PEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Ross LAURSEN, Defendant and Appellant.
Appellant was charged by information with violation of Penal Code section 211a (armed robbery) and Penal Code section 209 (kidnaping to commit robbery).
The is the second time this cause has been before this court. Upon his first trial he was convicted by a jury of both charges. Upon appeal to this court the judgment was reversed on August 14, 1968, on the ground of prejudicial misconduct by the prosecuting attorney (People v. Laursen (1968) 264 Cal.App.2d 932, 71 Cal.Rptr. 71).
Appellant was retried before and convicted by a jury on one same charges on February 13, 1970. This appeal is from the second judgment of conviction. He makes a number of contentions, which will be dealt with seriatim.
Shortly after 9:00 A.M. on October 14, 1964, one Vincent Roosevelt Lowrie and another person, identified as appellant, robbed at gunpoint Esther Harris, a cashier as Giant Food Market in Fresno, of approximately $2,000. The store manager, a Mr. George Belluomini, was also present. Lowrie and the appellant had arrived at the market in a 1955 four door Mercury, which they parked at the curb. The car was registered to appellant's wife, Ruby Laursen, and carried Alabama license plates. Upon exiting the market, they ran to and entered the Mercury. They were unable to start it, so they ran to the parking lot of a nearby furniture store, where they came upon one Donald Teeter, an employee of the furniture store, whom they commandeered at gunpoint. They forced him to drive them away in his Sprite automobile.
One Ralph Canales was an eyewitness to the panorama of events involving the arrival and departure of the robbers. He hailed a passing motorcycle officer, Maurice Regan, and directed him to the furniture store parking area, where the Sprite was approaching an exit. Appellant was seated in the right front seat, leaning out the window of the car. He pointed a gun at the police officer. Teeter attempted to restrain appellant and wrench the gun away from him. In the process, Teeter was shot in the hand. As the Sprite left, the officer fired five or six shots toward the car in an effort to disable the vehicle but was unsuccessful.
After traveling approximately one to one and one-half miles, appellant ordered Teeter to stop. Appellant exited the Sprite, carrying a brown paper sack with the loot, and walked to a service station, where he asked the operator, one Maurice Bean, to call a cab for him. While he waited about fifteen minutes for the cab, he chatted with Mr. Bean.
Lowrie proceeded with Teeter for a short distance to an orchard, where Lowrie bound Teeter and left him in a ditch. Lowrie drove off in Teeter's Sprite. He was apprehended shortly thereafter and was in the police car with Teeter within 20 to 25 minutes after he had left Teeter in the ditch.
Appellant, under the pseudonym of Eddie Pierce, and Lowrie had been sharing a bedroom at the residence of Otis Graham for several days. At about 10:00 A.M. on October 14, 1968, the day of the robbery, appellant arrived at the Graham residence. He told Graham that he had ‘bungled a job’ and had to shoot a guy and asked Graham to take him out of town. During the evening of October 14, Graham, accompanied by his girl friend, Elsie Bratton, drove appellant to Bakersfield, where he took a bus out of the state.
Appellant was eventually located in Kansas City, Kansas, and after extradition proceedings was brought back to Fresno in July of 1965.
Appellant testified at the second trial. His defense was that of alibi, in that on October 14, 1964, he contended that he was in Kansas City, Missouri and that he had never been in Fresno, California prior to having been extradited to that city in July of 1965. Four defense Witnesses gave testimony which tended to establish that appellant was in Kansas City, Missouri on the date of the robbery.
PENAL CODE SECTION 209 OFFENSE—KIDNAPING TO COMMIT ROBBERY1
Appellant contends that he cannot be guilty of kidnaping to commit robbery under Penal Code section 209, quoted in the margin, inasmuch as the kidnaping of Teeter followed the actual robbery, Teeter was not the victim of the robbery, the asportation of Teeter occurred after some time and some distance from the actual robbery, and, under the facts, the intent2 to kidnap did not occur until after the actual robbery was completed and during the course of the escape. He argues that under these facts robbery and the kidnaping were separate offenses, punishable under Penal Code section 211a, robbery, and Penal Code section 207, simple kidnaping,3 but not under Penal Code section 209, which in the language of the section punishes one ‘who kidnaps or carries away any individual to commit robbery.’
With respect to this contention, the facts are not in dispute. Appellant's car was parked at the curb prior to entering the market. After completing the actual robbery of the market, he entered his car but could not escape therein because it wouldn't start. He went to the parking area of a nearby furniture store looking for a means of escape. By coincidence Teeter happened to be at his car, and the kidnaping then took place. There was no evidence of an intent to rob Teeter, nor was this the theory of the case at the trial.
