People v. Paxton

• Decision Date: 10 October 1967
• Docket Number: Cr. 11601
• Citation: 255 Cal.App.2d 62,62 Cal.Rptr. 770
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Lee PAXTON and Raymond Sparks, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 770

62 Cal.Rptr. 770

255 Cal.App.2d 62

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Lee PAXTON and Raymond Sparks, Defendants and Appellants.

Cr. 11601.

Court of Appeal, Second District, Division 2, California.

Oct. 10, 1967.

As Modified Oct. 16, 1967.

Hearing Denied Dec. 7, 1967.

Charles M. Berg, Beverly Hills, by appointment of the Court of Appeal, for appellant, Paxton.

Kendall R. Bishop, Los Angeles, by appointment of the Court of Appeal, for appellant, Sparks.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellants James Lee Paxton and Raymond Sparks and defendant Jimmy Wendle Theus were jointly charged and tried on four counts: kidnapping with intent to commit robbery (violation of Penal Code, § 209) (Count I); rape (violation of Penal Code, § 261(3)) (Count II); oral copulation (violation of Penal Code, § 288a) (Count III); and robbery (violation of Penal Code, § 211) (Count IV), all felonies.

Paxton, Sparks and Theus severally represented by different counsel, each pleaded not guilty. A jury found appellant Sparks guilty as charged on each of the four counts and appellant Paxton guilty of kidnaping (violation of Penal Code, § 207), a lesser but necessarily included offense to the charge of kidnaping with intent to commit robbery, as to Count I, and guilty as charged as to Counts II, III, and IV. The jury was unable to agree regarding Theus.

Sparks was sentenced to life imprisonment without possibility of parole on Count I and to the terms prescribed by law on Counts II, III and IV, sentences to run concurrently. Paxton was sentenced on the lesser included offense in Count I (kidnap) and on Count II (rape) to run consecutively. As to Paxton, the sentences on Counts III and IV were ordered to run concurrently with Counts I and II.

At 3:30 a.m. on February 24, 1965, Mrs. Rita Eichor left her place of employment and drove to her home in Inglewood. A few blocks before she reached her residence she noticed a light colored Buick following her with headlights on. She parked her automobile in her driveway, walked toward her house and again noticed the Buick in the street from which she had just turned. Its headlights were now out.

Before she entered her house, she remembered that she had left her purse in the car. She returned to retrieve it.

When she approached her car, she saw a man standing beside it. She testified it was dark and she could not discern the man's features. The man told her that she had struck a child a few blocks back. She twice ordered the man to leave and 'lost consciousness.'

She next remembered being in the back seat of her automobile with appellant Paxton. Appellant Sparks was driving with defendant Theus in the front seat beside him. She vaguely heard someone in the car saying that they were Black Muslims and that they wanted her money and sex. Her jaw was causing her great pain.

Despite her protests and statement that she had a husband and a three-year old son, and her pleas to be released, Paxton ripped Mrs. Eichor's skirt off and raped her. After the rape, Sparks stopped the car. Paxton and Theus exchanged seats. Sparks, turning half-way from the driver's seat, ripped off her blouse and brassiere. Theus forced an act of oral copulation. Sparks then again half turned, demanded that Mrs. Eichor give them her rings, watch and pendant. Throughout the ride she was forced to keep her head down and when she replied that she could not remove the pendant because of her crouched position, Sparks told her not to break it and hit her in the jaw with his fist. She removed the items and gave them to Theus. When Sparks asked her how much more money she had at home, the victim replied that she had about a hundred dollars. Sparks told her that she 'better be right' or her 'husband and baby would get hurt.'

Sparks drove the Eichor car into an alley. Theus left the car to get the automobile which they had been driving. Mrs. Eichor was then ordered to leave the car. She asked for her coat. Sparks responded that 'white trash didn't need their clothes on.' The victim, competely naked, left the automobile and Sparks and Paxton drove away in her car. She went to a house with a 'light on' and shortly thereafter the police arrived.

Immediate subsequent hospital treatment showed, among other things, that the victim had a double fracture of the lower jaw.

