Opinion
For Opinion on Hearing, see 67 Cal.Rptr. 421, 439 P.2d 333.
Keith C. Monroe, Santa Ana, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.
McCABE, Presiding Justice.
We conclude that though it was error to have charged in the information a violation of section 496 of the Penal Code because the magistrate, at the preliminary hearing, determined there was no evidence to bind defendant over to the Superior Court, such error was not prejudicial; although there was lack of probable cause to issue the warrant of arrest solely upon the allegations of the formal criminal complaint, the good faith attempt of the arresting officer to attempt to obtain a warrant of arrest, in combination with the personal knowledge of the arresting officer at the time of arrest, constituted probable cause for the arrest.
The defendant was accused by a complaint filed on September 13, 1965, in the Municipal Court of the Santa Ana-Orange Judicial District with the commission of a burglary in violation of section 459, Penal Code. Upon presentation of the complaint Later, and on September 16, 1965, a second criminal complaint was filed in the same court by a different officer which charged the defendant with the commission of two separate and independent offenses. The defendant, who after the first arrest had been admitted to bail, was arrested by officers from the Santa Ana Police Department in the late afternoon of September 16, 1965, pursuant to a warrant of arrest issued on the second complaint. A search of the residence, incident to the second arrest ensued, during which additional coins and other items were seized.
The verified complaint signed by Officer Del Coma on September 13, 1965, provided:
The verified complaint signed by one F. D. Gallmeister on September 16, 1965, alleged in a similar manner:
After a preliminary hearing on October 14, 1965, before the judge of the Municipal Court, defendant was held to answer on the counts contained in the complaints charging the respective burglary offenses, but he was not held to answer to the count charging the buying and receiving of stolen property since in the opinion of the judge '* * * at the present time, there is no evidence sufficient to hold the defendant to answer on count two.' This determination on the preliminary hearing was orally accepted by the district attorney's office.
On October 29, 1965, the district attorney filed a three count information, two counts of which charged the respective burglaries
After numerous continuances, the matter finally came to trial on July 5, 1966. The defendant, by his counsel, out of the presence of the jury, initially objected to the jurisdiction of the trial court on the second count of the information. This objection was overruled and the matter proceeded to trial on that date. At the conclusion of the week-long jury trial on July 12, 1966, the district attorney moved out of the presence of the jury to dismiss the second count of the information. Asserting the presentation of this count to the jury constituted prejudicial error, the defendant's counsel moved for a mistrial. After argument on both motions, the court granted the motion to dismiss as to the second count, but denied the defense motion for a mistrial. The jury later returned a verdict of guilty as to each of the remaining counts and judgment was accordingly entered. The appeal follows from the judgment of conviction.
In the absence of a contention by defendant that the evidence is insufficient to sustain the judgment of conviction, we must perforce consider each of the appellant's contentions en seriatum.
The appellant objects initially to the jurisdiction of the trial court to entertain charges against him as to Count II which, at the arraignment, the municipal court had specifically refused to bind him over on this charged offense. In this assertion the appellant is correct.
Such an examination, commitment and order of commitment is a prerequisite to the duty of the district attorney to file an information (art. I, § 8, Calif. Const.) Before the affirmative duty of the district attorney arises under the foregoing statutory provisions, the Constitution requires that a person be held to answer in the Superior Court only after a prior determination to that effect by either a magistrate or grand jury. This requirement of a prior determination acts as a safeguard or bulwark against unwarranted invocations of the untrammeled power and authority of the state against the accused individual by overzealous prosecuting officials.
The Supreme Court noted in Parks v. Superior Court, 38 Cal.2d 609, 612, 241 P.2d 521, 523: 'As to the Palmer transaction the magistrate discharged the petitioner [defendant] on the ground that the evidence showed no public offense had been committed. Such a procedure would be contrary to the protection afforded by the constitutional provision and is not within the permissive powers under the code section. Those powers depend on the issuance of an order of commitment. No exception to this dependence may be made because of the circumstance that the defendant in the same proceeding was charged and heard on two separate, unrelated and unconnected transactions. As indicated in the Bird case (People v. Bird, 212 Cal. 632, 300 P. 23), the constitutional provision would be nullified if by this device the district attorney might proceed without first having obtained an order of commitment.
'It follows from the foregoing that in the absence of the required commitment the inclusion in the information of the charge of grand theft based on the Palmer transaction was unwarranted and contrary to the provisions of the Constitution and section 739 of the Penal Code.'
