People v. Sanchez

• Citation: 2 Cal.App.3d 467,82 Cal.Rptr. 582
• Decision Date: 09 December 1969
• Docket Number: Cr. 7456
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard SANCHEZ and Lazaro Deanda, Defendants and Appellants.
• Court: California Court of Appeals

Page 582

82 Cal.Rptr. 582

2 Cal.App.3d 467

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard SANCHEZ and Lazaro Deanda, Defendants and Appellants.

Cr. 7456.

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

Dec. 9, 1969.

Hearing Denied Feb. 5, 1970.

Richard C. Turrone, San Jose, Cal., for appellant.

Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, Cal., for respondent.

MOLINARI, Presiding Justice.

Defendant Richard Sanchez appeals from a judgment entered on a jury verdict finding him guilty of violating section 11500 of the Health and Safety Code (possession of a narcotic: heroin). ¹ He raises four contentions: (1) That the trial court committed error in denying his motion made pursuant to Penal Code section 1538.5 on the basis that he was arrested in violation of the provisions of section 844 of the Penal Code ² providing when a door of a house may be broken in order to make an arrest; (2) that he was denied the right to counsel because defense counsel represented defendants with conflicting interests; (3) his 1964 felony offense was improperly charged as a prior conviction; and (4) the language and method used to alleged the prior felony offense constituted prejudicial error. We have examined these contentions and find them to be without merit.

The Arrest

On April 5, 1968, at about 12:50 p.m., the San Jose Police Department received a telephone call from Mrs. Gertrude Wilson, who lived at 564 Minor Street, that she believed there were prowlers in the house next door at 560 Minor Street. The latter building was unoccupied and had been abandoned since October or November 1967. Mrs. Wilson had telephoned the police on several previous occasions concerning prowlers in the unoccupied house. On this particular day Mrs. Wilson heard the noise of people walking inside 560 Minor Street, and she observed a man at a window of these premises. She also observed an old tan station wagon parked in front of these premises.

At about 12:50 p.m. Officer Dennis McKenzie, who was patrolling in a marked police car, received a call from the police dispatcher to investigate a report of 'prowlers' at 560 Minor Street. McKenzie knew that this house was unoccupied and abandoned because it was in an area where a large number of homes had been condemned for freeway construction. Within two to five minutes after receiving the call McKenzie arrived at 560 Minor Street. He tried to open the front door but was unable to do so. He then walked around the side of the house. While doing so he heard voices inside the house and observed figures through a side window. He was unable to hear what was being said nor could he identify the figures.

McKenzie proceeded to the rear of the house and entered the building through an unlocked screen door onto the back porch area. He then walked into the kitchen which did not have a door, and proceeded into a small utility room in which there were no furnishings. This room, which had only one window, was the room in which he had previously observed the figures from the outside. The lower part of the window was raised. McKenzie did not knock or announce his presence at any time prior to his entry into the utility room.

Upon entering the utility room McKenzie observed two men and a woman who was holding a child. A man, identified as defendant, was squatting down with his right arm flexed, about five feet from McKenzie. Defendant's left hand, which appeared to be holding something, was in the crevice of his right arm. The other man, later identified as codefendant Lazaro Deanda, was partially concealed a few feet behind defendant in a stooped-down position. McKenzie observed a bent spoon and medicine dropper with a needle at the end of it at defendant's feet. He felt that there was a possibility of a narcotics violation, so he drew his service revolver and ordered defendants to raise their hands and to stand against the wall. As he gave this order defendants appeared to move towards the open window and McKenzie then saw objects flying out of the window. McKenzie then ordered defendants to place their hands against the wall and they did so.

A search upon the arrival of other police officers uncovered narcotic paraphernalia about the room in several places, and a search of the outside area below the open window uncovered other possible narcotic equipment along with a folded paper which contained heroin. Defendants were then taken to the police station.

