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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank CARSWELL, Defendant and Appellant.*

Cr. 3442.

Decided: August 13, 1958

Goth & Dennis, O. A. Goth, James M. Dennis, Redwood City, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

Convicted of second degree burglary of a hardware store from which shotguns and rifles had been taken, defendant has appealed. He claims errors in the admission of certain evidence and in the giving of certain instructions.

This is the second appeal. Upon the first appeal judgment was reversed for failure of the prosecution to meet its burden of proving the legality of a search of defendant's room where rifles and shotguns were found and seized. People v. Carswell, 149 Cal.App.2d 395, 397–401, 308 P.2d 852. The court also found erroneous, but not of itself prejudicially so, an instruction on corroboration of an accomplice. At pages 403–404 of 149 Cal.App.2d, at pages 856–857 of 308 P.2d.

Between 6:20 Saturday evening and 7:45 Monday morning, twenty-seven rifles and shotguns were taken from the Markus Hardware store in Oakland. A panel in the skylight had been removed.

The Magnolia Hotel was next door to the hardware store. Charles Holmes, who pleaded guilty, testified at the former trial that he and three other men, including the defendant, entered the hardware store through the skylight, took the guns, went over the roof and into the Magnolia Hotel. There the guns were divided, and defendant, Hunter and White, the two other men, carried their share of the guns wrapped in sheets down the stairs and out of the hotel on Sunday evening. This testimony was read into the record over objection by the defendant. Melinda Ornduff testified that she saw the defendant and the two other men carrying long packages wrapped in sheets out of the hotel at 7:30 on Sunday.

Over objection by the defendant that it was the product of an illegal search and seizure, an officer testified that nine rifles and shotguns were found in defendant's room at 800–11th Street.

I. Were the Guns Admissible in Evidence?

At the first trial, the testimony was that on November 21, when they had no search warrant, the police officers went to the premises at 800–11th Street, were admitted by a man who was painting the premises and who opened the door to defendant's room with a key. There they observed guns, one on the bed and some in the closet. They returned the next day with a search warrant and seized them. The court held that the prosecution had not sustained its burden of proving the entry lawful. People v. Carswell, supra, 149 Cal.App.2d 395, 397–401, 308 P.2d 852.

On this trial, the same testimony was given, with these additional facts: Inspector Richardson went to the Markus Hardware store, and checked its position relative to the Magnolia Hotel. After making inquiry at the hotel, he interviewed Mrs. Ornduff, who told him that she had seen defendant, White and Hunter leaving the hotel carrying packages wrapped in sheets that could have been the stolen guns. Mrs. Ornduff had previously given information which had proved reliable to Inspector Burns. White, who roomed at the hotel, was placed under arrest shortly thereafter. The police had found a peculiar type of blue mud near the skylight of the hardware store, on the base of the fire escape leading to the hallway by White's room and on White's shoes. The police then ascertained defendant's address from his parole officer and a few minutes later went to 800–11th Street.

Lieutenant Hawkinson testified that he rang the bell at 800–11th Street. A gentleman answered. After identifying himself, Hawkinson showed the man a picture of Carswell, asking if he lived there. Receiving an affirmative response, Hawkinson asked to be shown the room. He knocked hard on the door three or four times, announced ‘Oakland Police Department’ and received no response. He then turned to the man who had opened the outside door and asked him if he had a key. The man produced a key and unlocked the door. One gun was lying at the foot of the bed, with its serial number exposed. Inspector Richardson checked with the list of missing guns furnished by the hardware store, and found the number to be identical to one purportedly missing.

The man who opened the door was not the owner but a painter. Inspector Richardson testified that he thought he was the owner because as a general rule in West Oakland, when a house is being cleaned and painted, the owner is doing it, and the man had keys.

Inspector Reed testified that the painter said he did not know whether the defendant was in his room. No noise was heard from inside the room and the officers did not remember whether the lights were on or not.