It is clear under these facts that the intent to kidnap did not arise until some time had elapsed after the actual robbery was completed; that the kidnaping was of a person totally unrelated to the robbery, and that it took place off the premises of the robbery. Aside from the decision in this case on the former appeal this combination or circumstances is unique and creates a problem of first impression.
This court on the former appeal stated in its decision, 264 Cal.App.2d at page 945, 71 Cal.Rptr. at page 79:
‘Defendant contends the trial judge committed error by instructing the jury that a kidnaping in the course of a robbery or with intent to commit robbery can occur after the actual taking of the property; that is, the kidnaping can take place during escape or while evading pursuit or apprehension. Defendant appears to argue that in the light of the 1951 amendments to section 209 of the Penal Code, the kidnaping must precede the robbery. This is a misconstruction of the code section. People v. Martin, 250 Cal.App.2d 263, at pages 268–269, 58 Cal.Rptr. 481, at page 485, considers this proposition: ‘Where, as here, kidnaping occurs after the actual perpetration of a robbery ‘such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm. [Citations.]’' (See also People v. Monk, 56 Cal.2d 288, 295 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Kristy, 4 Cal.2d 504, 507–508 [50 P.2d 798]; People v. Randazzo, 132 Cal.App.2d 20, 23–24 [281 P.2d 289].)'
In obedience to the above holding on the first appeal (People v. Laursen, supra, 264 Cal.App.2d at p. 945, 71 Cal.Rptr. 71), the jury at the second trial was instructed:
‘You are instructed that where, as here, it is alleged that the kidnaping occurred after the actual perpetration of a robbery such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the kidnaped victim was to effect the escape of the robber.’
The question immediately arises as to whether the doctrine of the law of the case prevents this court from reconsidering the principles stated on the former appeal in view of the later pronouncements of our Supreme Court delineating and restricting the scope of the operation of Penal Code section 209, as typified in the cases of People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, and People v. Tribble, supra, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589.
For the reasons hereinafter stated, we believe the Supreme Court's interpretation respecting the intent and purpose behind Penal Code section 209, as reflected in Daniels and Tribble, supra, has sufficiently altered and clarified the rules of law applicable to the interpretation of that section as to justify re-examination of our former holding, inasmuch as a refusal to do so would lead to a harsh result (People v. Terry (1964) 61 Cal.2d 137, 151, 37 Cal.Rptr. 605, 390 P.2d 381; Subsequent Injuries Fund v. Industrial Acc. Comm. (1960) 53 Cal.2d 392, 395, 1 Cal.Rptr. 833, 348 P.2d 193).
As the court stated in People v. Daniels, supra, 71 Cal.2d 1119, at p. 1139, 80 Cal.Rptr. 897, at p. 910, 459 P.2d 225, at p. 237, in interpreting the legislative purpose of Penal Code section 209, and in the process of overruling a number of their own holdings to the contrary:
‘This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.’ [Citation.]'
In that case, the court concluded that it was the legislative intent in amending Penal Code section 209 in 1951 to circumscribe that scope of the section by preventing a person from being convicted under this section and thereby receiving the death sentence or life imprisonment without the possibility of parole for behavior that amounts in substance to no more than robbery. The court excluded from the reach of the statute standstill robberies and ‘those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.’ (At p. 1139, 80 Cal.Rptr. at p. 910, 459 P.2d at p. 237.)
In People v. Tribble, supra, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589, the court disapproved prior cases to the contrary and held that the intent to rob must exist at the time the kidnaping takes place, and that if the intent to rob is formed later, it may be kidnaping and robbery but not kidnaping to commit robbery.
‘A person could not kidnap and carry away his victim to commit robbery if the intent to rob was not formed until after the kidnaping had occurred. As the court stated in People v. Smith (1963) 223 Cal.App.2d 225, 234 [35 Cal.Rptr. 719, 724], in condemning instructions essentially the same as those given in this case, both the Brown case [People v. Brown, 29 Cal.2d 555, 176 P.2d 929] and the Knowles case [People v. Knowles, 35 Cal.2d 175, 217 P.2d 1] ‘preceded the 1951 amendment when detention alone was sufficient to constitute kidnapping for purpose of robbery and no asportation was required. [Par.] . . . [A]n additional effect of the change in the statute is to make it necessary for the trier of fact to determine whether the kidnaper intended to commit robbery at the time of the original seizing. In this respect the crime is similar to burglary where it is necessary to show that the entry was with the intent to commit larceny or any felony. An illegal entry but without such an intent is not a burglary (People v. Jenkins, 16 Cal. 431); similarly since the 1951 amendment to section 209, kidnapping without intent to rob constitutes kidnapping but not kidnapping for purpose of robbery; and a robbery during a kidnapping where the intent was formed after the asportation is a robbery and not a kidnapping for purpose of robbery.’ . . .
