PEOPLE v. MENDOZA (1983)

Appellant, Freddie Garcia Mendoza, appeals from his conviction by a jury of second degree burglary (Pen.Code, § 459) and grand theft (Pen.Code, § 487, subd. (1).)  He contends that:

(1) The search of his bedroom which led to his arrest was illegal and that evidence obtained therefrom should have been suppressed pursuant to his Penal Code section 1538.5 motion;

(2) The trial court committed reversible error by allowing the prosecution to offer rebuttal evidence which should have been presented only in its case in chief.

(3) The prosecutor was guilty of prejudicial misconduct due to his (a) mode of questioning appellant's alibi witness, and (b) remarks made in his closing argument;  and

(4) The prosecution failed to prove a prima facie case for grand theft, by failing to introduce sufficient evidence that the property stolen had a fair market value in excess of $200.00.

We have concluded that there is no merit to any of these contentions.

On April 8, 1981, Karen Foster was the sole employee working in the office equipment department of the Norwalk Montgomery Ward Department Store.   At approximately 8 p.m. Ms. Foster noticed that a typewriter she had seen earlier in the day was missing.   Shortly after her discovery, Ms. Foster noticed a man with Mexican features, whom she later identified in court as appellant, “ducking” behind the counters of her department.

The immediacy of appellant's suspicious behavior, combined with her discovery of the missing typewriter, prompted Ms. Foster to bring these facts to the attention of security personnel, George Rosas and Randy Rounds.   Additionally, Ms. Foster communicated her suspicions to Ramona Regalado, the menswear cashier.   At approximately 9 p.m. Ms. Foster saw appellant leave the store with a typewriter.

Ramona Regalado also testified as to a person she observed acting suspiciously.   She later observed that person pick up a typewriter box and run from the store.   She was unable to identify appellant as the person she had seen.

Nancy Miller, who on that date was also working in the menswear department, observed appellant exiting the store with a typewriter box not bearing the usual markings to indicate that it had been sold.   Ms. Miller located Ms. Foster and asked her if she had sold a typewriter within the last couple of minutes.   When Ms. Foster answered “no,” Ms. Miller quickly alerted Mr. Rounds.   Both Ms. Miller and Mr. Rounds then chased the suspect into the parking lot where they observed him drive away in a Pontiac Firebird.   Mr. Rounds copied the license tag number and transmitted the information to the sheriff's department.

The police determined that the Pontiac was registered to Linda Mendoza, who resided in an apartment in Santa Fe Springs.   Approximately one week after the April 8 theft, police officers investigating the crime went to the Mendoza address.   Ms. Mendoza's apartment manager told the police that the Pontiac belonged to a woman in apartment number 27 and was also driven by a dark haired Mexican male weighing 175 to 185 pounds named Freddie Mendoza.

On the morning of April 17, 1981, Officers Campbell, McDannel, Eastwood and Lanzini went to the door of apartment 27 to investigate the theft.   A young woman answered the door.   Initially, the woman denied being Linda Mendoza and, instead, identified herself as Linda Castillo.   Officer Eastwood inquired if Freddie Mendoza lived there, and Ms. Castillo responded, “No, not right then.”   Officer Eastwood then explained that a burglary investigation led the police to that address.   Ms. Castillo admitted owning the Pontiac suspected of having been used in the theft.   She went on to explain that the reason the car was registered in the name of Mendoza was because she used that name as it was the name of her common-law husband (appellant).   Asking if they could step inside the apartment and further discuss the matter, Ms. Castillo is said to have invited the police in.¹  Thereupon, all four officers entered the apartment.   Ms. Castillo told the officers that she was alone in the apartment doing the cleaning.   While Officers Eastwood and Lanzini questioned Ms. Castillo, Officers Campbell and McDannel heard a noise, sounding like the opening of a closet door, emanating from the rear of the apartment.   Fearing for their safety, both officers went into the rear bedroom to investigate the noise and found appellant in the process of entering the closet.   Officer Campbell asked appellant for his name and what he was doing there.   Appellant gave his name and said that he lived there.

