People v. Phillips, Cr. 1368

• Decision Date: 15 September 1958
• Docket Number: Cr. 1368
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donna Mae PHILLIPS, Defendant and Appellant.

Page 621

329 P.2d 621

163 Cal.App.2d 541

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donna Mae PHILLIPS, Defendant and Appellant.

Cr. 1368.

District Court of Appeal, Fourth District, California.

Sept. 15, 1958.

Thomas Whelan, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., Norman B. Peek, Deputy Atty. Gen., for respondent.

McCABE, Justice pro tem.

From judgments of conviction entered after verdicts of a jury for violation of section 337a, subds. 1 and 2, Penal Code, and from the order denying a new trial, defendant appeals.

A police officer had received information concerning bookmaking operations at 717 El Cajon Boulevard, City of El Cajon. An affidavit of a police officer was sworn to before a magistrate of the municipal court and a search warrant was issued on August 3, 1957, which read in part:

'You are commanded, in the daytime or nighttime to make immediate search on the premises of Jack L. Thompson, 717 El Cajon Boulevard, El Cajon, California, for the following property, to wit: books, papers or paraphernalia,'

and a police officer testified that the warrant also provided 'for the purpose of recording and registering bets on horse reces.' On August 4, at about 2:00 p. m. police officers, with the search warrant, went to the house at the El Cajon address. Just prior to going to this address, the officers had a part-time matron place a telephone call to the house, a woman's voice answered 'Roger', the matron said 'Hi Mabel', the woman's voice replied 'This isn't Mabel; there is no Mabel here'. Later the matron identified defendant's voice as being the same the matron had heard over the telephone.

Upon arriving at 717 El Cajon Boulevard two officers went to the front door and two officers proceeded to the rear of the house. Although the officers at the locked front door demanded admission, no one admitted them. The officers in the rear of the house entered by a window and the other officers were admitted by their brother officers through the front door. Officers entered a room described as a 'bed room' but which in fact was not furnished as such. No other room in the house was furnished for living quarters and no clothing was found. In this 'bed room' defendant was seated at a table on which rested two telephone instruments. On this table and about the room the officers observed pads of paper, racing forms, radio and other paraphernalia which was testified to, and the defendant does not deny, is commonly used in bookmaking. Defendant was placed under arrest. While in the 'bed room' two police matrons received numerous telephone calls. In answering telephone calls the matrons used the introductory word 'Roger'. These calls concerned themselves with the placing of bets, the 'scratching' of bets, the request for information regarding races, or horses or race tracks. In at least one or two incidences inquiry was made for 'Donna', defendant's given first name.

From the time of her arrest, defendant refused to give any statement, however at different times and in different locations the following occurred: The arresting officer said 'Then you are making the book?', to which defendant replied 'That's about it'. Upon being asked how she had gotton into this she replied she was well paid; she was asked 'if there were any prearranged agreements in case she was arrested and she said no'; when questioned if she knew what she was getting into when she started she replied she did but didn't realize it was that big; she was told that 'her country boy' had called and defendant laughed ('country boy' referred to above was the name given by the calling party in a telephone coversation received by one of the police matrons); defendant questioned the part-time police matron as to whether it was she who called prior to the arrest and the police matron replied in the affirmative.

One of the telephones was subscribed to by one Rogers and the other by one Thompson. The utilities for the house were under the name Thompson. This was known to the police officer prior to swearing to the affidavit. Who rented the house from the owner is not clear from the record. No police officer who testified at the trial knew or had ever seen Thompson or Rogers, and had not known defendant prior to the entry. In the mail box the officers found an envelope addressed to Rogers.

It appears from the testimony that an inventory of the premises was taken while the officers were at the house but not in the presence of defendant. Defendant never prceived a copy of the inventory. The warrant and inventory were filed on August 9, 1957, in the municipal court.

On the day of trial in the trial judge's chambers defendant revealed to the judge and prosecution the objections she had to the admission into evidence of the property taken. During the trial, the affidavit, search warrant and property taken were admitted to evidence, and the objections to the admissibility of the evidence as revealed in the judge's chambers were noted in the record. Essentially these objections are now translated into the contentions on this appeal.

On this appeal defendant contends (1) the search was illegal because the search warrant was issued improperly and not made upon any factual information in the hands of the officers; (2) the search and seizure was not made under the authority of the search warrant and was therefore illegal; (3) the trial court erred in refusing to require the officer to reveal the name of his informant; (4) evidence taken under the search warrant is inadmissible because the statutory requirements regarding the return of the inventory was improperly made; (5) under the search warrant the evidence was improperly admitted because the warrant authorized search of the 'premises of Jack L. Thompson at 717 El Cajon Boulevard' and did not authorize the search of any premises at 717 El Cajon Boulevard; (6) the evidence is insufficient to support the verdict and the verdict is against the evidence.

California cases indicate that, if prior to trial, defendant had desired to challenge the validity of the search warrant and the resulting effect of it she could have (a) made a motion to quash it (People v. Berger, 44 Cal.2d 459, 461, 282 P.2d 509); (b) petitioned for a writ of mandamus for the return of the property (People v. Berger, supra); (c) made a motion to suppress or exclude the evidence (People v. Alaniz [dissenting opinion], 149 Cal.App.2d 560, 571, 309 P.2d 71, citing United States v. Kind, 2 Cir., 87 F.2d 315, 316); (d) sought a writ of prohibition (Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36). Also, defendant had certain rights under sections 1539 and 1540, Penal Code, which apparently she did not exercise. Not having pursued her remedy under these code sections she should be precluded from controverting the facts stated on the affidavit. Arata v. Superior Court, 153 Cal.App.2d 767, 315 P.2d 473; see also State v. Best, 150 A. 44, 8 N.J.Misc. 271; United States v. McKay, D.C., 2 F.2d 257, 259, 260. She did not make use of any of these processes prior to trial.

The above quoted portion of the search warrant was read into evidence but the exact verbiage of the affidavit and search warrant is unknown to us since the exhibits are not before us.

On an appeal it is the general rule that matters not shown by the record will not be considered on appeal. 3 Cal.Jur.2d, Appeal and Error, Section 261 and cases therein cited. When there are affidavits which are made the basis of a complaint on appeal they must be part of the record. 3 Cal.Jur.2d, Appeal and Error, Section 262 and cases cited. Therefore, this court will not presume there was error on the part of the magistrate who issued the warrant. The burden is upon the appellant to present a record reflecting the error affirmatively. Romine v. Cralle, 80 Cal. 626, 628, 22 P. 296; Boyer v. Pacific Mutual Life Insurance Co., 1 Cal.App. 54, 55, 81 P. 671. The burden of establishing the invalidity of the search warrant is upon defendant. People v. Acosta, 142 Cal.App.2d 59, 62, 298 P.2d 29; United States v. Goodwin, D.C., 1 F.2d 36.

If defendant is now making a request to have us attempt to piece together bits of disconnected testimony to establish the contents of the affidavit, she has landed on an unfertile plateau. We will not subscribe to the request, particularly since defendant had methods open to her to make the documents part of the record on appeal.

In part, defendant's argument is that the warrant must be issued only upon 'factual information'. This point has been determined in People v. Acosta, 142 Cal.App.2d 59, 298 P.2d 29, and Arata v. Superior Court, supra.

In sole support of her contention (2) defendant cites without argument People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513; A perusal of the Cahan case does not reveal that a search warrant was issued. We cannot discern any possible argument whereby the Cahan opinion is applicable to defendant's contention (2).

Defendant's point (3) is based upon a misconception. As heretofore stated, a warrant is presumed...