People v. Lewis

109 Cal. App. 3d 599, 167 Cal. Rptr. 326, 1980 Cal. App. LEXIS 2188

Opinions

Opinion

NEWMAN (J. M.), J.

*

Michael Dale Lewis, aka William Taylor, appeals from a judgment of conviction of the crimes of burglary (Pen. Code, § 459) and grand theft (auto) (Pen. Code, § 487, subd. 3) and concurrently petitions for a writ of habeas corpus seeking reversal of the judgment on the ground that he was denied the effective assistance of counsel in his trial.

Facts

Penal Code Section 1538.5 Motion

After arriving at Los Angeles International Airport on the morning of June 21, 1977, Earle Martin rented a red 1977 Mercury Monarch about which he observed no visible damage on the driver’s side. Martin ultimately drove to Hollywood and checked into the Imperial 400 Motel. He was assigned room 208, and then went out for dinner. Upon his return, he parked his rental car in the motel parking lot downstairs from room 208. He locked the door after entering his room, did some work, and went to sleep at approximately 2 a.m. Martin was not disturbed during the night, and awoke at about 5:05 a.m., as is his custom. He saw that his clothes, draped over a chair when he returned, were strewn about the room. His briefcase, wallet, keys, and approximately $100 in cash were gone. Martin later found his room key, which had been in his pants pocket, in his shoe. He looked outside his room and observed that the red Mercury Monarch was missing. There were no signs of forced entry. Martin called the room clerk, reported the burglary and theft, and requested that the police be contacted. The police came to the motel. Martin gave no one permission to enter his room or drive his rental car.

The scene now shifts to the Hollywood Hills Motel in the early morning hours of June 27, 1977. At approximately 1:30 a.m., the manager of that motel, Ping Lee, rented room 19 to Carlos Bueno or Brenos.¹ Bueno appeared to be intoxicated, and Mr. Lee had to fill out the registration card for him. He indicated he would be alone in the room. While checking the premises of the motel at about 6 a.m. that same morning Lee noticed several louvres had been removed from the bathroom window of room 19, which were there when the room was rented to Mr. Bueno. He went to and looked through the window and saw a man lying on the bed whom he did not recognize, since this man seemed larger than Mr. Bueno. Mr. Lee first knocked on the door of room 19 to awaken Mr. Bueno. Receiving no response, he went to the motel office and attempted to awaken Mr. Bueno by telephone. For the next three hours, Mr. Lee maintained his observation of room 19 and continually telephoned the room. At last, Mr. Bueno answered the room phone, and in response to Mr. Lee’s inquiry said there was someone whom he had not invited in his room. Mr. Bueno indicated his assent when Mr. Lee told him he would summon the police. Mr. Bueno then objected to remaining in the room and was given a new room by Mr. Lee at no additional charge.

Officers Anderson and Jones responded to a radio call indicating that a burglary suspect was then present at the Hollywood Hills Motel. They arrived at approximately 10:30 a.m., and were met by Ping Lee who told them that a man who had not registered was sleeping in a room rented to someone else; that he wanted this man removed. The officers went up to the room, looked through the opening in the bathroom window, but were unable to see anything. The door was tried and found locked; a passkey was obtained from Ping Lee and the officers unlocked the door and entered the room. The officers saw appellant sleeping on top of the bed face down and fully clothed. The officers awakened appellant, patted him down for weapons, asked him how he got into and what he was doing in the room, and requested identification. He replied that he was invited into the room by another man to drink and fell asleep. Based upon Ping Lee’s statements and his observations, Officer Anderson formed the opinion that appellant was too big to have entered through the bathroom window opening and might therefore have used a passkey, which was not uncommon in motel burglaries in the Hollywood area. He felt that appellant had entered the room to commit a felony² and arrested him for burglary, a violation of Penal Code section 459. Anderson then searched appellant, hoping to find a key to room 19. In appellant’s jacket pocket, he found one key ring which contained eight or nine keys, with numbers stamped on each key in the manner of a motel or hotel key. He also found automobile keys, one set for a Ford product and some for a General Motors brand. Officer Anderson asked appellant about the function of the various keys; appellant responded that he had purchased a car that broke down on Washington Boulevard; that he left it there and walked to the motel—the General Motors key fit this car. He knew nothing about the various keys stamped with numbers. Officer Anderson then asked Ping Lee whether there were any cars in the motel parking lot which he did not recognize. Lee identified a Mercury Monarch as being unfamiliar to him. Officer Anderson walked over to the Mercury, inserted the Ford key in the door, unlocked it, inserted the key in the ignition and turned it on. A record check of the status of the Mercury indicated it was reported stolen.

