People v. Risley

• Decision Date: 20 February 1963
• Docket Number: Cr. 8095
• Citation: 213 Cal.App.2d 219,28 Cal.Rptr. 568
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alian Jack RISLEY, Defendant and Appellant.

Page 568

28 Cal.Rptr. 568

213 Cal.App.2d 219

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alian Jack RISLEY, Defendant and Appellant.

Cr. 8095.

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

Feb. 20, 1963.

Patrick Coleman, Hollywood, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Vincent W. Thorpe, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant, Allan Jack Risley, was charged by information with four counts of violation of Penal Code, § 288a, and one count of statutory rape, Penal Code, § 261(1). After a court trial defendant was convicted of the charge in count I of violating Penal Code, § 288a and was found guilty of contributing to the delinquency of a minor, a lesser offense included in the charge of rape. He was found not guilty of the remaining three counts of violating Penal Code, § 288a.

Defendant appeals from an order denying a new trial, order granting probation, and from the final judgment of conviction.

Three claims of error are advanced, namely, (1) introduction into evidence of photographs which were obtained by illegal search and seizure, (2) failure to require corroboration of testimony of a minor who willingly participated in sexual acts, in regard to the offense of contributing to the delinquency of a minor, and (3) that there was insufficient corroboration of accomplice testimony.

The victim in each instance of conviction was Diana, a 16-year-old girl. She and her friend Myrna, 15 years of age, saw appellant with his friends John Coogan and Harry Mehterian several times in January and February of 1961 at the Risley used car lot on Ventura Boulevard near Sepulveda Boulevard in Los Angeles.

On or about February 10, Diana and Myrna went to the Risley lot and met appellant and co-defendant, Harry Mehterian. On that occasion Diana and Myrna participated with defendant and co-defendant Mehterian in acts of sexual perversion in violation of Penal Code § 288a, i. e., fellatio.

Subsequently, on or about February 17, Diana and Myrna again went to the Risley lot. On this occasion appellant and co-defendant John Anthony Coogan, were present. The two girls, defendant and Coogan went to a trailer on the used car lot where Diana participated in like acts of sexual perversion with both defendant Risley and co-defendant Coogan. Pictures were taken with a Polaroid camera showing Diana engaging in such acts with defendant and with Coogan.

Myrna did not participate in the offense with either of the men on that day, but one of the defendants then handcuffed Myrna and suspended her from the trailer rafter, unbuttoned her blouse so that the upper part of her body was nude and took pictures of her.

At a later date Diana went with defendant to his father's apartment about one-half block away from the used car lot and there they again violated § 288a of the Penal Code.

About two weeks after this last event on March 7, 1961, Myrna talked to juvenile officers and told Sergeant Cain and Policewoman Hauck about the Polaroid camera. On that same day, at about 1:00 p. m., Officers Rondolone and Mercier and Sergeant Vausbinder went to the Risley lot to assist Sergeant Cain of Juvenile Division in the arrest of persons involved in sexual perversion. Sergeant Cain had told Officer Rondolone that there were lewd photographs and stories in the trailer at that location. The officers had no warrant for search or arrest.

On arriving at the lot, Officer Rondolone arrested defendant Mehterian and was informed that appellant was home sick in bed. His father was in the trailer at that time and was asked if a search could be made of the premises. He replied that the officers could go ahead. In drawers in the trailer the officers found nude photos. Defendant's father stated they belonged to defendant (appellant). Sergeant Vausbinder and Officer Mercier left to arrest defendant. Officer Rondolone stayed to talk to defendant Mehterian about the lewd acts with the girls. Defendant Mehterian admitted knowing the girls and seeing them on the lot.

Officer Rondolone took defendant Mehterian to the police station and booked him. At the station, Policewoman Hauck informed Rondolone that there was a Polaroid Land Camera which had been used to photograph the criminal acts, a movie projector, rolls of lewd film, and photo albums in one of three Railway Express trucks which were on the used car lot.

