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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Randy Lee SMITH, Defendant and Appellant.

Cr. 6862.

Decided: September 05, 1984

Eric L. Henrickson, Oakland, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Eddie T. Keller, Janice Rogers Brown and Jane N. Kirkland, Deputy Attys. Gen., for plaintiff and respondent.


On March 11, 1982, defendant was charged by information with murder, in violation of Penal Code section 187.2  The information alleged, as a special circumstance, that the murder was committed in the course of a robbery and further alleged that defendant personally used a firearm in the commission of the offense.   In a second count, defendant was charged with robbery, in violation of section 211.

The jury found the defendant guilty of first degree murder and guilty of robbery;  the jury found that defendant did personally use a firearm during the commission of the offense.   However, the jury found the special circumstance not true.

Defendant was sentenced to a total term of 27 years to life, consisting of a 25-to-life sentence on the first degree murder conviction, a 2-year consecutive enhancement for the firearm use, and a 3-year term for the robbery conviction, to be served concurrently with the terms previously imposed.


On October 3, 1981, Charles Hook, gymnasium custodian at the College of Sequoias in Visalia, was found shot to death in the office of the athletic director.   Hook's body was discovered by the sports director and the athletic director at approximately 10 p.m. upon their return to the campus from a football game played that evening at Mineral King Bowl;  as was his custom, Hook had remained on the campus awaiting the return of the football team.   Hook had been shot five times, and medical testimony established that the last bullet entered his back, when he was either falling away from the shooter or already lying face down on the floor.   The gun was approximately three to five feet away from Hook when the shots were fired.   The medical testimony also fixed the time of death at 9 p.m., or within two hours before or after;  other evidence established that the killing occurred between 9:15 p.m. and 9:40 p.m.   When the body was found, Hook's rear pants pocket was turned inside out, and a pocket comb was found lying next to the body.   Although Hook's wallet and keys were missing, a money clip containing $3 was found in another pocket (Hook's wife had given him a $5 bill at noon, as Hook had no other money), and Hook was still wearing a diamond ring.

During the fall of 1981, a rash of locker thefts was experienced on the campus of the University of California at Berkeley, specifically in Harmon Gymnasium.   During the investigation by U.C. Berkeley police officers, suspicion focused on defendant.   The police staked out the locker room, utilizing in one instance peepholes drilled in a partition.   Defendant, who had entered the locker room, changed his clothes, and left for approximately five minutes, was arrested on his return in the act of using bolt cutters to cut a lock off a locker.   Following his arrest, defendant gave oral and written consent to a search of his motel room.   During the course of that search, the police located a .38 caliber revolver wrapped in a white towel and stored at the bottom of a garment bag hanging in a closet.   The police also located a driver's license belonging to one Chester Brooks in a desk drawer of defendant's motel room;  the photo portion of the driver's license had been cut out.   When the police confronted defendant with the items seized from his motel room, defendant explained that he had purchased the gun, in a holster, on the street in Pixley, California, on October 5, 1981, from a black man who walked like a pimp and who was accompanied by a heavy-set Mexican male.   Defendant found the mutilated driver's license secreted in the holster.

Chester Brooks testified that his wallet had been stolen from a locker at the College of Sequoias in the fall of 1980 (at which time defendant was also enrolled as a student at College of Sequoias).   At the time of the theft, his driver's license was in the wallet.

Ricky Markham testified that he was a friend of defendant's and had been for a number of years.   In early September 1981, Markham's residence was burglarized, and a locked cabinet in his bedroom dresser was broken into.   Within that locked portion of his dresser, Markham kept a .38 caliber revolver which had been left to him by his father.   Markham also kept various personal articles in that locked compartment, and he frequently entertained friends, including defendant, in his bedroom while the cabinet was unlocked and open.   Markham and an older brother had a dispute about the ownership of the gun;  the older brother also knew the gun's location.

Shortly after the theft of the gun, a person using the driver's license of Chester Brooks purchased a box of 50 bullets for a .38 caliber gun at a liquor store in Delano.   The bullets purchased were known as semi-wad-cutters, a flat-headed, “hot lead” bullet.

