Opinion
12-31-1985
, 710 P.2d 937 The PEOPLE, Plaintiff and Respondent, v. Billy Ray HAMILTON, Defendant and Appellant. Crim. 22311.
Frank O. Bell, Jr. and Quin Denvir, State Public Defenders, under appointment by the Supreme Court, Musawwir Spiegel, Deputy State Public Defender, and Louis N. Hiken, Davis, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Edmund D. McMurray, Ward A. Campbell and Ronald S. Prager, Deputy Attys. Gen., for plaintiff and respondent.
The PEOPLE, Plaintiff and Respondent,
v.
Billy Ray HAMILTON, Defendant and Appellant.
Supreme Court of California,
In Bank.
Dec. 31, 1985.
Rehearing Granted March 20, 1986.
Frank O. Bell, Jr. and Quin Denvir, State Public Defenders, under appointment by the Supreme Court, Musawwir Spiegel, Deputy State Public Defender, and Louis N. Hiken, Davis, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Edmund D. McMurray, Ward A. Campbell and Ronald S. Prager, Deputy Attys. Gen., for plaintiff and respondent.
This is an automatic appeal from a judgment of death imposed under the 1978 death penalty law (Pen.Code, §§ 190.1-109.4) Appellant, Billy Ray Hamilton, was convicted of three counts of first degree murder ( §§ 187, 189), one count of attempted robbery ( §§ 211, 664), and two counts of assault with a deadly weapon ( § 245, subd. (a).) As to each murder count, three special circumstances were found true: two multiple murder findings based on the two other murder verdicts ( § 190.2, subd. (a)(3)), and a finding that the murder was committed in the course of a robbery or attempted robbery. ( § 190.2, subd. (a)(17)(i).)
Appellant's assignments of error concerning the guilt verdicts are without merit. However, the special circumstance findings must be set aside because the jury was not instructed to find an intent to kill as required in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862 and People v. Turner (1984) 37 Cal.3d 302, 329, 208 Cal.Rptr. 196, 690 P.2d 669. Accordingly, the judgment of death must be reversed. I. Evidence--Guilt Phase
On Thursday, September 4, 1980, just before the 8 o'clock closing time, appellant and Connie Barbo entered Fran's Market and purchased several items. They returned at three minutes to 8 the following evening. No other customers remained, and the employees were closing the store. One of the clerks locked the front door after appellant and Barbo entered. The couple got a shopping cart and went back to the meat counter where Joe Rios, who had handled their purchases the night before, wrapped up several items for them.
Rios then returned to sweeping the aisles, but kept an eye on appellant and Barbo because he suspected that they might shoplift. However, after watching them go down several aisles and put items in a shopping cart, Rios decided they were not planning to steal. He went back to the stock room at the rear of the store.
As Rios walked into the room, he noticed his fellow employees--Douglas White, Bryon Schletewitz, and Josephine Rocha--walking in behind him. Then he noticed that appellant and Barbo were following, holding a sawed-off shotgun on them. All the employees were ordered to lie on the stock room floor.
Appellant ordered White into the freezer to open the safe. White protested that there was no safe in the freezer. During this exchange, appellant addressed White as "Bryon." Bryon Schletewitz identified himself and offered to open the safe. He led appellant to a room behind the freezer where the safe was located. Barbo continued to hold a shotgun on the other employees in the stockroom.
From where he lay, Rios could hear some scuffling between Schletewitz and appellant. Appellant said, "You better not get a gun" and there was sound like a loud bang. Appellant emerged from behind the freezer and said to White, "Okay, big boy, where is that safe?" White said he didn't know. Appellant shot him in the chest.
At that point Rios made a dash for the bathroom and tried to lock himself in. Josephine Rocha was still sitting on the stockroom floor. From inside the bathroom, Rios heard another shot. Then the bathroom door opened and appellant fired at Rios. Rios raised his left arm to cover his face, and sustained severe injuries to the arm and elbow.
Rios then heard appellant say, "Let's go, babe," and heard appellant and Barbo go to the front of the store. Emerging from the bathroom, Rios saw the other three employees on the floor. The robbers were trying to get out the locked front door as Rios raced out the back door. A voice called out to him to halt and a shot was fired, but Rios kept running until he found someone who would call the police and an ambulance.
Jack Abbott lived immediately behind Fran's Market. When he heard the shots, he got his shotgun and ran toward the store as Rios ran out. Not knowing who Rios was, Abbott yelled at him to stop and fired a round into the air. When Rios continued to run, Abbott went into the store. He saw the bodies of Doug White and Josephine Rocha and went back to his house to call an ambulance.
As Abbott was leaving the store, he was shot in the left hip. He turned and saw the man who shot him standing in the doorway. He shot back as the man ran towards his car. The man groaned and stumbled as he got in the car and drove away. At trial, Abbott testified that the man had the same physique as appellant.
The police arrived on the scene just before 8:30. They found Barbo leaning against the door of the bathroom. Her revolver was found in the toilet tank. Josephine Rocha, Douglas White, and Bryon Schletewitz died from massive shotgun wounds.
Several days after the event, Rios picked appellant's picture out of a photographic lineup. Rios was confident of his identification since he had seen appellant and Barbo on two successive evenings. He testified that when they entered the store on Friday he recognized them as the couple who had been there the night before.
Appellant was arrested in Modesto on September 10th, following a liquor store robbery. The lower left leg of his pants and his left shoe had small holes in them. There were several small circular injuries on his left foot. X-rays revealed five foreign objects the size of No. 6 shotgun pellets in the foot. Appellant also had a laceration on the skin between his right thumb and forefinger, a type of injury frequently caused by the recoil of a sawed-off shotgun. The laceration was several days old.