The same result follows herein. While there may be no constitutional prohibition to the filing of an information 'charging a different but related crime shown by the evidence taken before the magistrate bearing on the same transaction involved in the commitment order', [Emphasis added.] (People v. Downer, 57 Cal.2d 800, 810, 22 Cal.Rptr. 347, 353, 372 P.2d 107, 113; Mulkey v. Superior Court, 220 Cal.App.2d 817, 824, 34 Cal.Rptr. 121; People v. Evans, 39 Cal.2d 242, 249, 246 P.2d 636), herein there was a complete absence of evidence adduced at the preliminary hearing to bind defendant over to the Superior Court on Count II. At this preliminary hearing evidence was introduced, which most favorably construed in the prosecution's favor, indicates a reasonable possibility the defendant might have been guilty of the Pulati and Money Vault burglaries, but failed to indicate a violation of section 496, Penal Code [Count II] in the absence of some substantial evidence to indicate defendant 'received' the property or if 'received', defendant's knowledge that the property was stolen. (See People v. Salazar, 210 Cal.App.2d 89, 26 Cal.Rptr. 456; People v. Boyden, 116 Cal.App.2d 278, 253 P.2d 773; People v. McClain, 115 Cal.App. 512, 1 P.2d 1023.) It follows therefore, that the information as to the second count was invalid. (People v. Kellin, 209 Cal.App.2d 574, 576, 25 Cal.Rptr. 925; see also People v. Rosborough, 178 Cal.App.2d 156, 166, 2 Cal.Rptr. 669.)
Defendant urges the arrest warrants obtained and served on September 13th and 16th, respectively, were constitutionally invalid. The attorney general 'concedes that the two warrants for appellant's arrest were defective under the Giordenello-Aguilar test' (sic, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; see also Barnes v. State of Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, but instead argues the arrests were justified, independent of the Some question exists as to the correctness of the Attorney General's concession that the arrest warrants were invalid. The basis for the Giordenello-Aguilar-Barnes rules is contained in the Fourth Amendment to the Federal Constitution to the effect that '* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
In Giordenello v. United States, supra, 357 U.S. 470, 78 S.Ct. 1245, 2 L.Ed.2d 1503, the United States Supreme Court considered a similar attack on the validity of a warrant of arrest. The question posed, as in the case at bench, was whether the complaint, upon which the warrant had issued, contained sufficient allegations to enable the magistrate issuing the warrant to make a 'neutral and detached' finding of probable cause upon which the warrant might be issued. Mr. Justice Harlan, speaking for the Court, stated:
'The language of the Fourth Amendment * * * applies to arrest as well as search warrants. [Citations.] The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint '* * * be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' [Citation.] The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the 'probable cause' required to support a warrant exists.
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'When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner's determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.'
While the rationale for Giordenello was not expressly hinged upon the Fourth Amendment, and arguably might have been dependent on the Federal Rules, any doubt in this regard was resolved in the subsequent decision of Aguilar v. State of Texas, supra, 378 U.S. 108, 113 fn. 3, 84 S.Ct. 1509, 12 L.Ed.2d 723.
The per curiam decision in Barnes v. State of Texas, supra, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818, compels the conclusion that the warrants of arrest in the case at bench were invalid. In the prior appeal of the matter, Barnes v. State, Tex.Cr.App., 390 S.W.2d 266, the Court of Criminal Appeals of Texas, considered and concluded the following affidavit supporting a warrant of arrest stated sufficient facts to satisfy the requirements of the Fourth and Fourteenth Amendments to the Constitution.
'* * * That heretofore, to-wit: on or about the 29th day of May, A.D., 1962, and before the making and filing of this Complaint, in the County of Lubbock and State of Texas, Billy Joe Barnes and Johnny Leach did then and there unlawfully and fraudulently take from the possession of Southwestern Bell Telephone Company herein called 'owner' good and lawful United States currency of the value of over Fifty and No/100 ($50.00) dollars, the same then and there being the corporal personal property of the said 'owner,' form the possession of the said 'owner,' without the consent of said 'owner,' and with the intent then and there to deprive the said 'owner' of the value of the same, and to appropriate same to the This conclusion of the Texas Court of Criminal Appeals was not acceptable to the United States Supreme Court in Barnes v. State of Texas, supra, and it so stated in the remand of the case to the Texas court. (Cf. 390 S.W.2d 266.)
The similarity of the allegations contained in the Barnes complaint to those relied upon by the magistrate to issue the warrant of arrest in the case at bench is undeniable.
