People v. Ramos

• Citation: 101 Cal.Rptr. 230,25 Cal.App.3d 529
• Decision Date: 04 April 1972
• Docket Number: Cr. 19561
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel RAMOS, Defendant and Appellant.

Page 230

101 Cal.Rptr. 230

25 Cal.App.3d 529

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel RAMOS, Defendant and Appellant.

Cr. 19561.

Court of Appeal, Second District, Division 5, California.

April 4, 1972.

Rehearing Denied April 26, 1972.

[25 Cal.App.3d 532] Michael S. Mink, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Barbara T. King, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

PROCEDURE

Defendant pleaded 'not guilty' to a charge of assault with intent to commit murder, in violation of section 217 of the Penal Code. A jury trial was had. After the People had examined three witnesses, marked a revolver as People's I for identification, and questioned one or more of the witnesses with respect to said revolver, defendant's attorney moved to suppress the revolver and any other evidence discovered at defendant's home at the time of his arrest on the grounds of illegal search and seizure. Although defendant's attorney had no excuse for his failure to make this motion--which all agreed was in the nature of a motion under Penal Code section 1538.5--at the proper time, the trial court, feeling defendant should not suffer from any dereliction on his attorney's part, held a full hearing on the Penal Code section 1538.5 motion out of the presence of the jury. The motion was denied.

The jury found defendant guilty of assault with a deadly weapon in violation of Penal Code section 245, as if it were 'a lesser but necessarily included offense' in that charged. Defendant motion for new trial was denied. Probation was denied, and defendant was committed to the Youth Authority for the term prescribed by law. Defendant appeals from the judgment.

BACKGROUND AND FACTS ESSENTIAL TO RESOLUTION OF ISSUES

Frederick Mendivil attended a large party in Wilmington on March 28, 1970, at the home of Sherie Welch.

About midnight the party was breaking up so Mendivil went outside to look for a ride home. He saw a young lady named Terry Welch by a trash can throwing up. Mendivil tried to help Terry, whom he had known about two years, into the house. Another individual named Dickie told Mendivil that he should get away, that he was watching the girl. He tried to fight with Mendivil. Mendivil turned around and saw a person in a white T-shirt and fire coming out of a gun. The person in the white T-shirt said, 'Did you feel it,' and then he started running. Mendivil could not see this person's face, but he noticed that he was short and stocky, had black hair, and was of Mexican descent.

Mendivil was taken to the hospital where he was operated on for a stomach wound. Mendivil testified that the gun used by the man in the T-shirt looked like People's Exhibit I and that it was a small revolver.

Sherie Welch, hostess of the party, was a witness to the shooting. When Mendivil and Dickie were having the argument, she identified defendant as one of the individuals standing nearby. She saw defendant go to his car. She next saw him walking towards her and Mendivil, approximately 12 feet from them. She saw a small dark-colored gun in defendant's right hand. He fired three shots at the ground and one at Mendivil and said, 'This is what you are going to get for messing around with my partner.' Mendivil smiled and put out his hand as though to shake hands, and defendant started to laugh. Dickie said to defendant, 'Come on, let's split. You shot him.' Then Dickie and defendant walked rapidly to the car from which defendant had come.

Detective James A. Raines of the Los Angeles County Sheriff's Department was assigned to investigate the Mendivil shooting. On March 29, 1970, at 5:30 a.m. he talked with Sherie Welch at her residence. Sherie identified defendant as the man who had shot Mendivil. ¹ She said she did not know defendant's address but she knew that Sally Rodriguez was defendant's wife's maiden name. Sherie also gave him a description of defendant.

Raines called the Firestone Station and obtained an address for a Sally Rodriguez, who turned out to be defendant's mother-in-law. He did not find defendant there. Defendant's mother-in-law told Raines that defendant and his wife lived in Compton. Raines obtained an address for defendant from the Compton Police Department records. He arrived at defendant's address at approximately 8:30 a.m. that same day. It was a one-story triplex. Raines knocked at the door nearest the street. A woman answered and in reply to his question told him that defendant lived in the back apartment. Raines and his partner, Deputy Henri, knocked in a normal fashion on the front door of the back apartment. When there was no response they knocked louder 'in case somebody was asleep.' Raines knocked approximately six times; then he heard sounds of one or more persons walking within the apartment. Raines announced in a loud clear voice that he was from the sheriff's office and was there 'conducting an investigation for (sic) Manuel Ramos.' Then he heard what sounded like fast running or walking within the apartment. Deputy Henri went around to the side of the house and looked through a window into the front room. He observed defendant standing by the front door clad only in his shorts. Officer Henri yelled, 'Open up, Sheriff's Department' several times. Defendant looked over, saw Henri, and then ran into the bedroom. Henri found that the window was open, stepped through it, and ran across the front room into the bedroom where he apprehended defendant. Henri entered the house because defendant fit the description of the suspect and because he knew that the suspect had possession of a gun. ²

