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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Homer BROWN, Defendant and Appellant.

Cr. 42815.

Decided: May 16, 1983

James Bledsoe, Jr., Los Angeles, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Edward T. Fogel, Jr., Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

Homer Brown appeals from the judgment entered upon his plea of guilty to murder (Pen.Code, § 187;  count VII) and attempted robbery (Pen.Code, §§ 211, 664;  count VIII).   He was sentenced to life imprisonment without possibility of parole on count VII.   He contends:  “I.   The court erred in refusing to suppress the X-rays taken of appellant while in custody.   II.  The court erred in refusing to suppress the bullets removed from appellant's body.   III.  The court erred in denying defendant's motion to dismiss special circumstances.”

On September 1, 1981, based upon an affidavit by Los Angeles Police Officer Stuart Reed and a declaration by Dr. John Ryan, a warrant was issued to search the body of appellant for “Two (2) 38 caliber wad cutter bullets with rifling characteristics of a Colt revolver.   This search and removal is to be done at the Los Angeles County-University of Southern California Medical Center with accepted medical procedures by a physician licensed by the State of California.”

Officer Reed's affidavit stated that on December 1, 1979, he arrived at the scene of a robbery/murder in a liquor store in Paramount wherein store owner Henry Cota was shot to death.   Investigation determined that bullets recovered from the scene and the victim's body had not been fired from the victim's .38 caliber revolver which was found beside his body;  and that although three expended cartridges were in the revolver, affiant, despite diligent search of the scene, was unable to find any projectiles fired from the victim's revolver.   Witnesses at the scene described the two robbers.

Affiant Reed stated further that on December 3, 1979, he received a telephone call from an anonymous informant who stated that appellant and Lionel Tate were responsible for the murder, and both had been shot and were in hospitals.1  Further investigation revealed that on December 1, 1979, appellant had been treated at Martin Luther King Hospital for multiple gunshot wounds to his side and buttocks.   X-rays were taken of him in the hospital.   On his release from the hospital he scheduled an operation for December 7, 1979, to remove the projectiles;  however, he did not return for the operation and in fact disappeared.   Affiant was unable to locate him until August 31, 1981, when he was arrested and transported to the USC Medical Center.   X-rays taken there clearly showed two objects in the lateral portion of his buttocks and hip which, based upon affiant's thirteen years' experience in handling such projectiles, appeared to be of the size and shape of .38 caliber wad cutter bullets.   In the opinion of a firearm expert who examined the X-rays, the objects were .38 caliber wad cutter bullets;  one of them had four cannelures similar to those on the live bullets remaining in the victim's revolver;  and if the objects were removed from appellant's body, he could make a comparison test and form an opinion whether they had been fired from the victim's revolver.

Affiant Reed stated further that on September 1, 1981, Dr. John Ryan, staff surgeon at the USC Medical Center, examined appellant while he was in custody in the hospital ward.   Dr. Ryan then told affiant that the two projectiles were located superficially beneath appellant's skin and could be removed by minor surgery under local anesthesia.   Neither removal would be life endangering nor entail any discomfort.   All precautions relative to surgical procedures would be followed to avoid complications.   Based upon the foregoing, affiant Reed was of the opinion that recovery of the bullets from appellant's body and comparison thereof with the victim's weapon would result either in criminal charges being brought against Brown or his elimination as a suspect in the investigation of Cota's murder;  and it was the only available evidence which would exonerate or implicate appellant, all other avenues of investigation having been pursued and exhausted.

The declaration of Dr. Ryan in effect reiterates the facts relating to his examination of appellant as appears in Officer Reed's affidavit.   Dr. Ryan declared further that the objects appear to be bullets which the patient could remove himself.

Evidence at appellant's suppression motion in the superior court included the affidavit, declaration and warrant, as well as testimony by Officer Reed, Dr. Ryan, and appellant.   Appellant testified that he was not advised of his constitutional rights before he was X-rayed;  he refused to sign a consent to the surgery;  and the surgery was very painful.   Reed testified that he was present during the surgery and appellant evidenced no pain.

On denying the suppression motion, the superior court found that (1) the magistrate thoroughly set forth valid reasons for issuance of the warrant, and did not err in issuing it,2 and (2) all the findings by the municipal court at the preliminary hearing regarding the suppression issue were proper.

 Contrary to appellant's contention, the superior court did not err in refusing to suppress the X-rays or the bullets removed from his body.   The X-rays did not constitute a search or an invasion of his privacy.3  The officers knew long before the taking of the X-rays that appellant had received gunshot wounds in his side, had been X-rayed previously on his own initiative, and had scheduled an operation for removal of the projectiles before deciding to disappear instead.  (See People v. Haugland (1981) 115 Cal.App.3d 248, 257, 171 Cal.Rptr. 237.)   As for removal of the bullets, the affidavits clearly established, and the issuing magistrate duly considered and balanced, the factors justifying the minimal intrusion into appellant's body in accordance with the dictates of People v. Scott (1978) 21 Cal.3d 284, 293–294, 145 Cal.Rptr. 876, 578 P.2d 123.

 Appellant's final contention that the trial court should have dismissed the “special circumstances” is predicated upon a bald claim, without citation of authority or argument, that Penal Code section 190.2, subdivision (a)(17)(i), is “constitutionally vague and violates due process of law,” and that the “intent of the People in the Briggs initiative was to exempt the non-shooter from the special circumstances provision of the code.” 4  Appellant is mistaken.   The challenged statute is sufficiently definite to provide a standard of conduct for those whose activities are proscribed, as well as a standard for the ascertainment of guilt by the courts called upon to apply it.  (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 801, 183 Cal.Rptr. 800, 647 P.2d 76.)   Also the statute specifically applies to an accomplice in the commission or attempted commission of the crime, thus refuting appellant's unsupported claim that it was intended to exempt a “non-shooter.” 5

The judgment is affirmed.


1.   Codefendant Lionel Tate is not a party to this appeal.

2.   Concurrently with issuance of the warrant, the magistrate filed a memorandum of opinion setting forth the reasons for its issuance, stating in substance:  (1) the showing of probable cause to believe that appellant was involved in commission of the offense;  (2) the seriousness of the offense, murder;  (3) the importance to the public of resolution of this case and in avoiding destruction of the evidence which appellant could do by easily squeezing the bullets out himself;  and (4) the interest of the state in obtaining the evidence outweighed the minimal intrusion into appellant's body.

3.   A finding of the municipal court, adopted by the superior court, was that there had been no invasion of appellant's right to privacy or deprivation of any constitutional right in subjecting him to X-rays.

4.   Penal Code section 190.2 provides in part as follows:  “(a) The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:  ․ (17) The murder was committed while the defendant was engaged in or was an accomplice in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit the follow felonies:  [¶] (i) Robbery in violation of Section 211.”

5.   Moreover, we note that appellant does not factually come within his own claim, since evidence at the preliminary hearing established that he was a “shooter.”

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.

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