‘In the present case defendant was entitled to have the jury determine whether he intended to commit robbery at the time the kidnaping commenced or whether the intent to commit robbery was an afterthought to a kidnaping. . . .’
(At pp. 831–832, 94 Cal.Rptr. at p. 616, 484 P.2d at p. 592.)
Thus, it is apparent that the statute was construed in Tribble to require the separately defined crimes of robbery and kidnaping to be tied together by the existence of the element of intent at the beginning of the transaction and not to punish as a section 209 offense conduct which amounts to two separate and distinct offenses.
The rule repeated and relied upon by this court on the former appeal, to the effect that the kidnaping may take place during the escape from the actual robbery if the transportation of the victim is to facilitate the escape, is supported by the cases cited in the former opinion (264 Cal.App.2d at p. 945, 71 Cal.Rptr. 71). It is to be noted, however, that each of those cases was decided before Daniels and Tribble. It is to be further noted that the rule therein announced refers to the transportation of the ‘victim’, and a review of the cases indicates that in each case it was the victim of the robbery or someone intimately involved therein who was being transported.
Of greater significance, in each case the asportation took place at or before the completion of the actual robbery and before the commencement of the escape period and one can conclude that the intent to kidnap was probably formed before the actual robbery was completed, though the issue of when the intent to kidnap was formed was not discussed.
Typically, the kidnaping and the robbery have been part of an integrated prearranged and planned operation, wherein the kidnaping has preceded the robbery and was accomplished to commit robbery; in some cases a person or business was robbed and a kidnaped person taken from the premises, the kidnaping being prearranged and planned.
While the California statute is unique in its specification of robbery as one of the purposes of kidnaping (People v. Knowles (1950) 35 Cal.2d 175, 195, 217 P.2d 1 (Edmonds' dissent)),4 historically kidnaping to commit extortion or to hold for ransom contemplated that the intent to kidnap be an essential prelude to the extortion and there is nothing in the language or history of the statute to suggest a different intent was contemplated by the Legislature when it added robbery as one of the purposes of kidnaping (People v. Knowles, supra, pp. 189–190, 198–200, 203, 217 P.2d 1).
The statute by its express terms does not punish kidnaping to escape but kidnaping to commit robbery. Aside from other considerations, under the literal holding of Tribble as applied to the facts of the case at bench, it is difficult to conceive how the appellant could have had the intent to rob at the time of the asportation involved in the kidnaping as there was no intent to kidnap until after the actual robbery had been completed.
The genesis of the rule stated upon the former appeal in this case is found in the concept that a robbery continues through the escape phase for the purpose of the felony-murder rule, and a run-down of the history of the rule demonstrates that this concept was lifted without modification from its application in the context of the felony-murder doctrine and applied to prosecutions under Penal Code section 209.
The doctrine was stated in the early felony-murder case of People v. Boss (1930) 210 Cal. 245, 250–251, 290 P. 881, which involved a murder prosecution as a result of the defendants' having killed a person who was pursuing them in their flight from the scene of a robbery they had committed.
The common law felony-murder doctrine was codified in Penal Code section 189 and applies to a homicide committed in the ‘perpetration’ of robbery, rather than to ‘any person who kidnaps . . . to commit robbery’ (Pen.Code, § 209). As applied in the felony-murder context, it has always been enough to show that the felony and the killing are part of a continuous transaction (People v. Chavez (1951) 37 Cal.2d 656, 234 P.2d 632). In that case the court restated the law:
‘In his argument, Chavez erroneously assumes that to bring a homicide within the terms of section 189 of the Penal Code, the killing must have have occurred ‘while committing,’ ‘while engaged in,’ or ‘in pursuance’ of the named felonies, and that the killing must have been ‘a part of’ the felony or attempted felony ‘in an actual and material sense, and have resulted as a natural and probable consequence thereof.’ The law of this state has never required proof of a strict causal relationship between the felony and the homicide. The statute was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker, and his court has viewed it as obviating the necessity for, rather than requiring, any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the fenoly [sic.] before the homicide was completed.
‘. . . . . .
‘There being no requirement that the homicide occur ‘while committing’ or ‘while engaged in’ the felony, or that the killing be ‘a part of’ the felony other than that the two acts be parts of one continuous transaction, the trial court did not err in refusing the requested instructions. [Citation.]'
