People v. Kaanehe

• Decision Date: 19 July 1976
• Docket Number: Cr. 8227
• Citation: 131 Cal.Rptr. 501,60 Cal.App.3d 259
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James K. KAANEHE, Defendant and Appellant.

Page 501

131 Cal.Rptr. 501

60 Cal.App.3d 259

The PEOPLE of the State of California, Plaintiff and Respondent, v. James K. KAANEHE, Defendant and Appellant.

Cr. 8227.

Court of Appeal, Third District, California.

July 19, 1976.

For Opinion on Hearing, see 136 Cal.Rptr. 409, 559 P.2d 1028.

Robert E. Murphy, Sacramento, for defendant-appellant.

Evelle J. Younger, Atty. Gen. by Emry J. Allen, Deputy Atty. Gen., Sacramento, for plaintiff-respondent.

EVANS, Associate Justice.

By indictment, defendant was charged with ten counts of grand theft (Pen. Code, § 487, subd. 1), four counts of petty theft with a prior conviction (Pen. Code, §§ 484 and 667), and one count of perjury (Pen. Code, § 118). All of the charges arose out of defendant's ownership, operation and sale of cemetery plots in the Arlington Memorial Cemetery.

Following his arraignment, defendant made motions pursuant to Penal Code section 995 to dismiss the indictment, and Penal Code section 1538.5 to suppress evidence that had allegedly been obtained as the result of an illegal search and seizure.

The court dismissed the perjury count and denied the balance of the motion to dismiss. The motion to suppress evidence was denied, and the defendant thereafter plead guilty to two counts of grand theft. In exchange for the guilty plea, the prosecutor agreed to move the court to dismiss the remaining counts of the indictment and to refrain from arguing disposition or type of sentence to the court.

Defendant's notice of appeal indicates an appeal from the denial of his motion made pursuant to Penal Code section 1538.5 and 'from the final judgment, sentence, and denial of defendant's motion to withdraw his plea of guilty . . . and from the whole thereof.'

Penal Code section 1237.5 ¹ prohibits an appeal from a judgment entered upon a plea of guilty or nolo contendere, except where the defendant has filed a certificate of probable cause. The purpose of the limitation is to prevent frivolous appeals following a guilty or nolo contendere plea. (People v. Brown (1971) 18 Cal.App.3d 1052, 96 Cal.Rptr. 476.) However, the requirements of the section (1237.5) are inapplicable to an appeal from a conviction entered pursuant to a guilty plea where errors in proceedings subsequent to the plea are asserted (People v. Dena (1972) 25 Cal.App.3d 1001, 102 Cal.Rptr. 357); nor do they apply to an appeal from an order denying a motion to suppress evidence made pursuant to Penal Code section 1538.5 (Cal. Rules of Court, rule 31, subd. (d)). ²

'It is not the purpose of the statute [Pen. Code, § 1237.5] to shut off an appeal from a judgment, even after a guilty plea, where the defendant is raising a bona fide reviewable issue.' (People v. Warburton (1970) 7 Cal.App.3d 815, 819, 86 Cal.Rptr. 894, 896.)

Although the record on appeal does not contain a certificate of probable cause, the clerk prepared, and the trial court certified, a record on appeal and forwarded the same to us. The appeal from the denial of the 1538.5 motion is properly before us. (Fn. 2 ante p. 502.) Had a certificate of probable cause been requested as to the court's denial of the motion to withdraw the guilty plea, based upon prosecutorial conduct following the plea and prior to sentence, it would have been an abuse of judicial discretion to have refused the request. Under such circumstances, strict compliance with the provision of section 1237.5 is not required. (People v. Rose (1968) 267 Cal.App.2d 648, 73 Cal.Rptr. 349; Moran v. St. John (1968) 267 Cal.App.2d 474, 73 Cal.Rptr. 190.)

We will therefore consider the appeal properly before us on those two contentions.

MOTION TO SUPPRESS

The evidence which defendant seeks to suppress consisted of copies of bank records relating to personal and trust accounts maintained by the defendant; copies of checks on the defendant's account and cashier's checks issued to the defendant.

Defendant was arrested on September 19, 1974, after the complained of evidence had been discovered by a district attorney investigator.

On November 27, 1974, grand jury subpoenas duces tecum were issued to the banks for the originals of the materials previously acquired.

