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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bobbie HARRINGTON and Marcie Harrington, Defendants and Appellants.

Cr. 15188.

Decided: October 02, 1969

Morris Lavine, Los Angeles, for appellants. Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Robert F. Katz, Deputy Attys. Gen., for respondent.

Defendants Bobbie and Marcie Harrington, husband and wife, were both charged with possession of marijuana for sale. (Health & Saf.Code, § 11530.5.) Both were convicted of possession of marijuana (Health & Saf.Code, § 11530) as a lesser, included offense. Bobbie was sentenced to state prison, Marcie was granted probation. Both appeal.


At about 2:15 p. m. on October 7, 1967, Deputy Sheriff Winkler went to the home of the defendants. He was in uniform and traveled on a department motorcycle. He went there because he had received information by phone from Deputy Iavelli, a fellow officer, that a runaway juvenile was believed to be at the house and that there might be narcotics on the premises. The only information Winkler had concerning the juvenile was that she was a girl named Sharon, sixteen years old, five feet nine, with blond hair. Winkler had no arrest warrants for sharon or for the defendants and no search warrant for the premises.

Winkler knocked. Bobbie Harrington opened the door. Winkler asked him his name. Bobbie identified himself. Winkler told him he was looking for a missing juvenile named Sharon. Bobbie said that she had been there but was not there then. Bobbie then began to walk onto the porch and Winkler asked him if they could go inside and discuss the matter, rather than remain on the porch. Bobbie made no verbal response but stepped aside and made a gesture which consisted of Bobbie extending his left hand about two feet out from his left leg. Whether his palm was up or down we do not know. The magistrate at the preliminary hearing saw Winkler imitate the gesture1 and ruled that it indicated that Bobbie wanted the officer to come inside.

Inside the living room marijuana was found in plain sight. Defendants were arrested and more marijuana was found in the house.

In the superior court defendants moved for suppression of the marijuana. The motion was properly made before trial. It was heard by Judge Williams.2 It was submitted on the transcript of the preliminary hearing. After lengthy argument the motion was denied. The case was then assigned to Judge Brand for trial. During the trial counsel for defendant attempted to reopen the question of the legality of the officer's entry into the house. Judge Brand ruled with the prosecutor when he objected that the issue of whether or not any evidence was to be suppressed had already been decided by Judge Williams. Officer Winkler then testified. The evidence he gave started at the point where he noticed the marijuana in the living room. Both defendants were convicted of possession of marijuana, although there was expert testimony that because of the quantity and certain paraphernalia found on the premises, the marijuana was possessed for sale.

On appeal defendants argue that Judge Williams should have granted the motion under 1538.5. We agree.

Since Officer Winkler had no warrant of any kind, it was the People's burden to show justification for the seizure of the marijuana. (Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23.) Hence it was their burden to prove that Bobbie had consented to the entry of Officer Winkler. (People v. Johnson, 68 Cal.2d 629, 632, 68 Cal.Rptr. 441, 440 P.2d 921; People v. Gorg, 45 Cal.2d 776, 782–783, 291 P.2d 469.)

All agreed at the hearing that no words of consent were uttered. Everything depended on the gesture. Judge Williams did not observe it. He just read the same transcript which is before us now. Conceivably the mere description of the gesture which appears in the transcript—see footnote 1 above—allows even a trier of fact who does not observe the witness to draw the inference that it was an invitation to enter. We doubt it, but it is of no importance since the discussion between court and counsel at the 1538.5 hearing demonstrates unmistakably that the court relied on the magistrate's interpretation of the meaning of the gesture.3

Although a 1538.5 motion may be, and often is, submitted on the evidence developed at the preliminary hearing, the function of the superior court judge in ruling on such a motion is not the same as his function when determining, at a 995 motion, whether the defendant has been committed ‘without reasonable or probable cause.’ That distinction was pointed out in People v. Heard, 266 Cal.App.2d 747, 749, 72 Cal.Rptr. 374. That case was the very opposite of the one at bar. It was an appeal by the People from an order granting a motion under section 995. The defendant argued, relying on People v. Superior Court, 264 Cal.App.2d 165, 166, 70 Cal.Rptr. 362, that the appellate court was bound by findings of fact impliedly made by the superior court. The court disagreed: ‘* * *. The true rule is exactly the converse. The appellate court in People v. Superior Court, supra, was considering a petition for a writ of mandate filed by the People pursuant to the provisions of section 1538.5, subdivision (o) of the Penal Code. A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the superior court sitting as a finder of fact. However, in considering a motion to dismiss under Penal Code, section 995, the superior court is sitting as a reviewing court and is bound by the rules enunciated in Perry v. Superior Court, 57 Cal.2d 276, 283–284, 19 Cal.Rptr. 1, 368 P.2d 529: ‘Although the magistrate, in reaching his decision [to hold an accused to answer following a preliminary hearing], may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order. [Citation.]’ (Italics added.)' (266 Cal.App.2d at 749, 72 Cal.Rptr. at 375–376.)

