People v. Prochnau

• Decision Date: 15 May 1967
• Docket Number: Cr. 10564
• Citation: 251 Cal.App.2d 22,59 Cal.Rptr. 265
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Buddy Gene PROCHNAU, Defendant and Appellant.

Page 265

59 Cal.Rptr. 265

251 Cal.App.2d 22

The PEOPLE, Plaintiff and Respondent, v. Buddy Gene PROCHNAU, Defendant and Appellant.

Cr. 10564.

Court of Appeal, Second District, Division 3, California.

May 15, 1967.

John H. Marshall, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce William Dodds, Deputy Atty. Gen., for respondent.

FORD, Presiding Justice.

In a nonjury trial the defendant was found guilty of the three offenses with which he was charged, namely, possession of a sawed-off shotgun in violation of section 12020 of the Penal Code, possession of a .32 caliber automatic pistol in violation of section 12021 ¹ of the Penal Code, and possession of morphine in violation of section 11500, Health and Safety Code. The defendant waived reference of the case to the probation officer for a probation report and, with respect to each offense, he was sentenced to be punished by imprisonment in the state prison for the term prescribed by law. He has appealed from the judgment.

At the trial it was stipulated that the defendant's parole officer would be deemed to have been called as a witness and to have testified that at 2:40 p.m. on May 28, 1964, he sent by teletype the following message to the Pasadena Police Department: 'This is your authorization to arrest and place detainer per Section 3056 ² of the Penal Code on Buddy Gene Prochnau, RA 76565, if able to locate. Reportedly armed. Driving a 1956 Pontiac, license number unknown, four-door, green and cream color. May be lodged cheap hotels, Pasadena area, and has a quantity of drugs in car attempting to sell.'

While the reporter's transcript does not show an express stipulation that the case of the People would be submitted on the transcript of the testimony given at the preliminary hearing, the statements of counsel support the inference that both the People and the defendant intended to proceed in that manner. The minutes of the court for the day of the trial are in part as follows: 'It is stipulated that the Court may determine this matter upon the transcript of the testimony had at the preliminary hearing; that the witnesses who testified in the Court below may be deemed to have been called, sworn and testified at this trial with the same force and effect; that People's exhibits received at the preliminary hearing may be received here; that any stipulations entered into at such hearing may be deemed to be entered into at this trial and both sides reserve the right to introduce additional evidence. The Court states he has read and considered the entire transcript of the preliminary hearing.' No contention is made on this appeal that such minutes are not correct. Which of the two records is to be deemed controlling is to be determined from a consideration of the circumstances under which the proceedings were had. (People v. Hymes, 161 Cal.App.2d 668, 674, 327 P.2d 219.) In the circumstances here presented it is clear that the minutes of the court must be held to be the controlling record.

Officer Ross testified that he arrested the defendant at 77 North Fair Oaks Avenue in Pasadena at approximately 3:30 a.m. on May 29, 1964. He said that his 'authority' for the arrest was a 'want' for violation of parole put out with respect to Mr. Prochnau which he received from his shift commander, Lieutenant Mennig, at approximately fifteen minutes before midnight on May 28. The information included a description of a car, a 1956 four-door Pontiac, cream and green in color.

Officer Ross further testified that at approximately 3:30 a.m. on May 29 he observed a vehicle similar to the one described. He turned on the red lights on his car and the other vehicle came to a stop in front of 77 North Fair Oaks. The defendant emerged from the driver's side and approached the officer. Upon being asked for identification, the defendant gave the officer a driver's license bearing his name. The officer advised the defendant that he was wanted for violation of parole and that he was being arrested for that reason. The car was impounded and taken to the police impound area at the rear of the police station.

On cross-examination Officer Ross testified that another person was in the vehicle when the defendant got out. That person was not then arrested. On redirect examination the officer said that the defendant was driving the car when he first saw him.

