People v. Mack

• Decision Date: 07 February 1977
• Docket Number: Cr. 8295
• Citation: 66 Cal.App.3d 839,136 Cal.Rptr. 283
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James William MACK and Earl Gene Davidson, Defendants and Appellants.

Page 283

136 Cal.Rptr. 283

66 Cal.App.3d 839

The PEOPLE of the State of California, Plaintiff and Respondent, v. James William MACK and Earl Gene Davidson, Defendants and Appellants.

Cr. 8295.

Court of Appeal, Third District, California.

Feb. 7, 1977.

Rehearing Denied Feb. 28, 1977.

As Modified March 3, 1977.

Hearing Denied April 7, 1977.

Evelle J. Younger, Atty. Gen. by Joel E. Carey, Deputy Atty. Gen., for plaintiff-respondent.

Duane C. Miller, Sacramento, for defendants-appellants.

PUGLIA, Presiding Justice.

Defendants were jointly charged with burglaries of the Conklin and Whitney residences (Pen.Code, § 459, two counts) and with knowingly receiving property stolen therefrom as well as from a burglary of the King residence (Pen.Code, § 496, three counts). Davidson alone was charged with burglary of the King residence.

Prior to trial, defendants moved the superior court to suppress certain evidence (Pen.Code, § 1538.5). The motions were submitted upon the testimony taken at the preliminary hearing supplemented by additional evidence. The motions were denied.

Thereafter Mack pled guilty to one count of receiving stolen property (taken in the King burglary). The record discloses no disposition of the People's motion to dismiss the remaining charges as to Mack, who was sentenced to state prison. His appeal is limited to the validity of the order denying the motion to suppress. (Pen.Code, § 1237.5; rule 31(d), Cal.Rules of Court.)

Davidson proceeded to trial. He was found guilty of the Conklin and Whitney burglaries (in the first and second degrees respectively) and one count of knowingly receiving stolen property (taken in the King burglary). He was acquitted of the remaining charges. Davidson was also sentenced to state prison. He appeals from the judgment.

On appeal, defendants join in attacking (1) the detention and arrest of Mack and the contemporaneous search of his person; (2) the entry and search of the residence at 34th and 'W' Streets; (3) the 'search' of the Cotnam residence; and (4) the search of the Solano Street residence.

In addition, Davidson claims that errors were committed at his trial. We shall deal with these contentions after we have disposed of the issues raised by the trial court's denial of the motions to suppress.

ISSUANCE OF SEARCH WARRANT BY NONATTORNEY JUDGE

One of the contentions urged in connection with the search of the Solano Street residence, advanced by Davidson alone, is that issuance of a search warrant by a nonattorney judge results in a denial of due process. The search warrant for the Solano Street premises was issued by a lay judge of the justice court in Yolo County.

,2] In Gordon v. Justice Court (1974) 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72, the Supreme Court held that the right to due process guaranteed by the Fouteenth Amendment to the United States Constitution requires that an attorney-judge preside over misdemeanor criminal proceedings which may result in imposition of a jail sentence. (Pp. 326, 334, 115 Cal.Rptr. 632, 525 P.2d 72.) The Supreme Court reasoned that in criminal trials, lack of legal training may so affect a lay judge's disposition of the technical and complex problems there encountered as to deny the defendant a fair trial. (Pp. 331--333, 115 Cal.Rptr. 632, 525 P.2d 72.) In a pointed dictum, the Court also projected a similar limitation upon felony preliminary hearings because of the obvious parallel between such proceedings and misdemeanor trials. (Pp. 326--327, fn. 2, 115 Cal.Rptr. 632, 525 P.2d 72.)

3] A plenary trial conducted in the crucible of the adversary system thrusts upon the judge a wide range of complex decisions. (North v. Russell (1976) 427 U.S. 328, p. 339, 96 S.Ct. 2709, p. 2714, 49 L.Ed.2d 534, dissenting opinion of Stewart, J. (p. 543); Gordon v. Justice Court, supra, 12 Cal.3d at p. 332, 115 Cal.Rptr. 632, 525 P.2d 72.) An application for search warrant, however, almost invariably is presented ex parte and turns upon the adequacy of the factual showing of probable cause for its issuance.

',5] Probable cause has . . . been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. (Citations.) It is not limited o evidence which would be admissible at the trial on the issue of guilt. (Citation.)' (People v. Ingle (1960) 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580.) The magistrate need only determine whether the facts disclosed in the application for search warrant are sufficient to lead a man Of ordinary caution and prudence to believe and conscientiously to entertain a strong suspicion that there is property subject to seizure in the place for the warrant is sought. (People v. Ingle, supra, 53 Cal.2d at p. 412, 2 Cal.Rptr. 14, 348 P.2d 577; Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485; People v. Superior Court (Brown) (1975) 49 Cal.App.3d 160, 165, 122 Cal.Rptr. 459.)