Appellant accompanied the two officers to the living room, where he was observed as being under the influence of narcotics.²

The officers advised appellant that they suspected the Pontiac had been used in the Montgomery Ward typewriter theft.   Appellant then recalled not having driven the vehicle in a couple of weeks.   He then challenged the police to see if he could be identified at Montgomery Ward.³  Officer Campbell then placed appellant under arrest for being under the influence of narcotics.   Appellant was driven to the Norwalk Montgomery Ward's which was en route to the police station.   Nancy Miller, one of the witnesses of the April 8 theft, viewed appellant while he sat in the police car.   Ms. Miller identified appellant as the thief stating, “It could be him.”

From Montgomery Ward appellant was taken to the Norwalk Sheriff's Station, where he was booked and photographed.   During the booking procedure, police found a key to the Pontiac on appellant's person.

I

Pursuant to Penal Code section 1538.5, appellant moved to suppress evidence, mainly his statements, a key to the car used in the theft, and any identification testimony obtained as the fruit of what he urges was an illegal search and arrest.   The trial court denied the motion finding, among other things, that the initial police entry into appellant's bedroom, which was made absent a proper search warrant, was justified by exigent circumstances.

Appellant predicates his argument on the holding of People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333.   In Ramey, our Supreme Court held that a warrantless arrest within the home is such a serious intrusion into the privacy of the home that it is “․ per se unreasonable in the absence of exigent circumstances.”  (Id., at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)   Naturally, appellant maintains that no exigent circumstances existed;  however, we are not in accord.

Ramey, supra, defined exigent circumstances as, among other things, “․ an emergency situation requiring swift action to prevent imminent danger to life․”   The court went on to state:  “There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”   (Id., at p. 276, 127 Cal.Rptr. 629, 545 P.2d 1333.)   An application of this definition to the facts presented supports the trial court's finding that an exigency did exist.

 Viewing the facts in a light most favorable to the trial court's disposition of the motion,⁴ the testimony of Officers Campbell and McDannel constituted substantial evidence to support the trial court's ruling.

 By initially denying that she was Linda Mendoza, Ms. Castillo demonstrated that she was capable of being less than forthright respecting other matters.   Thus, the police had reason to assume a cautionary posture upon entry into Ms. Castillo's apartment.   Officer Campbell testified that the noise he heard in the rear bedroom reminded him of a closet door opening.   Thereupon he deduced that Ms. Castillo had not been truthful concerning the number of people in the apartment.   Fearing for his safety, he pulled his revolver and proceeded to the rear bedroom.   Corroboratory of Officer Campbell's assessment of the situation was Officer McDannel's testimony and under the circumstances we believe that both officers' actions were subjectively and objectively reasonable in light of what they considered an immediate threat to their safety.  (See People v. Leyba, supra, 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)

Citing People v. Williams (1979) 93 Cal.App.3d 40, 155 Cal.Rptr. 414, appellant asserts that no exigency could have existed under these circumstances.  Williams dealt with the warrantless arrest of a defendant in his home for rape.   More specifically, the arrest took place after the police had been given consent to enter the premises by defendant's wife.   Hearing a noise, police officers went into the rear bedroom of the home, where they found the defendant.   That court found the facts insufficient to comport with any of the elements enunciated in People v. Ramey, supra, 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333, as constituting an exigent circumstance.

Despite the striking similarity between Williams and the case at bench, we do not find Williams controlling in our decision here.   Particularly significant is the fact that in Williams, the appellate court never once described or articulated the noise heard by the police officers as anything but a “noise.”   Without additional embellishment, we would agree that a mere “noise,” by itself, does not create an exigency of the type contemplated in People v. Ramey.   However, different noises may reasonably conjure different responses in different situations.   It is unassailable that some noises clearly signal immediate danger or give one reason to be on guard.   We believe the case before us is but one such example.   In our case, the officers heard a noise which they described, among other things, as a thumping noise, sounding like the opening of a closet door.⁵  In the minds of the officers, this noise confirmed any of their previously conceived notions that Ms. Castillo was untruthful.   Whereupon, acting on a combination of experience and justifiable impulse, they equated the noise with an endangerment to their safety.   The analysis espoused in People v. Ammons (1980) 103 Cal.App.3d 20, 162 Cal.Rptr. 772, appears to be applicable.  “A police officer with many years of experience acquires a certain feel for people and situations.   He should not be precluded from relying on his experience where ․ there is a wholly benevolent motive, and a rational basis for believing that circumstances tantamount to an emergency are present.”  (Id., at p. 30, 162 Cal.Rptr. 772.)

