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

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Eugene EDGAR, Defendant and Appellant.

Cr. 4108.

Decided: January 31, 1963

Harold L. Hammond, Public Defender of Humboldt County, James E. Marks, Deputy Public Defender, Hill & Dalton, Charles V. Moore, Eureka, for appellant. Stanley Mosk, Atty. Gen., John S. McInerny, Deputy Atty. Gen., San Francisco, for respondent.

The defendant was prosecuted for alleged violation of Penal Code sections 520 (extortion), 182 (conspiracy) and 288a (oral copulation). He was convicted on all counts, but appeals only from his conviction under Penal Code section 288a.

Defendant and the complaining witness met in a bar. Later they drove about town, drinking beer and talking. They finally parked the car in a remote area, where the alleged violation of Penal Code section 288a took place. During the commission of the offense, the co-defendant Hollowell suddenly appeared, and took a flash photograph of defendant and the complaining witness. Possession of this photograph by the defendant was an important factor in the claimed later extortion from the complaining witness of both money and property.

While the defendant was in jail, he was visited by his mother, Mrs. Edgar. During their conversation he told her of the existence of the photograph and instructed her to obtain it and to hide it. The conversation between defendant and his mother was monitored by officers in the jail, who in turn notified officers Fogarty and Busey. These officers proceeded at once to Mrs. Edgar's home and were voluntarily admitted by Mr. Edgar. The officers were waiting when Mrs. Edgar arrived. They told her they knew of her conversation with the defendant, and that they wanted the picture. Mrs. Edgar expressed uncertainty about turning the picture over to the officers. During the conversation between the officers and Mrs. Edgar, which is variously estimated as having lasted from 15 minutes to half an hour, the officers continued to demand the picture and informed Mrs. Edgar that she was violating the law by concealing evidence, for which she could be arrested. It is undisputed also that three or four times during the conversation the officers threatened to arrest Mrs. Edgar if she continued to refuse to surrender the picture, and that finally Mrs. Edgar chose to hand over the picture rather than be arrested. At trial the photograph was received in evidence and the respondent does not deny that it is the corroborative evidence on which defendant's conviction of a violation of Penal Code section 288a must stand or fall.

The defendant contends the seizure of the photograph violated Article I, Section 19, California Constitution, and the Fourth Amendment to the Constitution of the United States. We cannot agree.

It is settled law that a search without a warrant is valid where it is incident to a lawful arrest, if it is reasonable and made in good faith, and that a seizure during such a search, of evidence related to the crime is permissible. (People v. Winston, 46 Cal.2d 151, 293 P.2d 40; People v. Stewart, 144 Cal.App.2d 555, 301 P.2d 301.)

Section 135 of the Penal Code provides: ‘Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.’ It was the contention of the officers, expressed to Mrs. Edgar in her home, that she was violating the quoted section of the Penal Code by concealing evidence in the pending action against the defendant, and that she was subject to immediate arrest. In considering the adminissibility into evidence of the photograph, the court properly conducted its proceedings and determined this issue out of the presence of the jury. (People v. Gorg, 45 Cal.2d 776, 291 P.2d 469.) At the conclusion of these proceedings the court orally found from the evidence before it that Mrs. Edgar's intention was to hide, not to destroy, the picture; that the officers had reasonable cause to believe that Mrs. Edgar was violating Penal Code section 135, and that she was subject to immediate arrest; that the demands of the officers were legitimate and that Mrs. Edgar chose to hand over the photograph rather than face arrest. On these findings the photograph was received in evidence.

The findings are fully supported by the record. When the officers demanded the photograph, Mrs. Edgar did not deny that she had possession of it, or knew where to look for it in her home. On the contrary, her responses to the demands of the officers related to the propriety of her conduct in delivering the picture to them. Thus, in effect, while admitting possession of the evidence, Mrs. Edgar refused to turn it over to the officers. It was, of course, the belief of the authorities that the photograph was an important factor, if indeed it was not the chief means used by the defendant in his alleged commission of the crime of extortion. Under the circumstances the officers were reasonably entitled to assume that if the photograph was of an incriminating nature, Mrs. Edgar would not produce it at all, and hence she was then violating Penal Code section 135.

We are not unmindful that a violation of Penal Code section 135 is a misdemeanor, and that the officers here had no warrant for the arrest of Mrs. Edgar. It is elementary law that an officer may arrest without a warrant for a misdemeanor committed in his presence. (Penal Code section 836.) Since the decision in Coverstone v. Davies, 38 Cal.2d 315, 320, 239 P.2d 876, it has also been the law that a police officer may arrest without a warrant if at the time of arrest he entertains a reasonable belief that a public offense, whether felony or misdemeanor, is then being committed in his presence. (See also Garske v. United States, 8 Cir., 1 F.2d 620, 622.) The 1957 amendment of section 836(1) specifically incorporates the rule of Coverstone. As stated in Coverstone v. Davies, supra, quoting from State ex rel. Neville v. Mullen, 63 Mont. 50, 58, 207 P. 634: “* * * the utmost that can be exacted of the officer who arrests without a warrant is that the circumstances shall be such that upon them alone he would be justified in making a complaint upon which a warrant might issue.” Here the trial court found that ‘under all of the circumstances the so called threats were legitimate’, and that the officer ‘could have booked her in view of his information for withholding evidence.’ We conclude from the record that the trial court found the officers entertained a reasonable belief that a misdemeanor was being committed in their presence and hence their threats to arrest Mrs. Edgar were lawful and could have been carried out. Since the officers could have made a proper arrest, and could have conducted a reasonable search incident thereto, it violates no constitutional right of the defendant that Mrs. Edgar chose to turn over the picture rather than face arrest and a possible search incident thereto.

Although the point is not raised by respondent, we note that there is room to doubt that the photograph is the only corroboration of the complaining witness' testimony. The corroboration which is required is only evidence tending to connect defendant with the commission of the crime. Corroboration as to the corpus delicti is not required (People v. Wade, 53 Cal.2d 322, 329, 1 Cal.Rptr. 683, 348 P.2d 116). While as to the latter factor the picture is the only evidence other than that of the complainant, there is other evidence which may well be viewed as corroboration of defendant's connection with the offense.

The judgment is affirmed.

SALSMAN, Justice.

DRAPER, P. J., and DEVINE, J., concur.

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