Defense

The manager, Ping Lee, did not ask that appellant be arrested; he merely wanted him removed from the room. He was asked by an officer he identified as Anderson whether he wanted appellant arrested and replied that he did not. Lee further testified that when he told the officer that he did not want appellant arrested, the officer then told appellant that at least he had to pay Ping Lee for the room, and appellant gave $7 of the money he had to the officer who in turn gave it to Lee. Lee thought this transaction occurred after the officers entered the Mercury Monarch. In rebuttal, Officer Anderson testified he was not present during this conversation. The motion to suppress was denied.

Evidence Code Section 402 Hearing

The case proceeded to trial on July 21, 1978. Officer Anderson did not testify; his partner, Officer Jones, was present and did testify. Before commencement of the jury trial, a hearing pursuant to Evidence Code section 402 was held to determine the admissibility of statements by appellant to Officer Jones. Defense counsel stipulated to the validity of the arrest of appellant for purposes of the hearing, but reiterated her assertion of an invalid arrest as raised at the earlier Penal Code section 1538.5 hearing. At this hearing, prior to testifying about the circumstances surrounding the statement by appellant, Officer Jones testified that appellant had been detained but not arrested at the point when he found keys on appellant’s person and then asked him if any of the cars parked in the motel lot belonged to him, and was told they did not. Officer Jones further testified that the keys he found on appellant fit the 1977 Mercury Monarch in the lot, which the manager did not recognize as belonging to a guest, and started it. Officer Jones then inquired ovér his police radio as to the status of the car and was informed it was listed as stolen. Appellant was then arrested for grand theft auto, advised of his Miranda rights, waived them, and gave his statement to Officer Jones.

Trial

In the course of the trial, Officer Jones testified that he made a cursory search for weapons while making initial inquiries of appellant and thereafter recovered keys from his jacket pocket while searching his person. After finding keys to a Ford product, Officer Jones asked appellant whether he was driving, and appellant replied he was not. A rental agreement found in the glove compartment of the Monarch bore the signature of Earle Martin.

When appellant was brought from room 19, he was neither handcuffed nor otherwise physically restrained by the officers. After Officer Jones learned that the Mercury was reported stolen, appellant was arrested for grand theft auto.

Appellant was transported to the police station, where Sergeant Miller interviewed and took a statement from him after advising him and receiving a waiver of his rights. Appellant earlier had told Officer Jones that a man he was gambling with gave him $100 to return the Monarch to the rental agency because it had been damaged. He fell asleep before he could do so; he lost most of the money gambling. Appellant told Sergeant Miller that he met a man named Early (sic) Martin who offered him $100 to return a rental car which had been damaged. Appellant took the money but did not return the car because his fingerprints were all over the steering wheel, door handle and rearview mirror. Appellant described Martin as a black man.

On July 14, 1977, Sergeant Miller went to the Imperial 400 Motel with the keys found on appellant’s person to determine if any fit room 208. The manager identified the keys with stamped numbers as belonging to the motel. Each of the numbered keys recovered from appellant including that with number 208 unlocked the corresponding room door of the motel. The manager also stated he had often seen appellant in the vicinity of the motel.

Defense counsel did not renew her motion to suppress evidence or object to introduction of the keys as evidence in the trial. Defendant was convicted of the charges indicated, and sentenced to state prison for the term prescribed by law under the indeterminate sentence law in effect when the offenses were committed.

Issues

Appellant makes two contentions: (1) that he was arrested without probable cause; therefore evidence found on his person and all of its fruits, including his statements, should be suppressed; and in the alternative (2) that at the time he was searched, he was not arrested, only detained, and therefore that the search of his person was impermissibly excessive in scope requiring the suppression of evidence found in that search and its fruits. Flowing from this latter contention is his most substantial: if, because his suppression motion was not renewed at trial on the ground evidence supporting it was newly discovered, or because his counsel did not object at trial to the introduction of the evidence found on his person, these claims may not be advanced on appeal, he was denied effective counsel. If counsel was ineffective, his conviction should be reversed. If it cannot be on these facts, then his contemporaneous petition for writ of habeas corpus should be granted on this same ground of ineffective counsel, and his conviction should be reversed.

Discussion

Appellant has both appealed and filed his contemporaneous petition for writ of habeas corpus. This course of action is recommended as appropriate in circumstances where the record contains no explanation for the challenged aspect of representation, resulting in affirmance on appeal, unless there could be no satisfactory explanation for counsel’s acts or omissions. A habeas corpus proceeding, on the other hand, provides an opportunity for an evidentiary hearing in which trial counsel may describe reasons for the challenged acts or omissions. (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859].)