The gun which was seized in the search of defendant's motel room on November 11, 1981, was identified by Markham as the gun which had been stolen from him.   At the time of its seizure, the gun was loaded with five semi-wad-cutter bullets.   Subsequent ballistics tests showed that the bullets in the gun at the time of its seizure were from the same batch of lead as the bullets recovered from the body of Charles Hook.   Lengthy ballistics tests established that the five bullets removed from Hook's body were fired from the .38 caliber weapon seized from defendant's motel room.

Defendant testified that he did not kill Charles Hook.   Defendant had returned to Pixley from the Bay Area for a visit on the weekend of October 2–4, 1981.   On October 3, defendant had an 8 p.m. date with Lucy Gressman, nee Poyoreno;  when defendant arrived at Gressman's home at approximately 9:45, he seemed somewhat nervous but explained to a tearful Gressman that he was late because he had stopped to talk to a friend or to help a friend who was having car trouble.


I. The Warrantless Search of Defendant's Motel Room.

In the first of two 1538.5 motions, defendant sought the suppression of physical evidence seized in the warrantless search of his motel room following his arrest in Harmon Gymnasium on November 11, 1981, specifically the .38 caliber revolver subsequently established by ballistics tests to be the weapon used in the murder of Charles Hook as well as the driver's license of Chester Brooks from which the photo had been cut.   Defendant based the motion on the alleged illegality of the search leading to defendant's arrest, to wit:  in observing the interior of Harmon Gymnasium from the peepholes they had drilled, the police violated defendant's reasonable expectation of privacy in the locker room, thus rendering the search and the resultant arrest illegal.   Defendant placed primary reliance upon the decision of the California Supreme Court in People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, footnote 1, 150 Cal.Rptr. 910, 587 P.2d 706.

 A review of the Triggs decision establishes that when the police employ clandestine or surreptitious surveillance to discover evidence or effectuate arrests, a two-step inquiry is employed to evaluate the constitutional validity of such surveillance.   Initially, the court must determine if the surveillance violated the individual's reasonable expectation of privacy.   If the surveillance did invade this constitutionally protected right, then the surveillance constitutes a search within the meaning of the Fourth Amendment.   Only upon determination that a search has occurred, i.e., that the surveillance had intruded upon the individual's reasonable expectation of privacy, does it become necessary for the court to evaluate the reasonableness of the search itself pursuant to the requirements of the Fourth Amendment.

In People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, the California Supreme Court recognized that users of a public restroom located in a park have a reasonable expectation of privacy therein, notwithstanding the absence of a door on the individual stall being used.   While this expectation of privacy clearly does not protect the user of a doorless toilet stall from observation by persons passing by who can simply look into the interior of the stall, it does protect the user from clandestine or surreptitious surveillance from a hidden vantage point.   As the Supreme Court later pointed out, “[O]ne need expect only the expectable and is not forced to guard against all possible types of government intrusion before the law will recognize a reasonable expectation of privacy.”  (In re Deborah C. (1981) 30 Cal.3d 125, 139, fn. 10, 177 Cal.Rptr. 852, 635 P.2d 446.)

In In re Deborah C. the court recognized a similarly reasonable expectation of privacy in patrons of a department store using the fitting rooms provided for the purpose of changing clothes.   While in Deborah C. the particular fitting room provided only a “modicum” of privacy in that the door on the fitting room was only three feet from top to bottom, leaving a two-foot gap between the door and the floor, the observations of the store security guard which resulted in the seizure of physical evidence were lawful as these observations did not intrude into that limited area in which the defendant had a reasonable expectation of privacy.   Observations made by the security guard, without bending or stooping, of the defendant placing merchandise into a bag resting on the floor are like observations made by a stranger passing by a doorless toilet stall—they are expectable.   Neither type of observation constitutes clandestine or surreptitious surveillance;  neither violates any reasonable expectation of privacy in the person being observed.  “There is no reasonable expectation with regard to objects or events in plain view from a public place where the observer has a right to be.”  (Id., at p. 135, 177 Cal.Rptr. 852, 635 P.2d 446;  see also Katz v. United States (1967) 389 U.S. 347, 351–353, 88 S.Ct. 507, 511–512, 19 L.Ed.2d 576, Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 634, 108 Cal.Rptr. 585, 511 P.2d 33.)

