People v. Sahagun, Cr. 9953

CourtCalifornia Court of Appeals
Citation89 Cal.App.3d 1,152 Cal.Rptr. 233
Decision Date30 January 1979
Docket NumberCr. 9953
PartiesThe PEOPLE of the State of California, Plaintiff and Appellant, v. Paul Xavier SAHAGUN and Robert Andre Gilboe, Defendants and Respondents.

Page 233

152 Cal.Rptr. 233
89 Cal.App.3d 1
The PEOPLE of the State of California, Plaintiff and Appellant,
Paul Xavier SAHAGUN and Robert Andre Gilboe, Defendants and Respondents.
Cr. 9953.
Court of Appeal, Fourth District, Division 2, California.
Jan. 30, 1979.
Hearing Denied March 29, 1979.

[89 Cal.App.3d 5]

Page 236

Byron C. Morton, Dist. Atty., Sue F. Steding, Sue F. De Gasperin and Jeffrey J. Prevost, Deputy Dist. Attys., for plaintiff and appellant.

Robert D. Rudnick, Palm Springs, for defendant and respondent Paul Xavier Sahagun.

Miller, Boyko & Bell, Roy Morrow Bell, Fletcher W. Paddison and F. Latimer Gould, San Diego, for defendant and respondent Robert Andre Gilboe.


[89 Cal.App.3d 6] KAUFMAN, Associate Justice.

The People appeal from an order of the Riverside Superior Court setting aside an indictment. The record discloses numerous errors, not the least of which was the court's deciding the principal question at issue on the basis of unsworn statements of defense counsel received in camera, outside the presence of the People's legal representative. Accordingly, the order will be reversed and the case remanded to the trial court for relitigation of the several questions involved in proper proceedings.

On February 22, 1978, the grand jury of Riverside County returned an indictment against defendants Sahagun and Gilboe charging them jointly in count II with grand theft (Pen.Code, § 487, subd. 1) on January 5, 1977, and in count III with trafficking in supplies bearing a registered trademark or tradename (Bus. & Prof.Code, §§ 14484-14491) on the same date; separately charging defendant Gilboe in count IV with receiving stolen property, a felony (Pen.Code, § 496), on or about January 1, 1977, and separately charging defendant Sahagun in count I with grand theft (Pen.Code, § 487, subd. 1) on December 29, 1976.

Although defendants assert that the incriminating evidence was obtained through an unlawful search and seizure and was therefore incompetent, they do not otherwise contend the evidence was insufficient to establish probable cause. Accordingly, the facts may be summarized as follows.

Environmentals, Incorporated is in the business of renting clean linens to hotels,

Page 237

motels, hospitals and similar institutions. Although its principal place of business is in Anaheim, it does considerable business in the Palm Springs area. Defendant Sahagun was employed as a route man by Environmentals. His duties included driving a truck loaded with fresh linen supplies over a designated route in the Palm Springs area, calling on specified contract customers of Environmentals and delivering to them linens from the truck. The customers would sign a receipt for the linens received by them. Sahagun would then drive the truck back to Environmentals. Theoretically, the total of the linens for which Sahagun had receipts from customers plus the linens remaining in the truck, if any, on his return would be equal to the total amount of linens with which the truck was loaded when he left to cover the route.

[89 Cal.App.3d 7] Mr. Howard Dickson, the plant manager for Environmentals, became suspicious that Sahagun was improperly disposing of linens because he was chronically short upon returning to the Orange County plant. On December 28, 1976, when Sahagun's truck was loaded, Dickson assured himself that the inventory of linens placed in the truck was correct and then locked the truck with new locks to which he had the only keys. The truck remained so locked until the morning of December 29. That morning Mr. Dickson unlocked the truck but kept the truck under his own personal observation until Sahagun drove it out the gate. When Sahagun returned with the truck that evening, the customers' receipts were tallied and the remaining linens on the truck inventoried. Some $1,100 worth of linens were unaccounted for, including 100 double-sized sheets, 280 large bath towels, 140 hand towels and 100 bathmats. In all, they made up some 14 bundles of linen that had been on the truck when it left the plant on the morning of December 29. All the missing linens had on them the registered trademark or tradename of Environmentals, as did all the linens rented by Environmentals to its customers.

On the evening of January 4, and the morning of January 5, 1977, Mr. Dickson engaged in the same procedures as he had on December 28 and 29 to ensure the accuracy of the inventory of linens on Mr. Sahagun's truck when it left the plant on January 5.

