People v. Superior Court

• Decision Date: 31 July 1970
• Citation: 10 Cal.App.3d 122,89 Cal.Rptr. 316
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner and Plaintiff, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent, Amos Marshall ARKETA, Victor Manuel Esparza, Gonzalo Santa Cruz Gonzales and Henry Rubio, Real Parties in Interest and Defendants. Civ. 36446.

Page 316

89 Cal.Rptr. 316

10 Cal.App.3d 122

The PEOPLE of the State of California, Petitioner and Plaintiff, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent Amos Marshall ARKETA, Victor Manuel Esparza, Gonzalo Santa Cruz Gonzales and Henry Rubio, Real Parties in Interest and Defendants.

Civ. 36446.

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

July 31, 1970.

As Modified and Rehearing Denied Aug. 20, 1970.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Harry Wood, Head, Appellate Division and Eugene D. Tavris, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Herbert G. Blitz, Los Angeles, for Amos Marshall Arketa, real party in interest.

Richard S. Buckley, Public Defender of Los Angeles County, James L. McCormick, William K. Rasmussen, and Harry W. Brainard, Deputy Public Defender, for Gonzalo Santa Cruz Gonzales, real party in interest.

Shay & Stirling and M. David Stirling, La Habra, for Henry Rubio, real party in interest.

Manuel Valenzuela, Los Angeles, for Victor Manuel Esparza, real party in interest.

SELBER, Associate Justice pro tem. ^*

People seek relief by way of mandate pursuant to section 1538.5(o) of the Penal Code from an order of the respondent court suppressing certain evidence in a criminal action against defendants, Gonzales, Rubio, Esparza and Arketa, who are the real parties in interest herein. Defendants are jointly charged by information with burglary. (Pen.Code, § 459.)

On September 4, 1969, at approximately 2:00 a.m., officers responded to a police radio call indicating a possible burglary in progress at a given residential location. No further details were contained in the broadcast. Arriving at the location, the officers went into the rear yard of the residence located immediately adjacent to the address given in the broadcast. They observed a light burning in a wooden shed structure about 25 yards distant form the rear porch of the house. With no sound being made, the light was turned off and defendant Rubio, a few feet away from the shed, was observed running to the side of the house. He appeared to be carrying a crowbar. He refused to halt at the officers' command. Shortly thereafter defendant Esparza was seen walking rapidly away from the area of the shed toward the house. He was detained and arrested at a point approximately 20 feet from the shed.

Defendant Gonzales then exited from the rear door of the house. He advised the officers that this was his house and asked what the problem was. He was informed by the officers that they were investigating a burglary call. Officer Guerra testified that at this time 'Deputy Buckingham and myself went to the shed to investigate the--possible burglary.' Without requesting permission from defendant Gonzales, the two officers then approached the shed, opened the closed door, shined a flashlight into it, and observed a safe inside the shed. A chisel was lodged alongside the door of the safe.

Officer Rasmussen testified to a conversation with defendant Gonzales in which he informed Gonzales that officers believed they had observed someone run into the house and that they would like to enter the house to see if they could find him. Defendant Gonzales replied that there were persons in the house and that the officers could come in if they wished. The officers entered the house and eventually found a three foot crowbar located in the closet of a bedroom. Nothing had been said to the defendant Gonzales by the officers concerning their desire to search for a crowbar prior to the time he gave his consent. Various persons in the home were arrested and are now defendants in this action.

At the outset of the hearing in respondent court, defendants requested the court to suppress People's exhibits 2, 3, 4, and 5 and also those statements of the defendant Gonzales from which consent might be inferred. At the conclusion of the hearing the court granted the motion without specifying what was being suppressed. The briefs filed herein do not describe the exhibits. The hearing in respondent court was held de novo and as a result the transcript of the preliminary hearing containing a description of the exhibits was not presented to the respondent court nor to us. To eliminate the obvious confusion on review, we again urge that judges deciding such motion should expressly state for the record the precise evidence which they are suppressing. (People v. Superior Court (1969), 274 Cal.App.2d 228, 232, 78 Cal.Rptr. 830.)

We will assume however that the respondent court in granting defendants' motion suppressed the evidence as requested by the defendants at the outset of the hearing. Further description of the pertinent exhibits has been given to us by counsel at the time of the oral hearing herein. Exhibit 2 is a color photo of the safe. Exhibits 3 and 4 are color photos of the alley adjoining the premises which are clearly admissible. Exhibit 5 is the crowbar found in the house.

It was stipulated at the hearing that the officers possessed no relevant search or arrest warrant.

We hold that Exhibit 2, the photograph of the safe was properly suppressed. The shed is constitutionally protected under the Fourth Amendment against unlawful search and seizures. (People v. Landry (1969), 276 Cal.App.2d 370, 80 Cal.Rptr. 880; People v. Hobbs (1969), 274 Cal.App.2d 402, 405, 79 Cal.Rptr. 281.) The People do not contend otherwise.

The legality of the search of the shed cannot be considered as one incidental to the arrest of a defendant some 20 feet away. (Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) Indeed, even prior to Chimel such a warrantless search would have been held illegal in this state. In People v. Henry (1967), 65 Cal.2d 842, at page 845, 56 Cal.Rptr. 485, at page 488, 423 P.2d 557, at page 560, the court quotes from Chapman v. United States, 365 U.S. 610, 613, 81 S.Ct. 776, 5 L.Ed.2d 828: 'Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are * * * unlawful notwithstanding facts unquestionably showing probable cause.' (Vale v. Louisiana (United States Supreme Court, June 22, 1970) 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145.)

The search cannot be validated upon an implied consent based upon the failure of defendant Gonzales to protest the entry into the shed. Such a claim is not well founded in either law or fact. Indeed the People have failed to cite a single case to sustain such a proposition....