A booking search, following appellant's arrest and transportation to Fresno, produced a piece of paper containing a list of names. Two of the names on the list were Kenneth and Kathy Allen, the son and daughter-in-law of one Clarence Allen. The other names on the list included Bryon Schletewitz and his father, Ray Schletewitz. The name and address of Fran's Market was also written on the list. A documents examiner testified that the handwriting on the list was appellant's.
All the names except Kenneth and Kathy Allen were of people who had testified against Clarence Allen in his 1977 trial for a 1974 burglary of Fran's Market. Allen had been convicted of burglary, murder, and conspiracy in that trial. Fran Schletewitz had testified that a safe was taken from the market during the burglary, but a second safe had not been found.
Appellant had met Clarence Allen in Folsom. Appellant was released from prison on August 29, 1980. On September 2, Kenneth Allen wired him $100, to be picked up at the Western Union office in San Jose.
A friend of the Allens', William Rakis, testified that appellant and Connie Barbo had been at the Allen home several times during the week preceding September 5th. He had the impression from their behavior that they were boyfriend and girlfriend. A search of the Allen home, following the September 5th offenses, produced a photograph of appellant. The prosecution theorized that the photograph had been sent to Kenneth by Clarence Allen, who had access to Folsom prison records, including photographs of inmates.
Around 10 p.m. on September 5th, two hours after the shootings at Fran's Market, Kenneth Allen sold Connie Barbo's car, a Comet Mercury, to a friend. The car was later found to have bloodstains of appellant's type in it. (Allen's blood is of a different type.) Another car, a Cadillac registered to Allen, was found parked near the liquor store in Modesto at the time of appellant's arrest on September 10th. It, too, contained bloodstains of appellant's type. Fingerprints matching appellant's were found in the Cadillac.
The defense challenged appellant's identity as the perpetrator. The deputy sheriff who took Jack Abbott's initial statement testified that Abbott had been unable to identify or describe the man who shot at him except as a "dark-haired male." Abbott said he had seen only a silhouette in the doorway when he looked to see where the shots were coming from.
Kathy Allen's brother, William Proctor, testified that he had seen a third man, other than Kenneth and appellant, at the Allen house on September 5th. Like appellant, this third man was tall and muscular. Proctor also testified that appellant was walking with a slight limp that day, as though he had a twisted ankle. Proctor said that Connie Barbo had not been present at the Allens' that evening.
Shane Callaway testified that he had accidentally shot appellant in the foot on September 4th. Appellant and Kenneth Allen had come to Callaway's house to collect a debt which Callaway owed Allen. Callaway paid, under duress, but said he would get even. When appellant laughed, Callaway angrily pulled out a shotgun. The gun went off accidentally and hit appellant in the foot.
Callaway admitted that he had been at the Allen house several times since September 5th. He had talked with Kathy Allen and was aware that Kenneth had been charged in connection with the Fran's Market incident. However, he denied knowing that the perpetrator had been shot in the foot. He denied discussing any of the events at Fran's Market with Kathy. He said Kathy had asked him to testify about two months before the trial.
Following Callaway's testimony, the defense rested. During the ensuing lunch break, Callaway was arrested on several outstanding misdemeanor warrants. He was released on his own recognizance and sent to the public defender's office to confer with an attorney. He returned to court in the afternoon to testify as a prosecution witness pursuant to an agreement that he would not be prosecuted either for perjury or for the misdemeanor charges.
Callaway's afternoon testimony entirely recanted that of the morning. He testified that on September 3-4, 1980, he had been working at a copper mine in Eureka, Utah until 7 or 8 o'clock in the morning. The nearest airport to Eureka is 120 or 130 miles away. He could not have reached Fresno on the 4th. In fact, he was not there that day.
Callaway further testified that he had spoken with Kathy Allen a month and a half before the trial. At that time, he was living in Fresno. Kathy Allen was a good friend. When she asked him to testify, he agreed. She gave him a letter containing the substance of what he was supposed to say. (He flushed this letter down the jail toilet right after his noon hour arrest.) Kathy was present when Callaway first talked to the defense investigator at the Allens' house. Before that interview, Kathy supplied Callaway with a description of appellant, whom Callaway had never met.
After his interview with the defense investigator, Callaway changed his mind about testifying and went back to Utah. When members of his family received anonymous telephoned threats, he agreed to testify and returned to California without a subpoena. Evidence--Penalty Phase
The prosecution introduced evidence of three other crimes committed by appellant: a 1973 escape from a Kentucky jail, a 1977 robbery, and the liquor store robbery in Modesto a week after the episode at Fran's Market.
The former chaplain of the Kentucky jail testified about the escape. One evening he received a note from appellant that the television in cell 6 was out of order. When he went to investigate, three of the inmates in that cell, including appellant, tied him up and took the key. Holding a knife to his neck, the inmates used him to get past the electronic doors and escape.
In 1977, appellant robbed John Maultsby in San Jose, taking some money and a watch. Maultsby, who was elderly and in poor health, suffered numerous facial cuts and bruises during the robbery. When arrested, appellant told the police he had hit Maultsby in self-defense.
Raymond Pifer was a clerk at Needham Liquors in Modesto in September of 1980. On the evening of September 10th, appellant brought a six-pack of beer up to the counter, pulled out a knife, and demanded money. Pifer complied. As appellant left the store, he brandished the knife at a customer who was blocking the doorway.