(At pp. 669–670, 234 P.2d at p. 640.) (Emphasis added.)
(See also People v. Whitehorn (1963) 60 Cal.2d 256, 264, 32 Cal.Rptr. 199, 383 P.2d 783; People v. Mitchell (1964) 61 Cal.2d 353, 362–363, 38 Cal.Rptr. 726, 392 P.2d 526.)
Thus, it is in the light of this background that a homicide has been held to be within the scope of the felony-murder doctrine, though it takes place after the actual commission of a robbery and during the attempted escape. (See People v. Boss, supra, 210 Cal. 245, 290 P. 881; People v. Rye (1949) 33 Cal.2d 688, 692–693, 203 P.2d 748; and People v. Jennings (1958) 158 Cal.App.2d 159, 165, 322 P.2d 19.)
The court in People v. Kristy (1935) 4 Cal.2d 504, 507–508, 50 P.2d 798, quoted from People v. Boss, supra, 210 Cal. 245, 250–251, 290 P. 881, and applied the concept of a robbery continuing through the escape to a section 209 prosecution, without comment as to the significant difference between a section 209 prosecution and the felony-murder doctrine. The subsequent cases which have applied a similar rule in prosecutions under section 209 have done so without comment as to the historical distinction that exists between a prosecution under that section and prosecutions under the felony-murder doctrine.
But it is inappropriate to apply this principle to a section 209 violation in order to expand rather than restrict the operation and reach of that section in light of the principles set forth in Daniels and Tribble. As interpreted in those cases, a section 209 violation occurs only when the offense of kidnaping and robbery are inter-connected in some way. If they are separate, there may be a kidnaping and a robbery, but not kidnaping to commit robbery. The logical connecting link is the element of intent. Consistent with Tribble and the plain language and history of the statute, we hold that the intent to kidnap must be formed at or before the commencement of the actual robbery in order to come within Penal Code section 209.5 If the intent to kidnap is formed after the robbery commences, then there is a robbery and a kidnaping, but not a kidnaping to commit robbery.
It is to be noted that this determination is not necessarily inconsistent with the result of each of the cases cited by this court on the former appeal as in each of those instances, though the asportation took place after the actual robbery, the intent to kidnap could well have been formed at or before the commencement of the robbery itself.
As the intent to kidnap in the case at bench was formed after the actual robbery, we hold the instruction hereinabove quoted to the contrary to be prejudicial error and will require a reversal of the judgment.
We now proceed to consider other questions raised by the appellant in the event they arise upon a retrial (Code Civ.Proc., § 43.)
PEOPLE V. DANIELS REQUIREMENTS
Appellant contends that the two-pronged test of People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 is not met. The Daniels with respect to the movement of the victim being incidental to another offense is applicable to simple kidnaping under Penal Code section 207 (People v. Williams (1970) 2 Cal.3d 894, 900–901, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Rocco (1971) 21 Cal.App.3d 96, 101, 98 Cal.Rptr. 365) and, therefore, the question is likely to arise on retrial. However, under Penal Code section 207 the statute specifically provides that the requirements of that section are met if the victim is moved ‘into another part of the same county’ (see fn. 3, supra), and it has been held that, if the victim is so moved, there need be no substantial increase in the risk of harm as contemplated by Daniels (People v. Rocco, supra, 21 Cal.App.3d 96, 105, 98 Cal.Rptr. 365). Even assuming, however, that it is necessary to show a substantial increase in the risk of harm, it is patent that that leg of the Daniels test is met in this case. There was gun-play during the escape, during which the victim was shot by the appellant and thereafter several shots were fired by a pursuing officer at the escaping vehicle in which the victim was riding. These facts demonstrably meet the test of People v. Timmons (1971) 4 Cal.3d 411, 93 Cal.Rptr. 736, 482 P.2d 648 where the court stated:
‘Rather, we intended to refer to an increase in the risk that the victim may suffer significant physical injuries over and above those to which a victim of the underlying crime is normally exposed.’
(At p. 414, 93 Cal.Rptr. at p. 738, 482 P.2d at p. 650.) (See also People v. Ramirez (1969) 2 Cal.App.3d 345, 82 Cal.Rptr. 665.)
