People v. Ward

• Decision Date: 15 August 1972
• Docket Number: Cr. 20931
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Columbus WARD, Defendant and Appellant.

Page 671

103 Cal.Rptr. 671

27 Cal.App.3d 218

PEOPLE of the State of California, Plaintiff and Respondent, v. Oscar Columbus WARD, Defendant and Appellant.

Cr. 20931.

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

Aug. 15, 1972.

Rehearing Denied Sept. 13, 1972.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

COLE, Associate Justice ^*.

Oscar Columbus Ward was convicted of the first degree murder of Anthony Frank Ungaro. Defendant raises on this appeal contentions (1) that his arrest and the ensuing search were unlawful; (2) that it was prejudicial error for the court to give a 'lying in wait' instruction to the jury, and (3) that the court abused its discretion in refusing a month's continuance of the trial and substituting the public defender in the place of private defense counsel.

We have concluded that defendant's contentions are without merit and we affirm the judgment.

The Arrest, Search and Seizure

The victim was murdered by stabbing on December 16, 1970. Defendant was arrested at approximately 2 a.m. in the morning on December 26, 1970. The arrest took place at his apartment. After his arrest certain items, ultimately admitted into evidence, were taken in a search of the apartment. The items recovered included a coat, a pair of gloves, a cap and a sap, all of which were introduced into evidence, together with a pocket knife (not the murder weapon), another coat and a pair of pants which the People did not introduce into evidence.

Defendant makes four arguments: First, that his arrest was unlawful and therefore the search could not be justified as incident to it. Second, that if the arrest was valid the search was too broad in its scope. Third, that if the arrest was valid the defendant's consent was obtained through an improper implied assertion of authority. Fourth, that if the consent was a freely given one, it was constitutionally invalid as incident to an unlawful arrest.

We do not consider the last point any further since we have determined that the arrest was valid.

The following facts were known to the officers at the time they made the arrest. Officer Gendreau of the Los Angeles Police Department was the chief investigating officer of the murder. Another officer had taken a written statement (with which Officer Gendreau was familiar) on Christmas night, a few hours before the arrest, from Elonya Ledbetter. She, up until a few days previously, had lived with the defendant for some period of time in a common-law relationship, and was pregnant by him.

At the hearing on the 1538.5 motion, Elonya Ledbetter identified the written statement which she had given to the Los Angeles police on Christmas night, 1970. Officer Gendreau had talked with her in the police station that night. The statement is more complete that the officer's testimony as to the conversation, but they are essentially the same. In the statement Mrs. Ledbetter stated that defendant told her that 'Joe' and 'Ray' had offered defendant $1,000 to 'mess up' their nephew, victim Ungaro. The statement claimed that Joe was a Wilmington bookmaker and that Ray was in business with him. The statement continued that on the day of the murder at about 1 o'clock defendant and Mrs. Ledbetter drove in her car to the apartment location. Defendant wore a brown cord jacket, a black hat, gray-green pants and blue glasses. He backed into a parking spot in a big garage across from the victim's apartment. Defendant told Mrs. Ledbetter to look for apartment 10 or 11; to knock on the door and ask for Ann; he wanted to know who was there; if Ann answered, Mrs. Ledbetter was to ask for Tony and if Tony answered, she was to ask for Ann. As she left the car a woman got into a car parked in front of them and drove away (this woman turned out to be Mrs. Ungaro, the wife of the victim). Mrs. Ledbetter stated that she saw the name Ungaro on the mailbox for either apartment 10 or 11; that she went to a door, which had Christmas paper on it; that a woman in the upstairs apartment on the right saw her walking to the apartment; that she knocked on the door and that a man answered and identified himself as Mr. Ungaro in response to her question. He stated that his wife had gone downtown to Seventh Street and she (Mrs. Ledbetter) told him to tell his wife that she had been there; there was a lady at the mailbox while she talked to Ungaro.