Since appellant has raised the same issues in both his appeal and habeas corpus petition, we shall treat them together.

I

Appellant did test the legality of the arrest' and the search in which the keys were found in the Penal Code section 1538.5 suppression motion. It was heard on January 10, 1978 (before a judge other than the one who presided at the trial), and decided adversely to the defendant after a full evidentiary hearing. The standard for review is clear:

“A proceeding... to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. [Citations.] The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence. [Citations.]” (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585].)

Officer Anderson testified that, based on the information received from Ping Lee and the discovery of appellant in a room he had not rented, without identification, and with an unsatisfactory explanation of how he happened to be there, he arrested appellant for burglary and the search in which the keys were found followed.

Appellant’s claim that the evidence elicited at this hearing was not such as to provide probable cause to arrest is without merit. There is probable cause to arrest when the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that an individual is guilty of a crime. (People v. Harris (1975) 15 Cal.3d 384, 389 [124 Cal.Rptr. 536, 540 P.2d 632].) The standard of probable cause to arrest is the probability of criminal activity, not a prima facie showing. (People v. Moore (1970) 13 Cal.App.3d 424, 436 [91 Cal.Rptr. 538].) Officers Anderson and Jones had probable cause to believe that a crime had been committed—an unregistered person was sleeping in one of the rooms, from the bathroom window of which the louvres had been removed; he had no identification and an unsatisfactory explanation for being there. The prior occupant to whom the room had been rented requested another room. This constitutes substantial evidence to support the finding of the trial court.

We observe, however, that because appellant appeared to the officers too large to have entered room 19 through the bathroom window, a question exists as to his means of entry, and since no evidence of theft or attempted theft from Carlos Bueno, or disturbance of the room appears in the record, a question- arises as to the crime appellant intended to or did commit. Penal Code section 459 defines burglary as entering “any... room... with intent to commit grand or petit larceny or any felony ....” It is apparent that probable cause to arrest appellant existed. The facts adverted to above are such as to permit an officer to reasonably entertain the suspicion that appellant intended either to take property belonging to the room’s occupant or to obtain the benefit due to a hotel guest without paying for it—use of the room. Penal Code section 537 provides that any person who obtains accommodations at a [motel] without paying therefor, with intent to defraud the proprietor or manager of the establishment, is guilty of a misdemeanor. Thus, even if Officer Anderson did not have probable cause to arrest defendant for burglary, he did for this latter offense. “The fact the officer did not formally place appellant under arrest for that offense did not invalidate the arrest or require exclusion of the evidence seized incident to the arrest [citations]. The fact an officer may place a person under arrest for the wrong offense does not invalidate the arrest and require exclusion of evidence seized incident to the arrest, if the officer nevertheless had probable cause to arrest the person for another offense (see, e.g., People v. Walker (1969) 273 Cal.App.2d 720, 725 [78 Cal.Rptr. 439]; People v. Kelley (1969) 3 Cal.App.3d 146, 151 [83 Cal.Rptr. 287]; People v. Farley (1971) 20 Cal.App.3d 1032 [98 Cal.Rptr. 89]; People v. Howell (1973) 30 Cal.App.3d 228, 235-236 [105 Cal.Rptr. 748]).” (In re Donald L. (1978) 81 Cal.App.3d 770, 775-776 [146 Cal.Rptr. 720].)

II

However, at the Evidence Code section 402 hearing immediately preceding the trial, Officer Jones testified that at the time the incriminatory keys were found and taken from appellant’s jacket pocket, he was not under arrest but was only detained—he was ultimately arrested when Officer Jones discovered the Ford keys in appellant’s possession fit the Mercury Monarch which was reported stolen. This hearing was for the purpose of determining the voluntariness of statements made by appellant to Officer Jones. There was no further examination or cross-examination in this hearing about the arrest or detention status of appellant at the time he was searched.

III

Trial commenced and Officer Jones was asked about the keys—but neither was a question asked nor an issue raised as to whether defendant was arrested or only detained at the time of the search. Ping Lee testified that Officer Jones asked him whether he wanted appellant arrested when the officer brought him downstairs after questioning and searching him, but before matching the Ford key to the Mercury Monarch. Ping Lee also testified that Officer Anderson obtained $7 from appellant in payment for the room when Lee said he did not want appellant arrested.

