People v. Strawder

• Decision Date: 28 September 1973
• Docket Number: Cr. 10999
• Citation: 108 Cal.Rptr. 901,34 Cal.App.3d 370
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse Lee STRAWDER, Defendant and Appellant.

Page 901

108 Cal.Rptr. 901

34 Cal.App.3d 370

PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse Lee STRAWDER, Defendant and Appellant.

Cr. 10999.

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

Sept. 28, 1973.

Stephen R. Pitcher, San Francisco, for appellant (By appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen.,--Crim. Div., William E. James, Asst. Atty. Gen.--Appeals Section, Derald E. Granberg, Thomas P. Dove, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

On this appeal from a judgment upon conviction and sentence of second degree murder (Pen. Code, § 187), defendant contends that the trial court improperly denied his motion to suppress evidence, erred in refusing to give certain instructions requested by him, and erred in denying his motion for a new trial based on the alleged inadequate representation he received from appointed counsel. None of these contentions has merit. Accordingly, the judgment must be affirmed.

The pertinent facts are as follows: On the morning of December 23, 1971, the body of Henry Price was discovered in the County of San Mateo. An investigation by the police revealed that Price had been shot with a .32 automatic pistol. A statement was taken by the police from Jane Clunie with whom Price had been living. The statement revealed that Ms. Clunie had been defendant's former common-law wife. A police bulletin was issued for the arrest of defendant following the obtaining of defendant's address, his 'rap sheet' and a copy of a sale of weapons form which revealed that defendant had purchased a .32 automatic pistol. In conjunction with the bulletin a request was made for the impoundment of defendant's automobile which had been identified by the Department of Motor Vehicles.

On December 25, 1971, defendant was taken into custody and his automobile was impounded by the San Francisco police. Inspector Siemssen of the San Mateo County Sheriff's office advised defendant of his Miranda rights. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Siemssen then asked defendant for permission to search his car. Defendant responded, 'Yes, go ahead.' Defendant was then asked if he wished to make a statement and he responded that he would do so but wanted an attorney to be present. Siemssen then left to obtain a consent to search form. Upon his return Siemssen asked defendant to sign the form which defendant did, stating he consented to the search providing it was done in his presence.

A search of defendant's car was made in his presence. No search warrant was obtained nor was an attorney provided for defendant at the time of the search. During the course of the search a .32 automatic pistol was discovered. This weapon was identified as belonging to defendant and was introduced into evidence at the trial. Ballistic experts testified that the slug they found in Price's body was fired from this weapon. In addition, expert testimony identified the cartridges found at the scene of the homicide as having been fired from defendant's gun. The introduction of the gun into evidence and the testimony respecting it, the slug and the cartridges, were objected to by defense counsel.

Defendant made a motion to suppress the evidence pursuant to Penal Code section 1538.5. The motion was denied. He now seeks a review of the propriety of this denial since the order is reviewable on an appeal from the judgment of conviction. (People v. Bustamante, 16 Cal.App.3d 213, 215--216, 94 Cal.Rptr. 64; People v. Jasso, 2 Cal.App.3d 955, 962, 82 Cal.Rptr. 229; Pen. Code, § 1538.5, subds. (i), (m).) His specific contentions with respect to the motion to suppress are that he was not advised that he had a right under the Fourth Amendment to refuse to consent to a warrantless search; that he was further interrogated after he indicated a desire to have an attorney present; and that his consent to the search was obtained without the presence of counsel.

We observe, preliminarily, that a search preceded by a voluntary, freely given consent is a reasonable and permissible search under constitutional standards. (Schneckloth v. Bustamonte, --- U.S. ---, ---, 93 S.Ct. 2041, 2043--2059, 36 L.Ed.2d 854; People v. Henry, 65 Cal.2d 842, 845, 56 Cal.Rptr. 485, 423 P.2d 557; Castaneda v. Superior Court, 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852; People v. Beal, 268 Cal.App.2d 481, 485, 73 Cal.Rptr. 787.) The consent must be voluntary and not in response to an express or implied assertion of authority. (Schneckloth v. Bustamonte, supra, --- U.S. ---, 93 S.Ct. at p. 2059; People v. Henry, supra; Castaneda v. Superior Court, supra.) Whether a consent to search was freely and voluntarily given or was rather merely a nonvoluntary submission to an express or implied authority, is a question of fact resolvable upon reference to all the attendant circumstances. (Schneckloth v. Bustamonte, supra; Davis v. United States, 328 U.S. 582, 593--594, 66 S.Ct. 1256, 90 L.Ed. 1453; Castaneda v. Superior Court, supra; People v. Michael, supra; People v. Bustamonte, 270 Cal.App.2d 648, 652, 76 Cal.Rptr. 17.) The burden, in each instance, is upon the government officials to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given. (Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797; Blair v. Pitchess, 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 486 P.2d 1242; People v. Shelton, 60 Cal.2d 740, 744, 36 Cal.Rptr. 433, 388 P.2d 665.)

