People v. Romanoski

• Decision Date: 20 June 1984
• Citation: 204 Cal.Rptr. 33,157 Cal.App.3d 353
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alex ROMANOSKI, Defendant and Appellant. A017217.

Page 33

204 Cal.Rptr. 33

157 Cal.App.3d 353

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alex ROMANOSKI, Defendant and Appellant.

A017217.

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

June 20, 1984.

John K. Van de Kamp, Atty. Gen., Kristofer Jorstad, Ronald D. Smetana, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Juliana Drous, San Francisco, for defendant and appellant.

FLAHERTY, ^* Associate Justice.

Alex Romanoski appeals from a judgment of conviction on two counts of burglary. (Pen.Code, § 459.)

Both the hearing on the motion to suppress evidence and subsequent trial were based on the preliminary hearing transcript. After the preliminary hearing but before trial, appellant agreed to waive his right to a jury trial in exchange for the guarantee that he would be convicted of at most two counts of no more than second degree burglary and sentenced to a maximum three years in prison. Pursuant to this agreement, the remaining three counts were dismissed. ¹

On appeal, appellant claims that he did not expressly waive his privilege against self-incrimination, right to trial by jury, or right of confrontation upon submission of his case on the preliminary hearing transcript as required by Bunnell v. Superior Court (1975) 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086. Respondent concedes that appellant did not waive his privilege against self-incrimination. This error alone requires reversal of the judgment. (People v. Davis (1980) 103 Cal.App.3d 270, 275, 163 Cal.Rptr. 22.)

Because of appellant's possible retrial, we will address additional issues as presented by the briefs.

The preliminary hearing transcript indicates that on or about October 16, 1981 at 3:30 p.m., Mr. Allen Toy and his family left their home at 908 Junipero Way in Salinas. The Toys left an entrance to the house unlocked, as they were expecting a painter to visit their house.

When Mr. Toy returned home, he noticed that some belongings in his bedroom had been moved, and a video recorder, camera, jade and some cash were missing.

Officer John Butz of the Salinas Police Department investigated this burglary. He determined that a lamp had been moved near a window, and was able to obtain one fingerprint from that lamp.

On November 25, 1981, Mrs. Ethyl Pray left her home at 114 San Miguel Avenue in Salinas and returned on November 28, 1981. On her return, she noticed that the back door of her house was open and the house had been ransacked. Several items, including silver service for 12, stereo equipment and jewelry were missing.

Prior to the two burglaries, on October 10 or 11, 1981, Detective John Bohannan of the Salinas Police Department was told by Detective Lee Rossman of the West Covina Police Department that a warrant for the arrest of appellant was outstanding. According to Detective Rossman, appellant had been charged with an armed robbery in Los Angeles County, but failed to appear on the date set for trial. A bench warrant was issued for his arrest. The police also had information that appellant and Carol Ann Summers were frequent companions, and further, that Ms. Summers was in Salinas.

On December 1, 1981, Detective Bohannan saw a 1974 Ford, the two occupants of which he recognized as appellant and Ms. Summers. He followed the vehicle, and then attempted to stop it by activating his red lights. The driver of the vehicle accelerated, and a 70 m.p.h. chase of approximately two miles ensued.

After the vehicle stopped, the driver ran away from the officer, but was soon apprehended in a nearby apartment complex. Detective Bohannan then noticed some items in the back seat of the vehicle which he identified as property reported stolen from the Pray house in the police report of that burglary.

Appellant contends that the trial court erred by overruling his motion to suppress all evidence obtained in the search of the automobile incident to his arrest. Appellant claims the prosecution failed to prove the existence of a warrant for appellant's arrest since neither the warrant nor a certified copy thereof was admitted into evidence. Accordingly, he maintains that all evidence obtained as a result of that arrest is inadmissible.

Respondent asserts that the admission into evidence of a copy of the warrant, in addition to testimony from Detective Rossman who saw the warrant and told Detective Bohannan of its existence, was sufficient to establish the warrant's existence.