Pifer called the police and appellant was arrested a few minutes later a block away from the liquor store. Pifer and the customer identified appellant as the robber. A nylon stocking and cap which Pifer said the robber wore were found between the liquor store and the site of appellant's arrest. A paper bag containing $150 was found in appellant's pocket.
The defense presented a number of character witnesses. Appellant's sister, Phyllis Gnagie, testified that she, appellant, and a third sibling had been sent to stay with grandparents in Kentucky one summer when they were three, five and seven years old. Their mother was supposed to pick them up but never did. Years later, the mother sent a letter saying she did not want the children.
The children saw their father on occasion over the years, but he never lived with them or provided for them. They were raised and supported by their grandparents with some assistance from an uncle and aunt.
Appellant left school in his junior year of high school when the grandparents died. His sister last saw him in 1969.
Nona Curry testified that appellant had lived at her mother's house in Kentucky between 1968 and 1971. Appellant and Curry's brother, Nelson Pettit, were friends and often stayed at Curry's house. They helped with work around the house, and babysat her daughter.
Pettit testified that he had helped appellant get a job after appellant dropped out of school. They worked together at several different jobs over a period of around four years, beginning in 1969. Both of them stayed frequently at Pettit's parents' house, and both worked on remodelling Pettit's grandmother's house. Pettit described appellant as one of the family during this time. However, they lost contact when Pettit married and moved to Florida.
Michael Dunham had supervised appellant at a Salvation Army rehabilitation center in San Jose in 1977. Appellant was a warehouse and dock worker, and also drove a truck picking up donations. Dunham believed appellant had a drinking problem and became violent when drunk. When sober, he was a good and helpful person. He later came to visit Dunham in San Diego for a week.
Prison reports showed appellant to be a cooperative worker in prison. II.
Appellant challenges the legality of the "booking" search which yielded the list of names of former witnesses against Clarence Allen. That search took place in Fresno, the day after appellant's September 10th arrest in Modesto.
At the time of the Modesto arrest, several items, including an address book, were taken from appellant's pockets and placed in an envelope. An inventory sheet, attached to the envelope, listed "brown wallet, comb, miscellaneous papers." The sheet also carried a notation "NOPT," indicating no other property taken. The clothing which appellant was wearing at the time of his arrest was taken into evidence and kept separately.
The following day, Stanislaus County authorities released appellant, and the envelope, to the custody of Officer Badiali of the Fresno County Sheriff's Department. Before appellant was booked in Fresno, Officer Badiali took the envelope to his office and inspected its contents. He testified that he was looking for contraband, narcotics, or money. He also testified that he believed it was his responsibility to reinventory the contents of the envelope to ensure that any money in it had not been lost.
The items in the envelope corresponded to the list on the inventory sheet. Badiali took out the address book and thumbed through it. As he did so, a folded piece of paper fell out. He unfolded the paper and saw names written on it. Realizing immediately that the paper had evidentiary value, he turned the entire envelope over to the district attorney's investigator.
In response to appellant's motion to suppress this piece of paper, the prosecutor argued that since appellant was to be booked a second time in Fresno, a second booking search would have been proper. Thus, he argued, Badiali's actions constituted nothing more than an acceleration of that search.
The trial court ruled the search valid on this ground. It found that Government Code section 26640 and Penal Code section 1412 justified a second search of appellant's property, since he was to be booked at the Fresno jail. The court observed that "[h]ad Officer Badiali not done so, then the booking officer at the Fresno County jail would have been mandated by law to open that envelope, inspect the contents, and inventory the contents." Therefore, the court concluded, Badiali's conduct was proper as an accelerated booking search.
Three years after Badiali's search, this court held that accelerated booking searches were not a recognized exception to the warrant requirement. (People v. Laiwa (1983) 34 Cal.3d 711, 724-728, 195 Cal.Rptr. 503, 669 P.2d 1278.) However, Laiwa does not apply retroactively to invalidate that search. The presumption of retrospective application is inapplicable where a decision " 'explicitly overrules a past precedent of this Court [citations], or disapproves a practice this Court has arguably sanctioned in prior cases [citations], or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.' " (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 37, 196 Cal.Rptr. 704, 672 P.2d 110.)
Since Laiwa established a new standard, its retroactive effect is to be determined under the tripartite test of Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199: " 'Whether a judicial decision establishing new ... standards is to be given retroactive effect is customarily determined by weighing the following factors: "(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards." ... Decisions have generally been made fully retroactive only where the right vindicated is one which is essential to the integrity of the fact-finding process. On the other hand, retroactivity is not customarily required when the interest to be vindicated is one which is merely collateral to a fair determination of guilt or innocence....' [p ] In search and seizure cases, the tripartite test leads generally to the conclusion that a decision should not be given retroactive effect." (Donaldson, supra, 35 Cal.3d at p. 38, 196 Cal.Rptr. 704, 672 P.2d 110, fns. omitted; quoting People v. Kaanehe (1977) 19 Cal.3d 1, 10, 136 Cal.Rptr. 409, 559 P.2d 1028.)
No reason appears to depart from the general conclusion that a new standard pertaining to search and seizure should be applied prospectively only. Accordingly, Officer Badiali's search may not be invalidated on the ground that it was accelerated. The trial court's ruling must stand unless Badiali's actions exceeded the permissible scope of the booking search which the Fresno County jail authorities might conduct.
