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

PEOPLE of the State of California, Plaintiff and Respondent, v. Larry Gene TILCOCK, Defendant and Appellant.

Cr. 42211.

Decided: May 05, 1983

Quin Denvir, State Public Defender, J. Courtney Shevelson, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Gregory W. Alarcon, Deputy Attys. Gen., for plaintiff and respondent.

Following denial of his motion to suppress evidence, defendant, pursuant to a plea bargain, pleaded guilty to two counts of receiving stolen property.   The trial court sentenced him to state prison.   He appeals, claiming (1) incompetence of trial counsel for failure to challenge the search warrant on the specific ground of lack of probable cause, and (2) improper imposition of consecutive sentences.   We affirm the judgment.


1. Competence of Trial Counsel

Defendant contends his trial counsel was ineffective in not challenging the validity of the search warrant on the ground that it lacked probable cause.1

Defendant has the burden of showing that his counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate, and that this resulted in the withdrawal of a potentially meritorious defense.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

 The magistrate's order issuing the warrant may be set aside only if the affidavit, as a matter of law, does not establish probable cause.   (Skelton v. Superior Court (1969) 1 Cal.3d 144, 150, 81 Cal.Rptr. 613, 460 P.2d 485.)   The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.  (United States v. Ventresca (1965) 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684;  People v. Superior Court (Corona) (1981) 30 Cal.3d 193, 204, 178 Cal.Rptr. 334, 636 P.2d 23.)   The test to be applied is whether the affidavit stated facts which made it “substantially probable” that there was specific property lawfully subject to seizure located in the particular place for which the warrant was being sought.  (People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6, 148 Cal.Rptr. 605, 583 P.2d 130;  People v. Superior Court (Corona), supra, at p. 204, 178 Cal.Rptr. 334, 636 P.2d 23.)

In his affidavit, Officer Phillip A. Juvet of the Redondo Beach Police Department described his extensive experience in investigating burglaries, in locating property taken in burglaries, and in interviewing admitted burglars on the manner in which they committed their crimes and disposed of their loot.   The officer then stated that on August 3, 1981, he received a telephone call from Carol Whitehead, a victim of a burglary which had occurred at 1:00 p.m. on July 22, 1981, who stated that on the day of the burglary her neighbor observed a silver Lincoln Continental parked in front of her house, which was later parked in the back of the house.   The neighbor saw a tall, light-haired individual around the vehicle.   The neighbor also saw the car get a parking citation.

Based on the information supplied by the burglary victim, Officer Juvet checked with parking officials and found out that a Lincoln Continental, with a Kansas license plate # JOV02130, had been cited on the day of the burglary on Whitehead's block at 1:00 p.m.   A USA registration check showed defendant as the registered owner at an address in Mission, Kansas.   A California driver's license name check revealed defendant's address in Torrance, while a warrant check turned up a bench warrant for defendant on a drunk driving charge originating from the Santa Barbara-Goleta Municipal Court.

Officer Juvet kept the apartment building where defendant was believed to be living under surveillance all week.   During that time, he observed no Lincoln Continental with a Kansas license plate.   But on August 7, 1981, he saw the vehicle parked in a stall behind the building.   He then went to defendant's apartment and noticed that a piece of paper which had been put in the door crack in the preceding week was no longer there.   Believing defendant to be in the apartment, Officer Juvet knocked loudly on the door but received no response.   He knocked again, then opened the door with a passkey he had obtained from the manager.   As he stepped inside, he again gave notice of his presence.   Officer Juvet entered the bedroom just as defendant was coming out of it.   The officer arrested defendant in the hallway.

Defendant asked to put on a shirt.   Officer Juvet and defendant went into the bedroom.   The officer took a shirt from the closet and handed it to defendant.   On the floor of the bedroom Officer Juvet observed two open suitcases.   In one of them the officer saw a Pentax zoom lens, which matched the description of the zoom lens taken in the Whitehead burglary.   The officer requested a search warrant to permit seizure of the lens to enable him to show it to Whitehead for the purpose of identification.

Defendant argues the affidavit lacked probable cause because it failed to state “any facts supporting Officer Juvet's belief that the lens he saw in appellant's apartment was the lens stolen in the burglary he was investigating.”

 Private citizens who are witnesses to or victims of a criminal act are considered reliable absent some circumstance which would cast doubt upon their reliability.  (People v. Ramey (1976) 16 Cal.3d 263, 269, 127 Cal.Rptr. 629, 545 P.2d 1333.)   Here, Officer Juvet's independent investigation confirmed what the burglary victim had initially told him, namely, that at the time of the burglary defendant's Lincoln Continental bearing a Kansas license plate was seen in front of her house, where it was cited for illegal parking.   Among the items taken in the burglary was a Pentax zoom lens.   In view of the strong circumstantial evidence linking defendant to the Whitehead burglary, the officer's observance of a zoom lens whose make and model were similar to that taken in the burglary provided probable cause to believe that the lens was the one taken in that burglary.   Issuance of the search warrant was therefore proper.

 Having concluded there was probable cause to issue the search warrant, we reject defendant's contention that his trial counsel's failure to challenge the warrant on the specific ground of lack of probable cause constituted ineffective representation.  (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Trial counsel is under no duty to present frivolous motions or objections.  (People v. Westoby (1976) 63 Cal.App.3d 790, 799, 134 Cal.Rptr. 97.)

