People v. Wolder

Citation84 Cal.Rptr. 788,4 Cal.App.3d 984
Decision Date27 February 1970
Docket NumberCr. 16373
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Robert Wilhelm WOLDER and John Ronald Burch, Jr., Defendants and Appellants.

Arthur J. Rubinsteen, Inglewood, under appointment by the Court of Appeal, for defendant and appellant John Ronald Burch, Jr.

Edward J. Horowitz, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Robert Wilhelm Wolder.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and James L. Markman, Deputy Attys. Gen., for plaintiff and respondent.

FRAMPTON, Associate Justice pro tem. *

Statement of the Case

Defendants were jointly charged by information with the crime of burglary, a felony. (Pen.Code, § 459.) By amendment to the information Wolder was alleged to have suffered prior felony convictions for forgery, burglary, violation of section 11530 of the Health and Safety Code, and robbery, and to have served a term in state prison upon each such prior. Burch was alleged to have suffered a prior conviction for robbery, and to have served a term of imprisonment therefor in state prison. Motions under section 995, Penal Code were made and denied. Each defendant entered a plea of not guilty and respectively denied the allegations of prior convictions. Motions pursuant to section 1538.5 of the Penal Code were made and denied. Defendants personally and their counsel waived the right of trial by jury as to the substantive offense and as to the truth of the alleged priors. The record discloses that on the trial of the issue of guilt or innocence, two witnesses were sworn and testified on behalf of the People. At this stage of the proceedings each defendant withdrew his plea of not guilty, was rearraigned, and entered a plea of guilty to burglary in the second degree. Exhibits were received in evidence bearing upon the allegations of prior convictions and the allegations were found to be true as to all priors. A probation report was ordered. Motions to set aside the court's rulings under the motions made pursuant to section 1538.5, Penal Code, were denied. Proceedings were suspended as to Burch, and he was placed on probation for the period of five years on condition, among others, that he spend the first year thereof in the county jail. Probation was denied as to Wolder, and he was sentenced to state prison. The appeals are from the judgments based upon the denials of the motions under sections 1538.5, Penal Code after pleas of guilty. (Pen.Code, § 1538.5(m).)

Statement of Facts

On September 12, 1968, Joe W. Morrill, a sergeant of police for the City of Long Beach, attached to the commercial burglary detail of the detective bureau, received information through the mail directed to the Long Beach Police Department from the Los Alamitos Police Department, to the effect that the defendant Wolder had been interrogated by members of the Los Alamitos Police Department in the early morning hours in the vicinity of a late model Pontiac which had been stolen in the City of Long Beach. The Pontiac had blocks under its wheels and it was inferred that the wheels and tires were to be removed from it. Wolder was either in or adjacent to an Oldsmobile. The license number of the Oldsmobile was given in this communication as well as a physical description of Wolder. The information also indicated that the defendant Burch was with Wolder at the time of the interrogation.

Subsequently, Sergeant Morrill caused a bulletin to be prepared for distribution to members of the police department stating in substance that the defendants had been interrogated in the vicinity of the stolen Pontiac, that Morrill was familiar with Robert Wolder, that Wolder was a versatile burglar, and an adept safe burglar. Sergeant Morrill's information, which was placed in the bulletin, was based upon his personal knowledge and on the information he had received from the Los Alamitos Police Department.

Joseph Donnelly, a police officer for the City of Los Angeles, had a daughter named Margaret who, on September 13, 1968, resided in an apartment at 5861 Walnut Avenue in the City of Long Beach. About 7 p.m. on the 13th, Officer Donnelly, in company with Mr. D'Cardova, whose daughter lived with Margaret at the above address, went to the apartment complex to talk to Mr. Hardt, the owner, concerning the eviction of the girls from their apartment. Hardt had called D'Cardova about the eviction, and D'Cardova had called Donnelly. When they arrived at the location, Donnelly had a conversation with Hardt, who lived in the duplex adjoining Margaret's apartment and who had rented the apartment to Margaret.

During this conversation Hardt remarked that Margaret's 'Uncle Bob had brought a bunch of cases of something and stored them in the garage that had belonged to Margaret's grandmother.' Hardt had not rented the garage to Margaret or anyone else, and had retained custody of the keys thereto.