Defendant's first argument is that the law of the case governs, and the search must be declared illegal here as in the first case, relying upon Davis v. Edmonds, 218 Cal. 355, 23 P.2d 289. The doctrine applies to criminal as well as civil cases (People v. Marshall, 209 Cal. 540, 289 P. 629), but the basis of the rule is that the facts presented on the second appeal are the same as the first. 4 Cal.Jur.2d 594, 608; see Erlin v. National Union Fire Ins. Co., 7 Cal.2d 547, 548, 61 P.2d 756; Estate of Baird, 193 Cal. 225, 244, 223 P. 974; 3 Witkin on California Procedure 2424. Therefore, the question must be reconsidered in this appeal insofar as the additional factors brought out in the testimony may influence the result. Davis v. Edmonds, supra, 218 Cal. 355, 23 P.2d 289, applying the law of the case when the appellant changed only his theory of exclusion of certain evidence on two successive appeals, is not applicable here.

The respondent argues that the seizure of the guns was pursuant to a search warrant, and the burden is on the appellant to establish the illegality of the search pursuant to the warrant. It is undisputed that the warrant was obtained after the first entry and as a direct result of that entry. This having been shown to have taken place without a warrant, the burden then shifts back to the prosecution to establish the legality of the entry. People v. Carswell, supra, 149 Cal.App.2d 395, 398, 308 P.2d 852, relying upon People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721.

The respondent urges two grounds for legality of the entry: (a) Penal Code, section 844 and (b) consent by the painter.

Penal Code section 844 provides: ‘To make an arrest, a private person, if the offense be a felony, and in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.’ (Emphasis added.) It will be assumed that the police had grounds for arrest in that they had reasonable grounds for believing that defendant committed a felony through Mrs. Ornduff's information. However, there is nothing in the record to establish the basis for a reasonable belief that defendant was in the room. (a) The painter said he did not know whether defendant was in the room; (b) they received no reply to a loud knocking; and (c) heard no sound in the room. It was between 4:30 and 6 o'clock in the evening and respondent argues that the officers reasonably concluded defendant would be home from work. Since they did not know where, or what hours, he worked, this conclusion must have been based upon common experience which would indicate that he might or might not have been home from work, or might be out to supper. Respondent also relies upon the lack of reply, arguing that the police could infer from this that defendant was evading them or asleep, and therefore was inside. This reasoning is circular since the inferences attempted to be drawn depend upon a reasonable basis for believing defendant was inside. Unless the qualification that breaking into a place to arrest is justified only when the person is there or the officers ‘have reasonable grounds for believing’ him to be there is meaningless, the entry here would not be justified under Penal Code, section 844.

The second ground for justifying the entry relied upon by respondent is consent by the painter. It is argued that the police could have reasonably believed him to be the owner since he was working on the place, and had keys. Even if the painter had been the owner or manager of the building, his consent would not be sufficient. In People v. Roberts, 47 Cal.2d 374, 377, 303 P.2d 721, 722, holding the purported consent ineffective to authorize the search, the court stated: ‘The situation here is entirely unlike that in People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, and People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513. In both of those cases the premises searched were part of a private home, it was unclear whether the defendant was a guest, tenant or servant, and the officers had the consent of the owner who purported to have authority to authorize the search. In the present case Mrs. Higgins was a tenant of an apartment, and there is no evidence that the officers had reason to believe that the manager had authority to consent to their entry.’ The same would apply here.

Respondent's final argument is that the door was opened voluntarily by the painter and the ‘officers should not be penalized for the voluntary act of the painter in opening the door.’ There is no dispute that the painter was asked whether he had a key. It is hardly reasonable that the question was an academic one to satisfy the curiosity of the police, and the opening of the door was clearly in response to the question.

The prosecution has not shown any legal justification for the entry and therefore the guns were inadmissible.

II. Was It Error To Permit the Prosecution To Read Into Evidence Testimony Given At a Former Trial?

Upon the ground that he was out of the state at the time of this trial, the testimony of one Charles E. Holmes, given at a former trial was read into evidence over the objection of the defendant.

