People v. Jackson, Cr. 17930

• Decision Date: 31 December 1970
• Docket Number: Cr. 17930
• Citation: 92 Cal.Rptr. 91,14 Cal.App.3d 57
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Barry Louis EDWARDS, Andrew James Jackson, Maurice Anthony Rainey, Earl Thomas McMillan, Robert Frank Mason, Vallejo Kennedy, James Earl Johnson, Michael Harris and Robert Emory Allen, Defendants and Respondents. Andrew James JACKSON, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent, The PEOPLE of the State of California, Real Party in Interest. Robert Emory ALLEN, Petitioner, v. SUPERIOR COURT FOR the COUNTY OF SANTA BARBARA, Respondent, The PEOPLE of the State of California, Real Party in Interest. Civ. 35709, 35693.
• Court: California Court of Appeals Court of Appeals

Page 91

92 Cal.Rptr. 91

14 Cal.App.3d 57

The PEOPLE of the State of California, Plaintiff and Appellant, v. Barry Louis EDWARDS, Andrew James Jackson, Maurice Anthony Rainey, Earl Thomas McMillan, Robert Frank Mason, Vallejo Kennedy, James Earl Johnson, Michael Harris and Robert Emory Allen, Defendants and Respondents.

Andrew James JACKSON, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SANTA BARBARA, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Robert Emory ALLEN, Petitioner, v. SUPERIOR COURT FOR the COUNTY OF SANTA BARBARA, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Cr. 17930.

Civ. 35709, 35693.

Court of Appeal, Second District, Division 2, California.

Dec. 31, 1970.

Hearing Denied Feb. 24, 1971.

[14 Cal.App.3d 60] David D. Minier, Dist. Atty., by Stanley M. Roden, Deputy Dist. Atty., for plaintiff and appellant.

Richard A. Tyler, Goleta, for Andrew James Jackson.

Patrick McMahon, for Maurice Anthony Rainey and Vallejo Kennedy.

Jerry D. Whatley, Santa Barbara, for Earl Thomas McMillan.

Robert R. Stone, Santa Barbara, for Robert Frank Mason.

Charles E. Karpinski, La Jolla, for James Earl Johnson and Michael Harris.

Lawrence M. Nagin, Beverly Hills, for Robert Emory Allen.

All counsel for defendants under appointment by the Court of Appeal.

COMPTON, Associate Justice.

In an information filed by the District Attorney of Santa Barbara County, nine defendants were charged in varying combinations of 23 felony counts with burglary, receiving stolen property, possession of dangerous drugs, possession of marijuana, possession of a billy club and assault with a deadly weapon upon a police officer. Not all defendants were charged in each count.

Following a motion under section 995 of the Penal Code, the superior court ordered dismissal of certain counts and refused to dismiss others.

Two of the defendants did not participate in the 995 proceedings. Defendant Edwards had waived preliminary hearing and had no standing to attack the information. Defendant Kennedy failed to appear for arraignment and is a fugitive from justice.

The People appeal from the portion of the order dismissing certain counts. Defendants Allen and Jackson seek a writ of prohibition to prevent their trial on those counts which the court refused to dismiss.

The superior court's order dismissed all charges against defendants Rainey and Mason.

While some of the counts were dismissed as to defendants McMillan, Johnson and Harris, other charges against them remain. They have not sought prohibition as to those remaining counts.

Because the People's appeal and the two petitions for writs of prohibition involve the same basic issues, we ordered the matters consolidated.

On January 21, 1969, deputies of the Santa Barbara County Sheriff's office entered an apartment at 775 Camino Del Sur in the Isla Vista area (to be referred to later as Location No. 1). There they seized certain items of stolen property and arrested defendant Jackson.

On February 3, 1969, deputies of the same department entered another apartment in the same area (Location No. 2) seized additional items of stolen property and arrested defendant McMillan. Defendants Mason and Rainey were observed in bed on the premises but were not arrested at the time. Rainey appeared to be the spokesman for the premises and accepted a receipt from the officer. All three defendants when specifically asked, denied knowledge of the ownership of the stolen items.

Later that morning, after concluding their activities at Location No. 2, the officers proceeded to yet another nearby apartment (Location No. 3). Prior to entry the officers observed defendant Rainey walk from Location No. 2 and enter Location No. 3. When the officers knocked and demanded entrance they observed through a window hurried activities and furtive movements on the part of the occupants. The officers then entered and seized still more items of stolen property plus some marijuana, dangerous drugs and a billy club.

During the course of this seizure defendant Allen allegedly assaulted one of the officers with a shotgun as the officer entered a bedroom. Johnson and Harris were first observed in a hallway near the bedroom and were attired in robes. Allen, Rainey, Harris and Johnson were all arrested at that time.