Officer Shaw testified that he went to the place where the Pontiac automobile was. When the tow truck arrived the automobile was towed to the impound area at the police station. Part of Officer Shaw's testimony as to what thereafter happened was as follows: 'I had a tow form partially made out. A portion of it was missing, the registered owner and what was in the vehicle. * * * I had opened the driver's side of the door, looked, did not see the registration posted. I looked on the sun visor and on the steering post and did not see any. When I had opened the door I noticed a key partially hidden under the floor mat on the left-hand side. There was only one key in the car that I could observe, that was the key in the ignition. I removed the other key from under the floor mat, placed it in the glove compartment, which was locked, turned it, and it opened. I was looking for a registration when I opened the glove compartment at that time. Upon opening the glove compartment I saw two automatic pistols laying one on top of another. * * * I locked the glove compartment at that time, closed the gates behind the car, and walked down behind the station and informed Sergeant James and Officer Ross of what was in the glove compartment. * * * (W)e returned to the vehicle and the impound stall, the keys of which I had kept with me. I again unlocked the glove compartment and withdrew this weapon, also another pistol, noted the serial, pulled back the slide and noted that the gun was cocked, the safety was on, there was one live round in the chamber, removed all the rounds for the gun, plus the one in the chamber, placed it in a plastic bag. Did the same to the second gun that was in the glove compartment. In the upper right-hand side of the glove compartment there was a plastic sack which contained various items which I withdrew.'

A further portion of Officer Shaw's testimony was: 'Q. Now I show you People's Three for identification and ask you if you have ever seen that weapon before? If so, where and when for the first time? A. Yes, sir, it was on the morning of the 29th of May, some time after the sun had risen, we were continuing to check the contents of this vehicle. * * * A. Officer Ross and myself. * * * A. After having made a list and itemized and checked the contents of the glove compartment, I removed the key and went to the trunk and opened up the same with the key that had been under the floor mat. As I opened it I noticed that there were two new white wall tires sitting on a suitcase. There was a large suitcase, an overnight bag. There were (sic) clothing in a brown paper sack, close to the rear of the car was a blue overnight bag. There was a new tire on the spare tire rim. Removed the tires, made note of the serial numbers, removed the suitcase, found that it belonged to Mr. Prochnau, with the personal clothing and papers. I lifted the blue overnight bag which was sitting toward the rear and closest to me and found it contained a great deal of weight and its size, it did not appear that it should weigh that much. In opening it I found laying lengthwise in the bag this sawed-of shotgun with a silver tape around the butt and the hand stock. * * * A. There was another sawed-of weapon in there.'

On cross-examination Officer Shaw said that he did not have a search warrant for the search of the car. He did find 'registration' in the glove compartment. He was not told by any officer to search the car. On redirect examination the officer was asked why he searched the car and he answered: 'It had the entire back seat covered with clothing. I wanted to make a list of it so there wouldn't be any discrepancies about when it was taken in and when it was again released to the owner.' That was why he initiated his search.

Officer Smith testified that he was one of the investigating officers in the case. About noontime on June 1 he had a conversation with the defendant in the jail division of the Pasadena Hall of Justice relating to weapons found in the car. Part of the officer's testimony was: 'He stated that he had no knowledge of any of these weapons, the sawed-off rifle or shotgun or the blue steel Star automatic, but he did state that this polished metal chrome .32 caliber automatic was his, that he had purchased it for his self protection from a person known to him, but that he refused to divulge his identity.' That statement was made freely and voluntarily.

At the trial, the defendant objected to the introduction in evidence of any of the seized objects, citing in support of his position the case of People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67. The objection was overruled.

In the resolution of the questions presented on this appeal it must be kept in mind that the defendant was on parole and that he was taken into physical custody by the Pasadena police pursuant to the request of his parole officer. (See People v. Garner, 234 Cal.App.2d 212, 226, 44 Cal.Rptr. 217.) In People v. Goss, 193 Cal.App.2d 720, at page 724, 14 Cal.Rptr. 569, 571, the court stated: 'It is clear that although on parole, the defendant was 'a prisoner under sentence and in the legal custody * * * of the Department of Corrections.' In re Marzec, 25 Cal.2d 794, 797, 154 P.2d 873, 874. He was subject to the rules and regulations of the Adult Authority (Pen.Code, § 3052), * * *. The granting of parole does not change his status as a prisoner but simply pushes back the prison walls for him, allowing him wider mobility and greater personal opportunity...