Adverting to the first contention with respect to the motion to suppress we point out that it is now settled that it is not necessary to a voluntary consent to a search that the police, before eliciting consent, advise the subject of the search of his right to refuse consent. (Schneckloth v. Bustamonte, supra, --- U.S. ---, ---, 93 S.Ct. 2041, 2049--2051, 36 L.Ed.2d 854; see People v. Bustamonte, supra, 270 Cal.App.2d 648, 653, 76 Cal.Rptr. 17; People v. Linke, 265 Cal.App.2d 297, 314, 71 Cal.Rptr. 371; People v. MacIntosh, 264 Cal.App.2d 701, 705--706, 70 Cal.Rptr. 667.) Accordingly, while knowledge of a right to refuse consent is a factor to be taken into account, the prosecution need not prove that the one giving permission to search knew he had a right to withhold consent. (Schneckloth v. Bustamonte, supra, --- U.S. ---, ---, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854.)

In Schneckloth the Supreme Court made it clear that its decision was limited to persons who are not in custody. (--- U.S. at p. ---, 93 S.Ct. at p. 2059.) We do not interpret this limitation by the Supreme Court to mean that when a person is in custody his consent to a search is to be deemed, as a matter of law, to be inherently coercive, but merely that the factual situation before it did not require the court to determine the voluntariness of a consent to a search given by one who is in custody. The California courts have not made a definitive distinction between consent to search given by a person who is not in custody and one who is, but, rather, have considered the factor of custody to be a significant circumstance to be taken into account with all of the surrounding circumstances in determining whether in fact the consent to search was coerced. (See People v. Smith, 63 Cal.2d 779, 798, 48 Cal.Rptr. 382, 409 P.2d 222 (cert. Den. 388 U.S. 913, 87 S.Ct. 2119, 18 L.Ed.2d 1353); People v. Shelton, supra, 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, 388 P.2d 665; Castaneda v. Superior Court, supra, 59 Cal.2d 439, 443, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Fischer, 49 Cal.2d 442, 448, 317 P.2d 967, People v. Dahlke, 257 Cal.App.2d 82, 87, 64 Cal.Rptr. 599; People v. Campuzano, 254 Cal.App.2d 52, 58, 61 Cal.Rptr. 695.) In Castaneda it was observed that while the circumstance that a person is in custody at the time of the request for his permission to search is a "circumstance of particular significance" it is 'not conclusive' (59 Cal.2d [34 Cal.App.3d 378] at p. 443, 30 Cal.Rptr. at p. 3, 380 P.2d at p. 643); and in Fischer it is stated that 'It cannot be said as a matter of law that consent given by a defendant is involuntary because it is given while he is under arrest.' (49 Cal.2d at p. 448, 317 P.2d at p. 971.) 'Rather, the question is one of fact 'to be determined in the light of all the circumstances.' (Citations.)' (People v. Smith, supra.)

Adverting to defendant's contention that the motion to suppress should have been granted because the search was obtained without the presence of counsel, although he had indicated a desire to have counsel present, we first observe that the record does not disclose that defendant made such a request. Rather, it discloses that his request was that he wanted to be personally present. His request with respect to counsel was that he would only make a statement in the presence of counsel.

We note, moreover, that the Sixth Amendment right to counsel does not apply to events before the initiation of adversary criminal proceedings. (United States v. Ash, --- U.S. ---, ---, (93 S.Ct. 2568, 2570, 37 L.Ed.2d 619, 623, fn. 3); Kirby v. Illinois, 406 U.S. 682, 688--689, 92 S.Ct. 1877, 32 L.Ed.2d 411; People v. Chojnacky, 8 Cal.3d 759, 765, 106 Cal.Rptr. 106, 505 P.2d 530; People v. Lawrence, 4 Cal.3d 273, 277--278, 93 Cal.Rptr. 204, 481 P.2d 212, (cert. den. 407 U.S. 909, 92 S.Ct. 2431, 32 L.Ed.2d 682); People v. O'Roy, 29 Cal.App.3d 656, 661--662, 105 Cal.Rptr. 717; People v. Faulkner, 28 Cal.App.3d 384, 390, 104 Cal.Rptr. 625; see Whalen v. Municipal Court, 274 Cal.App.2d 809, 813, 79 Cal.Rptr. 523.) Accordingly, 'the right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings by way of formal charge, preliminary hearing, indictment, information or arraignment.' (People v. Faulkner, supra, 28 Cal.App.3d at p. 390, 104 Cal.Rptr. at p....