Appellant initially argues that there was no justification for any booking search at all in Fresno, since the legitimate purposes of such a search had been satisfied the day before in Modesto. People v. Smith (1980) 103 Cal.App.3d 840, 163 Cal.Rptr. 322, cert. den. (1981) 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 854, found that once a booking search was completed, no justification remained for a warrantless "second search." In Smith, the arrestee had been booked and jailed. Her property, including a purse, was stored at the inmates' property facility when a police officer decided to search the contents of the purse. Declining to decide whether the officer could properly have looked inside the purse as part of the initial booking search (id., at pp. 844-845, 163 Cal.Rptr. 322), Smith held that he could not go back and search the contents of that purse the next day. (Ibid.)
"As with other exceptions to the warrant requirement, any authorization to search pursuant to the booking process must be limited to ' "the circumstances which rendered its initiation permissible." ' (Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) Here, all purposes which might underlie a booking search exception had been fully served the night before the warrantless search at issue here. Indeed, [the searching officer] himself testified that his only reason for conducting the second search was to look for evidence. Therefore, even assuming that the first intrusion was lawful, since [the officer] did not conduct a booking search, we must find another exception to the warrant requirement in order to justify his actions." (Smith, supra, 103 Cal.App.3d at p. 845, 163 Cal.Rptr. 322.)
Smith was unable to find such an exception. It rejected the notion that an arrestee had no remaining privacy interest in booked property and concluded that the "second search" was, therefore, unjustifiable absent a warrant. "To declare that arrestees have no further privacy interest in their personal property once it is subjected to a booking search would mean that all accused persons, whether subsequently found innocent or guilty, would be subject to having their effects rummaged through at will during the entire period of their incarceration. This is a result we cannot condone." (Id., at pp. 845-846, 163 Cal.Rptr. 322.)
This court has approved the holding of Smith. (Laiwa, supra, 34 Cal.3d at p. 727, 195 Cal.Rptr. 503, 669 P.2d 1278.) However, there is a critical distinction between Smith and the present case: here, the second booking search was carried out in connection with a second booking, at a second jail. Under these circumstances, a second search was proper. The statutory duty to "take charge of, safely keep, and keep a correct account of, all money and valuables found on each prisoner when delivered at the county jail" (see Gov.Code, § 26640, Pen.Code, §§ 1412, 4003; all quoted at fn. 10, ante ) is imposed on all jailers. The Fresno authorities were charged with the same duty of care towards appellant's property as were the Stanislaus authorities, and they faced the same potential liability for failure to discharge it. Thus, like the Stanislaus authorities, the Fresno authorities were justified in conducting a booking search to the extent necessary to fulfill their statutory duties. The trial court's approval of a "second search" under these circumstances must be upheld.
Thus, if appellant's challenge to Officer Badiali's conduct is to prevail, it must be that on the ground that he exceeded the scope of any proper booking search, either initial or "second." This court has not yet determined the "ultimate limits of such a search" (People v. Laiwa, supra, 34 Cal.3d at p. 727, fn. 9, 195 Cal.Rptr. 503, 669 P.2d 1278) nor decided whether an arrestee retains any protected privacy interest in property taken from him at the stationhouse. However, the United States Supreme Court has done so, and it is to those cases we now turn.
It is established that an inventory such as occurs at booking is a "search" in the constitutional sense of that term even though its ostensible purpose is not a quest for evidence. (South Dakota v. Opperman (1976) 428 U.S. 364, 369-371, 96 S.Ct. 3092, 3097-3098, 49 L.Ed.2d 1000; Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 703-706, 94 Cal.Rptr. 412, 484 P.2d 84.) The requirement of a warrant is excused, not because of exigency or impracticality, but because probable cause is irrelevant to a search undertaken for the purpose of an inventory rather than an investigation. (Illinois v. Lafayette (1983) 462 U.S. 640, 642, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65; South Dakota v. Opperman, supra, 428 U.S. at p. 370, fn. 5 96 S.Ct. at p. 3097, fn. 5.) Nevertheless, as a "search" a booking inventory remains subject to the restraints of reasonableness under the Fourth Amendment and of article I, section 13 of the California Constitution. (Illinois v. Lafayette, supra, 462 U.S. at p. 643, 103 S.Ct. at p. 2608; United States v. Edwards (1974) 415 U.S. 800, 808-809, 94 S.Ct. 1234, 1239-1240, 39 L.Ed.2d 771.)
However, the high court has recently rejected the argument which appellant advances here, that an intrusion into a closed container reduced to the exclusive control of the police constitutes an unreasonable stationhouse search. The court has found that, when conducted as part of the booking process, such thorough inventory searches are constitutionally acceptable. (Illinois v. Lafayette, supra, 462 U.S. 640, 103 S.Ct. 2605.)
"At the stationhouse, it is entirely proper for police to remove and list or inventory property found on the person or in the possession of an arrested person who is to be jailed. A range of governmental interests support an inventory process. It is not unheard of for persons employed in police activities to steal property taken from arrested persons; similarly, arrested persons have been known to make false claims regarding what was taken from their possession at the stationhouse. A standardized procedure for making a list or inventory as soon as reasonable after reaching the stationhouse not only deters false claims but also inhibits theft or careless handling of articles taken from the arrested person. Arrested persons have also been known to injure themselves--or others--with belts, knives, drugs or other items on their person while being detained. Dangerous instrumentalities--such as razor blades, bombs, or weapons--can be concealed in innocent-looking articles taken from the arrestee's possession. The bare recital of these mundane realities justifies reasonable measures by police to limit these risks--either while the items are in police possession or at the time they are returned to the arrestee upon his release. Examining all the items removed from the arrestee's person or possession and listing or inventorying them is an entirely reasonable administrative procedure. It is immaterial whether the police actually fear any particular package or container; the need to protect against such risks arises independent of a particular officer's subjective concerns. [Citation.] Finally, inspection of an arrestee's personal property may assist the police in ascertaining or verifying his identity. [Citation.] In short, every consideration of orderly police administration benefiting both police and the public points toward the appropriateness of the examination of respondent's shoulder bag prior to his incarceration." (Lafayette, supra, 462 U.S. at pp. 646-647, 103 S.Ct. at pp. 2609-2610.)