,7] There is nothing inherent in the process of determining probable cause that renders it beyond the capacity of lay persons to resolve. our legal system has long entrusted nonlawyers to evaluate the legal significance of complex, factual data. For example, grand jurors determine probable cause to indict and trial jurors determine whether guilt is proved beyond a reasonable doubt. (Shadwick v. City of Tampa (1972) 407 U.S. 345, 351--352, 92 S.Ct. 2119, 2123--2124, 32 L.Ed.2d 783, 789.) Each of these functions is at least as important as the determination of probable cause to issue a search warrant.

10] Furthermore, we are not blind to the fact, revealed by the most casual survey of the appellate reports over the two decades of California experience with the exclusionary rule (see People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905), that there is a marked absence of correlation between legal training and the ability unerringly to determine the existence of probable cause. More bluntly put, examples are not infrequently found in which the assessment of probable cause by a presumptively non-neutral law enforcement officer has been repudiated by a legally trained judicial officer only to be vindicated and reinstated thereafter by a higher court. In fact, the very provision by the Legislature for appellate review of trial court suppression orders adverse to the People (Pen.Code, § 1538.5) is implicit recognition that law trained judges can be wrong in determining whether or not probable cause has been shown. (22 Assem. Interim Com. Rep. (1965--1967) No 12, Government Organization, pp. 15--16, 2 Appendix to Assem. J. (1967 Reg. Sess.).) Obviously, holders of a law degree have no corner on commonsense, the standard according to which affidavits for search warrants are to be tested and interpreted (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684, 689; People v. Superior Court (1972) 6 Cal.3d 704, 711, 100 Cal.Rptr. 319, 493 P.2d 1183).

14] In Gordon, the Court expressly declined to 'abolish the existing system permitting the use of non-attorney judges in all matters within the justice court jurisdiction.' (Gordon v. Justice Court, supra, 12 Cal.3d at p. 333, 115 Cal.Rptr. at p. 639, 525 P.2d at p. 81.) Apart from preliminary hearings, which resemble trials, we are unable to devine from the Gordon opinion a disposition to deny to lay justice court judges the powers confided to a magistrate (see Pen.Code, § 808; Witkin, Cal. Criminal Procedure (1963) Introduction, § 16, pp. 18--19). Moreover, the preference for search warrants is less an expression of faith in the technical expertise of the issuing judicial officer than a recognition that, unlike a police officer 'engaged in the often competitive enterprise of ferreting out crime' (Johnson v. United States (1948) 333 U.S. 10, 13--14, 68 S.Ct. 367, 92 L.Ed. 436, 439--440), he will approach the task in a neutral and detached manner. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 449--450, 91 S.Ct. 2022, 2029--2030, 29 L.Ed.2d 564, 572--573; see also North v. Russell, supra, 427 U.S. at p. 337, 96 S.Ct. at p. 2713, 49 L.Ed.2d at p. 541.) We conclude that the incapacitation of a lay judge in these circumstances is neither required by law nor justified by experience. Therefore, the admission in evidence of property seized under a search warrant issued by a lay justice court judge does not violate defendant's right to due process of law. ¹

15] We turn next to the remaining contentions advanced relative to the trial court's denial of the motions to suppress. (Pen.Code, § 1538.5.) In so doing, we view the facts upon which the suppression motions were submitted in the light most favorable to the People, drawing therefrom all reasonable inferences in support of the trial court's order denying the motions. (People v. Martin (1973) 9 Cal.3d 687, 692, 108 Cal.Rptr. 809, 511 P.2d 1161.)

DETENTION, ARREST AND SEARCH OF MACK

On the afternoon of January 28, 1975, Officer Koupal was advised by telephone that suspicious activity was taking place at a residence located at 34th and 'W' Streets in Sacramento. The caller had been reporting to Koupal about activities at the residence over a period of approximately one year. Previous information related to dealing illicit drugs from the premises and the possible presence of stolen property there. Through his own investigation, Koupal had confirmed some of the information received. The information received on January 28th was that a red Volkswagen had arrived at the residence from which the driver and a female had removed stereo equipment and a TV set and taken them into the residence.

Working alone, Koupal went to the area and observed the Volkswagen. He followed the car as it drove away, observing it make an illegal 'U' turn (Veh.Code, § 22103). After traveling several blocks, the Volkswagen stopped illegally in the middle of the street and picked up three passengers. (Veh.Code, § 22502.)...