People v. Wozniak

• Decision Date: 23 June 1965
• Docket Number: Cr. 4408
• Citation: 45 Cal.Rptr. 222,235 Cal.App.2d 243
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Henry WOZNIAK, Defendant and Appellant.

Page 222

45 Cal.Rptr. 222

235 Cal.App.2d 243

PEOPLE of the State of California, Plaintiff and Respondent, v. Henry WOZNIAK, Defendant and Appellant.

Cr. 4408.

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

June 23, 1965.

As Amended July 8, 1965.

[235 Cal.App.2d 247] Phyllis Kasler, San Francisco, for appellant (under appointment of the District Court of Appeal).

Stanley Mosk, Atty. Gen., of the State of Cal., Edward P. O'Brien, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

BRAY, Justice pro tem. ^*

Defendant appeals from a judgment of conviction, after a jury trial, of violation of section 459, Penal Code (burglary). ¹

QUESTIONS PRESENTED

1. Alleged unlawful search.

2a. Admissibility of defendant's statements.

2b. Applicability of People v. Dorado, infra.

3. Jury's hearing evidence as to the admissibility of the evidence obtained by search and seizure.

4. Failure to appoint advisory counsel.

5. Alleged prejudicial misconduct of district attorney.

6. Alleged prejudicial misconduct of trial judge.

7. Alleged error in instruction.

8. Effect of the comment of the district attorney and the instruction of the court concerning defendant's failure to testify. (Griffin v. California, infra.)

STATEMENT OF FACTS

In the early morning of December 19, 1962, Messrs. Curtis and Glass, having worked late in San Francisco, decided to remain there overnight rather than to return to their homes some miles distant. They occupied room 744, on the 7th floor, of the Sutter Hotel and retired sometime between 1:15 and 1:30 in the morning. The door to the room was closed but it is uncertain whether or not it was locked. At approximately 2:30 a.m. the two men were awakened. They noted that the door was open and light was streaming into the room from the hallway. Both men got up and found certain property missing: Mr. Curtis' money clip containing about $77 in currency, Mr. Glass' suit containing a pocket secretary and a wallet containing about $5, and Mr. Glass' wrist watch.

After discovering the loss, the men reported it to the hotel desk. Approximately one-half hour later, two police officers arrived at the victims' room. The victims related what had happened, explaining what was missing. Officer Sikara testified he realized that a felony had been committed and that the perpetrator might still be on the premises. He thereupon left the room and went to the 8th floor of the hotel. He searched the halls and the restrooms, but found no one. He descended to the 7th floor and thinks he searched that floor. He then went to the 6th floor. Coming out of the elevator he proceeded along the corridor to the right. He turned right and then right again. As he turned the second corner he noticed defendant standing in the hallway, just looking at the door or the wall or something. There was no other person in the hall. As the officer started to walk towards defendant, the latter started to walk towards him. As they met, the officer, in looking at defendant, thought he seemed a little confused and dazed. When asked what he was doing wandering around the halls at three o'clock in the morning, defendant made no reply. Asking three or four other questions the officer received either a stammering or no reply. When defendant was asked if he lived in the building, defendant either replied affirmatively or did not reply. ² Defendant appeared to be 'a little seedy and very unneat in appearance.' The officer was of the opinion that defendant was not a guest at the hotel. Defendant at no time stated where he lived. Defendant was very uncommunicative, distant and reluctant. The officer asked defendant if he had something with which to identify himself. Defendant produced a piece of paper with the name Henry Wozniak, 'some type of certificate from high school' which the officer did not think was sufficient evidence of identification. The officer then searched defendant and found some skeleton keys, 'a money clip that fitted the description of the complainant's stolen money clip, a wrist watch that fitted the description of the complainant's wrist watch, and about--well, it's hard to say, but a big roll of bills, and I knew there had been a hundred or so dollars stolen.' The officer then took defendant to the victims' room, where the victims identified the property found on defendant. In the hotel room, the officer asked defendant where the suit of clothes was. Defendant refused to say, although the officer 'told him that it would probably go easier on him if he cooperated.' The officers took defendant to the 8th floor to search for the suit. They did not find it there. When they reached the 7th floor defendant said he would take them to where the suit was. He led them to the women's toilet where the suit was hidden. When asked where the pocket secretary and wallet were, defendant replied that he had given them to a woman accomplice who had left earlier.

