PEOPLE v. WILLIAMS (1981)

Defendant appeals from a judgment entered after a jury convicted him of first degree burglary (Pen.Code, § 459), and from a judgment (entered after revocation of his earlier commitment to the California Rehabilitation Center) imposing a concurrent sentence for receiving stolen property (Pen.Code, § 496).   He contends reversal of both judgments is required because of an illegal search, ineffective assistance of counsel, and improper sentence enhancement.

Defendant and one Morris Carter were stopped by the Grass Valley Police near the scene of a residential burglary less than an hour after a neighbor saw two men drive away in a small yellow pickup truck.   Several items taken in the burglary were found in the truck, and defendant and Carter were arrested.

About two hours later Police Officer Harold Johnson went to the residence of Carter's parents in Grass Valley.   He knew that neighbors had seen Carter and another person working on a yellow pickup truck belonging to Carter's parents earlier in the day, that Carter had refused to give his local address when the pickup was stopped, that the pickup had been “hot wired,” and that the stop took place about a mile from the Carter residence.   He also knew that six rifles, at least one of which was loaded, had been taken in the burglary;  he knew too that none of the weapons were in the truck when it was stopped.

When Johnson arrived at the Carter residence shortly before 1 a. m., he found all the interior lights lit, the kitchen and rear doors open, and loud music emanating from within.   From the kitchen doorway he observed a jewelry case and jewelry which matched a description previously supplied by the burglary victims.   Johnson knocked on the kitchen door several times, loudly announced his presence, and inquired whether anyone was inside.   There was no response.   He did the same thing at the back door.   Suspecting the house had been burglarized, he entered to see if anyone was within.   He found no one, but did observe several items which matched descriptions of property taken in the burglary, including a pamphlet bearing the name of one of the victims.   Johnson secured the premises, obtained a search warrant, and recovered the jewelry, guns and other items taken in the burglary.

I

Defendant first contends Johnson's initial entry and walk through the house was illegal and that the trial court erred in denying his motion to suppress the evidence Johnson found then and later.

 Warrantless police intrusions into private homes violate the Fourth Amendment in the absence of limited circumstances constituting exceptions to the warrant requirement. (See Vale v. Louisiana (1970) 399 U.S. 30, 34–35, 90 S.Ct. 1969, 1971–72, 26 L.Ed.2d 409, 413–414;  Cleaver v. Superior Court (1979) 24 Cal.3d 297, 302, 155 Cal.Rptr. 559, 594 P.2d 984.)   The burden of justification is on the People (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23), who argued in this case that the emergency exception applies.

 Both state and federal courts follow the rule that exigent circumstances may justify a warrantless search which might otherwise have been unreasonable and thus illegal.  People v. Ammons (1980) 103 Cal.App.3d 20, 28, 162 Cal.Rptr. 772, and cases there cited.)   The doctrine has been defined by one commentator as follows:  “Law enforcement officers may enter private premises without either an arrest or a search warrant to preserve life or property, to render first aid and assistance, or to conduct a general inquiry into an unsolved crime, provided they have reasonable grounds to believe that there is an urgent need for such assistance and protective action, or to promptly launch a criminal investigation involving a substantial threat of imminent danger to either life, health, or property, and provided, further, that they do not enter with an accompanying intent to either arrest or search. If, while on the premises, they inadvertently discover incriminating evidence in plain view, or [discover it] as a result of some activity on their part that bears a material relevance to the initial purpose for their entry, they may lawfully seize it without a warrant.   Thus, to qualify as an emergency exception, there must reasonably appear to exist an exigency in the course of which a discovery related to the purpose of the entry is made.   The exigent circumstances legitimate the presence, and the relevance of the discovery to the justification for the entry sanctions the seizure.”  (Mascolo, The Emergency Doctrine Exception to the Warrant Requirement Under the Fourth Amendment (1973) 22 Buffalo L.R. 419, 426–427.)

 Review of a suppression motion ruling by a trial court is controlled by ordinary appellate principles.   The function of the trial court is to judge the credibility of witnesses, resolve conflicts in the testimony, weigh all the evidence, and draw factual inferences therefrom.   Our function is to determine whether there is substantial evidence to support the trial court's findings, express or implied, which serve as the basis for its ruling.  (People v. West (1970) 3 Cal.3d 595, 602, 91 Cal.Rptr. 385, 477 P.2d 409;  People v. Manning (1973) 33 Cal.App.3d 586, 598–599, 109 Cal.Rptr. 531.)

 The trial court here accepted Johnson's testimony that his entry and walk through the house were motivated by the belief that a burglary had been committed, and impliedly that there was an urgent need to determine whether persons or property within were in need of aid or protection.   The question thus is one of substantial evidence to sustain the trial court's conclusion that the circumstances justified the action.  (See People v. Roberts (1956) 47 Cal.2d 374, 303 P.2d 721, and Horack v. Superior Court (1970) 3 Cal.3d 720, 725–726, 91 Cal.Rptr. 569, 478 P.2d 1.)   We find such evidence.   While the lights and the music emanating from the residence would not alone indicate a burglary either in progress or recently completed (id., at p. 727, 91 Cal.Rptr. 569, 478 P.2d 1), they were not the sole indicators of something amiss.   As above noted, two entry doors were standing open.   Through one of them Johnson saw jewelry taken in the earlier burglary, in which weapons had also been taken.   He knew that one of the weapons was loaded and he had good reason to suspect that the vehicle used in the crime belonged to the Carters and had been taken without their consent (recall the neighbor's report and the fact that the truck was hot-wired).   Taken together, these circumstances support the conclusion that Johnson's entry was justified;  the loaded weapon could have been used to kill or injure residents of the house or it could have been left there by the defendants and in turn removed by other burglars.   Immediate further remedial action by the police could well have become necessary.