SEARCH OF THE AUTOMOBILE
Shortly after the robbers escaped, the police arrived. They were advised by eyewitnesses of the events involving the parked Mercury, the robbery and the escape of the criminals, whereupon they searched the driver's compartment of the Mercury. While so involved, they received information by radio that Lowrie had been apprehended. They immediately discontinued the search of the Mercury and hurried to the location of the apprehension, hoping to find and arrest the appellant, who was still at large. They were unsuccessful in locating appellant. In mid-afternoon the police went to the garage where the Mercury had been taken and stored, opened the rear compartment, and upon searching therein found papers and documents with the names Eddie Pierce, Edwin Cash Pierce and David Lee Rose. This information aided in identifying and eventually locating the appellant and was used at the trial as evidence tending to show appellant was the same person as those persons named in the documents and that he was at the scene of the robbery in Fresno on the date of the crime. Appellant asserts that the evidence was illegally obtained and inadmissible.
As the search was conducted without a warrant, the burden is upon the prosecution to justify the search (People v. Marshall (1968) 69 Cal.2d 51, 56, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Burke (1964) 61 Cal.2d 575, 578, 39 Cal.Rptr. 531, 394 P.2d 67).
This question was raised upon the former appeal and decided adverse to the appellant (People v. Laursen, supra, 264 Cal.App.2d 932, 940–941, 71 Cal.Rptr. 71). With respect to the search of the Mercury at the scene, this court in that opinion relied upon People v. Williams (1967) 67 Cal.2d 226, 229, 60 Cal.Rptr. 472, 430 P.2d 30, dealing with exigent circumstances justifying an exception to warrant requirements. The principles announced upon the former appeal remain unchanged and viable. See also People v. Smith (1966) 63 Cal.2d 779, 797, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Grubb (1965) 63 Cal.2d 614, 618, 47 Cal.Rptr. 772, 408 P.2d 100; People v. Terry (1969) 70 Cal.2d 410, 424, 77 Cal.Rptr. 460, 454 P.2d 36. Therefore, with respect to the search of the Mercury at the scene, the doctrine of the law of the case governs.
However, this court relied upon the cases of People v. Garcia (1963) 214 Cal.App.2d 681, 684, 29 Cal.Rptr. 609, and People v. Ortiz (1956) 147 Cal.App.2d 248, 256, 305 P.2d 145 espousing the doctrine of an inventory search of a vehicle legally in police custody in validating the mid-afternoon search of the garage. These cases were disapproved in the recent Supreme Court case of Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703, 710–712, 94 Cal. Rptr. 412, 484 P.2d 84, as was the decision of this court on the first appeal insofar as that decision validated the seizure at the garage as the product of an inventory search. Mozzetti was held to be fully retroactive in its application by Gallik v. Superior Court (1971) 5 Cal.3d 855, 860, 97 Cal.Rptr. 693, 489 P.2d 573.6 In view of Mozzetti, the search conducted at the garage cannot be validated as an inventory search.
At the time of the search, the appellant was not under arrest nor was he arrested for months thereafter. The search took place a number of hours after the initial removal of the vehicle, at a location where the car was safe from being tampered with or removed. There was sufficient time to have procured a search warrant. It is elementary that whether a particular search under Fourth Amendment standards is reasonable depends upon the facts and circumstances of each case (People v. Webb (1967) 66 Cal.2d 107, 118–119, 56 Cal.Rptr. 902, 424 P.2d 342). We have reviewed the decisions establishing exceptions to the basic rule that a search without a warrant is unreasonable when there is time and opportunity to obtain one (Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Dyke v. Taylor Implement Mfg. Co. (1968) 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538; People v. Burke, supra, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67) and we find no authority that would support the search of the trunk of the Mercury under the facts here. This conclusion is reinforced by the decision and observations of the Supreme Court in the recent case of Coolidge v. New Hampshire (June 1971) 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564).
SEARCH OF THE GRAHAM RESIDENCE
For about four or five days prior to the robbery, appellant and Lowrie had been staying in a bedroom at the residence occupied by Otis Graham and part time by his girl friend, Elsie Bratton. The police, acting on a tip that Lowrie had been living at the Otis Graham home, went to Otis Graham's residence by way of his mother's house (Lou Graham) on the morning following the robbery looking for appellant. Graham consented to a search of the house. Graham and Bratton took the officers to the bedroom that Lowrie and the appellant had occupied. There were four cartons in the middle of the floor, the largest of which was open and contained what appeared to be clothing. The officers were informed by Graham and Bratton that the clothing hanging in the open closet also belonged to the two men. With the express consent of Graham and Elsie Bratton, the officers took the boxes and the clothing. From this material the officers obtained the aliases of E. Pierce, Eddie Pierce, Eddie Cash Pierce, David Lee Rose and R. L. Stankavich used by appellant. They also obtained information relative to certain corporate and other enterprises and activities in which appellant was involved.