By way of a petition for rehearing, defense counsel properly pointed out that we did not comment on the contention that defendant was illegally detained in the kitchen and living room.   There was no illegal detention involved.   Castillo had said there was no one else in the residence so when defendant was discovered it was certainly a legal act by the police to take defendant to where Castillo was.   Rather than interrupting the ongoing conversation between Eastwood and Castillo, defendant was directed to be seated.   It was during and immediately after the period of the ongoing dialogue between Eastwood and Castillo that defendant was observed to be under the influence of a narcotic and was placed under arrest for that reason.   There just was no illegal procedure or detention herein involved.⁶  People v. Ramey (1976) 16 Cal.3d 263, 127 Cal.Rptr. 629, 545 P.2d 1333 has no application to the facts of this case.

II

Appellant's next major contention is that the trial court committed reversible error by permitting the prosecution to offer evidence in rebuttal, which appellant claims was essential to the prosecution's case in chief.   We disagree, and conclude that this evidence was properly admitted for rebuttal purposes.

As part of his defense, appellant testified that he had shopped at the Norwalk Montgomery Ward but not on April 8, 1981, when he was attending a wedding rehearsal.   On cross-examination, appellant stated that he visited that department store some four times, his latest visit being in January 1981.   He was then asked if he had gone to that store on April 6, 1981.   His answer was a definite no.

After the defense rested its case, the prosecution was permitted to challenge the truth of appellant's alibi with rebuttal testimony.   The prosecution introduced testimony which directly contradicted appellant's assertion that he had not been at the Norwalk Montgomery Ward on April 6, 1981.   Not only did this evidence challenge appellant's credibility, but, also, it impliedly challenged the alibi as additional evidence that appellant “cased the typewriter department” and did in fact commit the crime of stealing a typewriter.   Appellant insists that this evidence served as proof of an essential element of the prosecution's case ⁷ and was therefore not within the parameters of proper rebuttal evidence.  (People v. Mosher (1969) 1 Cal.3d 379, 399, 82 Cal.Rptr. 379, 461 P.2d 659.)

 Indeed, the evidence adduced on rebuttal tended not only to rebut appellant's alibi but also tended to add to the proof of a portion of the prosecution's case.   In this vein we note that although proper rebuttal evidence does not include a material part of the prosecution's case in chief, it does include the presentation of evidence made necessary by the defense's introduction of new evidence or an assertion not impliedly a part of the defendant's denial of guilt.  (People v. Carter (1957) 48 Cal.2d 737, 754, 312 P.2d 665.)   In conformity with the doctrine enunciated in People v. Carter, supra, is the case of People v. Orabuena (1976) 56 Cal.App.3d 540, 128 Cal.Rptr. 474, in which it was recognized that:  “Numerous cases condemn the practice of using evidence in rebuttal that should be properly used as part of the case in chief.  [Citations.]   However, it is also established that when a defendant presents an alibi defense, the prosecution may introduce evidence that rebuts it even though that evidence could have been introduced as a part of the case in chief.  [Citation.]”  (Id., at pp. 543–544, 128 Cal.Rptr. 474.)