The next thing Raines saw was his partner, Henri, opening the front door. Defendant was standing in the doorway between the bedroom and the living room. Raines asked him if he was Manuel Ramos. When defendant said 'Yes', Raines told him that he was under arrest for a violation of Penal Code section 217. Raines' partner then advised defendant '(t)hat he could remain silent; that anything he said could and would be used against (him) in a court of law; (that) he had the right to have an attorney present before (they) talked to him, and (that) if he could not afford to hire an attorney one would be appointed to represent him free of charge.' Defendant said that he understood his rights. He was then asked if he wished to talk about the case. Defendant said, 'Sure, I will tell you what happened.' Raines asked defendant if he had been at Sherie Welch's house the previous evening, and defendant replied that he had. Raines asked him if he had fired the shot. Defendant said that he had been there but that Robert Gonzales had fired the shots. ³ Raines asked him if he had any guns in the house. Defendant replied, 'No, go ahead and look.' Raines said, 'Is it all right for us to look around?' Defendant replied, 'Sure, man. Go ahead.' Defendant's wife was sitting on the corner of the bed, and Raines asked her to stand up. She said, 'Why?' Raines replied that he wanted 'to look under the mattress for a weapon.' She stood up. Raines looked about the mattress and observed a .22 caliber black revolver with a short barrel and two boxes of .22 cartridges.

I. Problem of Consent to Search

Defendant claims that People's Exhibit I (the revolver) was the product of an illegal search and that the trial court erred in denying his motion to suppress. Defendant's position is that the search was illegal (1) because he was not warned of his right to refuse consent to the search and (2) because defendant's consent was not freely and voluntarily given. A case in point is People v. Tremayne, 20 Cal.App.3d 1006, 98 Cal.Rptr. 193. There the court fully analyzed the postulate that a consent given without prior advisement of 'the right' to refuse such consent is violative of the Fourth Amendment, noting that the Constitutional protection is only against unreasonable searches and seizures 'and does not confer a right not to be searched or not to be searched without a warrant.' The Court of Appeal concluded, 'Consent to a search confers authority to search; establishes the reasonable nature of a search premised thereon; is not a waiver of a constitutional right; and is effective without warning the person giving the consent he might refuse to consent.' (P. 1015, 98 Cal.Rptr. p. 198.) (See also, People v. Thomas, 12 Cal.App.3d 1102, 1107, 91 Cal.Rptr. 867, fn. 1 (dicta to the same effect); People v. Hidalgo, 7 Cal.App.3d 525, 529, 86 Cal.Rptr. 660.)

The real issue here is whether the consent was freely and voluntarily given. The fact that a person was not warned that he had a right to refuse to consent to a search is a circumstance to be considered in determining whether his consent was freely and voluntarily given. (People v. Superior Court, 71 Cal.2d 265, 270, 78 Cal.Rptr. 210, 455 P.2d 146, fn. 7; People v. Stark, 275 Cal.App.2d 712, 715, 80 Cal.Rptr. 307.) The fact that an accused is under arrest at the time he consents to a search (as defendant was in this case) does not establish as a matter of law that his consent was not given freely and voluntarily (People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Cockrell, 63 Cal.2d 659, 667, 47 Cal.Rptr. 788, 408 P.2d 116.) Whether a consent is freely and voluntarily given is a question of fact. (People v. Smith, Supra, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852.)

The officer did not directly ask defendant if they could search his house, but asked whether defendant had any guns in the house. This question in one respect implies that they would have asked to search if defendant had given an affirmative answer to their question. However, defendant suggested that the police officers search his home for weapons before any actual request was made by the officers to do...