Opinion
Rehearing Denied July 1, 1960.
Hearing Granted Aug. 10, 1960.
Opinion vacated 12 Cal.Rptr. 874.
Minsky, Garber & Rudof, and Albert C. Garber, Los Angeles, for appellants.
Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.
PARKER WOOD, Presiding Justice.
In count 1 of an information the defendants Bobbie Privett and Phyllis Walker, mother and daughter, were accused of burglary, and in count 2 they were accused of receiving stolen property. In a jury trial, Privett was convicted of burglary, and Walker was convicted of receiving stolen property. Each defendant appeals from the judgment rendered against her.
Appellants contend that their arrests were illegal and there was no probable cause for the arrests or for the search of their premises.
A burglary was committed on September 13, 1958, in the nighttime, at the apartment of Mrs. Bert K. King at 1520 North Hayworth Avenue in Los Angeles. The burglary occurred during her absence from the apartment. Sweaters, skirts, furs, purses, jewelry, bottles of perfume, and two suitcases were stolen from the apartment. On one of the suitcases the initials, 'B. K. K.' were printed in gold. At the trial, Mrs. King identified that suitcase, a box of jewelry, a jewelry case, a watch, and a brooch (Exhibits 1, 2, 3, 4, and 5), as a part of her property which was stolen from her apartment. She also testified that, prior to the trial and while she was at the police station, she identified several sweaters, furs, bottles of perfume, articles of jewelry, and articles of clothing (between 30 and 40 articles) which had been stolen from her apartment; and those articles were returned to her by the officers.
Mrs. Light, who lived in the apartment next to Mrs. King's apartment, testified that she heard noise and pounding in Mrs. King's apartment in the nighttime of said September 13; about ten minutes thereafter she saw two slender blonde women standing near the door of Mrs. King's apartment; those women were the defendants.
Mr. Schandling, who lived in the apartment house, testified that on said September Deputy Sheriff Sullivan testified that about four days before September 18 he saw defendants Privett and Walker and one Clair Edwards who were in an automobile near Washington and La Cienega Boulevards in Los Angeles; at that place he saw Edwards, who was 'a known burglar,' get out of the automobile and meet and talk with another known burglar, one James Gould; by 'tracing' the license number of the automobile, an address, 18021 Hatton Street in Reseda, was obtained; on September 18, and for three days thereafter, Deputy Sheriff Sullivan and another deputy sheriff kept the dwelling house at that address under constant surveillance; during those days, in the daytime and nighttime, he saw the defendants Privett and Walker, and Edwards, and some children enter and leave the house; the deputy (witness) had not known Edwards personally before September 18, but had known him by reputation; the deputy knew his reputation by having searched the records; Edwards had a burglary record, and was known to the deputy as a burglar. The deputy testified further that on September 21, about 9 p. m., he and six or seven other officers who were not in uniform, and were wearing rough clothing, walked across the lawn to the front of the house; he (witness) saw lights in the house, and saw Edwards and defendant Privett looking out the window in the direction of the officers; the officers knocked on the front door, and then the lights went out; the officers identified themselves as 'police officers,' and when there was no response they kicked the door open and entered the house; they did not have a search warrant or any warrant when they entered the house; when he (witness) entered he saw Edwards in the living room, Walker in a hallway, and Privett in the front bedroom; he arrested Edwards and searched the premises; a suitcase containing six furs was found in the garage; costume jewelry, a jewelry box, women's clothing, and a blue suitcase with initials 'B. K. K.' on it (Exhibits 1, 2, 3, 4, and 5) were found in the house; Privett said that the blue suitcase belonged to her; Privett and Walker said that the jewelry box and several articles of costume jewelry had been given to them by Edwards; and he arrested Privett.
Police Officer Krueger testified that on September 23, 1958, about 3 p. m., he and other police officers entered the home of Walker while she was absent; while they were looking at various articles such as clothing, jewelry, furs and luggage, Walker returned to the house; he (witness) had a conversation with her regarding the blue suitcase, costume jewelry, a watch, a brooch (Exhibits 1, 2, 4 and 5) and many articles of clothing and jewelry, and she said that all of those articles belonged to her; he arrested her and took about 200 articles such as clothing, jewelry, and luggage to the police station; later 34 of those articles were returned to Mrs. King; on the following day, he took Edwards and Privett from the custody of the sheriff and arrested them on charges of burglary and receiving stolen property; on October 27, at the preliminary examination, Edwards entered a plea of guilty to the charge of receiving stolen property, and the burglary charge was dismissed.
