' rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. 2
On December 21, Sparky Hernandez' house in Colton was searched under authority of a search warrant, and evidence was seized.
During an interview about December 22, McElhinney was shown seven color mug shots by Detective Rogers, including both Hill and Schnabel. He identified Hill. Subsequently he identified Hill in court at both the preliminary hearing and the hearing on the motions to suppress.
Sheriff's deputies monitored and recorded a conversation between Schnabel and a woman claiming to be his wife in the visiting area of the jail on December 23.
A more detailed exposition of the facts and circumstances of each of these events accompanies the discussion of the related points on appeal below.
Defendants' contentions will be considered in approximately chronological order. They may be summarized as follows:
(1) The search of the Juanita Street residence in Bryn Mawr (the murder site) was unlawful because the officers did not have a warrant, and all evidence seized therein must be suppressed.
(2) Defendants' arrest was unlawful, and all evidence subsequently obtained must be suppressed as the fruit of that unlawful arrest, because: (a) The officers had no right to conduct a pat-down search of defendant Schnabel who was merely a passenger in a vehicle stopped for a traffic violation; (b) even if the pat-down was permissible under the circumstances, it was excessive in scope; (c) search of the vehicle at the scene was illegal; and (d) there was no probable cause to arrest defendants for any felony.
(3) Search of the impounded vehicle the day after the arrest, without a warrant, was unlawful, so that all items seized during the search must be suppressed.
(4) Seizure of items in Sparky Hernandez' Colton residence was illegal, and the evidence must be suppressed, because: (a) Detective Hardy's initial entry into the house, without a warrant, was unlawful; (b) the warrant issued on December 21 was the fruit of the previous unlawful entry and of other unlawfully-obtained evidence, and was therefore invalid; (c) the affidavit in support of the search warrant was insufficient on its face; and (d) even if the warrant and search were lawful, the evidence seized exceeded the scope of the warrant's authority.
(5) Defendant Schnabel's conversation with his wife in the jail visiting area was illegally monitored and must be suppressed.
(6) McElhinney's in-court identification of defendant Hill must be suppressed because: (a) The photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification; and (b) the People did not show that the in-court identifications were not tainted by the unlawful photographic identification.
(7) An alleged admission by defendant Schnabel at the scene of his arrest was obtained in violation of his Miranda rights.
Preliminarily, it should be noted that the testimony of the various witnesses at the hearing on the motions to suppress was in sharp conflict. It was the trial court's duty to resolve such conflicts. On appeal, all findings of the trial court, express or implied (see Evid.Code, § 402 (c)), will be upheld if supported by substantial evidence. It is our duty to measure the facts as found by the superior court against the constitutional standard of reasonableness. (People v. Lawler (filed March 20, 1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
About 6:25 p. m. on the day of the killing, Sheriff's Lieutenant Ringstad received a call at home from Sergeant Terry, relating that a shooting victim had been brought to Loma Linda Hospital, that Detectives Telles and Rogers were on their way to the hospital, and that other officers were on their way to the scene of the shooting in Bryn Mawr. Ringstad went to the hospital, conferred with officers Rogers and Telles, then went on to Bryn Mawr, arriving about 7:30. He was met by Deputy O'Rourke, who pointed out blood in Smith's Volkswagen (still parked in front of the house) as well as blood on the fence, gate, and porch or the house. O'Rourke had noticed candle light from within. While standing on the front porch and looking through the window with flashlights, the officers could see various objects and what appeared to be blood stains on the living room floor.
Crime lab technicians arrived, took photographs of the Volkswagen, and removed some evidence from it, including a shotgun belonging to McElhinney's brother. A vehicle registration check showed the Volkswagen registered in the name of the victim, Smith.
A neighborhood check by sheriff's deputies revealed that the house was owned by one Amelia Hernandez, who was then living in the...
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