People v. Schroeder, Cr. 19066

• Decision Date: 06 September 1979
• Docket Number: Cr. 19066
• Citation: 96 Cal.App.3d 730,158 Cal.Rptr. 220
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John F. SCHROEDER, Defendant and Appellant.

Page 220

158 Cal.Rptr. 220

96 Cal.App.3d 730

The PEOPLE, Plaintiff and Respondent, v. John F. SCHROEDER, Defendant and Appellant.

Cr. 19066.

Court of Appeal, First District, Division 4, California.

Sept. 6, 1979.

As Modified Sept. 24, 1979.

Hearing Denied Nov. 1, 1979.

Timothy D. Martin, Burlingame (Court-appointed), for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

John F. Schroeder appeals from a probation order which was rendered after a jury found him guilty of four counts of grand theft (Pen.Code, § 487, subd. 1) and one count of conspiracy (Pen.Code, § 182).

Appellant operated as a wholesaler of used automobiles under the title, "Courtesy Auto Sales." Assisted by Edward Zinski, Jr., and other accomplices some of whom testified at trial, appellant operated at Courtesy Auto Sales and at other premises an extensive business of fraudulently reselling used cars, the odometers of which had been rolled back. There was abundant evidence that this criminal operation was guided and directed by appellant. The fifteen counts of grand theft of which the jury found appellant guilty were based upon specific fraudulent sales for which, under the evidence, appellant was accountable.

Appellant contends that it was a deprivation of due process to deny him a post-indictment preliminary hearing. Appellant recognizes that in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 150 Cal.Rptr. 435, 586 P.2d 916, the California Supreme Court declared that the new California rule requiring post-indictment preliminary hearings in felony cases is applicable only "to those indicted defendants who have not entered a plea at the time (Hawkins ) becomes final." (22 Cal.3d at p. 594, 150 Cal.Rptr. at p. 442, 586 P.2d at p. 923.) Appellant pleaded not guilty several months before the Hawkins opinion became final; therefore, the new rule is inapplicable to this case.

Appellant argues that Hawkins was based on an equal protection analysis, and contends that he should receive relief on a theory that due process has been violated. The contention is entirely unsupported by authority; this court could not hold grand jury procedure to be a deprivation of due process where such proceedings are expressly recognized and provided for in the Fifth Amendment to the Constitution of the United States and in article I, section 14, of the Constitution of California.

Appellant contends that the court erred when it received in evidence bank records which had been seized pursuant to a search warrant. The claim is that execution and return of the warrant was not timely.

Penal Code section 1534 requires that a warrant be executed and returned within ten days after issuance. ¹ On November 23, 1977, a magistrate issued search warrants authorizing seizure of certain records from the United California Bank and the Hibernia Bank. The warrants were returnable by December 5, 1977 (see People v. Stevenson (1976) 62 Cal.App.3d 915-919, 133 Cal.Rptr. 406). Both warrants were served promptly; both banks responded that the documents called for were so voluminous that full compliance could not be effected immediately. A partial return was presented to the magistrate as to each warrant within the statutory time and supplemental returns were filed a few days later when the responding banks had collected the documents called for. Appellant's theory is that the additional documents, which were surrendered more than ten days after the issuance of the return, should have been excluded from evidence. This contention cannot be sustained.

Section 1534 provides that a warrant shall be executed and returned within ten days after issuance; section 1537 provides that the police must " forthwith" return the warrant to the magistrate (see also Pen.Code, § 1529). " After the expiration of 10 days, the warrant, unless executed, is void." (Pen.Code, § 1534, subd. (a).) The statute does not specify what is the consequence if a warrant is executed but not returned within 10 days, or if materials called for in the warrant are produced more than ten days after the warrant was issued. The purpose of the ten-day requirement is to insure that the showing of probable cause which supported issuance of a warrant will still exist at the time the warrant is executed. (See Sgro v. United States (1932) 287 U.S. 206, 208-212, 53 S.Ct. 138, 77 L.Ed. 260; People v. Hernandez (1974) 43 Cal.App.3d 581, 587-591, 118 Cal.Rptr. 53; Cave v. Superior Court (1968) 267 Cal.App.2d 517, 519-524, 73 Cal.Rptr. 167. See also U.S.Const., Amend. IV; Cal.Const., art. I, § 13.) The purpose behind section 1534 is not contravened in the facts of this case where it is not contended that there was an untimely execution or return of either warrant. When the responding banks immediately indicated that it would take time for them to assemble the voluminous material called for in the warrants, the purpose of the statutory requirement was met. The evidence was admissible. (Cf. People v. Stevenson, supra, 62 Cal.App.3d 915, 133 Cal.Rptr. 406.)

Appellant contends, citing People v. Lyons (1958) 50 Cal.2d 245, 324 P.2d 556, and People v. Samarjian (1966) 240 Cal.App.2d 13, 49 Cal.Rptr. 180, that the evidence was insufficient both as to the five counts of grand theft and the one count of conspiracy of which appellant was found guilty. On the contrary, there was ample evidence supporting all six counts. Three accomplices...