People v. Wilkins, Cr. 20954

• Decision Date: 03 August 1972
• Docket Number: Cr. 20954
• Citation: 27 Cal.App.3d 763,104 Cal.Rptr. 89
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald Leroy WILKINS, Defendant and Appellant.

Page 89

104 Cal.Rptr. 89

27 Cal.App.3d 763

The PEOPLE, Plaintiff and Respondent, v. Ronald Leroy WILKINS, Defendant and Appellant.

Cr. 20954.

Court of Appeal, Second District, Division 3, California.

Aug. 3, 1972.

Thomas A. Diamond, Hawthorne, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Russell Iungerich, Daniel W. McGovern, Deputy Attys. Gen., for respondent.

ALLPORT, Associate Justice.

By information defendant was charged with a violation of section 4463 of the Vehicle Code in that on January 28, 1971, he wilfully and unlawfully had possession of a counterfeited registration card with intent to prejudice, damage, cheat, and defraud the state Department of Motor Vehicles. Defendant pleaded not guilty, his motion under Penal Code section 1538.5 was heard and denied, and the cause submitted on the testimony contained in the preliminary hearing transcript subject to the usual stipulations. Defendant was found guilty as charged. The offense was declared to be a misdemeanor. Proceedings were suspended and defendant granted probation for a period of two years upon condition, among others, that he pay a fine of $100. He appeals from the judgment. An order granting probation is deemed to be a final judgment and is appealable. (Pen.Code, § 1237 subd. 1; People v. Johnson, 258 Cal.App.2d 165, 166, 65 Cal.Rptr. 441.)

It is contended on appeal that (1) defendant's arrest was illegal thus invalidating the seizure of some 12 automobile registration cards (1971) marked People's One in evidence, and that his section 1538.5 motion should have been granted; (2) the possession of blank registration slips is not a violation of section 4463; (3) application of Vehicle Code section 4463 in the instant case would be violative of defendant's constitutional right to due process, and (4) there is no evidence to support a finding of intent to defraud.

The Evidence

On January 28, 1971, Thomas J. Reiss, employed by the University of Southern California as a security officer, while on patrol between 6:40 and 7:00 p.m., observed defendant in a parking lot on the west side of McClintock, walking around and looking into one or two vehicles. This occurred on the campus. Being aware of a high rate of thefts of property from vehicles in that area, Reiss made a U-turn and went back where he then observed defendant sitting in his 1962 panel truck on the west side of McClintock, which street was encompassed within the campus. The witness approached the vehicle and requested defendant to identify himself. The latter produced a California driver's license and an expired U.S.C. staff employee card. It was getting dark at this time. The officer used a flashlight while talking to defendant. The card bore employee number 964163 and had expired in 1969. Prior to this time Reiss had taken a theft report of some stolen law school books which had later been sold back to the university by a Ronald L. Wilkins, number 964163. Believing defendant to be guilty of the crime of receiving stolen property, Reiss asked Wilkins to accompany him to the campus police office for questioning as to the books and to get the situation resolved. Defendant was not notified that he was under arrest but went voluntarily. Since Wilkins was under suspicion of receiving stolen property the officer gave him his Miranda rights. ¹ Defendant stated he understood and would talk. Upon arrival at the office defendant said he had received the books from a friend to sell because the friend did not have an I.D. card. Defendant then denied knowing the books had been stolen but said he would pay back the money ($17.00). At this time Reiss notified the Los Angeles Police Department. Approximately one hour elapsed between the time defendant was first questioned until the police arrived, at which time Reiss advised the officers of the stolen books.