Penal Code, section 686, subdivision 3, provides that a defendant is entitled to ‘produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that * * * the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted.’

Fred Davis, a deputy probation officer in Alameda County, testified that Charles E. Holmes had been assigned to him for supervision, and that he had a letter postmarked July 22 from Holmes indicating he was in Philadelphia, Pennsylvania. The trial of this case began July 24. On July 11, the superior court had made an order restoring Holmes to probation on condition that he return to Philadelphia. The probation officer was aware that he (Holmes) was a witness in the Carswell case, but the court was not so advised on July 11. A representative of the District Attorney's office, Mr. Sutton, was in court at the time of the hearing. The probation officer stated on that day, a Thursday, that he (the probation officer) had not yet received the money; his testimony at the trial was that he ‘gave him [Holmes] the money on Tuesday; he said he was leaving that night.’ The District Attorney's office discussed the matter with the probation officer on the same day, or the day following the July 11 proceedings, when Holmes was still in California.

The court below refused to impute the knowledge of the various officers involved to each other, stated that the word ‘inadvertent’ described the situation, and ruled that he would allow the testimony to be read unless the defendant made a showing of special prejudice.

The defendant argues that there must be a showing of diligence under the statute, that the evidence was insufficient to show Holmes was outside the jurisdiction, that the District Attorney must be charged with knowledge of the hearing on July 11 and take responsibility for failure to oppose the motion.

The evidence of Holmes' being outside the jurisdiction is not too satisfactory. There was no testimony as to what postmark was on the letter, and even if there had been a Philadelphia postmark on it, it could have been mailed by Holmes as an enclosure to Philadelphia, and then mailed back to California between July 11 and July 22. An inference that Holmes was in Philadelphia on the 22nd when the letter was mailed is a permissible inference, but not the only one possible. However, there is nothing to support the further inference that Holmes was out of the jurisdiction at the time of the trial. He could easily have returned to California by the time the trial began, two days after the letter was postmarked, or at the time the testimony was read on July 29, seven days after the letter was postmarked.

The respondent relies on People v. Bryant, 124 Cal.App. 241, 243, 12 P.2d 168, 169, where the testimony of a Mrs. Luna at the preliminary examination was allowed to be read into evidence. A letter dated six days before trial began was admitted into evidence without objection. The letter stated that the witness would not be able to be present at the trial and her physician advised her that her physical condition would not admit of the trip. The court also stated that ‘it was shown by competent evidence that Mrs. Luna had gone from the state of California to the state of Texas about six weeks before the time of this trial, and that she had not returned to this state.’ In the instant case, there was no such independent showing; the contents of the letter from Holmes were not introduced into evidence; and even if they had been and supported the conclusion that Holmes was not planning to return, there was no suggestion of physical impossibility of returning. The only barrier to Holmes' presence was the court's order concerning the conditions of probation, which might well have been different had the court been apprised of the true situation.

The respondent also argues that the defendant conceded in the trial court that the evidence was sufficient to show that Holmes was out of the jurisdiction. After a discussion of the search and seizure question, the following took place: ‘The Court: You wanted to argue the point as to whether or not the Court would admit the testimony of the witness in Pennsylvania? Mr. Spear [defense counsel]: Right. Now, we can start with the supposition that counsel has shown, that the witness is beyond the jurisdiction, which comes within 686, Subdivision 3, of the Penal Code * * *.’ The purported concession appears to be only a concession for the purpose of the argument to follow, which was to the effect that the testimony should not be read even if it were conclusively established that the witness was in Pennsylvania.

Respondent attempts to meet the appellant's argument that lack of due diligence was shown, by stating that this is immaterial because inability to find the witness within the jurisdiction with due diligence is a separate ground for admission of prior testimony, and immaterial in this case. The respondent's argument would seem to be completely correct but based upon a misunderstanding of the defendant's argument. If it is shown that the witness is out of the state, it would be superfluous to make an intensive search within the jurisdiction to establish that he was not within the state. However, the defendant seems to argue that the respondent, under the peculiar circumstances of this case had an obligation to use due diligence to insure the witness' presence at the trial.

