People v. Robinson

• Citation: 75 Cal.Rptr. 395,269 Cal.App.2d 789
• Decision Date: 18 February 1969
• Docket Number: Cr. 15279
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Edward ROBINSON, Defendant and Appellant.

Page 395

75 Cal.Rptr. 395

269 Cal.App.2d 789

The PEOPLE, Plaintiff and Respondent, v. Donald Edward ROBINSON, Defendant and Appellant.

Cr. 15279.

Court of Appeal, Second District, Division 1, California.

Feb. 18, 1969.

Rehearing Denied March 10, 1969.

Hearing Denied April 17, 1969.

R. Dennis French, North Hollywood, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin Deputy Atty. Gen., for plaintiff and respondent.

THOMPSON, Associate Justice.

Appellant was convicted of violation of Health and Safety Code section 11530, possession of marijuana. On this appeal, he raises the issue of whether the evidence upon which that conviction was based was legally obtained. ¹

On June 11, 1967, Manuel Mendez and his family were driving on California Avenue in the City of Long Beach. He heard shots and a slapping noise. Upon turning his head, he saw blood streaming from the face of his two-year-old daughter who was riding in the back seat. Mr. Mendez drove his daughter to the hospital, immediately returned to the scene, and called the police.

The officers arrived approximately twenty-five minutes after the shooting. They learned from Mr. Mendez that shots, one of which had struck his daughter, had been fired, and from Edward Campbell, a disinterested witness, that two separate volleys had been fired which might have emanated from a two-story building in the 1200 block of Lewis Avenue in the immediate vicinity of the injury to the Mendez child. Other persons who refused to identify themselves confirmed the information.

The officers went to the building, an apartment house, and at its rear saw a refrigerator that bore what appeared to them to be the marks of a ricocheted bullet. From the markings they concluded that the shots had come from apartment number 1 of the building. The officers entered the corridor of the building and approached apartment number 1. The door of the apartment was ajar about four inches, and through it the officers saw four empty cartridge cases laying on the floor about three feet inside the door. The officers, without identifying themselves or seeking permission to do so, entered the apartment with drawn guns.

There they saw the appellant lying face down on a bed with his arms beneath him. One of the officers saw the marijuana, which is the contraband upon which appellant's conviction is based, on a chair a few feet from the bed. The officers arrested appellant and searched the apartment discovering a number of empty cartridge cases and the weapon later established as that which fired the bullet removed from the face of the Mendez child. ²

Appellant contends before us that the marijuana found by the officers was obtained as a result of an illegal search. He bases his argument upon two grounds: (1) a claimed absence of probable cause sufficient to permit the officers to enter the apartment, and (2) a failure of compliance by the officers with the provisions of Penal Code section 844.

We conclude that appellant's argument is without merit on both grounds. Both appellant and respondent have approached the problem with the familiar cases and reasoning applicable to probable cause to arrest and searches incident to apprehension. That issue is not reached in the case before us. Entry of premises by officers neither pursuant to a search warrant nor incident to a lawful arrest is proper if exceptional circumstances are present. (People v. Roberts, 47 Cal.2d 374, 303 P.2d 721, moaning sound emanating from apartment; People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365, fresh pursuit; People v. Bauer, 241 Cal.App.2d 632, 50 Cal.Rptr. 687, report that murder had occurred on premises.) Here the officers were aware that within the past twenty-five minutes, two separate volleys of shots had been fired in the immediate vicinity and that an infant had been injured by one of those shots. Without entering the apartment they saw evidence in the form of cartridge cases which gave the strongest reason to believe that the shots had emanated from it. They were, as officers, fully entitled in the discharge of their duty...