 Faced with appellant's denial of having been to the subject Montgomery Ward store, the prosecutor was not required to rely on evidence introduced in the prosecution's case in chief.  “ ‘The deputy district attorney was not bound to accept ․ self-serving and exculpatory assertions at their face value but could properly introduce the subject evidence for the specific purpose of impeachment.  [Citations.]   This being so, it is immaterial that the impeaching evidence also tended—as by its nature such evidence often does—to support the People's case in chief ․’ ”  (People v. Orabuena, supra, 56 Cal.App.3d at p. 544, 128 Cal.Rptr. 474, quoting from People v. Pike (1962) 58 Cal.2d 70, 92, 22 Cal.Rptr. 664, 372 P.2d 656.)   Accordingly, we do not find the error complained of.   Additionally, we note that “[t]he admission of rebuttal evidence rests largely within the discretion of the court, and will not be disturbed upon appeal in the absence of palpable abuse.”  (People v. Graham (1978) 83 Cal.App.3d 736, 741, 149 Cal.Rptr. 6.)   As there was no abuse of discretion, we must find appellant's argument meritless.

Tangentially, we note a serious defect in appellant's argument in that the prosecution appears to have presented substantial evidence to support a finding of appellant's intent to steal, in its case in chief, thereby relegating its rebuttal evidence as less than crucial to its overall case.   It must be recalled that prosecution witnesses Karen Foster, Ramona Regalado, Nancy Miller and Randy Rounds all testified that they observed appellant behaving as though he was planning or in the process of stealing a typewriter.⁸  Ergo, the evidence adduced on rebuttal did not have the critical importance appellant impliedly, if not expressly, ascribed to it.   It was merely supplicative of evidence already established in the prosecution's case in chief.

III

(A) Appellant's third major contention is that the prosecutor was guilty of misconduct, evidenced by his asking an allegedly repetitive pattern of questions of the defense's alibi witnesses.   This argument is predicated upon the belief that the questions asked by the prosecutor as to the whereabouts and availability of additional alibi witnesses invited the jury to infer that there were other alibi witnesses, whose testimony would have been unfavorable to the defense.   Furthermore, it is asserted that this line of questioning had the net effect of lessening the prosecution's burden of proof.   We do not subscribe to either argument.

The prosecution was no doubt surprised by appellant's invocation of the alibi that he was attending a wedding rehearsal on the evening of April 8, 1981.   As a natural response, the prosecutor sought to test the strength of the alibi, through cross-examination of appellant's alibi witnesses.   The prosecutor asked each witness a myriad of questions respecting their recollections of the wedding rehearsal.   Additionally, these witnesses were asked whether they knew of other witnesses who could corroborate appellant's alibi.⁹

 Preliminarily we note that “ ‘[p]rosecutorial misconduct implies the use of deceptive or reprehensible methods to attempt to persuade either the court or jury.  [Citations.]’ ”  (People v. Haskett (1982) 30 Cal.3d 841, 866, 180 Cal.Rptr. 640, 640 P.2d 776, quoting from People v. Strickland (1974) 11 Cal.3d 946, 955, 114 Cal.Rptr. 632, 523 P.2d 672.)   Moreover, in order to raise the issue of prosecutorial misconduct for the first time on appeal, there must have been a timely objection and a request for an admonition which, in turn, would have cured the error.  (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468;  People v. Criscione (1981) 125 Cal.App.3d 275, 287, 177 Cal.Rptr. 899.)   As dealt with below, we believe the error was not incurable.

The record demonstrates that the objections to the questions concerning the availability of persons present at the wedding rehearsal were either untimely or non-existent.   Additionally, the objections which were made were founded only upon issues of relevancy and not prosecutorial misconduct and were without any concurrent request for a curative admonition.

 Despite appellant's failure to request an appropriate admonition, the jury was nonetheless directed to disregard the defense's failure to call additional alibi witnesses.   This caution took the form of a jury instruction which stated:  “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events, or to produce all objects or documents mentioned or suggested by the evidence.”  (CALJIC 2.11.) ¹⁰

 Alternatively, appellant's argument fails for two additional reasons.   First, the prosecutor had no prior knowledge of appellant's alibi defense, nor of identification and availability of alibi witnesses.   This fact alone distinguishes this case from People v. Golden (1961) 55 Cal.2d 358, 11 Cal.Rptr. 80, 359 P.2d 448, upon which appellant places substantial emphasis.   In Golden, the prosecutor was not surprised by defendant's failure to call certain witnesses considering his previous participation in the defendant's two earlier trials for the same offense.   Moreover, that prosecutor was found to have embarked on a calculated effort to convert the defendant's failure to call a certain witness into a tacit admission of guilt.¹¹  Nowhere in the record before us are we able to find any substantial indications that the prosecutor's questions were so wilfully motivated.