In spite of respondent's assertion, a copy of the warrant was not admitted into evidence. Detective Rossman possessed a copy of a "memorandum of the existence of a warrant," but did not possess a copy of the warrant itself, nor was one ever actually admitted into evidence. ²

"It is well settled that while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, 'when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.' [Citations.] To hold otherwise would permit the manufacture of reasonable grounds for arrest within a police department by one officer transmitting information purportedly known by him to another officer who did not know such information, without establishing under oath how the information had in fact been obtained by the former officer. [Citations.] 'If this were so, every utterance by a police officer would instantly and automatically acquire the dignity of official information; "reasonable cause" or "reasonable grounds," ... could be conveniently fashioned out of a two-step communication; and all Fourth Amendment safeguards would dissolve as a consequence.' [Citation.]" (Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667, 87 Cal.Rptr. 202, 470 P.2d 11, quoted with approval and emphasis added in People v. Ramirez (1983) 34 Cal.3d 541, 551, 194 Cal.Rptr. 454, 668 P.2d 761.)

In People v. Wohlleben (1968) 261 Cal.App.2d 461, 67 Cal.Rptr. 826, the defendant had complained of the absence of the original arrest warrants and the introduction of secondary evidence of their existence without a proper foundation being laid. The court found that upon defendant's objection as to the competency of the evidence of the warrants, it became incumbent on the prosecution to prove that the defendant was, in fact, the person named in the warrant. It was held that "[u]nless a foundation is laid for the use of other evidence, no evidence of the contents of a writing other than the writing itself is admissible." (Id., at p. 466, 67 Cal.Rptr. 826.)

In Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 85 Cal.Rptr. 493, the court dealt with a similar situation. The Hewitt court found that testimony of an officer who actually saw an abstract of a warrant come over a teletype machine was an adequate foundation for the introduction of that abstract as secondary evidence of the warrant. In Hewitt, "the prosecution offered not only the officer's testimony that he had seen a telegraphic abstract, but a copy of the abstract." (Id., at p. 929, 85 Cal.Rptr. 493.) The court determined that sufficiently satisfied the rule enunciated in Wohlleben, that the original warrant should be produced. (Id., at pp. 929-930, 85 Cal.Rptr. 493.)

Reliance on Hewitt is misplaced in this case. At the preliminary hearing Detective Rossman admitted not being present when the warrant was originally issued, and gave conflicting testimony as to whether he ever actually saw the warrant. ³ In addition, as previously noted, no written copy of a warrant or "memorandum of the existence of a warrant" was introduced into evidence.

Although not precisely on point, we find People v. Ramirez, supra, 34 Cal.3d 541, 194 Cal.Rptr. 454, 668 P.2d 761, particularly instructive for a proper determination on this issue. In Ramirez, a police officer, suspicious that two men were "up to something," approached the pair and asked them to identify themselves. The men complied by giving their names and addresses. The officer radioed for a warrant check and was informed that the computer revealed an outstanding bench warrant for defendant's arrest. The officer arrested defendant and during the booking search discovered a tinfoil bindle containing PCP. Defendant argued that his arrest and subsequent booking search were unlawful because the warrant on which the officer relied had been recalled several months earlier, and because no independent probable cause existed to arrest him. Our Supreme Court agreed, stating that "[i]f in Remers the inability of the People to justify the field officer's probable cause determination by reference to fellow officers invalidated the arrest, a fortiori here the subsequent discovery that the police had information actually negating any probable cause must invalidate defendant's arrest." (Id., at pp. 551-552, 194 Cal.Rptr. 454, 668 P.2d 761.) From Ramirez we infer that it is incumbent on the prosecution to produce the actual arrest warrant or certified copy so that the defense has an opportunity to ascertain whether the warrant was valid at the time of the defendant's arrest.

In the instant action no copy of the warrant was ever presented. Nor was evidence produced to show that the warrant was valid at the time of appellant's arrest. Although defense counsel continually requested better evidence of the warrant's existence than the testimony of Detective Rossman, none was forthcoming. Consequently, the defense was unable to test the validity of the warrant at the time of appellant's arrest. A rule requiring the production of an original warrant or certified copy upon request by the defense does not place an undue burden on the prosecution. (People v. Burke (1964) 61 Cal.2d 575, 578, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Wohlleben, supra, 261 Cal.App.2d at p. 466, 67 Cal.Rptr. 826.) Accordingly, we...