Defendant did not testify. Defendant tried the case in propria persona. ³ In his argument to the jury he contended that he had explained to Officer Sikara how he happened to have the stolen property in his possession. Sikara denied this. Defendant at no time attempted in his argument to explain the possession.

1. Alleged unlawful search.

Defendant's contention that Officer Sikara did not have reasonable cause to arrest or search him and that therefore the admission in evidence of the property found in the search of defendant's person was inadmissible, is completely without merit. A peace officer can make an arrest without a warrant whenever 'he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' (Pen.Code § 836, subd. 3; see People v. Schellin (1964) 227 A.C.A. 260, 264, 38 Cal.Rptr. 593, and cases there cited.) Reasonable cause requires such a state of facts, known to the arresting officer, as would lead a man of ordinary care and prudence with the training and experience of a police officer 'to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle (1960) 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; People v. Williams (1961) 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836, hearing denied; see People v. Cowman (1963) 223 Cal.App.2d 109, 117-118; Witkin, Cal. Criminal Procedure, § 102 et seq., pp. 101-104; People v. Swayze (1963) 220 Cal.App.2d 476, 488, 34 Cal.Rptr. 5.) Though the subject of much judicial scrutiny and decision, 'reasonable or probable cause' has not been and in the nature of things cannot be the subject of any exact formula. Each case must be decided on its own facts and circumstances. (Ingle, supra, p. 412, 2 Cal.Rptr. 14, 348 P.2d 577.) 'When the legality of the arrest or of a search and seizure is properly and timely raised, the defendant makes a prima facie case by establishing that an arrest or search without a warrant has been made. The burden then rests upon the prosecution to show that the officers had reasonable cause for the arrest or search.' (Swayze, supra, p. 448, 34 Cal.Rptr. p. 10.) Once that determination has been made by the trial court, the question before the appellate tribunal is whether there is substantial evidence to support it. (Swayze, supra, p. 489, 34 Cal.Rptr. 5.)

In the case at bench, Officer Sikara would have been derelict in his duty under the circumstances had he not arrested and searched defendant. (Whether the search or the arrest came first is immaterial here as it is well settled that if the circumstances justify an arrest the search may precede the arrest.) (People v. Luna (1957) 155 Cal.App.2d 493, 495, 318 P.2d 116.)

Officer Sikara knew that a felony had been committed, that the victims' hotel room had been entered and certain described property taken. Although a half hour had elapsed since the burglary, it was reasonable to assume that the burglar might still be in the building. After searching two floors of the hotel, the officer found defendant on the 6th floor standing alone in the hall as far away from the elevator as he could get and facing a door. Defendant's replies, or lack of replies, to the officer's inquiries as to what he was doing there at that hour of the morning were unsatisfactory. From defendant's appearance and the circumstances, the officer reasonably was entitled to doubt that defendant was a guest of the hotel. Moreover, under the circumstances, a guest would have volunteered the room he was staying in. '[S]ome type of certificate from high school' was hardly sufficient identification under the circumstances. Thus, the circumstances were such as would cause any reasonable person to have an honest and strong suspicion that defendant was responsible for the burglary upstairs.

Nor was the search incident to the arrest objectionable as exploratory. The arresting officer knew that certain items had been taken and was looking for evidence, not of other crimes, but of the one he knew had been committed upstairs. (Cf. People v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal. v. Haven (1963) 59 Cal.2d 713, 719, 31 Cal.Rptr. 47, 381 P.2d 927.) Neither Gilbert nor Lee v. United States (1956) 98 U.S.App.D.C. 97, 232 F.2d 354, cited by defendant on this appeal, is in point. Both deal with situations wherein the arrests were made with the intent to effect a search of a particular area.

2a. Admissibility of defendant's statements.

Defendant contends that his statements to Officer Sikara were involuntary as a matter of law. Officer Sikara testified concerning the events preceding his bringing defendant to the victims' room and the identification there by the victims of their property. He was asked if he then had any conversation with defendant. He replied that he had. He was then asked if any promises of reward or immunity were made to defendant. The officer stated 'We attempted to have him admit where he did the suit *...