The high court declined to invalidate the search of a closed shoulder bag simply because the governmental interests at issue could have been achieved by less intrusive means. The court found it sufficient that the procedures which the police actually followed were "appropriate" to serve those interests. "It is evident that a stationhouse search of every item carried on or by a person who has lawfully been taken into custody by the police will amply serve the important and legitimate governmental interests involved." (Lafayette, supra, 462 U.S. at p. 648, 103 S.Ct. at p. 2610.)
Under Lafayette, Officer Badiali's search must be found reasonable. The inspection of appellant's address book, like the inspection of a shoulder bag or other container, was a reasonable measure to look for money, contraband, or similar items which could be stolen or could endanger jail security. The "hit list" came into view during the course of this inspection, and was therefore lawfully seized. Its admission into evidence was proper. III.
Before trial, appellant moved to recuse the Fresno County District Attorney's office from prosecuting his case. The motion was based on the prior relationship between several members of that office and Clarence Ray Allen, the alleged instigator of the crimes with which appellant was charged.
In his 1977 trial for the first Fran's Market burglary and murder, Clarence Allen was represented by Stephen Carlton. Among Carlton's law partners was Dale Blickenstaff. By the time of appellant's trial in 1981, Blickenstaff had become District Attorney for Fresno County. Carlton was assistant district attorney, Blickenstaff's second in command.
At the hearing on the recusal motion, Carlton testified that he had not participated in any discussions or decisions concerning appellant's case. Normally, as assistant district attorney, Carlton would participate, along with the district attorney and several others, in any decision to seek the death penalty. However, a day or so after the charged crimes occurred, Blickenstaff advised Carlton that there appeared to be a possible connection between appellant and Clarence Allen. As a result, Carlton was excluded from any discussions concerning appellant's case.
Carlton thought he might have discussed trial strategy with other members of his former firm, including Blickenstaff, during Allen's 1977 trial. However, Carlton had no recollection of any specific discussions. He had had no contact with Allen nor any member of his family since 1977.
The district attorney's office recused itself from prosecuting Allen for the current offenses. The trial court denied appellant's motion to recuse that office in his case, stating that "I have serious questions whether or not there would even be grounds to recuse the District Attorney in investigating and prosecuting Mr. Allen, who is in state prison. I think the District Attorney's Office admirably and out of abundance of caution has excluded themselves from handling that case. I think the connection between the case for which Mr. Carlton represented Mr. Allen and the murder cases that are presently before this Court is almost one of accident. It is one of retaliation against witnesses, has nothing to do with the investigation of that previous case, the lawyer/client relationship or any of the fact situations or evidence of that other case...."
The court noted that Carlton's prior representation of Allen might present a problem if Allen were called to testify in appellant's case. However, this was extremely unlikely since Allen was expected to be charged with the same offenses. Accordingly, the court concluded that "there is no actual conflict, there is no impropriety and there is no appearance of impropriety."
The court's ruling was correct. Appellant has not demonstrated how Carlton's prior representation of Clarence Allen made it "unlikely that [appellant] would receive a fair trial." ( § 1424.)
A recusal motion "shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial." ( § 1424, Stats.1980, ch. 780, § 1.) In People v. Conner (1983) 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5, we held that "[t]his standard differs from that enunciated by us in Greer [People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164]. While section 1424 does not specify whether the disqualifying conflict must be 'actual' or need only generate the 'appearance of conflict,' in either event, the conflict must be of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered." (Conner, supra, 34 Cal.3d at p. 147, 193 Cal.Rptr. 148, 666 P.2d 5.) Thus, recusal to prevent even the possibility of unfairness, though proper under Greer, is no longer permissible under section 1424.
Conner emphasized that section 1424 had not removed a trial court's ability to consider appearances of impropriety. To do so might place an impossible burden on an accused to demonstrate an actual conflict of interest in each case. "Traditionally, conflicts raised in varied contexts have involved both actuality and appearance. [Citations.] ... [A]n 'appearance' of conflict could signal the existence of an 'actual' conflict which, although prejudicial to the defendant, might be extremely difficult to prove...." (Conner, supra, 34 Cal.3d at p. 147, 193 Cal.Rptr. 148, 666 P.2d 5.) Thus, a conflict requiring recusal, whether based on actuality or appearance, may exist when "the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner." (Id., at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.)
Perhaps the majority of recusal cases have analyzed the conflict which arises when a district attorney's office seeks to prosecute someone who has formerly been represented by a member of that office. These cases shed little light on the case at bar because appellant's case did not involve the prosecution of a former client of any member of that office. Thus, there was no reasonable possibility (Conner, supra, 34 Cal.3d at pp. 147-148, 193 Cal.Rptr. 148, 666 P.2d 5) that client confidences would be betrayed or that appellant would thereby be denied a fair trial. Nor could any appearance of impropriety arise on this basis.
However, appellant contends that the prior relationship with Allen could have affected the "objective and impartial consideration" (Greer, supra, 19 Cal.3d at p. 267, 137 Cal.Rptr. 476, 561 P.2d 1164) of his case. He argues that Carlton's and Blickenstaff's knowledge of the 1977 Allen case could have affected their decision to pursue the "witness retribution" theory in his case. Furthermore, this personal knowledge could have affected the manner in which his case was prosecuted, including the decision to seek the death penalty. Thus, appellant concludes that the former representation of Allen created at least the appearance of an improper bias against him.