As in the case of the identifying information procured from the rear compartment of the Mercury, this information aided in identifying and eventually locating the appellant and was used at the trial as evidence tending to show appellant was the same person as those named in the documents and that he was in Fresno on the date of the robbery. Also, certain of the articles of clothing and documents were introduced in evidence at the trial. The appellant asserts that the evidence was illegally obtained and was therefore inadmissible.
Unlike the former trial, there was testimony at the second trial from Otis Graham referring to a conversation with the appellant on the way to or at Bakersfield:
‘Q. Was there ever a statement to the effect by the man you refer to as Eddie Pierce or Eddie that he would later send for the stuff that was there?
‘A He just told me to get in—he would get in touch with me.
‘Q Was this in the discussion regarding the stuff that was there?
There was uncontradicted testimony that the officers knew the property was not owned by Graham or Elsie Bratton.
This court on the former appeal upheld the warrantless seizure of the boxes and clothing and the search of the same on the ground that the appellant had abandoned them and that Graham and Bratton had lawful possession of the abandoned property and authority to consent to the search (264 Cal.App.2d at p. 942, 71 Cal.Rptr. 71).
Appellant argues that the decisions of the Supreme Court in People v. Edwards (1969) 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713; People v. Krivda (1971) 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262; People v. McGrew (1969) 1 Cal.3d 404, 82 Cal.Rptr. 473, 462 P.2d 1 together with the new testimony above referred to, mandates a different result. We agree.
People v. McGrew, supra, 1 Cal.3d 404 at p. 413, 82 Cal.Rptr. 473 at p. 478, 462 P.2d at p. 6, summarized the law of third party consent in search and seizure cases:
‘The good faith mistake rule does not, however, apply where the third party makes clear that the property belongs to another. (E. g., People v. Cruz, 61 Cal.2d 861, 866 [40 Cal.Rptr. 841, 395 P.2d 889] [guest in apartment could not consent to search of boxes and luggage belonging to others]; People v. Egan, 250 Cal.App.2d 433, 436 [58 Cal.Rptr. 627] [parents could not consent to search of bag where made clear that bag not parents']; Holzhey v. United States (5th Cir. 1955) 223 F.2d 823, 824 [relatives could not consent to search of locked cabinet]; compare, Sartain v. United States (9th Cir. 1962) 303 F.2d 859, 862–863, cert. denied, 371 U.S. 894 [83 S.Ct. 194, 9 L.Ed.2d 127] [friend could consent to search of suitcase where defendant left suitcase with key attached].’
As indicated, the officers positively knew the ownership of the property was in someone other than those consenting. In obedience to McGrew, the search cannot be upheld based upon Graham and Bratton's authorization alone. See, also People v. Baker (1970) 12 Cal.App.3d 826, 90 Cal.Rptr. 508; People v. Stage (1970) 7 Cal.App.3d 681, 86 Cal.Rptr. 701; People v. Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 89 Cal.Rptr. 316; Raymond v. Superior Court (1971) 19 Cal.App.3d 321, 96 Cal.Rptr. 678.
Undoubtedly the tenuous tenancy arrangement between appellant and Graham was terminated when, knowing he had been involved in a robbery, Graham conveyed appellant to Bakersfield for the purpose of facilitating his flight out of the state. Thus, while Graham had the authority to enter and authorize the search of the room, the above cases make clear that the principles therein stated apply to closed boxes and the recesses and parts of the clothing not visible to the eye without prying and rummaging therein.
The respondent argues that the consent was unnecessary as the objects had been abandoned by the appellant. However, as heretofore pointed out, the new testimony produced at the second trial demonstrated that Otis Graham expected appellant to get in touch with him regarding the items left and that the appellant expected to get in touch with Otis Graham regarding their disposition. Since this court's former decision, the cases of People v. Edwards, supra, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713, and People v. Krivda, supra, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262, have been decided by the Supreme Court. They advise that the test to be applied is whether the person whose property rights have been invaded had exhibited a reasonable expectation of privacy with respect to the area violated by governmental intrusion. (See also People v. Bradley (1969) 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 460 P.2d 129.) Krivda held that this test is applicable to all past cases (see 5 Cal.3d p. 365, 96 Cal.Rptr. 62, 486 P.2d 1262).
Since Edwards and Krivda, the fog has lifted. The murky atmosphere has dissipated. The true principle shines forth and has made the garbage secure. We now know that a householder has a reasonable expectation of privacy with respect to garbage dumped in a receptacle in a parkway at the public curb for pickup; that at that point such waste has not been abandoned. (People v. Krivda, supra, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262). By analogy, we are compelled by the force of those decisions to conclude that the appellant herein had a reasonable expectation of privacy with respect to the boxes and clothing he left in the custody of Graham with the advice that he would be in touch with him later with regard to their disposition. He had not abandoned them. Under these facts, neither Graham nor Bratton was appellant's agent with authority to consent to their search on appellant's behalf (Stoner v. California (1964) 376 U.S. 483, 488, 84 S.Ct. 889, 892, 11 L.Ed.2d 856).