Bradley McGrath, a police officer for the city of Los Angeles, testified that he responded to a call to go to U.S.C. where he met a security officer who advised him of observing defendant 'prowling numerous vehicles,' that investigation had disclosed defendant was a suspect in a theft from the university and that the card defendant had shown was used in the selling of the property back to the university. He was shown a crime report to this effect. McGrath placed defendant under arrest for receiving stolen property, placed him in the police vehicle and returned with his partner Janowicz to where defendant's 1962 Chevrolet panel truck was parked. As he approached the truck it was night. The officer shined his flashlight inside and observed blank vehicle registrations lying on the seat. He opened the door and saw blank sheets of selective service cards, a paper describing how to make a California driver's license and numerous tools in the vehicle. People's One was observed before the car door was opened. Defendant was then handcuffed and taken to the station and booked. L. A. Le Fluer, a special investigator for the state Department of Motor Vehicles testified that People's One were not authentic registration cards from the department and explained why. He stated that they contained the same format or information as is shown in the regular registration document for the Department, including the seal but were fraudulent copies. People's One was further described as a blank format of the vehicle registration card. No information such as name of owner, description of vehicle, license and tab numbers were on the forms and as such could not have been issued by the Department.

Discussion

It is first argued that the contraband should have been suppressed as its seizure was the result of an illegal detention or search. We do not agree. It appears from the record before us that at the time and place in question Officer Reiss was in fact a private citizen employed by a private university in the protection of private property. The events all occurred on property of the university. Penal Code section 837 subdivision 1 provides that a private person may arrest another for a public offense committed or attempted in his presence, and subdivision 3 provides that he may do so when a felony has in fact been committed and he has reasonable cause for believing the person arrested has committed it. In People v. Terry, 2 Cal.3d 362, 393, 85 Cal.Rptr. 409, 466 P.2d 961, reasonable cause is defined as that state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. Each case must be decided on the facts presented at the time. Penal Code section 647(g) provides:

'Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

(g) Who loiters, prowls, or wanders upon the private property of another, in the nighttime, without visible or lawful business with the owner or occupant thereof.'

Public offense includes misdemeanors. (People v. Garcia, 274 Cal.App.2d 100, 103, 78 Cal.Rptr. 775; People v. Johnson, 271 Cal.App.2d 51, 53, 76 Cal.Rptr. 201.) Section 496 provides that the receiving of stolen property is a felony unless determined to be otherwise by the court, district attorney or grand jury. Assuming arguendo that the detention of defendant by Officer Reiss was tantamount to an arrest by a private citizen, the observation of defendant upon the private property of the university at night without visible or lawful business with the owner in an area of a high rate of thefts of property from automobiles permits of a conclusion that the officer had reasonable cause to detain for investigation and to arrest for a violation of section 647(g). (Cf. People v. Garcia, Supra; People v. Sjosten, 262 Cal.App.2d 539, 543, 68 Cal.Rptr. 832.) Furthermore, it appears clear that the information in the possession of Officer Reiss pertining to the theft of books as disclosed in the crime report, coupled with the identification of defendant at the time of his original detention as being the person who sold the books back to the university, gave Reiss reasonable cause to believe that a felony had in fact been committed (receiving stolen property) and that defendant had committed it. Defendant argues that since Officer Reiss was not a peace officer, it was incumbent upon the People to prove that a felony contemplated by section 836 had in fact been committed. In People v. Burgess, 170 Cal.App.2d 36, at pages 40--41, 338 P.2d 524 at page 527 the court said:

'The authority of a private citizen to make an arrest is spelled out in Penal Code section 837 as follows: 'A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.'

In Coverstone v. Davies, 38 Cal.2d 315, 320, 239 P.2d 876, 879, the Supreme Court construed former section 836, subd. 1 of the Penal Code (identical in terms with present section 837, subd. 1) and expressly declared that an arrest by a peace officer was authorized '. . . when 'circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence. " In view of the identical language employed in section 837, subd. 1 of the Penal Code, it would appear that a private citizen may arrest another when circumstances exist which would cause a reasonable person to believe a crime had been committed in his presence. See also People v. Score, 48 Cal.App.2d 495, 120 P.2d 62; Hill v. Levy, 117 Cal.App.2d 667, 256 P.2d 622.

Without question, the evidence above recited is more than adequate to sustain the trial court's implied determination that there was probable cause for the investigators' actions. They had every reason to believe that when...