The protection of prosecutorial impartiality is, of course, a major purpose of the court's recusal power. (Greer, supra, 19 Cal.3d at pp. 266-267, 137 Cal.Rptr. 476, 561 P.2d 1164.) Even under section 1424, it may be appropriate to recuse an entire district attorney's office where there is substantial evidence that a deputy's animosity toward the accused may affect his colleagues. (Conner, supra, 34 Cal.3d at p. 148, 193 Cal.Rptr. 148, 666 P.2d 5.) However, recusal may be denied where the indications of personal animus or biased judgment are slight and do not amount to a "reasonable possibility" of unfairness. (See Trujillo v. Superior Court (1983) 148 Cal.App.3d 368, 373, 196 Cal.Rptr. 4; People v. Municipal Court (Henry) (1979) 98 Cal.App.3d 690, 693, 159 Cal.Rptr. 639; People v. Battin (1978) 77 Cal.App.3d 635, 672, 143 Cal.Rptr. 731.)
Appellant advances no reason why Carlton's prior representation of Allen would have created such personal animosity toward him that the district attorney's office would not have been able to exercise prosecutorial discretion in an even-handed manner. Neither Carlton nor Blickenstaff could have learned anything about appellant from Allen since Allen did not know appellant in 1977. The possibility that Carlton and Blickenstaff incurred such strong hostility to Allen in 1977 that Blickenstaff's judgment about appellant was affected in 1980 seems remote. Such a remote possibility could not "render it unlikely that the defendant would receive a fair trial." ( § 1424.)
Finally, appellant urges that the more restrictive standard of section 1424 is invalid. He argues that to the extent section 1424 limits the power of the judiciary to regulate the proceedings before it (see Greer, supra, 19 Cal.3d at pp. 261-265, 137 Cal.Rptr. 476, 561 P.2d 1164), the statute runs afoul of the constitutional separation of powers.
It is not appropriate to address this argument here. Nothing in the written motions, the arguments, or the court's ruling indicates that the court believed its discretion was any narrower than Greer permitted. On the contrary, both parties and the court relied on Greer and other pre-section 1424 cases as applicable precedents.
It should be remembered that Greer held that a trial court might recuse a prosecutor's office when in the court's discretion such action was necessary to prevent an appearance of impropriety. Greer did not consider when a trial court must take such action. As all the cases applying the Greer standard have confirmed, recusal of an entire prosecutor's office is a matter for the discretion of the trial court, subject to reversal only for its abuse. (See Chadwick v. Superior Court, supra, 106 Cal.App.3d at p. 115, 164 Cal.Rptr. 864; Love v. Superior Court, supra, 111 Cal.App.3d at p. 371, 168 Cal.Rptr. 577; People v. Battin, supra, 77 Cal.App.3d at p. 671, 143 Cal.Rptr. 731.)
Under Greer, there would appear to be no abuse of discretion by the trial court in finding Carlton's prior representation of Allen did not create an appearance of impropriety. Accordingly, even were this court to review the ruling without regard to section 1424, the ruling would have to be affirmed. IV.
Next, appellant contends that the prosecution improperly intimidated his most important guilt phase witness, Shane Callaway. Callaway's recantation in the face of such intimidation, appellant argues, requires reversal of the guilt verdicts.
Following Callaway's testimony on the morning of September 22nd, the defense rested. As Callaway left the courtroom, he was arrested on two outstanding misdemeanor warrants. After the noon hour, the court released Callaway on his own recognizance and directed him to the public defender's office where he conferred with an attorney.
At 4 o'clock, the court reconvened. Callaway, his public defender, defense counsel, and the prosecutor were all present. The public defender advised the court that he had discussed both the misdemeanor warrants and possible perjury charges with Callaway. The public defender and the prosecutor agreed that Callaway should be immune from arrest on the warrants under "the spirit of section 1334.4" and that he would be given immunity from prosecution for perjury for his morning testimony in exchange for testifying for the prosecution that afternoon.
At the conclusion of Callaway's direct testimony for the prosecution, defense counsel moved to strike the evidence of threats made to Callaway's family, on the ground that no connection between the threats and appellant had been established. However, counsel did not move to strike any testimony based on alleged coercion of Callaway. The issue of coercion is raised for the first time on appeal.
"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law." (Washington v. Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019.)
This "fundamental element of due process" may be abridged when coercion by court or prosecutor keeps a defense witness from testifying. The United States Supreme Court so found when a judge admonished a prospective defense witness that he would be prosecuted for perjury and would likely serve time for it if he took the stand and lied. (Webb v. Texas (1972) 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330.) Prosecutorial coercion as well may constitute a denial of due process. Such coercion may take the form of arresting defense witnesses (Bray v. Peyton (4th Cir.1970) 429 F.2d 500), of warning defense witnesses that they will be prosecuted for any crimes they reveal if they take the stand (People v. Warren (1984) 161 Cal.App.3d 961, 207 Cal.Rptr. 912; People v. Robinson (1983) 144 Cal.App.3d 962, 193 Cal.Rptr. 92; United States v. Smith (D.C.Cir.1973) 478 F.2d 976), or of warning them that their expected testimony will result in prosecution for perjury. (People v. Bryant (1984) 157 Cal.App.3d 582, 203 Cal.Rptr. 733.) Each practice "leads to the same result: interference with the right to present the testimony of witnesses." (Berg v. Morris (E.D.Cal.1980) 483 F.Supp. 179, 182; see also cases cited in People v. Warren, supra, 161 Cal.App.3d at p. 971, and fn. 2, 207 Cal.Rptr. 912.)
