People v. Medina

• Decision Date: 21 July 1972
• Docket Number: Cr. 9757
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Espondent, v. Benny Joseph MEDINA and Walter Frederick Morrison, aka Wayne N. Howe, Defendants and Appellants.

Page 337

103 Cal.Rptr. 337

26 Cal.App.3d 809

PEOPLE of the State of California, Plaintiff and Espondent, v. Benny Joseph MEDINA and Walter Frederick Morrison, aka Wayne N. Howe, Defendants and Appellants.

Cr. 9757.

Court of Appeal, First District, Division 1, California.

July 21, 1972.

Hearing Denied Oct. 18, 1972.

George Sherinian, Santa Cruz, for appellants (by order of Court of appeal).

Evelle J. Younger, Atty. Gen., Gloria F. DeHart, Deputy Atty. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant Benny Joseph Medina appeals from a judgment of conviction for violation of Penal Code section 211 (armed robbery). Defendant Walter Frederick Morrison appeals from a judgment of conviction for violation of Penal Code section 211 (armed robbery) and Penal Code section 240 (simple assault).

The Facts

The evidence most favorable to the People, as the respondent, is as follows: On April 9, 1970, between 1:30 and 2:00 a.m., Ronald Dennis Bumb responded to a knock at the door of his residence in Fort Bragg. When he opened the door two men were standing there. Bumb was asked if he knew a person by the name of 'Charlie' and Bumb responded that he did. ¹ The men asked Bumb if he owed $100 to 'Charlie' and when Bumb responded that he did, they said they were there to collect it.

Bumb described one of the men as 'Mexican or colored or an Indian' and the other as 'white.' The former was described as the shorter of the two and as being about 5 feet 10 inches tall with a mustache and wearing a brown leather jacket. The man described as 'white' was a little taller, about 5 feet 10 or 5 feet 11 inches tall, with a 'pretty good growth of beard . . . full on the face.'

The two men had pistols and they told Bumb to turn around and lie on the floor. Bumb complied and his legs and hands were bound with cords and he was gagged with part of a towel. After he was bound and gagged a wallet containing 'a little over $200' was taken from Bumb's pocket. While the shorter of the two did the binding and gagging the taller proceeded to take 'things' out of the house. The last thing Bumb remembered was being hit on the head with a hard object by the shorter of the two men, hearing a door slam, and the noise of a car 'brought up to the door.' The car was described by Bumb as an 'older car' with a 'blown muffler.' From the time the men knocked at the door until they left 10 to 15 minutes elapsed.

In addition to the $200, the men took Bumb's wristwatch, a Sony stereo cassette recorder, a stereo record player, some records, a stereo speaker, a set of headphones, a bedspread, some after-shave lotion, various stereo cassettes, a wooden object, a large wooden fork, and his car keys.

After the two men left Bumb loosened his bonds with wire cutters and then went to the Fort Bragg police station where he reported the incident. This occurred at approximately 2:45 a.m. The police took a statement from Bumb and then sent out an 'all points bulletin' (hereinafter referred to as 'APB') describing the men who robbed Bumb and the property that was stolen.

At approximately 4:55 a.m. two men and a woman came into Denny's Restaurant in Santa Rosa. Several police officers sitting at the counter recognized the men as fitting the description in the APB. The men and the woman went into the restrooms. While they were there the police cleared the restaurant and called for reinforcements. When the men and the woman emerged from the restrooms they were placed under arrest.

The police officers asked the two men and the woman 'how (they) had gotten to Denny's.' The woman, who had identified herself as Ruby Burger, stated that they had hitchhiked. The subjects were then taken to the police station. Some of the officers searched for a car. First they looked in Denny's parking lot; then across the street at an Enco gasoline service station where they found a 1960 Dodge which aroused their suspicions because of its location, its hood was warm, and a stereo set under a blanket on the back seat was partially visible when an officer shone his flashlight through the window. The APB had described a stereo as having been stolen.

