People v. Raine

• Decision Date: 28 April 1967
• Docket Number: Cr. 5659
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard L. RAINE, Defendant and Appellant.

Page 753

58 Cal.Rptr. 753

250 Cal.App.2d 517

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard L. RAINE, Defendant and Appellant.

Cr. 5659.

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

April 28, 1967.

Rehearing Denied May 26, 1967.

Allen B. Ellis, San Francisco, for appellant (Under appointment of Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, John T. Murphy, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Associate Justice.

Defendant appeals following jury conviction of second degree burglary (Pen.Code §§ 459, 460) and five counts of forgery (Pen.Code § 470). His main contention is that certain evidence used to convict him was obtained by an illegal search and that, without such evidence, the testimony of his accomplice was not sufficiently corroborated as required by Penal Code section 1111. ¹

Seymore, the accomplice, testified that he and appellant broke into the Dennis Roofing Company, in Richmond, about midnight on December 22, 1964. They took a television set, some credit cards and identification cards issued to Gilbert or Delphine Dennis, numerous keys and tools, and some blank company bank checks, several of which appellant filled out while still on the burglarized premises.

The next day appellant and his wife cashed four of these checks of four different stores in Walnut Creek. Seymore used a fifth check to buy a used car. The forgery counts are based on these five transactions.

On the evening of March 10, 1965, appellant's wife requested a room for two persons at the tahoe Sands Motel. She signed the registration card as 'Mrs. D. Dennis,' of 'Dennis Roofing Co.,' and gave her residence address as 1378 Thomas Road, Phoenix, Arizona. She was assigned to Room 24. Nothing in advance was paid or requested.

By the next evening the motel manager had become worried about the bill, particularly because of the size of the charges incurred for food and beverages. A phone call to Phoenix disclosed the fact that there was no 'Mrs. Dennis' at the address given.

The office of the Sheriff of El Dorado County was then asked to check on the occupants' MG automobile. Investigation disclosed that it was a stolen car.

About 6:30 the next morning, March 12, deputy sheriffs went to Room 24 and arrested the occupants, appellant and his wife, for car theft. The arrest was made without a warrant but there is no contention that it was unlawful.

The motel manager thereafter phoned the sheriff's office and asked the deputy who answered to inquire about payment of the bill, which totaled $78. While holding the phone, he heard appellant's wife say, 'We don't have a dime.' When the deputy came back on the line, he advised the manager that 'they weren't going to be able to pay it (the bill).'

About 9:00 or 9:30 that same morning, the officers returned to the motel and asked to be allowed to search Room 24. The manager gave his consent, unlocked the door, and entered with them. Some of the credit cars and identification cards taken in the Dennis burglary were found hidden behind a baseboard which had been pulled slightly away from the wall. These cards are the evidence which appellant contends were obtained by means of an illegal search.

After the search the manager had the maid remove and store the occupants' belongings. The room was then prepared for the next occupancy. Three months later the appellant paid the bill and retrieved the belongings.

Legality of Search

The search was made without a search warrant and was not incident to the arrest; neither appellant nor his wife expressly or impliedly consented to the search; there is nothing in the record which would justify a belief by the officers that the motel manager was authorized by appellant or his wife to permit such a search. (See Stoner v. State of California (1964) 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.)

Under such circumstances the search was lawful only if the right of appellant and his wife to the occupancy of the room had then terminated.

Appellant asserts that the 'tenancy did not terminate until 11:00 a.m., on March 12,' the day of the arrest and search. Such conclusion is based entirely upon the implication arising from the fact that this was the motel's daily checkout time.

The manager testified that a request for payment could be made at any time and that, if 'these people hadn't been arrested that morning,' he 'would have went in and said, we want our money.'

It is our opinion that if the reply to such request had been that 'we don't have a dime' and are not 'going to be able to pay,' the manager would have had the right to require appellant and his wife to give up their occupancy of the room.