Numerous cases have analyzed what conduct on the part of a judge or a prosecutor crosses the line between sound advice and improper coercion. It is not improper coercion for a court simply to warn a prospective witness of his privilege against self-incrimination (People v. Warren, supra, 161 Cal.App.3d at p. 972, 207 Cal.Rptr. 912; Webb v. Texas, supra, 409 U.S. at p. 97, 93 S.Ct. at p. 353; United States v. Morrison (3d Cir.1976) 535 F.2d 223, 228), nor to admonish him to tell the truth. (Webb v. Texas, supra, 409 U.S. at p. 97, 93 S.Ct. at p. 353.) On the other hand, it is improper to deliver the admonition in a manner which implies that the witness is expected to lie, that testimony favorable to the defense will be considered perjurious, and that the witness will be prosecuted for giving such testimony. (Webb v. Texas, supra, 409 U.S. at p. 97, 93 S.Ct. at p. 353; Berg v. Morris, supra, 483 F.Supp. at pp. 182-184; People v. Bryant, supra, 157 Cal.App.3d at pp. 592-593.)
Even accurate advice about the privilege against self-incrimination is inherently coercive when it comes from a prosecutor. "The only respect in which a prosecutor may arguably be better situated than others to provide such advice is that his office actually makes the decision to prosecute. But it is this very power that infects a prosecutorial admonition of the right of a defense witness not to testify with a perilous potential for improper intimidation; and this is so regardless of the propriety in fact of the prosecutor's motives." (People v. Warren, supra, 161 Cal.App.3d at p. 974, 207 Cal.Rptr. 912; see also United States v. Smith, supra, 478 F.2d at p. 979.)
At least one federal case has found that the accused's right to present a defense was abridged when a defense witness was coerced after he had testified. In Berg v. Morris, supra, 483 F.Supp. 179, the witness testified for the defense that he and not the accused had committed the charged robbery. After direct and cross-examination, the court called a recess and informed the witness's attorney that "if he doesn't tell the truth, as we know the truth now to be in view of his prior sworn testimony, under the circumstances of this trial he'll not only suffer a revocation of probation for the felony robbery, but perjury charges will be filed against him." (Id., at p. 181.) The witness was then jailed over the weekend. On Monday, he resumed the stand and recanted his previous testimony.
The federal court found that this judicial coercion leading to a recantation was as much a denial of due process as keeping the witness off the stand in the first instance. The trial judge's threats and the weekend detention "clearly could preclude a witness from making a free and voluntary choice of whether or not to stick to his trial testimony.... The result was not merely that the witness was driven from the stand, as in Webb, but, immeasurably more damaging, the witness recanted in the jury's presence." (Berg v. Morris, supra, 483 F.Supp. at p. 184.)
Thus, the fact that the alleged coercion in this case may have occurred after Callaway left the witness stand, and resulted in a recantation rather than a testimonial void, does not defeat appellant's claim. What does defeat that claim is the failure to raise it in any fashion in the trial court. As a result of this failure, the record is inconclusive as to whether improper coercion occurred. The prosecution has had no opportunity to present facts showing that it did not.
Callaway was arrested on outstanding warrants and not for perjury. The record does not disclose who brought up the subject of perjury, but leaves unanswered the possibility that either Callaway or the public defender did. The record also fails to disclose what, if anything, the prosecutor told Callaway about the likelihood of prosecution on perjury charges. Absent any threat from the prosecutor to file perjury charges based on the morning testimony, Callaway's arrest after the defense rested cannot be deemed an effort to coerce a defense witness to recant.
The arrest of a defense witness as he leaves the stand is a disturbing spectacle. If the arrest had been for perjury, or if the prosecutor had used the arrest on outstanding warrants as an opportunity to bring up the subject of perjury and to threaten Callaway with new charges, improper coercion might well be inferred. However, the present record does not even establish that Callaway spoke to anyone other than a public defender before he returned to court.
These gaps in the record distinguish appellant's case from those in which the contemporaneous objection requirement has been relaxed. In Bray v. Peyton, supra, 429 F.2d at page 502, where the record on habeas corpus showed a "strong probability" that the arrest of one defense witness kept the others off the stand, the court noted summarily that "[t]here is no place in this case for an argument of waiver." People v. Warren, supra, 161 Cal.App.3d 961, 207 Cal.Rptr. 912, addressed the merits of a coercion argument even though "defense counsel did not object to the voir dire [of the coerced witness] at the time the assertedly improper statements were made and did not move for a mistrial on the ground of the claimed intimidation of the witness." (Id., at p. 971, fn. 1, 207 Cal.Rptr. 912.) Webb v. Texas, supra, 409 U.S. at page 97, 93 S.Ct. at p. 353 similarly rejected "[t]he suggestion that the petitioner or his counsel should have interrupted the judge in the middle of his remarks to object" in order to defeat a claim of waiver.
However, in each of these cases the record fully set forth the prosecutor's or the court's actions or words on which the claim of improper coercion was based. Furthermore, in each case some form of objection was made below so that there was an opportunity to develop all the facts necessary to support or defeat a finding of improper coercion. Here, while the record shows that coercion may have occurred, a contrary inference is also possible. The critical facts as to what happened after Callaway's arrest are missing.
Thus, the general rule "that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal [ ]" applies here. (People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048. To hold otherwise would deprive the prosecution of the opportunity to show that in fact no error occurred. (In re Joe R. (1980) 27 Cal.3d 496, 510, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Rogers, supra, 21 Cal.3d at p. 548, 146 Cal.Rptr. 732, 579 P.2d 1048.) V.
