People v. Odom

• Decision Date: 11 July 1980
• Docket Number: Cr. 11307
• Citation: 108 Cal.App.3d 100,166 Cal.Rptr. 283
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George E. ODOM, Defendant and Appellant.

Page 283

166 Cal.Rptr. 283

108 Cal.App.3d 100

The PEOPLE, Plaintiff and Respondent, v. George E. ODOM, Defendant and Appellant.

Cr. 11307.

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

July 11, 1980.

As Modified July 31, 1980.

Hearing Denied Sept. 4, 1980.

Sheela, Lightner & Castro, Barton C. Sheela, Jr., Christopher J. Schatz, and John R. Petty, San Diego, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Associate Justice.

A jury convicted George E. Odom of murder in the second degree with the finding he used a firearm in the commission of the crime. The jury denied his plea of not guilty by reason of insanity, concluded he was sane. Odom was committed to prison for a term of eight years. On appeal, Odom's contentions are fivefold: (1) A warrantless search of his truck and seizure of materials violated his constitutional rights.

(2) He further contends the later search of the truck with a warrant was constitutionally impermissible since the warrant was issued on the basis of information gained through the original warrantless search. (3) The curbstone "showup" violated his rights to due process as being impermissibly suggestive and denied him effective assistance of counsel. (4) The trial court erred in failing to grant his Penal Code section 1118.1 motion to withdraw the first degree murder charge from the jury. (5) Finally it is argued that the presentation of the defense of diminished capacity precluded instruction by the court on implied malice.

FACTS

Elze Hunt's Fiat was stopped for a red light in the middle lane on one-way Fourth Avenue at Elm Street, San Diego, when defendant Odom drove up, stopped at an angle adjacent to the driver's side of Hunt's car. Odom said "Hey look." Hunt and passenger Coleman turned, saw Odom pointing a pistol at Hunt's head. Odom fired two shots, killing Hunt. Coleman in panic got out of the car. Odom in pickup quickly departed, turned left on Elm Street, drove the wrong way on a one-way street and turned left (northbound) on Fifth Avenue. Witness Ms. Svensson had observed Odom's pickup truck being driven erratically just before the stop and the fatal shooting. The police were immediately called to the death scene where these witnesses gave the police a detailed description of both the killer and his pickup truck. The police within minutes broadcast these accounts on the police radio.

Police Officers Hewitt and Carr were responding to the radio report of the shooting when they saw a vehicle matching the radio description the green American made pickup truck with white camper shell a few blocks distance from the shooting. They effected a "hot stop." Fourteen minutes elapsed between the first report to the police and Odom's apprehension. Odom got out, shouted obscenities to the officers, appeared upset. He was subdued, handcuffed, given a patdown search and placed in the rear of the police car. Odom refused to consent to search of the pickup. Officer Carr however opened the doors, looked at the seats and front floorboard but saw no weapon. Carr returned and read Odom his Miranda warning. Officer Snead, now on the scene, asked Odom for consent to search the truck but consent was again refused. In the meantime, yet another officer (Williams), unaware of the refusals, searched the cab area. He pulled the cab seat forward, saw, retrieved a .22 revolver and a bottle of brandy. The .22 caliber handgun was the murder weapon.

Witnesses Svensson and Coleman were taken by police to where Odom had been stopped. Each was told not to talk to one another and to keep an open mind because this might or might not be the person involved. The officer did not refer to Odom as a suspect; an officer at the scene cautioned them just because the man was in custody did not necessarily mean he was involved in the shooting. There were approximately seven officers, several police cars at the arrest scene. Svensson identified the pickup as the one that had cut her off, drove erratically on Fourth Avenue. Odom was removed from the back of the police vehicle in handcuffs and placed alone on the curb for Coleman to view. Coleman identified Odom as the man who fired the shots and the pickup truck as the murder vehicle. These identifications took place approximately 45 minutes after the shooting. The pickup was impounded and an exhaustive search made later pursuant to a search warrant.

DISCUSSION

I

Odom's Penal Code section 1538.5 motion to suppress the murder weapon found in the pickup truck was denied. He asserts this to be error. A search conducted without a warrant issued upon probable cause is "per se unreasonable." (Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576; People v. Minjares, 24 Cal.3d 410, 416, 153 Cal.Rptr. 224, 591 P.2d 514.) Here the first search of the truck was conducted without a warrant, therefore the burden rested upon the prosecution to establish justification under recognized exception to the warrant requirement. (People v. James, 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.) Odom argues there was no justification to search the truck and the facts "(reveal) a patent boot-strap procedure based upon a succession of impermissible police intrusions which invalidate the search and require a reversal of the conviction." (People v. Grace, 32 Cal.App.3d 447, 450, 108 Cal.Rptr. 66, 67.) It has been long recognized (since Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543) that the mobility of an automobile makes it particularly susceptible to searches under the "exigent circumstances" exception to the warrant requirement. In short, " 'as "long as it can be demonstrated that (1) exigent circumstances rendered the obtaining of a warrant an impossible or impractical alternative, and (2) probable cause existed for the search",' " a warrantless search of an automobile can be conducted. (Wimberly v. Superior Court, 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 645, 547 P.2d 417, 421.) However, both of these requirements must be satisfied. "(N)o amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' " (Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564; People v. Dumas, 9 Cal.3d 871, 884, 109 Cal.Rptr. 304, 512 P.2d 1208.) The elements peculiar to an automobile which may give rise to exigent circumstances are that the car is movable, the occupants are alerted and the car's contents may never be found again if the warrant must be obtained. (Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419.) But absent such circumstances, the Fourth Amendment requires a warrant. There is no general automobile exception to the warrant requirement. (South Dakota v. Opperman, 428 U.S. 364, 378, 383, 96 S.Ct. 3092, 3103, 49 L.Ed.2d 1000.) The precise question here is whether there were exigent circumstances sufficient to excuse compliance with the warrant requirement. There is no question but Officer Williams was searching, prying into hidden places for that which was concealed, that which was put out of the way. (People v. Irvin, 264 Cal.App.2d 747, 754, 70 Cal.Rptr. 892.) That the officers had probable cause to search the pickup for the murder weapon may also be conceded.

The officers here knew that the driver of a suspect vehicle had within the past 15 minutes fired a loaded gun from within the cab of the pickup truck. The patdown had failed to reveal the gun. Therefore it was patently reasonable for the officers under these circumstances to believe a search of the cab of the pickup would reveal a loaded gun. (People v. Laursen, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145;.)

The validity of the search by Officer Williams turns upon the meaning of the term "exigent circumstances." The fact Odom was in police custody did not remove the exigent circumstances of a loaded gun in the cab of the pickup. A loaded gun on the floor behind the driver's seat is not in the same category as personal luggage. (Comp. People v. Minjares, supra, 24 Cal.3d 410, 418, 153 Cal.Rptr. 224, 591 P.2d 514.) In State of Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235, 242-243, it was said:

"One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime. (Citations),

" 'the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant . . . .' (Fn. omitted.)

"There are essentially two reasons for the distinction between automobiles and other private property. First, as the Court repeatedly has recognized, the inherent mobility of automobiles often makes it impracticable to obtain a warrant. (Citations.) In addition, the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property. (Citations.)"

And it was held in Chambers v. Maroney, supra, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419:

"In enforcing the Fourth Amendment's prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on...