Secondly, appellant's argument is negated by the jury instructions making clear that it was the burden of the prosecution to prove appellant's guilt.  (CALJIC 2.90, 2.91.)

 (B) During the trial, the prosecutor sought to impeach appellant by introducing evidence that appellant had a prior robbery conviction.   Counsel for appellant sought to mitigate the damaging effect of this evidence in his closing argument.¹²  In response to counsel's remarks, the prosecutor made the following statements:

“MR. WONG:  Ladies and gentlemen, defense counsel made a statement, one of his last statements just before he sat down—I'm sure he didn't mean to misstate the law, but I believe it is a misstatement.

“I would like to bring it to his attention.   He indicated the defendant is a felon for the rest of his life.   Now, there are many restrictions as to the use of a felony conviction for a witness to take the stand.   There are many, many strict requirements;  and, one of them is that that felony won't stick with him the rest of his life.

“If you impeach a person because of a felony conviction, it must be recent to show that person's credibility—has not been rehabilitated.   So it must be a recent felony.   It must be certain felonies, only felonies involving moral turpitude and must have other restrictions, which I will not go into.”

Appellant maintains that this comment, in addition to a later comment made by the prosecutor,¹³ was prejudicial and thereby deprived him of a fair trial.   We disagree.

Notwithstanding appellant's failure to raise the appropriate objection and request a curative admonition (People v. Green, supra, 27 Cal.3d at p. 34, 164 Cal.Rptr. 1, 609 P.2d 468), appellant was not substantially prejudiced by the prosecutor's remarks.   The trial court, sua sponte, quelled the prejudice complained of (had any existed) by addressing the matter directly and instantaneously, in front of the jury.

“THE COURT:  If I may correct one thing, Mr. Wong?

“MR. WONG:  Yes.

“THE COURT:  Put you both on the same par now, because it's not moral turpitude that's the test, it is a felony which reflects on the witness's credibility.   And there are crimes of moral turpitude which are not those which reflect on credibility.

“MR. WONG:  I am sorry.   The Court is correct.   The moral turpitude involved may be sex crime.   I misspoke myself.

“And it's credibility of a witness, recent, and other restrictions, and if it falls into that category—I won't go into that.   I don't want you to be misled by counsel's last statement.”

This “correction” was further complemented by directives issued by the court to the jury during the trial and after argument that appellant's prior conviction for robbery was to be considered solely for the limited purpose which it was admitted (impeachment).¹⁴

In view of the three separate admonishments made by the court to the jury and the fact that the jurors were fully cognizant that appellant's prior felony conviction was for robbery, we find no merit in the contention that the prosecutor's misstatement contributed beyond a reasonable doubt to the jury's verdict.  (Chapman v. California (1966) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

IV

 Appellant's final contention is that the prosecution failed to present sufficient evidence that the stolen typewriter was worth $200 (Pen.Code, § 487(1)), which in turn would warrant his acquittal on the charges of grand theft.

The record reveals that evidence was presented that the typewriter had a price tag indicating that it was to be sold for $399.99.   However, there is evidence that the typewriter was not new, and in fact had been marked for return to the manufacturer for possible repair for resale, or replacement.   Appellant seizes upon this fact, arguing that insufficient evidence was presented with respect to the actual value of the typewriter stolen, in its defective state, to warrant a conviction.   Although the seriousness of the typewriter's defect was not developed at trial, we believe this argument should not defeat the jury's ability to reasonably infer that the typewriter, which originally sold for $399.99, had not depreciated to less than $200.   Certainly, the jury had the benefit of hearing argument on this point and simply found the prosecution's evidence more compelling than the defense's ability to rebut it.