The judgments must therefore be reversed and we need not discuss other contentions made by defendants except to the extent that the issues raised are again likely to become problems.

At various points in the proceedings below defendants insisted that the People should prove how Officer Iavelli received the information that Sharon was a runaway.4 Although Officer Iavelli testified both at the preliminary hearing and at the trial, no one ever asked him the question. Defendants now argue that the People failed to prove that they had information that Sharon was a runaway and that Officer Winkler's description of her as such was a ruse intended to increase the likelihood that Bobbie would give consent to enter. Whether or not defendants' point that the ruse vitiated any consent is well taken, the trial counsel's insistence that the People had not proved what information Iavelli had received was well taken. (See People v. Adkins, 273 Cal.App.2d 196, ——*, 78 Cal.Rptr. 397.)

The judgments are reversed.


1.  ‘THE WITNESS: He was at the door. Well, in this manner, and as I walked in, he stepped aside and went like that. THE COURT: Which hand? THE WITNESS: With his left hand. THE COURT: And sort of brought it out to the side of his body—how far out? THE WITXESS: About as I have it here. THE COURT: Indicating two feet from his leg? THE WITXESS: From his left leg, yes.’

2.  On appeal defendants are represented by new counsel. He states in his opening brief that the motion was made under section 995 of the Penal Code, but in the body of his argument seems to assume it was made both under section 995 and section 1538.5. The Attorney General doubts that a 995 motion was ever made. He is correct. The confusion arises perhaps from the fact that the reporter's transcript starts at an afternoon session on January 15, 1968. At that session counsel for defendants merely referred to ‘the motion.’ It is, however, quite clear from the totality of the reporter's transcript, both of the hearing and of the trial itself, that everybody assumed that the motion was made under section 1538.5. Thus, for example, at one point during the argument counsel pointed out to the court that it should not judge ‘this thing in the sense of a 995.’ Furthermore, the minute order for that day shows that a 1538.5 motion was made, was assigned by Judge Williams to another judge, who was then disqualified by one of the parties under section 170.6 of the Code of Civil Procedure. The matter was then heard by Judge Williams himself. What appears under section 170.6 of the Code of Civil Procedure. The matter was then heard by Judge Williams himself. What appears to be missing from the reporter's transcript is that part of the proceedings which preceded the disqualification.

3.  ‘* * * The Court had him indicate what type of gesture ‘it was, so that the Court then saw the manual gesture on the part of the officer, and the fact that he bound these defendants over means that he himself wasable to take from the gesture he saw something that was akin to an invitation inside. * * * The only thing we have here is the use of a gesture rather than words, and I point out again the fact that the magistrate saw the gesture, and by binding this defendant over, indicates thereby that he deemed the officer reasonable in interpreting the gesture to be an invitation inside. To ask an officer, or any witness, for that matter, to demonstrate for purposes of a cold written record the type of gesture he saw is difficult. I would find it hard to describe just what type of gesture was made. And it looks even more confusing when you see it in the form of a transcript. I think that there is evidence that the officer was invited inside, not by the use of words, but by the use of the gesture, and that the motion must and is denied.’ (Italics ours.) Counsel continued to argue after the ruling, pointing out that the finding of a magistrate at a preliminary hearing is not ‘equivalent to the examination by a Superior Court judge in a motion such as this.’ The court replied with the somewhat cryptic remark: ‘I am not relying upon it as saying because he did it, I am going to do it.’We cannot accept this statement, coming as it did after the court had ruled, as indicating a complete about face respecting the reason for its ruling. Even if we did, we would still be faced with the problem whether any reasonable trier of fact could, without more than the written record, interpret the gesture as described in footnote 1 as meaning an invitation to enter.

4.  There seems to be no doubt that she had been at the Harrington home at one point. Marcie Harrington testified, however, that Sharon's stay was with her mother's consent.

FOOTNOTE.  FN* 273 A.C.A. 211, 213–214.

KAUS, Presiding Justice.

STEPHENS and AISO, JJ., concur.