People v. Satchell

• Decision Date: 25 May 1978
• Docket Number: Cr. 30562
• Citation: 146 Cal.Rptr. 307,81 Cal.App.3d 347
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory SATCHELL, Defendant and Appellant.

Page 307

146 Cal.Rptr. 307

81 Cal.App.3d 347

PEOPLE of the State of California, Plaintiff and Respondent, v. Gregory SATCHELL, Defendant and Appellant.

Cr. 30562.

Court of Appeal, Second District, Division 5, California.

May 25, 1978.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Martin Stein, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, John A. Saurenman, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Judge.

A four count information charged defendant and codefendant Monroe with robbery (Count 1) grand theft auto (Count 2) unlawful taking or driving of a vehicle (Count 3) and grand theft, person (Count 4). After defendant's motion to suppress certain evidence was denied, he withdrew his plea of not guilty to Count 4, was rearraigned and pleaded guilty. The other three counts were dismissed in the interest of justice.

The sole issue on appeal is the court's ruling on defendant's motion to suppress.

FACTS

At about 11:20 p. m., on September 16, 1976, Sergeant Watters and Officer Long were southbound in a marked police vehicle on Sepulveda Boulevard, south of Wilshire. Long was the driver. Watters saw a 1956 Chevrolet southbound. Its left taillight was broken. The officers accelerated to catch the Chevrolet, activated the red lights and honked the horn. The Chevrolet finally stopped just north of Ohio Avenue. Three black men were in the car. Just before the officers stopped the Chevrolet, a report of a purse-snatch robbery came over the radio. It contained a vague general description of the suspects as being "two male Negroes." The scene of the robbery was near the area of Sunset and the San Diego Freeway, only two or three miles to the north.

Officer Long approached codefendant Monroe, the driver. Monroe said he had no identification. Asked about the ownership of the car, he said it belonged to somebody named "Little Bit." He did not know Little Bit's first name and had trouble pronouncing his last name, Sandoval.

Before or during this conversation, Monroe had already been asked to step out of the car. The officers then asked defendant the right front seat passenger and the second passenger who was seated in the rear, to step out of the car. The purpose of this request was to conduct a pat-down search for weapons. Articulated reasons were the lateness of the hour, the fact that there were three persons, that this particular area of Sepulveda was very dark with few street lights, that there had been problems with grand theft auto and theft from motor vehicles in the area, the fact that Monroe had no identification and apparently did not know who the car belonged to and that "quite often policemen are attacked by suspects."

After defendant and the other passenger left the car, Watters saw a portion of a purse protruding from underneath the right front seat. Before questioning anyone about the purse, he completed the pat-down for weapons. While patting down defendant, he felt an object "like a wallet or something similar."

Sergeant Watters then asked defendant about the purse. He said that it belonged to his sister who had been in the car earlier in the evening with himself and the other "defendants" meaning, presumably, Monroe and the second passenger. Monroe, however, said that he did not know anything about the purse and that there had been no female in the car that evening. Watters then decided on a more thorough search to determine whether defendant and Monroe were involved in the purse-snatch incident reported over the radio. He then removed the item he had earlier felt in defendant's pocket. It was a brown coin purse, which contained money, stamps and theatre ticket stubs. ¹

After receiving certain further particulars concerning the purse-snatching over the radio, Watters placed defendant and Monroe under arrest.

On appeal defendant raises two issues. First: that the trial court erred in considering Sergeant Watters' preliminary hearing testimony at the motion to suppress, defendant not having stipulated thereto. Second: that the seizures of the purse, and of the coin purse and its contents were illegal.

Before the trial court heard the motion to suppress, both defendants made motions to dismiss under section 995 of the Penal Code. These were, of course, necessarily heard on the transcript of the preliminary hearing. In view of the fact that the stolen goods had been found in the defendant's possession, the legal issues argued related solely to the legality of the police procedures leading to the discovery. After the trial court had denied the motions to dismiss it asked: "Is it submitted on the 1538.5 also?" Both counsel answered in the negative and announced that they intended to have a de novo hearing. Sergeant Watters was then sworn as a witness. The court then inquired whether the parties wished to submit the motion on his testimony at the preliminary hearing and any additional evidence which may be given. The People then offered a stipulation to that effect. Monroe's counsel announced: "Yes, that's satisfactory." Defendant's counsel said: "Your Honor, frankly, I would have preferred that the officer testify anew." The court pointed out that his testimony was transcribed and that it had already read it. ² Defendant's counsel said: "I realize its been transcribed." The court then told him to proceed and cross-examine the officer. Counsel's response was: "May I have a moment, your Honor?" Watters was then cross-examined first by Monroe's attorney, then by defendant's.

After the officer had testified, the prosecutor said that he was not certain whether counsel had ever stipulated "that it may be on the transcript, plus " The court interrupted, pointing out that Monroe's attorney's written motion to suppress was based, in part, on the preliminary transcript. Satchell's counsel correctly pointed out that his was not. He continued, "But, your Honor, for the record . . ." The court again interrupted: "I'm talking about (Monroe's counsel). All right." At that point defense counsel apparently abandoned any effort to explain the precise state of the record to the court and pointed out that the officer's testimony at the preliminary hearing had been "a little different" from what it had been at the hearing that had just been concluded. At no point, however, did he make it clear that in his view the preliminary hearing testimony had been used over objection or that there definitely had been no stipulation concerning its use. Rather he used the discrepancies between the officer's previous testimony and the evidence just given to his advantage. ³

On appeal, defendant wisely does not claim that the trial court's use of the officer's preliminary hearing testimony violated his Sixth Amendment right to confrontation. (California v. Green (1970) 399 U.S. 149, 165-168, 90 S.Ct. 1930, 26 L.Ed.2d 489.) Rather, he correctly points out that section 1538.5, subdivision (i) of the Penal Code entitled him to "litigate the validity of a search or seizure de novo on the basis of the evidence presented at a special hearing." There can be no question that ordinary rules of evidence apply at such special hearing and, absent a stipulation, no exception to the Evidence Code permitted the court to use the officer's preliminary hearing testimony. (Hewitt v. Superior Court (1970) 5 Cal.App.3d 923, 927-928, 85 Cal.Rptr. 493.)

The real question is whether defense counsel properly objected to the use of the officer's testimony from the preliminary hearing. All that the record shows is his statement that he "would have preferred that the officer testify anew." While this statement leaves something to be desired as a stipulation to the use of the preliminary hearing transcript, it certainly was not a clear objection. If we had to give it a label it was a sort of "grumbling...