In Abel v. United States (1960) 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668; People v. Crayton (1959) 174 Cal.App.2d 267, 269, 344 P.2d 627, and People v. Thomsen (1965) 239 Cal.App.2d 84, 89–90, 48 Cal.Rptr. 455, relied upon by the court on the former appeal, the evidence was conclusive that the items were abandoned. It appears in each of those cases that under the facts the owners could not have had a reasonable expectation of privacy with respect to the items involved even had the new test articulated in Edwards and Krivda been applied.
We conclude that the evidence seized from the Graham home and from the rear compartment of the Mercury automobile was the product of illegal searches and such evidence, together with the fruits thereof, will be inadmissible upon retrial (Wong Sun v. United States (1963) 371 U.S. 471, 484, 83 S.Ct. 407, 415–416, 9 L.Ed.2d 441; Krauss v. Superior Court (1971) 5 Cal.3d 418, 422–423, 96 Cal.Rptr. 455, 487 P.2d 1023).
A number of fingerprints were taken from the Mercury, some of which matched the prints of appellant. He claims he was denied his right to a fair trial because custody of those prints was not adequately accounted for between the time they were taken and the trial and because ‘false and perjurous testimony’ was given by persons responsible for the chain of control. This issue was raised and decided adverse to the appellant on the former appeal (People v. Laursem, supra, 264 Cal.App.2d 932, 945–946, 71 Cal.Rptr. 71), in which the court held an adequate foundation was laid for their admission into evidence, citing People v. Riser (1956) 47 Cal.2d 566, 580–581, 305 P.2d 1. The prints were taken by three different officers. When called to testify some five years later, there was some confusion about the number taken by each and the total number. However, the evidence of confusion and mix-up does not establish that the evidence was fabricated or otherwise deprived appellant of a fair trial (People v. Barquera (1962) 208 Cal.App.2d 104, 107–109, 25 Cal.Rptr. 45). It appears that the confusion expressed by the witnesses, their inability to recount accurately the total number of latents taken from the vehicle, the inconsistencies with regard to some of the reports, and uncertainty with respect to the time certain of the comparisons were made are all matters which went to the weight of the evidence rather than to its admissibility (People v. Riser, supra, 47 Cal.2d 566, 579–581, 305 P.2d 1).
We have reviewed the evidence which developed upon the retrial with respect to the pre-trial photographic identification and the lineup procedures in light of the court's decision upon the former appeal disposing of these issues in favor of respondent (People v. Laursen, supra, 264 Cal.App.2d 933, 942–945, 71 Cal.Rptr. 71). There is no material variance between the testimony at the two trials and the basic legal principles applicable have not changed. These issues already having been litigated, further consideration thereof is precluded by the doctrine of the law of the case (People v. Terry, supra, 61 Cal.2d 137, 151, 37 Cal.Rptr. 605, 390 P.2d 381).
CLAIMED INVALID ARREST WARRANT
The essence of appellant's assertion is that the fugitive warrant upon which he was arrested in Kansas City was issued without probable cause and, therefore, was illegal; that as a result of the invalid arrest he was subjected to an extradition hearing, at which he gave testimony which was read into the record at the second trial; that this evidence was the fruit of the illegal arrest and, therefore, was inadmissible. The testimony that he gave at the extradition hearing in Kansas and which was read into the record at the second trial gave the aliases by which he was known in the past and his record of past employment. He argues that this evidence was used to tie him to items taken from the home of Otis Graham and from the trunk of the 1955 Mercury. However, neither the complaint nor the fugitive warrant is part of the record and neither was before the trial court. Further, appellant did not raise this argument at the trial by objection to the reception of the testimony from the extradition hearing.
Since there is nothing in the record before this court to assist us in evaluating the merit of appellant's contention, the rule expressed in People v. Merriam (1967) 66 Cal.2d 390, 396–397, 58 Cal.Rptr. 1, 5, 426 P.2d 161, 165, proscribes further consideration.
‘It is elementary that the function of an appellate court, in reviewing a trial court judgment on direct appeal, is limited to a consideration of matters contained in the record of trial proceedings, and that ‘Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs.’ [Citations.]' (Fn. omitted.)