Defendant Privett testified that she had never been at 1520 North Hayworth Avenue (Mrs. King's apartment); on September 13, she and defendant Walker were shopping in Reseda, and later they and Walker's four children visited Privett's sister in Burbank until about midnight; she had known one Edwards since June, and he had helped her move into her daughter's home (Walker's home) in Reseda in July, but she did Defendant Walker testified that she lived in the house in Reseda where the People's exhibits and other articles were found; she had never been at 1520 North Hayworth Avenue (Mrs. King's apartment); on September 13, 1958, she weighed 140 pounds and was not slender; she had known Edwards since June, 1958, and he had told her he was having trouble with his wife; he visited her home several times a week; on September 16, when she was away from home, Edwards left two suitcases and some boxes at her home; on the following day he came to the house and said he had left some things in the garage, and told her she could have them; there were sweaters, purses, clothing, and costume jewelry, which she and her mother put in a closet. In the evening of September 21, Edwards was at their house and they were looking at television; about 9 p. m. they observed some men who were on the street corner; then several men ran across the lawn, pounded on the door, kicked the door in, and ran into the house; there were no lights in the house except in the bathroom; there were approximately eight men and they were not in uniform; they said they were police officers; they arrested Edwards immediately, and began searching the house--asking questions about the ownership of various articles that Edwards had brought there; she did not know about the furs, which were in the suitcase in the garage, until the officers brought the suitcase into the house and opened the suitcase; she was not arrested on September 21, when her mother and Edwards were taken to the police station; on the following afternoon, about 3 p. m., she (witness) returned to her house and found Officer Krueger and five other policemen 'going through her things'; she did not know the contents of a large sackful of things which they had 'gathered up'; she first saw the initialed blue suitcase on that occasion but she did not know where they found it, or when it was taken to the police station; she was arrested then and taken to the police station.
Clair V. Edwards, a witness called by the appellants, testified that prior to September 15, 1958, probably in July, he had Appellants' only contention on appeal is that their arrests were illegal, and there was no probable cause for the arrests or search. They argue that the evidence was not sufficient to establish probable cause; that the only asserted basis for the entry into appellants' house was that Officer Sullivan saw Edwards talking to a known burglar, and that thereafter on several occasions Officer Sullivan and another officer saw Edwards entering and leaving appellants' house.
A peace officer may, without a warrant, arrest a person when a felony has been committed and the officer has reasonable cause for believing the person arrested to have committed it. Pen.Code, § 836. 'Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250, 254. 'In determining whether there is reasonable cause to believe a person guilty of a felony, a peace officer may take into account the past conduct, character and reputation of the person suspected * * *. There is no formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances.' People v. Wickliff, 144 Cal.App.2d 207, 212-213, 300 P.2d 749, 753. In People v. Gorg, 157 Cal.App.2d 515, 321 P.2d 143, one question was whether there was probable cause for an arrest for possession of narcotics. In that case the court, after ruling that there was probable cause, referred to some of the evidence of probable cause. The court said, among other things (157 Cal.App.2d at page 520, 321 P.2d at page 146): 'They [officers] knew of appellant's past record. They saw known narcotic addicts going in and out of the premises.'
In the present case there was evidence that on September 14, 1958, Deputy Sheriff Sullivan saw Edwards get out of an automobile and meet and talk with a known burglar, one Gould; the deputy, by tracing the automobile license, obtained an address which was the address of the home of appellants Privett and Walker; Officer Sullivan knew Edwards by reputation and knew that he had a burglary record; Edwards was known to the deputy as a burglar; beginning on September 18, the deputy and another officer kept appellants' house under constant surveillance for three days, and during that time the deputies saw Edwards and the appellants, in the daytime and nighttime, going in and out of the house; about 9 p. m. of the third day of the surveillance, when the two deputies and other officers were walking across the lawn toward the front of the house, there were lights in the house, and the known burglar and defendant Privett were looking at the officers through a window; immediately after the officers knocked on the door and identified themselves as police officers, the lights of the house went out; when there was no other response to the knocking and identification, the officers entered the house. Under such circumstances, the act of turning out the lights might reasonably indicate to the surveillant officers that (1) the known burglar Edwards, who had recently associated with another known burglar, was attempting, during the darkness, to flee from the officers or to hide stolen property from them, or (2) that Edwards and the appellants (who were associating with Edwards when, and after, he associated with the known burglar) were attempting to flee from the officers or to hide stolen property People v. Farrara,
People v. Glancy,Edwards was arrested immediately after the officers entered the house, and thereafter the premises were searched. During the search a blue suitcase, with the initials 'B. K. K.' on it, was found in the front bedroom (where Privett was when the officers entered the house). Privett told the officers that the suitcase belonged to her. Privett and Walker told the officers that the jewelry box and several articles of costume jewelry had been given to them by Edwards. Then Privett was arrested. About two days later, when officers were in appellants' house, the officers had a conversation with Walker regarding the blue suitcase, costume jewelry, a watch, a brooch (Exhibits 1, 2, 4, and 5) and many articles of clothing and jewelry. Walker said that those articles belonged to her. Then she was arrested. Under the circumstances of this case, the officers could reasonably believe that the claims of ownership made by Privett and Walker were not true. There was probable cause for their arrest.
The evidence was sufficient to support the judgments. A witness identified appellants as the two women who were standing near the door of Mrs. King's apartment on the evening of September 13 (date of burglary). Another witness, who saw a man and a woman come hurriedly out of Mrs. King's apartment on September 13, identified Privett as that women.
The judgment as to appellant Privett is affirmed. The judgment as to appellant Walker (order granting probation) is affirmed.
FOURT and LILLIE, JJ., concur.