 Both People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 and In re Deborah C., supra, 30 Cal.3d 125, 177 Cal.Rptr. 852, 635 P.2d 446 involved locations in which very personal human activities are conducted;  in fact, the court recognizes in both cases a legislative policy, codified at section 653n, against clandestine or surreptitious surveillance not only of toilet stalls and fitting rooms but also other areas of similarly intimate human usage, including restrooms, bathrooms, washrooms, showers, locker rooms, motel rooms, and hotel rooms.  (See, e.g., People v. Triggs, supra, 8 Cal.3d at pp. 893–894, 106 Cal.Rptr. 408, 506 P.2d 232;  In re Deborah C., supra, 30 Cal.3d at p. 138, fn. 9, 177 Cal.Rptr. 852, 635 P.2d 446.)   Against this background we are not persuaded by the People's argument that there can be no reasonable expectation of privacy in the open “bays” or areas between banks of lockers because of the virtual certainty of observation by other users of the locker room, and therefore surreptitious surveillance of the locker room can be conducted by law enforcement officers through a hidden peephole.

However, “the Fourth Amendment protects people, not places” (Katz v. United States, supra, 389 U.S. at p. 351, 88 S.Ct. at 511) and “[l]aw enforcement officials make a search within the purview of constitutional prohibitions only when they jeopardize an individual's expectation of privacy that society has recognized as justified.”  (In re Deborah C., supra, 30 Cal.3d at p. 135, 177 Cal.Rptr. 852, 635 P.2d 446.)   Thus it is not enough that defendant was observed in a place in which a reasonable expectation of privacy may be asserted;  in order to establish that police surveillance in the instant case constituted a search, defendant must first demonstrate that he, as an individual, had an expectation of privacy in the locker room which society has recognized as justified.

 The facts establish, and defendant does not contest, that Harmon Gymnasium was available and posted for the use of faculty and students of the University of California at Berkeley or other authorized licensees.   Because he was not a member of the class authorized to use the gymnasium, defendant was a trespasser in Harmon Gymnasium.   A trespasser can have no reasonable expectation of privacy, which society recognizes as justified, in the property of another.   Justice Rehnquist, writing for the majority in Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, succinctly recognized this distinction.   In clarifying language from its earlier opinion in Jones v. United States (1960) 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697, to the effect that the legality of a search may be challenged by anyone legitimately on the premises where the search occurred and against whom evidence obtained in the search is proposed to be used, the court stated in part:

“Obviously, however, a ‘legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered.   A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’   His presence, in the words of Jones, 362 U.S. at 267, [80 S.Ct. at 734,] is ‘wrongful’;  his expectation is not ‘one that society is prepared to recognize as “reasonable.” ’  (Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).”  (Rakas v. Illinois, supra, 439 U.S. at pp. 143–144, fn. 12, 99 S.Ct. at 430–431 fn. 12;  see also United States v. Jacobson (1984) 466 U.S. 109 [104 S.Ct. 1652, 1661] fn. 22, 80 L.Ed.2d 85.)

California courts have reached a similar result, representative of which is the decision in People v. Ortiz (1969) 276 Cal.App.2d 1, 80 Cal.Rptr. 469.   There the defendant appealed from a conviction of possession of marijuana and challenged, in part, the entry of the police into the house where defendant was arrested.   The police had responded to a telephone call from the owner of the house, requesting the police to remove unauthorized persons whom the owner believed to be on the premises;  defendant was found in the house and arrested for trespassing.   With respect to defendant's contention that the police had failed to comply with the knock-notice requirements of section 844, the court stated:

“Since the officers had no reason to believe that there would be any lawful occupant in the house it was also entirely reasonable for them to conclude that any person living inside the house was a trespasser.  Penal Code section 844 is not to be used to protect a trespasser's right to privacy in someone else's home.   A trespasser—or a burglar—cannot make another man's home his castle․  ‘Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.’  [Citation omitted, emphasis added in Ortiz.]  When police officers have reasonable cause to believe that persons within a house are either trespassers or burglars we do not construe these individuals as householders entitled to the protection of Penal Code section 844.”  (People v. Ortiz, supra, at p. 5, [80 Cal.Rptr. 469,] emphasis in original.)

