People v. Mitchell

• Decision Date: 07 November 1962
• Docket Number: Cr. 1710
• Citation: 26 Cal.Rptr. 89,209 Cal.App.2d 312
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James MITCHELL, Defendant and Appellant.

Page 89

26 Cal.Rptr. 89

209 Cal.App.2d 312

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

Cr. 1710.

District Court of Appeal, Fourth District, California.

Nov. 7, 1962.

Hearing Denied Jan. 3, 1963.

[209 Cal.App.2d 315] James Mitchell, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

SHEPARD, Justice.

This is an appeal by defendant from a judgment of conviction of burglary, second degree (violation of Penal Code, § 459). While the notice of appeal and appellant's briefs are not in proper form, appellant is in propria persona and in the interests of justice they will be liberally construed so as to permit a hearing on the merits. (Rule 31(b), Cal.Rules of Court; People v. Lollis, 177 Cal.App.2d 665, 666, 667, 2 Cal.Rptr. 420.) After all the briefs were filed defendant made application for counsel on appeal, which was denied.

Defendant was accused by information with burglary in violation of Penal Code, § 459 in that he unlawfully entered the office of Hubbs Trucking in Colton, California with the intent to steal. Two prior felony convictions were alleged. Defendant refused to enter a plea and a plea of not guilty was entered on his behalf by the court. Defendant admitted the two priors at the time of trial.

FACTS

On March 1, 1961, at 7:00 p. m., a dispatcher for A. S. Hubbs Trucking locked up the office. The windows and doors were closed and no one was inside. On March 2, 1961, between 5:30 and 6:00 a. m., the dispatcher Mr. Hubbs testified that when he left his office on March 1, 1961, the safe was closed and locked, with $7,500 in cash in it. He used the money once in a while in his business. No one else knew of the money. He testified that there were 32 $100-bills in an envelope; about 50 $50-bills; two or three envelopes of $20-bills, and 50 $1-bills. There was $960 in $20-bills on the floor, the contents of one envelope which had that amount marked on it. All the other envelopes of money were gone. The $1-bills had all been new two or three years ago and were in sequence. Thirty-two $100-bills, 40 $50-bills, 5 $20-bills, 60 $10-bills, 7 $5-bills and 12 $1-bills were produced in court and received in evidence. Hubbs identified a cut on a $50-bill as that made by him with a razor and as having been in the safe on March 1, 1961. Hubbs also identified 6 $100-bills that had been stapled together and one of which had an iron-brown stain on it, as having been in his safe. Hubbs further identified some indelible ink marks on two bills as being from a pen in his safe.

opened up the office. He noticed a heavy smell of cigarette smoke. He observed that the office safe was lying on its back with its doors wide open. A pipe and a heavy piece of iron were on the floor. He also observed [209 Cal.App.2d 316] on the floor three piles of $20 bills. A fill-in board from a window had been pushed inside and was on the floor. A large window at the opposite end of the room was open. The dispatcher called the owner, Mr. Hubbs, and the police.

A waitress to the Coffee Terminal on Highway 99 two or three blocks from Hubbs' office, testified she waited on defendant on March 2 between 3:30 and 5:00 p. m.

A Customs Inspector testified that on March 4, 1961 at 10:15 a. m. he was on duty at San Luis, Arizona, where he observed defendant approaching the United States from Mexico, dressed in a pair of Levis, field jacket, cap and boots. When asked what he bought in Mexico, defendant showed a sales slip and an expensive wrist watch and said he bought nothing else. Because of the expensive watch ($450), defendant was asked to identify himself. He produced a wallet made in Mexico. The Customs Inspector observed a considerable amount of money in the wallet. Defendant said he was a farm worker and did a lot of gambling. When asked to come to the Customs house for a search and further examination he consented without protest. A Border Patrolman was called in to witness the search. During the search, a sheath-knife with a large blade was found in defendant's back pocket, attached to his belt. Two other watches, some rings, two bracelets and some .38 cartridges were found on defendant. He also had a jail receipt showing his release less than a month before from El Centro jail. Over $5,300 was found in defendant's wallet. Defendant would not answer questions as to how he got the money or what kind of gambling he did.