Her statement continued that defendant walked up and passed her as she was walking away from Ungaro's door; defendant had passed the lady at the mailbox; she heard Mr. Ungaro say in an anxious voice, 'Who are you?' 'What is this?' She returned to the car and sat in the passenger seat. Defendant had told her that he was supposed to break Mr. Ungaro's arms or legs or mess up his face. Defendant had said he did not know the victim.

The statement went on that after a few minutes defendant came out of apartment 11, returned to the car, got in the driver's seat and put a knife and a blackjack on the seat. He told Mrs. Ledbetter to put the knife in her purse. It was in a case with blood on it. The knife was so big that it would only go half way into the purse. It was described as a 12 or 13 inch huntingtype knife. Defendant drove to the house and they went in to change their clothes. Mrs. Ledbetter had been wearing a white-blond, short, straight wig and defendant had her give it to him, telling her that he was going to cut it up. He sent her out of the house, telling her to go to her grand-mother's. She returned later in the afternoon. The statement also said that defendant subsequently went to see Joe to get paid. He was afraid that Joe would have somebody shoot him. He said that if Joe killed him or hurt him she should report it to the police. Finally, insofar as relevant the statement said that defendant reported that he had only been paid $500 by Joe because the victim had been killed and they had not wanted that to happen. Defendant gave Mrs. Ledbetter a $50 bill.

Officer Gendreau's testimony at the hearing on the motion to suppress also indicated that at the time of the arrest the officer knew from a teenage boy, Jimmy Pina, that on the date prior to December 16, he and the victim's son had seen defendant sitting in the victim's car. At that time, the officer testified, Pina said that defendant had asked if Mr. Ungaro was his father and had told Pina and Mr. Ungaro's son to tell Mr. Ungaro that somebody had sent the defendant--the officer could not recall the name.

The officer also knew prior to the time of defendant's arrest that defendant was Negro and Mrs. Ledbetter was Caucasian. He further knew that a black and white couple had been seen at the apartment at approximately the time Mr. Ungaro was murdered. This information came from a lady who had been at the mailbox. He further knew, and Mrs. Ledbetter's statement said that, the door on the apartment was wrapped in Christmas paper.

It was admitted by the officers that Mrs. Ledbetter was an untested informant. However, probable cause sufficient to support an arrest can be found in the corroborated testimony of such an informant. (People v. Lara, 67 Cal.2d 365, 374--375, 62 Cal.Rptr. 586, 432 P.2d 202.)

'No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act.' (People v. Ross, 67 Cal.2d 64, 69--70, 60 Cal.Rptr. 254, 259, 429 P.2d 606, 611.)

Tested by these principles we hold that there was probable cause to arrest defendant. The untested informant, Mrs. Ledbetter, was, according to the evidence presented to the trial court at the time of the section 1538.5 hearing, properly corroborated by the facts that (1) an independent witness--the lady at the mailbox--had seen a black man and a white woman at the victim's door at the approximate time of the murder; (2) that the door had Christmas paper on it; and (3) that the Pina boy had seen defendant in the victim's car in the garage prior to December 16.

Defendant's next argument is that the search was too broad in its scope under the rules of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. It clearly was, but the People do not rely on the arrest to support the search. Rather they rely on the fact that defendant gave his consent to the search.

The consent, which is attacked by the defendant as being given because of an implied assertion of authority which did not exist, was given under the following circumstances. The officer testified that he asked for permission to search and said that if defendant did not give permission then the police would have to apply to the district attorney's office and possibly get a search warrant which would involve a wait. The defendant was in handcuffs at this time. The officer testified that defendant stated that it was all right to search the house. Defendant recognizes in his brief by quoting from People v. Robinson, 149 Cal.App.2d 282, 285, 308 P.2d 461, 463, that "Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances. . . .' He argues that a consent to search is not freely and voluntarily given when the person giving it believes that he must permit the search. He attacks the continued validity of People v. Robinson, Supra, because of the intervening decision of the United States Supreme Court in Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, to the effect that a consent was invalid when it was given in submission to a law enforcement officer who represented that he had authority to...