People v. Pranke

• Court: California Court of Appeals
• Writing for the Court: HERNDON; FLEMING; ROTH
• Citation: People v. Pranke, 12 Cal.App.3d 935, 91 Cal.Rptr. 129 (Cal. App. 1970)
• Decision Date: 12 November 1970
• Docket Number: Cr. 16365
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Conrad PRANKE, Defendant and Appellant.

Page 129

91 Cal.Rptr. 129

12 Cal.App.3d 935

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Conrad PRANKE, Defendant and Appellant.

Cr. 16365.

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

Nov. 12, 1970.

Hearing Denied Jan. 21, 1971.

David Henry Simon, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Alan V. Hager, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

As authorized by Penal Code section 1538.5, subdivision (m), defendant purportedly seeks '* * * further review of the validity of a search or seizure on appeal from (his) conviction * * * notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.' Appellant contends: 'I. Because appellant's arrest was made without probable cause, his consent to search his apartment, in which the marijuana was found, was constitutionally invalid.' 'II. Assuming, arguendo, that appellant's arrest was valid, his subsequent consent to the search of his apartment, without having been first informed of his Fourth Amendment rights, was constitutionally invalid.' We have concluded that neither of these contentions is meritorious.

On the morning of September 16, 1968, the residence of Edward Clahan was burglarized. Clahan testified that earlier that morning appellant, a casual acquaintance whom Chahan had not been for a year and one-half, called at the Clahan residence 'saying that he was leaving and wanted to say good-bye (to a mutual friend), so, naturally, I gave him the (friend's) phone number.' Appellant had been accompanied by another person whose identity was unknown to Clahan.

The following day, Officer Lee Fernimen of Hollywood Detectives, Burglary Detail, and his partner called at the apartment building located at 1811 North Tamarind where appellant was reportedly living. Although the apartment house manager advised them that appellant was no longer in residence there, the officers decided to investigate further by knocking on the door of the apartment appellant had formerly occupied. As they did so the occupant of the apartment across the hall, one Bruce Denton, opened his door and informed the officers that appellant had moved to an apartment building near Hollywood Boulevard and Wilcox.

After the officers had identified themselves to Denton and explained the purpose of their visit, Denton informed them that appellant 'had brought some property into his apartment and was leaving it there until he could move it to the apartment building where he was living at that time * * * and he invited us inside to check the property.' Denton directed the officers to 'two suitcases, a box, a large cardboard box.' A jewelry case and an item of jewelry located therein matched the description of the stolen property listed in the Clahan burglary report.

Denton offered to show the officers where appellant lived and while en route to his new residence Denton 'pointed to an individual walking on the south side of the street and said, 'That's him there. " The officers then stopped appellant, placed him under arrest and advised him of his constitutional rights in accordance with the rules enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

After appellant had expressed his desire to talk to the officers without the aid of counsel, he was informed that they were investigating the burglary of the Clahan residence. Appellant denied any knowledge of the incident and spontaneously invited the officers to his new residence so that they 'could check and see that he had no property from the burglary.' Unfortunately for appellant, although this confident invitation did establish the fact that there were, indeed, no stolen items in his new residence, marijuana and various items of narcotic paraphernalia were discovered therein.

Thereafter, by reason of the strategy adopted by appellant's counsel, the burglary charge was dismissed upon motion under Penal Code section 995. However, when his motion under Penal Code section 1538.5 seeking to suppress the narcotics found in his possession was denied, he promptly entered a plea of guilty to this lesser offense. In addition, in accordance with an agreement previously effected, the prosecution offered no evidence to establish the prior narcotic conviction alleged against appellant, the trial court made no finding thereon and appellant was sentenced as a misdemeanant to a term in the county jail. He now appeals from this judgment.

Initially, we hold in accordance with established appellate procedure that the issue appellant actually seeks to tender under the guise of his first broad contention is one that may not properly be presented or considered on this appeal. The question he now poses as being decisive was never urged in the court below and, therefore, no ruling thereon was ever made by the trial court. That is to say, the fruits of the search conducted in Denton's apartment Were introduced and received into evidence without the remotest hint of an objection by appellant either at his preliminary hearing or at the special hearing authorized by Penal Code section 1538.5 which is expressly designed to permit the resolution of any objections directed to the admissibility of evidence obtained by a challenged search and seizure.