It follows that the statutory authority permitting the issuance of a warrant of arrest premised solely upon the formal allegation couched in the language of the charged offense suffers from a defect of constitutional proportions violative of the Fourth Amendment as applicable to the states through the Fourteenth Amendment.
In the absence of a valid warrant of arrest, the respondent urges the arrest was justified independent of the warrant based on the personal knowledge of the arresting officer, T. Del Coma, which was sufficient to amount to probable cause for the arrest, relying upon the holdings in PEOPLE V. CASTRO, 249 Cal.App.2d 168, 57 CAL.RPTR. 108 ; PEOPLE V. GRUBB, 250 Cal.App.2d 714, 58 CAL.RPTR. 670 ; PEOPLE V. SESSLIN, 252 CAL.APP.2D--, 60 CAL.RPTR. 30 .
249 A.C.A. 190, 196-198
250 A.C.A. 820
252 A.C.A. 130, 134-135
We must concur in the result urged by respondent although not necessarily with its reasoning. The presence of probable cause for the arrest by the personal knowledge of the arresting officers has been held to validate an otherwise invalid arrest, subjected to attack on Giordenello-Aguilar grounds, in Byrnes v. United States, 9 Cir., 327 F.2d 825, 833; Hollings-worth v. United States, 10 Cir., 321 F.2d 342, 348; Ford v. United States, 122 U.S. App.D.C. 259, 352 F.2d 927, 931.) However, such a result may induce officers to rely entirely upon arrests based upon 'probable cause.' Such a result would negate the Fourth Amendment almost in its entirety. (United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13 L.Ed.2d 684; Gilbert v. United States (9th Cir. 1966) 366 F.2d 923, 930.) Accordingly, we hold that in the instance in which an officer has in good faith obtained a warrant for the arrest of the accused and, additionally, personally has knowledge to constitute probable cause for the arrest of the accused at the time he attempts to execute the warrant of arrest, otherwise invalid on Giordenello-Aguilar-Barnes grounds, the arrest has been lawfully made and any of the fruits of the lawful search to such an arrest are fully admissible in evidence if material and relevant to prove any element of the offenses charged.
Three acts of the district attorney during trial are assigned as prejudicial misconduct requiring reversal. Additionally, it is asserted that the answer of the witness Slocum, in concluding the defendant and another had in fact burglarized the coin shop, was prejudicial error.
In the latter instance, the jury was admonished to disregard the answer after defendant's motion to strike had been granted. No further objection was made to the answer by defense counsel.
The remaining three events arose out of and involved certain questions posed to various witnesses by the district attorney. In one instance a witness was questioned concerning some typewriters which he had observed in defendant's home and which the defendant had offered to sell to him inexpensively since they were 'hotter than a $3 bill.' Contrary to defendant's contention, this evidence would be admissible to demonstrate defendant's motive and intent in the possession of other stolen property. Cf. People v. Gonzales, 87 Cal. People v. Raleigh,
On the second occasion during the redirect examination of Officer Del Coma, the district attorney posed the following question: 'Was it at that time, that Mr. Chimel was talking about the possibility of his returning the coins that he took?' A prompt objection was made on the basis that there was no evidence of such a statement and the court was requested to assign the statement as misconduct. The court sustained the objection to the question and gave an admonition to the jury. It must be presumed the jury disregarded the testimony. In the absence of further objection or request for instructions by defense counsel, defendant cannot now complain of the alleged misconduct. (People v. Sanchez, 65 Cal.2d 814, 56 Cal.Rptr. 648, 423 P.2d 800.)
The third cited instance of alleged misconduct involves the questioning of one of defendant's witnesses on cross-examination pertaining to his possession of some of the stolen coinage. Objection was posed on the ground the question 'assumed facts not in evidence.' In view of the previous testimony of one of the police officers, this witness' possession of stolen property was very much in evidence. However, the form of the question was objectionable for it went beyond the evidence by asking the witness if he were in the habit of dealing in stolen property. The court again sustained the objection and admonished the jury to disregard the question.
This court does not approve of the theatrics indulged in by the prosecuting attorney during his examination of witnesses. However, in view of the admonition and the failure of defense counsel to further urge this act as misconduct, it must once again fall within the rule enunciated in Sanchez, supra, 65 Cal.2d 814, 56 Cal.Rptr. 648, 423 P.2d 800.
It has long been the rule that unless the results of misconduct of the prosecuting attorney cannot be obviated by appropriate instructions to the jury by the trial court, the error cannot be presented to the appellate court on such misconduct absent an assignment of such misconduct as error, coupled with a request to the trial court to instruct the jury to disregard it. (People v. Hampton, 47 Cal.2d 239, 240-241, 302 P.2d 300; People v. Sampsell, 34 Cal.2d 757, 764, 214 P.2d 813.)