The border patrolman counted the money independently and also found more than $5,300 in defendant's wallet. He called the sheriff's office as he was suspicious of defendant because of the jail release slip which showed defendant had been in jail less than a month before with not more than $30 and now he had over $5,300. Two deputy sheriffs from Yuma County arrived and questioned defendant about the money. They asked him, 'Is this your money?' Defendant replied, 'It's in my possession, isn't it?' When asked where he got it, defendant replied, 'I could have got it gambling.' The deputies counted the money and took down the serial numbers which were identified at the time of trial. One of the deputies called the sheriff's office in Yuma, where he talked with the undersheriff, gave defendant's name and told of the amount of money, evasive answers, jail release slip and knife. The under-sheriff checked out the name and discovered that a 'James Mitchell' had a burglary history and had been in the Yuma jail, and if it was the same man it was a felony for him to have a knife. Defendant and the money were taken to the sheriff's office in Yuma.

A. .38 special detective pistol belonging to defendant was recovered from a bus locker. Defendant was found to have a felony record and was charged with violation of Arizona statute § 13-919-a Felon in Possession of a Lethal Weapon. The undersheriff counted the money, totalling $5,411, listed the serial numbers and deposited it in the safe in the sheriff's office. He identified the money at the time of trial. When asked about the money defendant either made no comment or said, 'It was in my possession, wasn't it?' 'It's up to you to find out,' or 'You tell me.'

An all-points bulletin was sent out regarding a burglary or robbery involving a large amount of money. A detective sergeant from the Colton Police Department came to Yuma on March 5, in response to the teletype message. On March 6, Mr. Hubbs and the waitress from the Coffee Terminal, who had identified defendant from a picture, arrived in Yuma where she identified defendant in a line up, and Hubbs identified a $50-bill as having a cut by which he had marked it. The waitress had been shown a picture of defendant with a mustache but he did not have one in the line up. The money was turned over to the Colton police after defendant was extradited. At the trial the detective sergeant from the Colton Police Department identified the serial numbers on the money as the same as he had picked up from the Yuma sheriff's office. A criminalist who examined the money identified six $100-bills as having apparently been stapled together and testified that one of them had an iron rust colored stain on it.

Defendant did not testimony or produce any witnesses.

Defendant's counsel offered an affidavit in regard to his extradition, which was rejected as not a matter before the court. A request for a return of verdict of not guilty was denied. The jury returned a verdict of guilty of second degree burglary. Defendant's motion for a new trial was denied and he appeals in propria persona.

SEARCH AND SEIZURE AND ARREST

Defendant contends that the evidence introduced against him was the result of an illegal search and seizure and arrest in Arizona. With this we cannot agree. The Customs Inspector properly became suspicious when he observed defendant's dress, his expensive watch, the large amount of money in his Mexican wallet, and heard defendant's explanation. Defendant did not protest the search. The search which customs inspectors are authorized to conduct upon entry is of the broadest possible character and is governed by Federal law and there is no question of 'probable cause' under State law. (19 U.S.C.A. § 482; Murgia v. United States, 9 Cir., 285 F.2d 14, 18.) As stated in this case at page 17,

'The right of border search does not depend on probable cause. [Citing cases.] '[The] searches of persons entering the United States from a foreign country are in a separate category from searches generally * * * [and] 'are totally different things from a search for and seizure of a man's private books and papers. * * *'' [Citing cases.]'

All persons coming into the United States from foreign countries are liable to detention and search by authorized agents of the government. (19 U.S.C.A. § 1582.) Defendant's detention, incidental to this search, did not amount to an arrest. (United States v. Jones, D.C., 184 F.Supp. 328, 330, 331.)

The deputy sheriff had reasonable cause to arrest defendant and seize the money. He knew 'a James Mitchell' had a history of two prior felonies and a record in the Yuma jail. Defendant James Mitchell was carrying a lethal weapon, a large sum of money and expensive jewelry and gave evasive answers concerning the money; it was certainly reasonable for the arresting deputies to have a strong suspicion defendant was guilty of violating Arizona

statute § 13-919-A Felon in [209 Cal.App.2d 319] Possession of a Lethal Weapon. Later, in fact, he was so charged when he was taken to the sheriff's office and found to be the James Mitchell with the felony record. Under any standard the deputies had probable cause to believe defendant was guilty of a felony. (6 C.J.S. Arrest § 6b(2), pp. 587, 588, § 6d(1), pp. 596-598.) There was no illegal search and seizure or arrest. The evidence was properly admitted.

EXTRADITION

Defendant contends his extradition from Arizona was obtained by a fraudulent...