(See also People v. Solario (1977) 19 Cal.3d 760, 139 Cal.Rptr. 725, 566 P.2d 627;  People v. Sanchez (1969) 2 Cal.App.3d 467, 82 Cal.Rptr. 582;  People v. Braden (1968) 267 Cal.App.2d 939, 73 Cal.Rptr. 613.)   Although the case before us does not involve the knock-notice requirements of section 844, we find the reasoning of the decisions construing that statute persuasive here.

 Because Harmon Gymnasium was clearly posted to be for the use of U.C. Berkeley students and faculty, defendant, as a knowing trespasser, could assert no reasonable expectation of privacy in the premises, as opposed to the subjective expectation that he would not be discovered, whether solely as a trespasser or, ultimately, while engaged in the burglaries for which he had entered.   Because any subjective belief on defendant's part that he would not be discovered in the locker room is not the equivalent of a reasonable expectation of privacy, the police surveillance, although surreptitious, did not constitute a search within the meaning of the Fourth Amendment.   Moreover, defendant's knowledge that he was a trespasser distinguishes this case from Triggs, supra, and Deborah C., supra.   In Triggs, the defendant had entered a public restroom;  in Deborah C., the defendant had entered a fitting room available to all patrons of the department store.   In neither circumstance were the defendants trespassers;  thus their expectations of privacy in the premises, open to the public, were reasonable, and surreptitious or clandestine surveillance of either would constitute a search within the meaning of the Fourth Amendment.   Where, as in the instant case, there can be no reasonable expectation of privacy, surveillance, albeit surreptitious, is not a search.

 Notwithstanding his individual status as a trespasser, defendant contends that he can assert the privacy interests of those students and faculty of U.C. Berkeley authorized to use the locker room who might also fall victim, by chance, to the surreptitious police surveillance through the peephole.   On its face, defendant's argument is consistent with California's “vicarious exclusionary rule,” which permits “a defendant against whom incriminating evidence is offered in a criminal prosecution ․ to seek its suppression on the ground of illegal search and seizure” (People v. Gale (1973) 9 Cal.3d 788, 793, 108 Cal.Rptr. 852, 511 P.2d 1204) even if the defendant seeking suppression was not the direct and immediate object of the illegal search.   (See also Kaplan v. Superior Court (1971) 6 Cal.3d 150, 98 Cal.Rptr. 649, 491 P.2d 1;  People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855;  People v. Hackett (1981) 115 Cal.App.3d 592, 171 Cal.Rptr. 320.)   Moreover, in People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 the court did consider not only the reasonable expectation of privacy but the “constitutional right of persons innocent of any crime to be free of unreasonable searches.”  (Id., 8 Cal.3d at p. 893, 106 Cal.Rptr. 408, 506 P.2d 232.)   We are not persuaded, however, that either the vicarious exclusionary rule itself nor a concern for the privacy and constitutional rights of the lawful users of Harmon Gymnasium are determinative in the instant case.

Initially, although the vicarious exclusionary rule is not applicable in federal proceedings, the United States Supreme Court recognized in Jones v. United States, supra, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, a distinction between persons legitimately on premises where an illegal search is conducted and persons “who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched” (Id., 362 U.S. at p. 267, 80 S.Ct. at 734) and may not therefore challenge the legality of the search.  (Emphasis added.)

This court has expressly held that privacy rights are personal to the individual, and thus a motion to suppress evidence based upon alleged violation of the right to or expectation of privacy differs from the “in rem nature of suppressions proceedings” in general.  (People v. Dominguez (1981) 121 Cal.App.3d 481, 505, 175 Cal.Rptr. 445.)   However, in Dominguez, as in the overwhelming majority of cases applying the vicarious exclusionary rule, one defendant was seeking to suppress evidence illegally seized from a codefendant or from another participant in the crime.   We believe significant distinctions exist between such a situation and the circumstances now before this court when a defendant seeks to raise the privacy right of his victims, actual or potential, as a shield against criminal prosecution.