The actual situation is parallel. While the request for payment was made by telephone and only appellant's wife was contacted, she was the only person with whom the motel had dealt. In fact, appellant himself was never seen by any of the motel personnel until the time of his arrest. We think that the circumstances sufficiently show that appellant had authorized his wife to act for him in connection with their tenancy of the motel room.

Furthermore, when a day-to-day room guest of a hotel or motel departs without any intention of occupying the room any longer and without making any arrangement for payment of his bill, an inference arises that he has abandoned his tenancy. In such a situation the management should not be required to wait until checkout time to reoccupy the room to the exclusion of such guest. This is so even though the guest leaves some of his personal belongings behind.

The above generalization is without doubt applicable to a voluntary departure and, while the departure here was involuntary, it was occasioned by a Lawful arrest. We see no reason to distinguish between these two situations, particularly when appellant and his wife made no effort to arrange to pay the bill even after being contacted by the motel manager.

Under the circumstances of this case, as detailed above, we hold that the manager regained the right to complete control of Room 24 upon the departure of appellant and his wife and, therefore, his consent to the search made it lawful. (See People v. Crayton, 174 Cal.App.2d 267, 269, 344 P.2d 627.) The evidence obtained thereby is therefore admissible.

In view of this holding, it is unnecessary to detail the additional corroborating evidence. Such evidence includes proof that appellant pawned the television set, hid the keys in a trailer, and wrote out the subject checks on blanks obtained in the burglary.

In addition to accomplice Seymore and the witnesses who testified as to the motel episode, the prosecution called seven factual witnesses and one handwriting expert. Their testimony, standing alone, overwhelmingly proves appellant's guilt of each of the six counts. In our opinion there is no reasonable possibility of a different result even if the motel evidence were to be excluded.

Prosecution's Use of Wife's Confession

Appellant called his wife as a witness. She had previously given a tape-recorded confession to the police and, in a separate action, had pleaded guilty to cashing three of the checks which appellant is charged with forging. No contention is made that this confession was not in all respects validly obtained. (Cf. People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.)

In her confession, the wife stated that appellant gave her the three checks, directed her to the stores where she cashed them, waited outside in his car while she was doing so, and received from her the merchandise and cash which she had thereby obtained.

At the trial, however, the wife testified that it was Seymore who gave her the checks which she had cashed and that appellant did not participate in or have any knowledge of the commission of these offenses.

On rebuttal, the prosecution sought to impeach the wife by playing those portions of the tape recording which related to her testimony at the trial. The right to impeach a witness 'by evidence that he has made, at other times, statements inconsistent with his present testimony' is recognized by statute. (Code Civ.Proc. § 2052, as then in existence.)

Defense counsel objected to the admission in evidence of the Entire recording, stating that 'it's our position that as to the matters which are collateral and which were not mentioned in the foundation, the tape would be inadmissible as improper impeachment.' The court recognized the merit of this objection, stating that 'I understood there were some things which had to do with some matters which were not the subject matter of this trial, which he (the prosecutor) was not going to play.' The prosecutor replied: 'That is correct, Your Honor.'

The court then stated: 'I'll overrule the objection and I will admit the recording as to matters which the witness has been examined on here, and it will be admitted for a limited purpose of impeachment.'

The court then addressed the following explanation to the jury: 'Ladies and gentlemen, it's not offered for the purpose of proving the truth of any statements that occurred in there, but it's offered for the purpose of tending to impeach the testimony of the witness here, Mrs. Raine, in the respect that it would tend to show she's made statements other times inconsistent with her present testimony. For that limited purpose only, I will admit the tape.' ²

The jury was then excused temporarily and the tape was played for the dual purpose of having the officer who conducted the interview verify that it was an accurate recording of the entire interview and, in the words of defense counsel, to settle 'the question of which parts, I think perhaps that should be gone into with the officer, so we might explain to him which parts are going to be played and which aren't.'

Following the above proceedings the jury was returned to the courtroom. Appellant's counsel...