People v. Knox

• Decision Date: 02 July 1979
• Docket Number: Cr. 17858
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Lee KNOX, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 238

157 Cal.Rptr. 238

95 Cal.App.3d 420

PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Lee KNOX, Defendant and Appellant.

Cr. 17858.

Court of Appeal, First District, Division 3, California.

July 2, 1979.

Quin Denvir, State Public Defender, Mark L. Christiansen, Richard G. Fathy, Deputy State Public Defenders, Sacramento, for defendant and appellant (by appointment of the Court of Appeal).

George Deukmejian, Atty. Gen., Michael V. Franchetti, Chief Asst. Atty. Gen., Criminal Division, Arnold O. Overoye, Asst. Atty. Gen., Paul H. Dobson, John R. Duree, Jr., Deputy Attys., Gen., Sacramento, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant Donald Knox appeals from a judgment of conviction entered upon a jury verdict finding him guilty of each count charged in the information. Count one alleged that appellant and two codefendants committed murder in violation of Penal Code section 187, and that each was armed with a handgun and used a handgun during the commission of the murder in violation of Penal Code sections 12022, 12022.5 and 1203.06, subdivision (a)(1). In count two each defendant was charged with violating Penal Code section 32 by being an accessory to the charged offense of murder. In counts three through five codefendants and appellant respectively were charged with violating Penal Code section 12021 as felons in possession of concealable firearms. A fourth defendant, John Joseph Bethony, was granted informal immunity in exchange for his testimony.

Appellant entered pleas of not guilty to the charges in the information, denied the allegations concerning the firearm, and admitted one of the two prior convictions alleged. The trial court ordered appellant's trial to proceed prior to the trials of his codefendants.

Appellant contends that his judgment of conviction should be reversed because the trial court erroneously (1) denied his suppression motion, (2) denied him a fair trial by a series of improper rulings involving the prosecution's star witness, John Bethony, and (3) permitted the alternate juror to accompany the 12 regular jurors throughout deliberations.

After lengthy consideration of appellant's first two contentions, we conclude that appellant was afforded a fair trial in which the trial court did not err. Previously, in an unpublished opinion, we reversed appellant's conviction on grounds of jury misconduct (opinion by White, P. J., Feinberg, J., concurring, and Scott, J., concurring but urging reevaluation of People v. Britton (1935) 4 Cal.2d 622, 52 P.2d 217). However, we were directed by the Supreme Court to reconsider our opinion in the light of People v. Valles (1979) 24 Cal.3d 121, 154 Cal.Rptr. 543, 593 P.2d 240. Accordingly, we affirm the judgment.

Late in the afternoon of June 19, 1976, the appellant, his two codefendants, James Murphy and Ronald McBroom, and former codefendant Bethony and the victim, John Flanery, were all gathered in appellant's apartment in Folsom. The five were affiliated with various motorcycle clubs such as "Satan's Legion," "Hell's Angels" and "Joker's Wild." Appellant, a convicted felon, was in possession of a gun.

Six days earlier, on June 13, 1976, Bethony had been shot in the side by his girl friend, Hazel Helton, also known as Blanket A . Flanery was close to Blanket, viewing her as his "little sister."

When Flanery entered appellant's apartment on June 19, he was intoxicated. After some discussion in which Flanery indicated that Blanket was at his house under his protection, Flanery fell asleep on appellant's couch. According to Bethony, he, the appellant and the two codefendants then decided to kill Flanery, his wife and Blanket, and they discussed how to do it. According to this testimony, Bethony and one of the codefendants left appellant's apartment to get Blanket and Mrs. Flanery and return them to appellant's apartment for the triple murder. Before they had completed this mission, however, they called appellant's apartment, and learned that Flanery had already been killed. They then returned to the apartment after purchasing clothesline, plastic bags and other items used to dispose of the victim's body and conceal the murder.