We note that the innocent persons who were the objects of the Supreme Court's concern in People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, were not themselves being victimized by the defendant's wrongful sexual conduct, defendant having been convicted of oral copulation with another consenting adult at a time when such conduct was unlawful.   Although the privacy interest of those innocent users of the public restroom in Triggs is constant, their presumed assertion of that right might well vary dependent upon whether the defendant in that case was engaged in private, consensual sexual activity, notwithstanding the illegality of such conduct, or whether that same defendant was using the privacy of the restroom to rob, rape or assault those innocent users.

The Supreme Court in Cleaver v. Superior Court (1979) 24 Cal.3d 297, 155 Cal.Rptr. 559, 594 P.2d 984 has recognized that victims of criminal activity possess rights beyond the isolated right to privacy.   In Cleaver the defendant and another unlawfully entered the basement of a private residence to avoid capture by pursuing police officers.   In the ensuing gun battle, which resulted in the death of defendant's cohort, tear gas was fired into the basement, and the house was set on fire.   After defendant's arrest, the police conducted three warrantless searches of the basement over a period of approximately seven hours in order to locate and preserve evidence and to secure the property.   In affirming the denial of the defendant's motion to suppress evidence seized in these searches, the Supreme Court stated:

“Finally, our conclusion that the exigencies of the circumstances justified the warrantless entries and limited searches in question here, is reinforced by the fact that the police were aware that the residence building was owned by an apparently innocent third party, and not by any of the defendants or suspects of the crime.   In this case defendant intruder vicariously asserts the privacy rights of the owner.   As we have noted, the police had ample reason to suspect that weapons, ammunition and perhaps other potentially dangerous items (e.g., tear gas cannisters) remained in the fire-damaged basement.   Under such circumstances it is wholly unrealistic to presume that an absent property owner would either expect, or desire, the police to postpone, until a search warrant was obtained, entry onto the premises whether for a search for evidence or to protect the property.”  (Id., 24 Cal.3d at p. 306, 155 Cal.Rptr. 589, 594 P.2d 984.)

 Thus, in addition to any right to privacy or reasonable expectation thereof, victims of crime have the right to be secure in their persons or in their personal surroundings, to maintain their property and personal effects in a secure condition, and to be free from assault.   When criminal activity jeopardizes these rights to personal security, the right of privacy inherent in the homeowner, or locker room user, may be characterized as inconsistent with other personal rights, equally dear to the holder.   Indeed, the right to privacy would be little more than a hollow mockery if it were construed to insulate victims of crime from police intervention and assistance.   The Supreme Court in Cleaver implicitly recognized that the homeowner might well waive his right to privacy in order to give effect to his right to personal security and thus consent to the intrusion made by police officers, not only to preserve and protect the homeowner's property but to search for evidence of crime.   We need not engage in case-by-case speculation nor attempt to formulate any balancing test to assess the relative importance to a victim of crime of his personal rights to privacy and to personal security, when these rights are temporarily rendered inconsistent by the intervention of criminal activity.   We find no compulsion in law or logic to extend the applicability of the vicarious exclusionary rule to permit persons accused of crime to vicariously assert the privacy right of their victims, especially when that single right is wholly inconsistent with other, equally important and protected, rights to personal safety and security.

Therefore, we conclude the trial court properly denied defendant's 1538.5 motion to suppress evidence seized in the warrantless search of his motel room.

II. The Search of Defendant's Parents' Residence.3

III. The Hitch Motion.3

IV. The Motion to Change Venue.3V. The Request to Poll the Jury Regarding News Coverage.3VI. The Request for Separate Juries.3VII. Felony Murder Instruction.3VIII. The Robbery Conviction.3CONCLUSION

For the reasons discussed above, the judgment is reversed as to defendant's conviction of robbery only.   In all other respects, the judgment is affirmed.



2.   Further statutory references are to the Penal Code unless otherwise indicated.

3.   See footnote 1, ante.

QUASCHNICK, Associate Justice.*** FN*** Assigned by the Chairperson of the Judicial Council.

FRANSON, Acting P.J., and PAULINE DAVIS HANSON, J., concur.

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