It is this testimony upon which appellant relies for his contention that he was not arrested but only detained at the time of the initial search—which constitutes the newly discovered evidence appellant contends would have supported either a renewal of the Penal Code section 1538.5 motion to suppress, on the ground that the extent of the search was impermissibly excessive or at least an objection to introduction of the keys into evidence at the trial. Renewal of the motion or objection to the introduction of the keys in evidence would have preserved for appeal the issue of legality of the search if the motion was again denied or the objection overruled.

IV

We note that Officer Jones’ testimony differs from that of Officer Anderson at the Penal Code section 1538.5 hearing in two respects: (1) Anderson testified he arrested appellant for burglary before searching him, and that he personally took the keys from appellant and tried them successfully in the Mercury. Officer Jones testified at the Evidence Code section 402 hearing that appellant was searched while detained before being arrested—and that he found the keys and matched them with the Mercury. Clearly, the discrepancies in testimony between Officers Anderson and Jones could give rise to a question about the legality of the search when it was conducted, but does not for the reasons we shall state below.

By resolving the issue of legality of the search of appellant in favor of respondent—that is, by concluding that probable cause to arrest appellant existed at the time he was discovered in room 19, it becomes unnecessary to reach the other issues raised in this appeal and in appellant’s petition for habeas corpus seeking reversal on the ground that appellant was denied effective assistance of counsel.

Defense counsel could not have rendered ineffective assistance to appellant if there was no reason for her to renew her motion to suppress or object to introduction of the keys into evidence at trial on the ground of newly discovered evidence. The discrepancies between Officer Anderson’s testimony at the Penal Code section 1538.5 hearing, in which he stated that appellant was . arrested before he was searched, and Officer Jones’ testimony at the Evidence Code section 402 hearing, that appellant was not arrested but only detained when he was searched, would give rise to the issue of the permissible scope of a search of a detainee (1) where probable cause to arrest does not exist at the time of the detention and search, or (2) where the discrepancies pertain to the very issue of whether probable cause to arrest exists when the arrest takes place.

But that is not this case. In the instant case there was probable cause to arrest appellant before he was searched; and the discrepancies in the two officers’ testimony do not embrace this issue. This is so because even though Officer Jones characterized the defendant’s status as detention rather than arrest when he was searched, he too entertained the subjective belief that an offense was committed (see People v. Miller (1972) 7 Cal.3d 219, 226 [101 Cal.Rptr. 860, 496 P.2d 1228]), because, according to Ping Lee’s trial testimony, this officer asked the motel manager whether he wanted defendant arrested before matching the Ford key. to the Mercury Monarch.³ The only reasonable explanation for Officer Jones making this inquiry is that he possessed the requisite subjective belief that appellant had committed an offense warranting arrest, perhaps burglary, but most probably defrauding an innkeeper. Moreover, the discrepancies do not give rise to a question of Officer Anderson’s credibility in stating he believed that defendant had committed a burglary (thus raising the question of his subjective belief that this crime had been committed) because probable cause to arrest for defrauding an innkeeper was immediately apparent—that offense was committed in the officer’s presence and both officers conducted themselves in a manner consonant with a subjective belief that no less than this offense was then being committed.

Thus the requirement set forth in Agar v. Superior Court (1971) 21 Cal.App.3d 24, 28-29 [98 Cal.Rptr. 148] and People v. Miller, supra, 7 Cal.3d at page 226, that it first be established that the police officer believes the crime has been committed before the issue of probable cause (the objective legal standard by which to measure the reasonableness and sufficiency of the officer’s subjective beliefs) arises, is fulfilled. Characterization of appellant as being detained but not arrested is therefore of no moment because when probable cause to arrest exists, probable cause to search does as well. (People v. Triggs (1973) 8 Cal.3d 884, 894-895, fn. 8 [106 Cal.Rptr. 408, 506 P.2d 232].)

V

The issue of denial of effective assistance of counsel arises only when counsel fails to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates and when acts or omissions of counsel result in withdrawal of a potentially meritorious defense. (People v. Pope, supra, 23 Cal.3d at p. 425.) Since the search of appellant leading to discovery of the incriminating keys was lawful in any event, the claim that appellant was denied effective assistance of counsel according to the Pope standard does not survive analysis.

The judgment is affirmed. The petition for writ of habeas corpus is denied.

Lillie, J., concurred.

Assigned by the Chairperson of the Judicial Council.

1 He is referred to by both these names in the record.

2 Which he stated was “burglary,” an obvious tautology.

3 At the Penal Code section 1-538.5 hearing, Ping Lee similarly testified that Officer Anderson asked him if he wanted appellant arrested after he was found in and then removed from room 19.