That the state has more than an obligation to ascertain the whereabouts of witnesses on the eve of trial is implied by People v. McDonald, 66 Cal.App.2d 504, 152 P.2d 448. There the plea was entered on October 11. The process server received the subpoena in the latter part of October. The process server went to the place the witness was supposed to work on November 3; returned the next day and found he had been transferred; went to a second working place on November 5th; returned there on the 6th; checked the Veterans Hospital on the 15th after being told the witness was a veteran with an injury to his side; rechecked the places of work on the 29th; checked one work place and the hospital on December 8; checked the jails and the police station on December 7 and 8; checked again at the place of work on January 14 and also checked a purported residence, finding that no such place existed. The court held that this was an insufficient showing of diligence in attempting to find the witness within the jurisdiction. The court stated, 66 Cal.App.2d at page 508, 152 P.2d at page 449: ‘The process server did not receive the subpoena until the latter part of October. Such leisurely activity is not ‘due diligence’, in the light of the record of the witness's testimony at the preliminary hearing. * * * The testimony given by the complainant at the preliminary hearing revealed him to be an apparently illiterate man, and probably a transient. In any event, the record of a preliminary hearing was in the nature of a warning, for the testimony of the complainant itself was notice of the uncertainty of such witness's whereabouts at any time.' The opinion is based upon not only an obligation to search for the witness at the time of trial, but also to do those things which are reasonable in light of the circumstances of the case, to insure that the witness will appear, such as timely procuring and serving a subpoena.

The principle would be equally applicable here. It seems grossly unfair to sit idly by while the witness left the jurisdiction less than two weeks before the trial and thereby gain the right to have the prior testimony read into the record. This would be the case even if the District Attorney had no knowledge of the proceedings to change the conditions of probation. However, a representative of the District Attorney's office, Mr. Sutton, did have actual knowledge of those proceedings. Mr. Vukota, the attorney who actually prosecuted the case, stated that he had no knowledge of those proceedings, but both he and Mr. Sutton act on behalf of the same District Attorney. The prosecution here clearly had an opportunity and the means, under the peculiar circumstances of this case, to produce Holmes at the trial.

III. Were Erroneous Instructions Given?

(a) In respect to corroboration, the court instructed as follows:

‘In determining whether or not the testimony of an accomplice had been corroborated as required by law, you must, for the purpose only of your consideration of that question, assume to be removed from the case such testimony, if any, of the accomplice which tends to connect the defendant with the commission of the crime charged and shown by the evidence to have been committed by someone; and you then must examine all the other evidence with the view of determining if there be any evidence tending to connect the defendant with the commission of the offenses.’

The reviewing court upon the prior appeal cogently and correctly criticized this instruction. (See at pages 403–404 of 149 Cal.App.2d, at pages 856–857 of 308 P.2d.) We concur in the views therein expressed and find the instruction erroneous.

(b) In respect to admissions, defendant complains of the following instruction: ‘You must view with caution the testimony of any witness which purports to relate an oral statement of the defendant.’ Code of Civil Procedure, section 2061, subdivision 4, provides that the jury is to be instructed on all proper occasions ‘That the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution.’

In this case, there was testimony by police officers of statements made by the defendant to them after he was taken into custody. Defendant testified to a different version of this conversation. Defendant's argument seems to be that, under the instruction given, relating to any ‘oral statement’ and not admissions alone, both the prosecution witness' and defendant's testimony concerning these conversations could be viewed with caution. This is not the result contemplated by the proper instruction.

We conclude that the errors discussed operated prejudicially. In view of this conclusion, it is unnecessary to discuss other errors assigned.

The judgment and the order denying a new trial are reversed.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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