In reviewing the above-enunciated error, contained in the allegation of Count II in the information which was read to the jury, and the errors, if any, in the cited instances of misconduct by the district attorney, we conclude the erroneous inclusion of this allegation in the information, in the instance in which the charged offense was not submitted to the jury, and the other purported errors, were not sufficiently prejudicial to defendant so as to constitute a reasonable probability or possibility of a different result in the absence of the complained error or errors. (Fahy v. State of Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171; People v. Watson, 46 Cal.2d 818, 835-836, 299 P.2d 243; People v. Bostick, 62 Cal.2d 820, 44 Cal.Rptr. 649, 402 P.2d 529; PEOPLE V. ROSS, 67 Cal.2d 64, 60 CAL.RPTR. 254, 429 P.2d 606 .)
67 A.C. 58k.
Judgment is affirmed.
KERRIGAN and TAMURA, JJ., concur.
'Personally appeared before me this 13th day of September, 1965 T. DEL COMA who, being first duly sworn, deposes and says:
'That on or about the 14th day of August, 1965, at and within Orange County, California, the crime of Felony, to-wit: Violation of Section 459 of the Penal Code was committed by Ted Steven Chimel who at the time and place last aforesaid, did then and there willfully, feloniously and burglariously enter a building known as The Money Vault, located at 153 North Glassell Street, Orange, in said County and State, with intent to commit theft.
'All of which is contrary to the form, force and effect of the Statute in such cases made and provided and against the peace and dignity of the people of the State of California.
'Wherefore, said complainant prays that a warrant may be issued for the arrest of the said Ted Steven Chimel and that he be dealt with according to law.'
'Personally appeared before me this 16th day of September, 1965 F. D. GALLMEISTER who, being first duly sworn, deposes and says:
'COUNT I: That on or about the 2nd day of February, 1965, at and within Orange County, California, the crime of Felony, to-wit: Violation of section 459 of the Penal Code was committed by Ted Steven Chimel who at the time and place last aforesaid, did then and there willfully, unlawfully, feloniously and burglariously enter a house in the possession of and under the control of Vito L. Pulati, located at 1303 South Flower Street, Santa Ana, in said County and State, with intent to commit theft.
'COUNT II: That on or about the 2nd day of February, 1965, at and within Orange County, California, the crime of Felony, to-wit: Violation of section 496 of the Penal Code was committed by TED STEVEN CHIMEL who at the time and place last aforesaid did then and there willfully, unlawfully and feloniously buy and receive certain property, to-wit: coins which had been stolen, knowing the same to have been stolen and did conceal and withhold such property from the owner.
'All of which is contrary to the form, force and effect of the Statute in such cases made and provided and against the peace and dignity of the people of the State of California.
'Wherefore, said complainant prays that a warrant may be issued for the arrest of the said Ted Steven Chimel and that he be dealt with according to law.'
'COUNT I: The District Attorney of the County of Orange, by this Information, hereby accuses Ted Steven Chimel of a Felony, to-wit: Violation of Section 459 of the Penal Code of the State of California (Burglary), in that on or about the 2nd day of February, 1965, in the County of Orange, State of California, the said Ted Steven Chimel did willfully, unlawfully, feloniously and burglariously enter a house in the possession of and under the control of Vito L. Pulati, located at 1303 South Flower Street, Santa Ana, in said County and State, with intent to commit theft.
'COUNT II: And the said Ted Steven Chimel is hereby further accused by the District Attorney of the County of Orange, by this second count of this Information, of a Felony, to-wit: Violation of Section 496 of the Penal Code of the State of California (Receiving Stolen Property), in that on or about the 2nd day of February, 1965, in the County of Orange, State of California, the said Ted Steven Chimel did willfully, unlawfully and feloniously conceal and withhold from the owner certain property, to-wit: coins and medals, which had been stolen, knowing the same to have been stolen.
'COUNT III: And the said Ted Steven Chimel is hereby further accused by the District Attorney of the County of Orange, by this third count of this Information, of a Felony, two-wit: Violation of Section 459 of the Penal Code of the State of California (Burglary), in that on or about the 14th day of August, 1965, in the County of Orange, State of California, the said Ted Steven Chimel did willfully, unlawfully, feloniously and burglariously enter a building known as The Money Vault, located at 153 North Glassell Street, Orange, in said County and State, with intent to commit theft.'
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