Appellant denied that there had been any discussion of killing Flanery or anyone else and testified that Bethony left the apartment simply to find Blanket. Appellant testified that he drew his gun on Flanery because when Flanery awoke and was told that Bethony had gone out in search of Blanket he became angry and lunged at appellant. Appellant was disabled and Flanery was six feet two inches. Furthermore, appellant testified that the gun discharged accidentally and only appeared to strike the victim a glancing blow. Appellant had been instructed not to allow Flanery to leave the apartment, however. Both appellant and Bethony agree that codefendant Murphy then shot Flanery a second time.

Suppression Motion

On August 26, 1976, four police officers and a deputy district attorney made a warrantless search of appellant's apartment. They had been advised by appellant's parole officer that appellant was "subject to a parole search" and stated their intention to search the apartment under that authority to appellant's wife when she answered the door in response to their knock. Appellant's wife was apparently cooperative and appellant acknowledged that he was under such parole condition and told the officers to "go ahead." Appellant now contends that this search was illegal and that evidence obtained as a result, including statements which he and his wife made to police officers, should be suppressed, and that the trial court erred in failing to grant his suppression motion.

On March 2, 1976, appellant had signed a parole agreement in which he stated: "I agree that my residence and any property under my control may be searched without a warrant at any time by any agent of the Department of Corrections or any law enforcement officer."

Penal Code section 3053 provides that the Adult Authority may impose any conditions it deems proper upon a parolee at the time of granting parole. It may deprive the parolee of significant constitutional rights and liberties, including Fourth Amendment rights against search and seizure. As stated in People v. Thompson (1967) 252 Cal.App.2d 76, 85, 60 Cal.Rptr. 203, 209, certiorari denied 392 U.S. 930, 88 S.Ct. 2276, 20 L.Ed.2d 1388, "The rationale underlying this principle is that a parolee is at all times in custodia legis. Although he is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls. (Citations.) Accordingly, so far as necessary for the maintenance of parole guardianship, the status of a parolee as a prisoner is no different from that of one who remains in confinement, and, therefore, for the purpose of maintaining the restraints and social safeguards accompanying such status, the correctional authorities who supervise the parolee on parole may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them." Where there has been an explicit waiver, such as that signed by appellant, it has been said, "Waiver of constitutional rights in advance as a condition . . . to acquiring certain privileges is necessarily coercive but such exceptions to the Fourth Amendment requirements have long been upheld." (People v. Byrd (1974) 38 Cal.App.3d 941, 948, 113 Cal.Rptr. 777, 782.)

In Zap v. United States (1946) 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477, the Supreme Court upheld the validity of an advance waiver of Fourth Amendment rights in a government contract situation. The California Supreme Court relied upon this case in People v. Mason (1971) 5 Cal.3d 759, 764-765, 97 Cal.Rptr. 302, 305; certiorari denied 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478, for its holding that appellant's waiver of Fourth Amendment rights was a proper condition to probation. There the court stated that ". . . persons conditionally released to society, such as parolees, may have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities 'reasonable' which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands. (Citations.) Thus, a probationer who has been granted the privilege of probation on condition that he submit at any time to a warrantless search may have no reasonable expectation of traditional Fourth Amendment protection."

There are limits, however, to the conditions which may be imposed upon probationers or parolees, and People v. Dominguez (1967) 256 Cal.App.2d 623, 64 Cal.Rptr. 290, established a test which has been uniformly reaffirmed in later decisions of the California Supreme Court. (In re Bushman (1970) 1 Cal.3d 767, 83 Cal.Rptr. 375, 463 P.2d 727; People v. Mason, supra, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630; People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545.) A condition of probation will be held invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. As indicated in Mason, the principles applied to probationers are equally applicable to parolees, so it is proper to subject appellant's parole condition to the Dominguez test.

Appellant has two prior felony convictions, violation of Penal Code section 245, assault with a deadly weapon, and violation of Penal Code section 211, robbery. In People v. Mason, supra, and People v. Giminez (1975) 14 Cal.3d 68, 120 Cal.Rptr. 577, 534 P.2d 65, it was held that waiver of Fourth Amendment rights was appropriate where the grant of probation was to a narcotics offender. Where appellant was on probation for...