Officer Rondolone returned to the lot at 2:35 p. m. He testified that he looked through the rear doors of the only truck van which was locked and he saw a Polaroid camera on the floor. He asked defendant's father for the keys but was told that he did not know where they were. Officer Rondolone told defendant's father what he could see through the door and stated he would have to make a forcible entry if the keys were not found. Defendant's father replied, "you do what you think is necessary."

The father testified that the doors to the truck had flanges upon them and when the doors were closed that the flanges overlapped and it was impossible to see inside the truck. Photographs showing the flanges on the doors of the truck and the overlap of the flanges when the doors were closed were introduced into evidence. The father also testified that the truck was not on defendant's lot but on the land next to defendant's land. The truck in question belonged to a third party. The other two trucks were on the lot and were on consignment to defendant for sale. Defendant's father told the officer that the third truck did not belong to defendant.

Officer Rondolone broke the lock from the door of that van and entered. He found a Polaroid Land Camera and the pictures received as exhibits 1, 2, 3, 5 and 6, which were in two albums marked 'Family Albums.' The pictures entered as exhibits 1 and 2 were shown to defendant that same day; they showed a man and a woman engaged in an act of fellatio. At that time defendant admitted that these were photographs of him and Diana.

Defendant's primary contention is that the photographs in question were obtained by an unlawful search and seizure and were therefore improperly admitted in evidence.

Respondent submits that the search and seizure were legal upon various grounds,--among others, that the statements of the two girls, Myrna and Diana, that were related by a policewoman to the officer gave probable cause to break the lock on the truck and search it, and that the search and seizure were incident to a lawful arrest.

The officer testified that he saw the camera in the truck by looking through the one-fourth inch crack between the doors; therefore, he had probable cause to break in and search the truck. Defendant's father testified and introduced photographs which seem to show that the flanges on the doors overlapped, there was no crack between the doors and therefore the officer could not have seen inside the truck. Defendant contends that since the officer could not see the camera inside the truck he did not have probable cause to search. The trial court did not make a finding upon this conflicting testimony as the judge felt that the officer had probable cause to search the truck regardless of whether he could see inside. The judge felt that the girls' statements that the camera and photographs were in one of the trucks were sufficient to give the officer probable cause. Those statements in and of themselves would not justify the search without a warrant unless the search was incident to a lawful arrest, and unless we find that the search was incident to a lawful arrest it would be in violation of defendant's constitutional rights and the camera and photographs seized would be inadmissible as evidence.

Defendant submits as a result of the United States Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that all state courts are now bound by the federal decisions, by virtue of the supremacy clause, as to what is and what is not an unreasonable search and seizure. The Supreme Court held in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828, that where the search of a house is concerned the officers must have a warrant to make a legal search and seizure unless it is done as an incident to a lawful arrest. Mapp v. Ohio, supra, extends this requirement to state officers also.

Following the Chapman and Mapp decisions, the search would be illegal unless incident to a lawful arrest. But it is not contended that the arrests of the defendant and his co-defendant Mehterian were unlawful.

The general rule in such a situation has been stated many times in California. The Supreme Court pointed out in People v. Winston, 46 Cal.2d 151, 293 P.2d 40, that where the issue is whether a search and seizure is legal as incident to a lawful arrest, "* * * [t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." (P. 163, 293 P.2d at page 47)

The issue then is whether the police officers here were acting unreasonably under the circumstances. 'Searches and seizures incident to arrests are not unreasonable, but, in the absence of unusual circumstances, are entirely reasonable, ¹ if made in good faith and limited to the seizure of evidence relating to the crime suspected or charged. ² ' (44 Cal.Jur.2d, Searches and Seizures, § 48, p. 375.) Here the defendant does not contend that the officers did not have good cause to arrest him or his co-defendant Mehterian. There is no evidence that the officers did not act in good faith and the seizure of the evidence complained of unquestionably relates to the crime of which defendants were suspected.

To support his claim that the search here was unreasonable, defendant relies upon cases to the effect that a search must be conducted at the place of arrest (Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Hernandez v. Superior Court, 143 Cal.App.2d 20, 299 P.2d...