Adverting to defendant's contention that the trial court should have granted his pretrial motion for suppression of the evidence pursuant to section 1538.5 because there was a violation of section 844, we observe that an entry of a house in violation of section 844 renders any following search and seizure unreasonable within the meaning of the Fourth Amendment. (Greven v. Superior Court, 71 A.C. 303, 306 78 Cal.Rptr. 504, 455 P.2d 432; People v. Rosales, 68 Cal.2d 299, 304--305, 66 Cal.Rptr. 1, 437 P.2d 489.) Section 844 provides, in pertinent part, as follows: 'To make an arrest, * * * a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.' It is conceded by the Attorney General that even the minimal requirements ³ of this section were not complied with. However, it is the People's contention that section 844 is not applicable to the facts of this case.

We agree with the People's contention that section 844 does not apply here. Initially we point out that while the structure in question may constitute a 'house' within the meaning of section 844, the cases which have construed the application of the section indicate that its purpose is 'to preclude violent resistance to unexplained entries and to protect the security of innocent persons who may also be present on premises where an arrest is made' (People v. Rosales, supra, 68 Cal.2d 299, 304, 66 Cal.Rptr. 1, 4, 437 P.2d 489, 492), and that the section is primarily designed to protect the fundamental right deeply rooted in our heritage that a person cannot lawfully be arrested in a home by officers breaking in unless the officers first give him notice of their authority and purpose. (People v. Beamon, 268 A.C.A. 65, 67--68, 73 Cal.Rptr. 604; People v. Rosales, supra, 68 Cal.2d at pp. 304--305, 66 Cal.Rptr. 1, 437 P.2d 489; see Miller v. United States, 357 U.S. 301, 313--314, 78 S.Ct. 1190, 2 L.Ed.2d 1332.) In Rosales we find this significant language: "Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house." (68 Cal.2d p. 304, 66 Cal.Rptr. p. 5, 437 P.2d p. 493; emphasis added.)

In People v. Ortiz, 276 A.C.A. 13, 16, 80 Cal.Rptr. 469, it was held that where police officers have reason to believe that there is no lawful occupant in a house, ⁴ it is reasonable for them to conclude that any person living inside the house is a trespasser and compliance with section 844 is unnecessary. In so holding the reviewing court stated as follows: 'Penal Code section 844 is not to be used to protect a trespasser's right to privacy in someone else's home. A trespasser--or a burglar--cannot make another man's home his castle. * * * When police officers have reasonable cause to believe that persons within a house are either trespassers or burglars we do not construe these individuals as householders entitled to the protection of Penal Code, Section 844.' (Pp. 16--17, 80 Cal.Rptr. p. 472.)

A factual situation similar to that in the instant case, except that there the building entered was an abandoned garage to the rear of an abandoned dwelling, was considered in People v. Medina, 265 Cal.App.2d 703, 71 Cal.Rptr. 586. In holding that section 844 was not applicable the reviewing court stated: 'Under the circumstances, it was reasonable for the deputy to believe that both the house and the garage were abandoned; he was also justified in the belief that those persons he saw in the garage 'had no business there' and 'were not the occupants of the house,' but car thieves who had chosen the garage because it was abandoned in which to hide and strip a stolen car.' (P. 708, 71 Cal.Rptr. p. 589.) ⁵

In the instant case, while the structure came within the definition of a house, it was not the type of house contemplated by section 844 since it was abandoned and was known to be abandoned by both McKenzie and defendants. Clearly it was not a home; more significantly it was a building which defendants did not have a right to occupy. Defendants were not innocent persons or the type of householder the statute was designed to protect in view of defendant's testimony that he had entered the premises for the purpose of stealing fixtures and other items and Deanda's testimony that he entered and occupied the premises for the illegal purpose of using narcotics. By his own admission defendant was a burglar, and both defendants, at the very least, were trespassers. We point out, moreover, that McKenzie did not enter the premises 'to make an arrest' but to Investigate a complaint made by a neighbor that prowlers were in the building which he knew to be abandoned and unoccupied after it had been condemned for the construction of a freeway. By virtue of his obligations as a police officer he was fulfilling his duty to investigate the neighbor's report and, upon hearing voices in the house and observing the figures of persons through a side window, he was justified in his belief that the persons in the house had no right to be there.

We are cognizant that, aside from the requirements of section 844, a person is, under the Fourth Amendment, entitled to be secure in his person and house against unreasonable...