Defendant Mason was later arrested and charged.

The evidence which was adduced at the preliminary hearing and which provides the basis for the filing of the information consisted essentially of an account of the three above referenced seizures.

With one significant exception, the connection of the defendants to the various crimes charged rested upon evidence of their occupancy of the three locations where the various items were recovered and their conduct at the time.

That exception was the testimony of the operator of a TV repair shop to the effect that defendant McMillan brought a stolen TV set in for repairs. The charges of burglary and receiving stolen property based upon his possession of this TV set are obviously well founded and unaffected by any of the discussion here.

The various items of stolen property, the possession of which the People relied upon to support both the burglary and receiving stolen property counts, were established as having been taken in eight separate burglaries committed between November 1967 and December 1968, in the Santa Barbara area.

We find it unnecessary to describe all of the items recovered, the details of the various burglaries or the specific charges against each defendant.

It is sufficient to state that where the evidence showed a defendant to be an occupant of a location where stolen items were recovered, that defendant was charged with the burglary of the items and with receiving the items with knowledge of their stolen character.

Possession of the narcotics and the billy club was charged against those defendants present at the recovery thereof.

It is important to note that in each of the three locations the officers found loot from The stolen property included guns, portable televisions, tape recorders, stereo equipment, photographic equipment and typewriters.

more than one burglary, and as to some of the burglaries, parts of the loot were found in more than one of the three locations.

With the exception of the assault charge, which will be dealt with in detail later, the two basic questions to be answered as to each defendant are (1) was the People's evidence the product of a reasonable search and seizure, and (2) assuming the search and seizure to be proper, was the evidence sufficient to warrant a trial as to the various counts with which each defendant was charged?

We have concluded that the answer to each question as to each defendant must be answered in the affirmative.

Before addressing ourselves to these questions specifically, it is appropriate to state some general propositions of law which bear on the role of the superior court and this court in connection with a motion under section 995 of the Penal Code.

On a motion to set aside an information, the superior court (as well as an appellate court reviewing a ruling on such motion) is to determine only whether the magistrate as a man of ordinary caution or prudence could conscientiously entertain a reasonable suspicion that a crime has been committed and that the defendant committed it. (Perry v. Superior Court, 57 Cal.2d 276, 283, 19 Cal.Rptr. 1, 368 P.2d 529; Rogers v. Superior Court, 46 Cal.2d 3, 7--8, 291 P.2d 929.) Neither the superior court nor the appellate court may substitute its judgment as to the weight of the evidence or any reasonable inferences to be drawn therefrom. (People v. Azevedo, 218 Cal.App.2d 483, 32 Cal.Rptr. 748; People v. Roth, 261 Cal.App.2d 430, 68 Cal.Rptr. 49; Perry v. Superior Court, Supra; People v. Heard, 266 Cal.App.2d 747, 72 Cal.Rptr. 374.)

Furthermore, the superior court may not judge the credibility of witnesses that testified before the magistrate and an information may be set aside only where there is No evidence to connect defendant with the commission of the crime. (People v. Swansboro, 200 Cal.App.2d 831, 19 Cal.Rptr. 527; People v. Roth, Supra, 261 Cal.App.2d at 444, 68 Cal.Rptr. 49.)

While unexplained possession of stolen property, standing alone, will not support a Conviction for the theft of the property or for the crime of receiving stolen property, such possession is a circumstance which could lead a reasonable person to entertain a strong suspicion that the possessor either stole it or received it with knowledge of its stolen character. (See People v. Johnson, 85 Cal.App.2d 240, 192 P.2d 483; People v. Monteverde, 111 Cal.App.2d 156, 244 P.2d 447.)

Defendant Mason, in urging the insufficiency of the evidence to connect him to the crimes charged cites us to Williams v. Superior Court, 71 Cal.2d 1144, 80 Cal.Rptr. 747, 458 P.2d 987. There the court, in holding evidence of possession of stolen property to be sufficient to sustain, against a writ of prohibition, an information charging grand theft, emphasized the fact that defendant was found in possession of 'practically all' the property that had been stolen from an automobile. Defendant Mason thus contends that, because not all the property stolen in the burglaries was recovered, the evidence is insufficient.

In this regard we believe that the possession of part of the loot from several burglaries is as incriminating as the possession of all the loot from one burglary.

The evidence of each defendant's occupancy of and presence at one of the three locations, together with the conduct of the various defendants, was sufficient to warrant the magistrate's conclusion that each defendant was in possession of all of the items found at such location.

This conclusion would in turn support a finding by the magistrate that there was probable cause to believe that each defendant had committed the crimes...