It is inconceivable to us that any law abiding person would object to a police entry if his or her household were found in the state and under the circumstances involved here.   On the contrary, he or she would insist that the police owe a duty, at the very least, to take an immediate quick look through the residence to determine if anyone within is in need of assistance.   Not to do so would in our judgment be unreasonable on the part of a diligent and conscientious police officer.   Reasonableness of police conduct is so inextricably intertwined with the concept of probable cause as to lie at its very core.   Thus we find no error in the trial court's denial of the motion to suppress.

II

Defendant's contentions of ineffective representation are premised on counsel's failure to impeach a prosecution witness and to move to suppress a set of ceramic figures taken in the burglary;  these were discovered in a paper bag in the passenger compartment of the truck during the initial detention.

Counsel moved to suppress all the items of evidence taken from the truck to set aside the information on the grounds that the initial detention was unjustified;  he did not argue that the discovery of the figures was independently illegal.   The motion was argued and submitted to the trial court on the preliminary hearing transcript.   Testimony at that hearing showed that a police officer found three ceramic owls wrapped in green paper in a brown paper bag in the truck.   The officer took the figures to the burglary scene and a victim identified them before defendant and Carter were arrested.   When asked whether the bag was closed when he found it, the officer testified, “The end of it was about like this, and it was about this much of it was sticking out.”   He also testified he could not see inside the bag from his position outside the truck.   Defendant contends counsel was derelict in not objecting to the search of the bag on the ground that it was a closed container of personal effects in which the suspects had a reasonable expectation of privacy.   He cites United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 and People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, the latter decided four months before the defendant was arrested.

 The standard of review for such claims is provided by People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.  Pope requires defendant to “show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates” and “that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.”  (23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Defendant has not met this burden in regard to the paper bag.   Even if we were to construe the officer's testimony, as does defendant, to mean that the bag was a closed container, the cited cases would not necessarily lead a reasonably competent defense counsel to challenge the search of the bag.   Both Minjares and Chadwick dealt with luggage discovered in automobile trunks.   Neither stands for the proposition that all containers in all vehicles are sacrosanct.   In fact, the argument defendant asserts his counsel should have made has recently been rejected at the appellate level.   In People v. Fick (1980) 107 Cal.App.3d 892, 896, 166 Cal.Rptr. 106, the court held that normally there can be no reasonable expectation of privacy in the contents of a paper bag of the sort that might be expected to contain merchandise or groceries.

 Defendant also claims that counsel should have used a prior burglary conviction to impeach prosecution witness Patrick Waddell, who testified in rebuttal that he saw defendant leave the Hardrock Saloon in Grass Valley at around 10 p. m. on the night of the burglary.   Waddell also testified that he had been in the Hardrock many times;  he assumed the clock there was set ahead because it was a place where alcohol was served, but he had never compared the clock to his watch.   The prosecutor attempted to question Waddell about a statement Waddell had made a few minutes before taking the stand, to the effect that the Hardrock Saloon clock was 10 to 15 minutes fast;  and the court instructed the jury it could consider the statement as bearing on credibility, not as evidence of the actual time.

Waddell originally was subpoenaed by the defense, which moved to exclude his prior burglary conviction.   The trial court denied the motion.   Thus the prior conviction was available to defense counsel for impeachment when the prosecution called Waddell.   Instead of impeaching the already impeached witness however, defense counsel argued to the jury that Waddell's testimony reinforced that of defense witnesses who stated defendant was at the bar until at least 10:30 that evening, when even a 10 o'clock departure left him insufficient time to participate in the burglary.   The decision to refrain from further impeachment was obviously a tactical one within the range of reasonable competence (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859), and supplies no basis for reversal.

III

 Defendant's final argument as to the burglary conviction is that his sentence was illegally enhanced after he had admitted a prior felony conviction, because in accepting the admission the court did not advise him regarding the privilege against self-incrimination.   The record shows, and the People admit, that the trial court indeed erred in this regard.  (In re Yurko (1974) 10 Cal.3d 857, 863, 112 Cal.Rptr. 513, 519 P.2d 561.)   The People urge us to formulate a new rule and hold the defect irrelevant in the absence of a timely reminder by counsel at trial.   Our reading of In re Yurko, supra, by which we are bound (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), prohibits such a holding.   The proper remedy is a limited new trial on the prior conviction, and resentencing if appropriate.  (People v. Hernandez (1979) 100 Cal.App.3d 637, 642–642, 160 Cal.Rptr. 607.) ¹

This case is remanded to the superior court solely for a new trial on the issue of defendant's previous burglary conviction, and for possible resentencing.   In all other respects both judgments are affirmed.

FOOTNOTES

1.   The foregoing also indicates an absence of grounds for reversal of the judgment imposing a concurrent sentence for defendant's earlier conviction of receiving stolen property.

PARAS, Associate Justice.

PUGLIA, P. J., and EVANS, J., concur. Hearing denied; RICHARDSON, J., dissenting.