It is the defendant's position that the Supreme Court decision in Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, renders the seizure of the evidence without a search warrant, and all the fruits thereof violative of his constitutional rights. ³

In Burrows, a warrant was issued authorizing the search of the petitioner's office; a search of his office files was conducted and a number of documents taken. Thereafter, without further warrant, a detective contacted several banks in which the petitioner maintained accounts and secured photocopies of his financial statements. Burrows was subsequently charged with grand theft. He moved to suppress the evidence obtained without the warrant as well as other evidence. The motion was denied by the trial court. In reversing that decision, the court stated pages 242-243, 118 Cal.Rptr. page 168, 529 P.2d page 592:

'Initially, we discuss the most significant and novel issue on this case: whether the police violated petitioner's rights under the California Constitution, article I, section 13, in obtaining, without benefit of legal process, copies of statements from a bank in which he maintained an account. We have held, consonant with Katz v. United States (1967) 389 U.S. 347, 350-352, 88 S.Ct. 507, 19 L.Ed.2d 576, 581-582, that, in determining whether an illegal search has occurred under the provisions of our Constitution, the appropriate test is whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Krivda (1971) 5 Cal.3d 357, 364, 96 Cal.Rptr. 62 486 P.2d 1262; 8 Cal.3d 623-624, 105 Cal.Rptr. 521, 504 P.2d 457.)

'It cannot be gainsaid that the customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable. The prosecution concedes as much, although it asserts that this expectation is not constitutionally cognizable. Representatives of several banks testified at the suppression hearing that information in their possession regarding a customer's account is deemed by them to be confidential.

'In the present case, although the record establishes that copies of petitioner's bank statements rather then of his checks were provided to the officer, the distinction is not significant with relation to petitioner's expectation of privacy. That the bank alters the form in which it records the information transmitted to it by the depositor to show the receipt and disbursement of money on a bank statement does not diminish the depositor's anticipation of privacy in the matters which he confides to the bank. A bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes. Thus, we hold petitioner had a reasonable expectation that the bank would maintain the confidentiality of those papers which originated with him in check form and of the bank statements into which a record of those same checks had been transformed pursuant to internal bank practice.' (Fn. omitted. Emphasis added.)

Continuing, the court 13 Cal.3d at page 245, 118 Cal.Rptr. at page 170, 529 P.2d at page 594 stated, 'We hold that any bank statements or copies thereof obtained by the sheriff and prosecutor without the benefit of legal process were acquired as the result of an illegal search and seizure (Cal.Const., art. I, § 13), and that the trial court should have granted the motion to suppress such documents.'

The primary problem presented is whether or not the opinion in Burrows v. Superior Court, supra, was intended to apply retroactively. In the case before us, the bank records were obtained prior to December 2, 1974. The Burrows decision was filed December 27, 1974, and modified after denial of rehearing on March 12, 1975. (13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590). The court did not see fit to specify its prospective or retroactive application. Since we are called upon to do so, we are helped by the following from the Burrows opinion: 'In view of [the] varying opinions, whether the seizure involved in the present case would withstand a constitutional challenge in the United States Supreme Court by a bank depositor on Fourth Amendment grounds is unresolved.' (Fn. omitted.) (Id. at p. 247, 118 Cal.Rptr. at p. 171, 529 P.2d at 595.) The court also acknowledged in its initial decision that whether the police violated the petitioner's rights under the California Constitution was a significant but 'novel issue.' (Id. at p. 242, 118 Cal.Rptr. 166, 529 P.2d 590.)

In the absence of a direct declaration of retroactive or prospective application, the basic criteria guiding resolution of that question implicate the purpose to be served by the new standards, the extent of the reliance by law enforcement authorities on the old standard, and the effect on the administration of justice of a retroactive application of the new standards. (People v. Edwards (1969) 71 Cal.2d 1096, 1108, 80 Cal.Rptr. 633, 458 P.2d 713.) Each of the foregoing urgently requires prospectivity for Burrows. The court in Desist v. United States (1969) 394 U.S. 244, 249-250, 89 S.Ct. 1030, 22 L.Ed.2d 248, clearly determined that new rules (in that case as set forth in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) apply only to cases in which the prosecution seeks to introduce the fruits of a search conducted after the effective date of the opinion. It was pointed out that the purpose of the rule requiring exclusion of evidence obtained by an unlawful search or seizure is to deter illegal police action, and that purpose...