The conversation with Hardt caused Donnelly to become suspicious as he knew that his daughter Margaret did not have an 'Uncle Bob,' or a grandmother. Donnelly then asked Hardt if he could look at the items stored in the garage and Hardt said 'Yes.'

Donnelly then went to the garage with D'Cardova and Hardt. There was a padlock on the garage door. Hardt had the key and unlocked the door. Donnelly, D'Cardova and Hardt then entered the garage. In the front center of the garage were cases, cardboard containers about three to four feet in height, some smaller and some larger.

Some of the containers were sealed and some were unsealed. Donnelly did not open any that were sealed. He 'was curious as to what could have belonged to Peggy's (Margaret's) so-called grandmother.' He opened the cardboard flaps of the unsealed cases and looked inside them. He first observed a box that contained four portable typewriters bearing the name 'Royal.' In another container he observed a large typewriter or some type of office machine. There was an open briefcase in front of the containers in which Donnelly observed some tools, two blue smocks and some gloves. He observed a zippered bag sitting behind the briefcase which contained quite a few tools. Donnelly observed pry bars and a drill among the tools. Based upon his 21 years' experience as a police officer during which time he had investigated at least 50 burglaries, the tools that he saw appeared to him to be burglar tools.

Donnelly had no warrant to make a search, and at the time he looked into the unsealed containers, he knew nothing about a bulletin from the Long Beach Police Department describing the defendants. After looking into the unsealed containers he believed that the flaps of the containers were left loose.

Donnelly, D'Cardova and Hardt then left the garage and the latter placed the padlock on the door and returned to his apartment. Hardt had given Donnelly and D'Cardova the description of male persons who had been around the garage. Donnelly called the Long Beach Police Department the same evening and met two officers who responded to the call about two blocks from the apartment. He gave the two Long Beach officers the substance of the information he had. Previously on the telephone, Donnelly had given Officer Lance of the Long Beach Police Department the substance of the information he possessed. This call was placed about 8 p.m. on the 13th.

About 10 p.m. on September 13, 1968, Sergeant Rudolph F. Roop, Officer Lance's partner, received information from Donnelly and D'Cardova on a street corner in North Long Beach. On the way out to meet Donnelly, Officer Lance had told Sergeant Roop that Donnelly had become alarmed because his daughter Margaret was linked with property stolen from the Royal Typewriter Company which was in the garage behind the location where she lived.

Donnelly told Sergeant Roop and Officer Lance that he had been having trouble with his daughter associating with what he considered to be bad companions throughout the summer. He gave Sergeant Roop and Officer Lance his daughter's address, 5861 Walnut.

Donnelly told the officers that he went to see and conversed with Hardt, the owner of the property where the girls rented the apartment, and that Hardt had told him 'that he was storing some things for his daughter in the garage that had been given her by her grandmother.' Donnelly stated to the officers that his daughter did not have a grandmother and that nobody could have given her anything. He told the officers that he became curious, that Hardt took him into the garage and that they found several cartons of what appeared to be brand new typewriters, some tools and walkie-talkie radios. Donnelly informed the officers that he thought there had been a burglary of the Royal Typewriter Company.

Sergeant Roop and Officer Lance went to 5861 Walnut where they met and talked to Hardt. They told Hardt they would like to see the typewriters, and Mr. Hardt said, 'Certainly.' Hardt then got the keys, went to the garage, and opened the door. He led the officers into the garage and pointed out the typewriters. The typewriters were in cardboard boxes just inside the door of the garage. The cardboard boxes were arranged so that some were on top of others. Some of the cardboard boxes were inside larger cardboard boxes. All of the boxes had been opened and had been tied with cord. They untied the cords on one or two boxes and observed typewriters therein bearing the name 'Royal.' The boxes were the original boxes in which the typewriters had been shipped and the officers obtained serial numbers from the information contained on the outside of the boxes.

After the officers spoke with Donnelly and Hardt and before they entered the garage and took the serial numbers, they believed that the typewriters in the garage were stolen because of the number of different types of machines, portables, standard, electric, as well as an...

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