One of the officers was left to guard the Dodge while the other officers went to the police station for the purpose of interrogating the suspects. At the station one of the officers saw a watch matching that described in the APB on the arm of the 'bearded' suspect later identified as defendant Morrison. This officer then returned to the car, which was unlocked, and proceeded to search it. The search disclosed the stolen goods, including the stereo, along with a .22 revolver, a .22 pistol, a .22 rifle with scope, and several rounds of .22 long rifle hollow point bullets, concealed under the rear seat. In the meantime, back at the station, Morrison took the watch he was wearing and flushed it down the toilet in his cell. ²

At the trial Bumb refused to positively identify either defendant and even attempted at one point to get the charges dropped. He stated his reasons for so doing were that he did not want his past felony conviction brought up and he feared losing his job.

The Motion to Suppress

Prior to the trial defendants made a motion to suppress evidence of the stolen property pursuant to Penal Code section 1538.5. ³ This motion was denied. Defendants now seek a review of the validity of the search and seizure pursuant to subdivision (m) of section 1538.5. Such review is made on the basis of the record made at the special hearing of the motion pursuant to section 1538.5 and may be sought notwithstanding there was no objection to the introduction of the seized material at the trial. (See People v. Hubbard, 9 Cal.App.3d 827, 832, 88 Cal.Rptr. 411; People v. Superior Court, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21.)

We first observe that a proceeding under this section is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. (People v. Heard, 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374; People v. Superior Court, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; People v. Superior Court, supra, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21.) When the question of the legality of a search and seizure is raised, the defendant makes out a prima facie case when he establishes that private premises were entered or a search made without a search warrant and the burden then rests on the prosecution to prove that the search was reasonable. (People v. Edwards, 71 Cal.2d 1096, 1099, 80 Cal.Rptr. 633, 458 P.2d 713; Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Carson, 4 Cal.App.3d 782, 786, 84 Cal.Rptr. 699; Hewitt v. Superior Court, 5 Cal.App.3d 923, 926, 85 Cal.Rptr. 493.)

'In reviewing a determination of a trial court on a 1538.5 motion, the function of the reviewing court is to determine whether there was substantial evidence to support the trial court's findings. (Citations.)' (People v. Superior Court, supra, 9 Cal.App.3d 203, 209, 88 Cal.Rptr. 21, 24; People v. Superior Court, supra, 3 Cal.App.3d 476, 488, 83 Cal.Rptr. 771; People v. Superior Court, 264 Cal.App.2d 165, 166, 70 Cal.Rptr. 362.) 'This rule, however, is not applicable in cases involving searches and seizures in which the facts bearing on the legality of the search are undisputed and establish as a matter of law that the evidence is or is not admissible. (Citations.)' (People v. Superior Court, supra, 3 Cal.App.3d at p. 488, 83 Cal.Rptr. at p. 780.)

In the instant case the essential facts are undisputed. Accordingly, the question whether the physical evidence found in the Dodge automobile was admissible is a question of law.

We first observe that it is uncontested that the search was made without a warrant. The search, therefore, is subject to the following basic constitutional rule: ". . . searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' '(T)he burden is on those seeking the exemption to show the need for it.' . . .' (Coolidge v. New Hampshire, 403 U.S. 443, 454--455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564, 576.)

With particular regard to the search of automobiles we perceive that one of the well-delineated exceptions to the basic constitutional rule is that a warrantless search may be made incident to a lawful arrest provided the search extends only to the arrestee's person and the area within his immediate control, i.e., the area from within which he might gain possession of a weapon or destructible evidence. (Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685; see Coolidge v. New Hampshire, supra, 403 U.S. 443, 457, 91 S.Ct. 2022, 29 L.Ed.2d 564, 577, fn. 11.) In the instant case the People do not contend that this exception is applicable.

Another exception is that the police may make a warrantless search of an automobile whenever they have probable cause to do so. This rule, however, has certain limitations dependent upon the nature of the goods to be seized. If the goods are stolen or are contraband, or are dangerous instrumentalities and the seizing officer has reasonable or probable cause for believing that the automobile has such goods therein, the vehicle may be searched without a warrant. (Carroll v. United States, 267 U.S. 132, 149--150, 153, 156, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 48--49, 90 S.Ct. 1975, 26 L.Ed.2d 419; Coolidge v. New Hampshire, supra, 403 U.S. 443, 462, 92 S.Ct. 2022, 29 L.Ed.2d 564, 578, 579, 580; People v. Terry, 70 Cal.2d 410, 428, 77 Cal.Rptr. 460, 454 P.2d 36.) Where the goods are not contraband, stolen or dangerous the police may make a warrantless search of an...