2. Sentencing

As noted earlier, defendant pleaded guilty to two counts of receiving stolen property.   The trial court sentenced defendant to the upper term on the one count and ordered a consecutive sentence on the other count.   Defendant contends the court improperly used the same facts to justify the upper term and to justify the consecutive sentence.

 A trial court must articulate its reasons for selecting the upper term and imposing consecutive sentences.  (Pen.Code, § 1170, subd. (b);  People v. Blessing (1979) 94 Cal.App.3d 835, 837–838, 155 Cal.Rptr. 780.)   In imposing the upper term, the trial court in this case gave the following reasons:  “To a violation of Penal Code section 496, as contained in count III of the information, to wit, receiving stolen property, the defendant [is] sentenced to the state prison for the upper term, to wit, three years, based on the fact that the defendant in the commission of his crimes violated a sense of trust in that the people were known to him․  [¶] Further, that he's got an extensive prior record of criminal activity that has ranged over the western part of the United States.”

Rule 421 of the California Rules of Court enumerates the various circumstances in aggravation.   The first reason given by the trial court for imposing the upper term clearly falls under rule 421(a)(12), which provides that among the facts “relating to the crime” the trial court may consider the fact that a defendant “took advantage of a position of trust or confidence to commit the offense” to justify imposition of the upper term.   The trial court's second reason clearly falls under rule 421(b)(2), which provides that among the facts “relating to the defendant” the trial court may take into account the fact that a defendant's prior convictions are “numerous.” 2

As to when to impose consecutive sentences, rule 425 of the California Rules of Court provides:

“Criteria affecting the decision to impose consecutive rather than concurrent sentences include:

“(a) Facts relating to the crimes, including whether or not:

“(1) The crimes and their objectives were predominantly independent of each other.

“(2) The crimes involved separate acts of violence or threats of violence.

“(3) The crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.

“(4) Any of the crimes involved multiple victims.

“(5) The convictions for which sentences are to be imposed are numerous.

“(b) Any circumstances in aggravation or mitigation.”

In imposing the consecutive sentence, the trial court stated:  “And the basis for the consecutive sentence ․ is the fact that the court had indicated that that would be the appropriate sentence at the time that the plea was taken.3  [¶] And, further, that the defendant's record, which I alluded to before, is of such an extensive nature that I feel that he should—that the public should be protected by not being—having him available to prey upon them for some little period of time.”

 A trial court may not use the same reasons for imposing an upper term and imposing consecutive sentences.  (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 821, 177 Cal.Rptr. 627;  People v. Lawson (1980) 107 Cal.App.3d 748, 757, 165 Cal.Rptr. 764.)   Though the trial court did mention defendant's extensive prior record twice, first in imposing the upper term and later in imposing a consecutive sentence, in this particular case we see no need to remand the matter for resentencing.   The first factor in aggravation mentioned by the trial court in selecting the upper term pertained to defendant's taking advantage of a position of trust and confidence to commit the crime.   That fact, in and by itself, fully justified imposition of the upper term.  (Cal. Rules of Court, rule 421(a)(12).)   There was no need to rely on any other factors in aggravation.   Under the circumstances, therefore, the fact of defendant's extensive prior record could be used to justify imposition of consecutive sentences.

In this regard we note that in cases involving truly distinct crimes, “dual-use-of-facts” problems could virtually be eliminated if the trial courts would expressly state on the record that consecutive sentences are being imposed because the “crimes and their objectives were predominantly independent of each other,” and/or the “crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”  (Cal.Rules of Court, rule 425, (a)(1) and (3).)   In such instances, the courts need not rely on other “circumstances in aggravation.”  (Id. at subd. (b).)  Such reliance inevitably creates a real or apparent overlap with those facts which relate to the particular crime or the defendant personally and which as circumstances in aggravation warrant imposition of the upper term.  (Cal.Rules of Court, rule 421.)

The judgment is affirmed.


1.   Defense counsel attacked the validity of the warrant on the grounds that it contained numerous misstatements of fact and that certain information contained in the warrant was obtained as the result of an unlawful entry into defendant's apartment.

2.   The People point out that the second reason given by the trial court in imposing the upper term (extensive prior record) falls under rule 421(b)(1), which lists a defendant's “pattern of violent conduct” as a circumstance in aggravation.   The People's observation is unsupported as there is nothing in the record before us indicating the violent nature of the crimes.

3.   In this regard, we note that at the time the plea was taken, the trial court pointed out to defendant that the maximum term defendant could be serving in state prison was three years (upper term on one count of receiving stolen property) and eight months (subordinate term on the other count of receiving stolen property) if the court was to impose a consecutive term.   When the defendant asked, “Three years would have to be done before the second sentence would start?” the trial court replied:  “It doesn't have to be.  [¶] I'm not committed one way or another.  [¶] I'm not not (sic) committed to sentencing you to state prison at this time.  [¶] My mind's not made up.  [¶] I don't know anything about you.”

BEACH, Associate Justice.

COMPTON, Acting P.J., and GATES, J., concur. Hearing denied;  BIRD, C.J., dissenting.

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