The judgment is affirmed.

FOOTNOTES

1.   Appellant suggests in his brief that Ms. Castillo chose to invite the police inside her apartment only because she was concerned that her neighbors would hear the conversation.   This fact, by itself, does not establish that the invitation was coerced.

2.   The officers testified that appellant had droopy eyelids, a lethargic appearance, poor balance, an untimely gait, numerous recent puncture marks on his inner arms, and constricted pupils.

3.   “It is not me.   Let's go down there and clear it up.   They can look at me.   It is not me.   Let's go right now.”

4.   In viewing a trial court's ruling on a Penal Code section 1538.5 motion, all factual conflicts must be resolved in a manner most favorable to the trial court's ruling.  (People v. James (1977) 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135;  see People v. Leyba (1981) 29 Cal.3d 591, 596–597, 174 Cal.Rptr. 867, 629 P.2d 961.)

5.   As part of his description of the noise, Officer McDannel went so far as to “[knock] down the witness box.”

6.   As a by-product of appellant's arrest, he was taken to Montgomery Ward where he was less than positively identified by Nancy Miller.  “It could be him.”   Similarly, the photo identification sought to be suppressed had less than spectacular results for the prosecution.   Randall Rounds could not identify appellant's picture from a photo lineup because of the poor quality of the photographs.   Ramona Regalado also could not identify appellant's photograph.   Karen Foster recalled that she identified appellant's picture;  however, she remembered appellant pictured with a goatee, which he never had.   Only Debra Dietz, a witness called in rebuttal, had little problem in identifying appellant's picture, yet Ms. Dietz only saw appellant on the 6th of April, and not on the day of the crime.Respecting the key taken from appellant, which fit the car allegedly used in the crime, this evidence was for impeachment as well as to show ready access to the car.

7.   Appellant argues that by establishing his presence at the office equipment department of Montgomery Ward two days prior to the theft, the prosecution satisfied their burden of proving appellant's intent to steal, commensurate with the charge of burglary.  (See CALJIC 14.50.)

8.   Appellant was observed ducking around counter tops, appearing to avoid detection, as well as seen leaving the store with a typewriter.   Additionally, he was even pursued through the parking lot.

9.   One of the potential alibi witnesses mentioned was Danny Gutierrez, a minister who had co-officiated the wedding rehearsal.   Mr. Gutierrez was called as a witness for the prosecution on rebuttal, and was unable to fortify appellant's alibi.   Mr. Gutierrez could not recall seeing appellant at the rehearsal, but acknowledged on cross-examination the possibility that the appellant could have been there.

10.   We must assume that jurors, as intelligent persons capable of understanding and correlating all given instructions, followed the applicable instruction.  (People v. Yoder (1979) 100 Cal.App.3d 333, 338, 161 Cal.Rptr. 35;  People v. Henley (1969) 269 Cal.App.2d 263, 271, 74 Cal.Rptr. 611.)

11.   The prosecutor also emphasized the fact that he was unable to locate that witness, based upon information solicited from another defense witness, and that this fact also impliedly established appellant's guilt.

12.   “If I asked my wife, ‘What would you think—whether a person is innocent? or guilty?—if he takes the stand, said he had previously been convicted of a felony.’“She would go like this, ‘Hang him, he's guilty.’“I am afraid that there are a lot of people that feel that way;  because a person's done one bad thing in his life, he is going to have to bear the risk and burden of that for the rest of his life.”

13.   The later comment was made in response to the trial court's reprobation of the prosecutor's misstatement of law, and mentioned that “the moral turpitude involved may be [a] sex crime.”   This comment is set forth in the text of our discussion below.   We would concede that the mere mention of a “sex crime” might be deemed inflammatory.   However, in this context, the prosecutor was attempting to clarify a point of law not directly related to the actual trial and it was most unlikely that they confused this comment with appellant's prior robbery conviction.

14.   CALJIC 2.09.

STEPHENS, Acting Presiding Justice.

ASHBY and HASTINGS, JJ., concur.