Paxton was arrested by the police at 6:20 a.m. on February 24. He was advised that he had the right to remain silent at all times, to have an attorney present if he wished to make any statement, and that anything he did say could be used against him. Paxton replied he knew his rights. Two other officers subsequently advised Paxton of these same rights and he also told them that he was aware of his rights. The three officers were presented with conflicting stories.

On February 25, Sparks was arrested and his car suspected of being the one used to follow Mrs. Eichor, was impounded and searched. On March 11, 1965, Mrs. Eichor went to the Inglewood Police Station. She was asked if she could identify Sparks' vehicle. She said it resembled the vehicle which followed her prior to the crime. A St. Christopher medal was hanging by a chain from the rear view mirror of the automobile. Mrs. Eichor recognized it as one which she purchased several years earlier and which she had in her wallet on the morning of the crimes. Officer Blair removed the medal from the car.

Helen Idziorek testified for the prosecution that shortly after 1:00 a.m. on December 30, 1964, she parked her car in a lot near her apartment. As she left the lot Paxton jumped from some bushes with a knife in his hand and said, 'Don't scream, Missy, or I'll kill you.' He grabbed both her car keys and her purse and led her back to her automobile. Sparks then approached and inspected the contents of her purse.

Miss Idziorek was pushed into the back seat of her vehicle. Sparks looked through the glove compartment for money. While Paxton drove, Sparks attempted to have intercourse with her. When Sparks told Paxton he was unable to penetrate, Paxton then stopped the vehicle and they changed positions. Paxton attempted to have intercourse with the victim. He too, was unsuccessful. They once again changed positions. Sparks tried again and consummated the rape. Throughout the harrowing ride, the victim was forced to keep her head down. After the completed act of intercourse, Sparks and Paxton fled from the automobile and left the victim alone.

On cross-examination, Miss Idziorek testified that she could not positively identify Sparks as one of the men. No evidence was presented that either Sparks or Paxton were tried or convicted of this previously alleged crime.

Contending that the seizure of the medal from the impounded Sparks automobile was too remote from the time and place of Sparks' arrest, both appellants claim that the police should have obtained a search warrant before removing the medal and that in the absence of such warrant, the medal was illegally taken from Sparks' vehicle.

The removal of the medal in plain sight and after it had been identified by Mrs. Eichor does not constitute the type of search that is forbidden by the United States and California Constitutions. As the court pointed out in People v. West, 144 Cal.App.2d 214, 219--220, 300 P.2d 729, 733: '* * * the term (search) implies some exploratory investigation or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive or accomplished of force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is * * * hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a 'search'.' (See also Bielicki v. Superior Court, 57 Cal.2d 602, 605, 21 Cal.Rptr. 552, 371 P.2d 288 and People v. Holloway, 230 Cal.App.2d 834, 839, 41 Cal.Rptr. 325.)

The police officer and Mrs. Eichor saw the medal hanging in plain sight from outside the automobile, neither hidden nor concealed from the gaze of the inquiring public. Where one leaves an item in plain view of the outside observer he is deemed to have impliedly consented to its being seen. Constitutional safeguards are not applied in such a situation.

Assuming, however, that peering into Sparks' car was a search, recent cases clearly dispose of appellants' contention that the search and seizure were not valid even though they were not incident to the arrest.

Questions regarding the reasonableness of searches under the Fourth Amendment of the United States Constitution are controlled by federal law in state as well as federal courts. (Mapp v. Ohio, (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081). Appellants' arguments have been settled by the recent case of Cooper v. State of California, (1967) 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. In Cooper, defendant was arrested for violation of a narcotics offense and his automobile, believed to have been used to transport the contraband, was seized, pursuant to a California statute. A search was made of the car a week later and revealed a small piece of brown paper sack. The paper was introduced into evidence and the suspect was convicted. The Court held that the search was lawful since the reason for and nature of the custody constitutionally justified the search. It distinguished its decision in Preston v. United States, (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 on the basis of the remoteness in Preston between the arrest and the fruits of the subsequent search. In Preston, supra, the defendant was arrested for a vagrancy violation. A subsequent warrantless search of his impounded automobile revealed assorted...