On the contrary, in accordance with the well planned trial strategy employed by appellant in the court below, he made no objection to the officers' testimony concerning their discovery of the stolen property found in Denton's possession. But now on appeal he reverses his position and for the first time urges that his arrest was improper because the stolen items discovered by the officers were in fact included with the other property the had left with Denton and because Denton had no authority to consent on his behalf to the officers' search of the luggage which he had left in Denton's possession.

As indicated, this theory of defense was never suggested in the trial court nor was that court ever requested to pass upon the propriety of Denton's cooperation with the police. In the trial court appellant took the position that there was insufficient evidence to hold him to answer on the burglary charge, and insufficient evidence to justify his arrest, because the only evidence that the property found in Denton's apartment belonged to appellant was the word of a untested informant, Denton, who was unavailable as a witness. ¹ This ingenious strategy proved successful and resulted in the dismissal of the more serious charge against appellant.

In this posture the trial court was called upon to determine only whether or not the officers properly relied on Denton's statements even though, as appellant implied, the stolen property found in Denton's apartment belonged to Denton who, therefore, had tried to shift the responsibility for its presence to the innocent appellant. The possibility that the officers' acceptance of Denton's invitation to inspect the property located in Denton's apartment constituted a violation of any of appellant's rights, i.e., was an illegal search and seizure, was never suggested at appellant's hearing.

Not having been called upon to rule on the admissibility of the evidence found in Denton's apartment, i.e., items stolen in the subject burglary, the trial court properly determined that such evidence, when combined with Denton's statements ascribing its ownership to appellant and the fact that appellant had made a rare and unexpected visit to the scene of the crime immediately prior to its commission, provided abundant probable cause for appellant's arrest. With this determination we concur.

It is unnecessary to establish the 'mathematical probability statistics' (cf. People v. Collins, 68 Cal.2d 319, 327, 66 Cal.Rptr. 497, 438 P.2d 33), of (1) any given person visiting a casual acquaintance for the first time in a year and one-half; (2) a burglary occurring thereafter the moment the resident has departed the premises; (3) property stolen therefrom being found the following day in a box located in an apartment adjoining that formerly occupied by the visitor; and (4) the party in possession of the box having volunteered the information that its contents belonged to the visitor prior to the discovery that it contained the fruits of the burglary. It is merely necessary for us to hold, as we do, that when such remarkable coincidences coalesce, they 'are sufficient to warrant a prudent has committed in believing that the defendant has committed an offense. (Citation.)' (People v. Hogan, 71 Cal.2d 888, 890, 80 Cal.Rptr. 28, 29, 457 P.2d 868, 869.)

With this foundation established, the court also ruled that the officers' acceptance of appellant's spontaneous invitation to inspect his new apartment did not constitute an unreasonable search and seizure. The court did, however, dismiss the burglary charge because without Denton's presence as a witness, his hearsay declarations could not be considered on the merits of this charge and without them the evidence would be insufficient to sustain his conviction. ²

Few rules of appellate procedure are more well established than that which requires that issues relating to the admissibility of evidence must be tendered at the trial level and a ruling obtained thereon after each side has had the opportunity to fully develop the facts relevant thereto. (People v. De Santiago, 71 Cal.2d 18, 22--23, 76 Cal.Rptr. 809, 453 P.2d 353; People v. Robinson, 62 Cal.2d 889, 894, 44 Cal.Rptr. 762, 402 P.2d 834; People v. Ibarra, 60 Cal.2d 460, 462, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Rojas, 55 Cal.2d 252, 260, 10 Cal.Rptr. 465, 358 P.2d 921; Witkin, Cal. Evidence (2d ed. 1966), § 1285, p. 1188.) Certainly a defendant who has not merely passively acquiesced in the receipt of certain evidence, but has urged a theory based thereon to...