Defendant Gilboe was the proprietor of a hotel in Palm Springs known as the Holiday Lodge. He was a contract customer of Environmentals. The contract between Environmentals and Mr. Gilboe with respect to Holiday Lodge was renewed October 15, 1976, for a period of one and a half years. It contained a provision authorizing Environmentals' employees to enter the premises of Holiday Lodge during normal business hours for the purpose of taking a physical inventory "and or recovery of the items of linen rented." At an earlier time defendant Sahagun had been assigned a route that included Holiday Lodge as a customer to be serviced. However, on January 5, 1977, Mr. Sahagun's authorized route did not include the Holiday Lodge or Mr. Gilboe, and Mr. Sahagun was not authorized to deliver any linens to Mr. Gilboe or Holiday Lodge.

Mr. Oscar Perez was the production manager for Environmentals, Incorporated. At the direction of his employer he had attempted to follow Mr. Sahagun on his route on December 29 but had lost him. During the day of January 5, 1977, he observed at the Holiday Lodge the Environmentals truck, driven by Mr. Sahagun. He saw defendants Sahagun and Gilboe taking bundles of linens from the truck and putting [89 Cal.App.3d 8] them into canvas laundry hampers. The hampers were the property of Environmentals, and Gilboe was not authorized to have them. Perez saw Gilboe and Sahagun push one of the laundry hampers inside an enclosure and put it inside an International Travel-All. He then saw defendants Gilboe and Sahagun being arrested, after which he and a man named Bill Biernat made a list of the linens belonging to Environmentals found at the scene. Some of the linens were in the hamper that Gilboe and Sahagun "were loading at the time," and some were inside the Travel-All, and the balance was inside a shed behind the building. In

Page 238

all, the linens recovered were worth approximately $6,000.

In connection with Mr. Perez' testimony that some of the linens were found in "a shed behind the building," he was asked how he had gotten back there to do that and responded: "We walked through that door that Mr. Gilboe opened." He further testified that Mr. Gilboe opened the door at the request of Mr. Biernat, a security consultant for Environmentals. 1 Palm Springs Police Officer Gary Dean White testified that he and another officer named Jackson went to the Holiday Lodge on January 5, 1977, after being contacted by Bill Biernat, and there arrested defendants Gilboe and Sahagun. He further testified that Mr. Biernat asked Mr. Gilboe "to return the rest of his linen" and that in response Mr. Gilboe opened the gate to a yard area where the Travel-All van was sitting partially filled with linens. He also testified that Environmentals' truck was parked directly in front of the Holiday Lodge, that the side door of the truck was open and that a laundry bin was next to it with linens in it. Photographs depicting these things were exhibited to the grand jury as was a photograph of the shed at the edge of the yard area inside the gate that showed linen within it covered with a piece of plastic.

Mr. Lou Silver, an area manager for Environmentals, testified that as one of his duties he took inventories on a regular basis at all accounts in the desert area and that every time without exception that he attempted to take an inventory at Holiday Lodge he met with some type of opposition and frequently was not successful in making an inventory. On January 4, 1977, he attempted to take an inventory at Holiday Lodge but was unsuccessful because Mr. Gilboe was not on the premises and the manager stated she did not have a key to the storage area. He then got in touch with Mr. Gilboe and arranged to take an inventory the following morning January 5, 1977. When he took inventory that morning, the [89 Cal.App.3d 9] linens were all in two storage closets inside the lodge. He specifically asked Mr. Gilboe if there were any linens stored in any other area on the premises, "any type of reserve or whatever," and Gilboe replied positively "no." The inventory he took on the morning of January 5 disclosed an amount of linens appropriate for what Gilboe should have had. Finally, Mr. Silver testified that later in the day on January 5, he saw the storage shed and the Travel-All van with linens in them, that their location was altogether different from the linen closets where he had made his inventory earlier in the day, that he had no knowledge linens were being stored in the Travel-All van or the shed, and that "these were big quantities of linen."

Although the exact date is not disclosed by the record, defendants Sahagun and Gilboe were apparently arraigned on the indictment in due course.

On April 4, 1978, defendant Gilboe filed a notice of motion to set aside the indictment on the ground he had been indicted without reasonable or probable cause. (See Pen.Code, § 995, first subd. 2.) The basis for the motion was that "the evidence . . . considered before the grand jury is, as a matter of law, incompetent evidence . . . in that such evidence has been previously suppressed before a court of competent jurisdiction as seized in violation of defendant GILBOE's constitutional rights, and that such an exclusion of this evidence upon which the indictment is made, and any fruits of that evidence gained thereby, renders that evidence incompetent for any further legal purpose, including, but not...

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