(People v. Gardner (1969) 71 Cal.2d 843, 849, 79 Cal.Rptr. 743, 457 P.2d 575; In re Hochberg (1970) 2 Cal.3d 870, 875, 87 Cal.Rptr. 681, 471 P.2d 1.) It is axiomatic that appellant has the burden to provide for this court an adequate record on which his assignment of error is based (People v. Washington (1969) 71 Cal.2d 1061, 1086, 80 Cal.Rptr. 567, 458 P.2d 479).
TRANSFER OF APPELLANT FROM KANSAS TO CALIFORNIA
Appellant asserts that he was illegally abducted from Kansas by Fresno policemen and was forcibly brought to California and, therefore, he was deprived of due process of law and equal protection of the law. Apparently appellant filed an appeal in Kansas from the order granting extradition to California. While that appeal was pending, the California authorities brought him to California without giving him an opportunity to consult counsel and before the outcome of the appeal was determined. He cites no authority that the period following an order of extradition is such a critical stage of the proceedings as to constitutionally require counsel, nor does he demonstrate that the California authorities in any way exploited the period of transportation from Kansas to California in order to obtain evidence which was admitted against appellant or that the procedure resulted in an unfair trial on the charges in California. The law is well-established that due process of law is satisfied by a fair trial at the place where the trial is had, although the defendant is brought to trial against his will and even if he is the victim of an illegal arrest, irregular extradition proceedings or kidnaping, so long as the court in which he is physically present has jurisdiction over his person and affords him a fair trial at that place. (People v. Bradford (1969) 70 Cal.2d 333, 344–345, 74 Cal.Rptr. 726, 450 P.2d 46; People v. Willingham (1969) 271 Cal.App.2d 562, 567–570, 76 Cal.Rptr. 760; Witkin, Cal.Crim.Proc., § 46, pp. 48–49).
We have carefully reviewed appellant's contention that the court committed prejudicial error by admitting into evidence the testimony of the witness Canales and find the point totally devoid of merit.
We do not reach other points raised by the appellant, including a claimed abuse of discretion in denial of his motion for continuance to obtain the presence of witness Lowrie and claimed prejudice because the trial court denied his motion to recall prosecution witness Otis Graham, because the cause will be reversed and these questions will not arise on retrial.
The judgment is reversed.
1. Penal Code section 209 provides in pertinent part as follows:‘Any person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, or who holds or detains, such individual for ransom, reward or to commit extortion or to exact from relatives or friends of such person any money or valuable thing, or any person who kidnaps or carries away any individual to commit robbery, or any person who aids or abets any such act, is guilty of a felony and upon conviction thereof shall suffer death or shall be punished by imprisonment in the state prison for life without possibility of parole, at the discretion of the jury trying the same, in cases in which the person or persons subjected to such kidnaping suffers or suffer bodily harm or shall be punished by imprisonment in the state prison for life with possibility of parole in cases where such person or persons do not suffer bodily harm.’
2. A section 209 offense is a specific intent crime. The section requires that the kidnaping be ‘with intent . . . to commit robbery.’ Under People v. Tribble (1971) 4 Cal.3d 826, 831–832, 94 Cal.Rptr. 613, 484 P.2d 589, the intent to rob must exist at the time of the asportation. Prior to Triblle, the intent to rob could be formulated during the course of the kidnaping (People v. Brown (1947) 29 Cal.2d 555, 176 P.2d 929).
3. Penal Code section 207 provides in pertinent part as follows:‘Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county . . . is guilty of kidnaping.’
4. The majority position in People v. Knowles, as noted in People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, was, in effect, overruled by the state Legislature the following year by amendment consistent with the position of the dissenting justices in that case (Stats. 1951, Chp. 1749, § 1, p. 4167).
5. In light of our Supreme Court's recent reconsideration of previous judicial construction of Penal Code section 209, we feel the import of these decisions mandates and awareness that the criminal conduct proscribed therein may not be so all-encompassing as it was previously thought to be. As it is our duty to interpret a statute, consistent with the intent of the Legislature, so its application is workable and reasonable (Cecil v. Superior Court (1943) 59 Cal.App.2d 793, 797, 140 P.2d 125), we likewise have a similar duty to interpret and apply a statute in a manner which is reasonable and consistent with the holdings of our Supreme Court. We are also mindful that it ‘. . . is the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit; . . . the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute.’ (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617, 624.)
6. See also People v. Denman (1971), 19 Cal.App.3d 632, 634, 97 Cal.Rptr. 23.
GEO. A. BROWN, Associate Justice.
GARGANO, Acting P. J., concurs. FRANSON, J.,* deeming himself disqualified, did not participate.