The jury was not instructed to find that appellant intended to kill in connection with any of the special circumstance allegations. This instructional omission was error and affects both the attempted robbery special circumstance findings (Carlos v. Superior Court, supra, 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862) and the multiple murder special circumstance findings. (People v. Turner (1984) 37 Cal.3d 302, 329.)
Carlos is retroactive and, therefore, applicable to this case. (People v. Garcia (1984) 36 Cal.3d 539, 547-549, 205 Cal.Rptr. 265, 684 P.2d 826.) Thus, all the special circumstance findings must be set aside unless one of Garcia's exceptions to the rule of per se reversal applies. (Id., at pp. 549-557, 205 Cal.Rptr. 265, 684 P.2d 826.)
Appellant did not concede the issue of intent, nor was he acquitted of any charge affected by the erroneous instructions. (Garcia, supra, 36 Cal.3d at p. 554, 205 Cal.Rptr. 265, 684 P.2d 826.) Nor is the Sedeno (People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913) exception made applicable either by the attempted robbery special circumstance finding or the firearm use finding. Neither finding squarely required the jury to find an intent to kill. (See People v. Whitt (1984) 36 Cal.3d 724, 736, 205 Cal.Rptr. 810, 685 P.2d 1161.)
The fourth, or Cantrell-Thornton, exception (People v. Cantrell (1973) 8 Cal.3d 672, 685, 105 Cal.Rptr. 792, 504 P.2d 1256; People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267) is applicable only where the record shows the parties realized that intent was in issue and presented all the evidence at their command on that issue. (Garcia, supra, 36 Cal.3d at p. 556, 205 Cal.Rptr. 265, 684 P.2d 826; People v. Anderson (1985) 38 Cal.3d 58, 61-62, 210 Cal.Rptr. 777, 694 P.2d 1149.)
On this record, the court cannot conclude that these conditions were met. The court denied a pretrial motion to set aside the special circumstances on the ground that they were unconstitutional for failing to require an intent to kill. In effect, the defense received a pretrial ruling that intent was not an element of the special circumstance allegations. (See People v. Hayes (1985) 38 Cal.3d 780, 787, 214 Cal.Rptr. 652, 699 P.2d 1259.) Furthermore, the prosecutor argued to the jury that proof of an intent to kill was not required to sustain any of the allegations. Moreover, there are indications in the record that evidence of lack of intent to kill, based on drug use and on the Allens' dominant role in the plot to rob Fran's Market, might have been available to counsel.
Respondent argues that defense counsel's request for diminished capacity instructions shows he realized that intent was in issue. Respondent further argues that even if appellant did not realize that intent to kill was in issue, he must have understood that at a minimum the specific intent to rob was placed in issue by the felony-murder theory and the robbery special circumstance allegation. Since some specific intent was in issue, respondent contends, appellant had an incentive to present any diminished capacity evidence available to him.
However, the request for diminished capacity instructions cannot show that counsel put forth all the evidence at his command to negate lack of intent. Particularly in a capital case, counsel may well attempt to cover all possible bases by requesting instructions on various inconsistent defenses. At the same time, he or she may make a reasonable tactical choice not to present inconsistent defense evidence where other instructions would render this evidence irrelevant even if believed.
Further, it is not dispositive that lack of intent to rob was an available defense. Many cases have illustrated the proposition that a person may kill pursuant to an intent to rob and still lack, or be incapable of forming, an intent to kill. (See, e.g., People v. Whitt, supra, 36 Cal.3d 724, 205 Cal.Rptr. 810, 685 P.2d 1161; People v. Ramos (1984) 37 Cal.3d 136, 207 Cal.Rptr. 800, 689 P.2d 430; People v. Anderson, supra, 38 Cal.3d 58, 210 Cal.Rptr. 777, 694 P.2d 1149.) The fact that no evidence was presented to negate an intent to rob does not mean that none was available to negate an intent to kill.
Thus, although on the present record there is no evidence which would contradict the inference of an intent to kill, since the parties had no incentive to produce all the evidence at their command on the issue we may not assume they did so. (Cf. People v. Balderas (1985) 41 Cal.3d 144, 197-201, 222 Cal.Rptr. 184, 711 P.2d 480 [typed maj. opn. at pp. 71-75].) Since this case does not fall within any of Garcia's exceptions, the special circumstance findings must be set aside. VI.
The list of names seized during the Fresno booking search was properly admitted into evidence. The court did not err in denying appellant's motion to recuse the prosecutor's office. Nor does the record demonstrate improper intimidation of defense witness Shane Callaway. Accordingly, the judgment of guilt is affirmed.
However, all special circumstance findings must be set aside due to Carlos and Turner error. The judgment of death is, therefore, reversed.
BIRD, Chief Justice, concurring and dissenting.
I dissent from the majority's decision to uphold Officer Badiali's "booking" search. I cannot see how any of the legitimate governmental purposes of a booking search justified Badiali's conduct in reading appellant's private papers. I regret the majority's decision to graft Illinois v. Lafayette (1983) 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65, onto a body of state law with which it is inconsistent.
While Badiali's search is probably valid under Lafayette, that case does not control the case before us. As the search took place before the effective date of Proposition 8 (Cal.Const., art. I, § 28, subd. (d)), the admissibility of the evidence it yielded depended on whether article I, section 13 of the California Constitution was violated. (See People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.) I submit that Badiali's search did violate the California Constitution. I further submit that the reasoning and result of Lafayette are at odds with California case law on search and seizure.
The cardinal principle of law with respect to any warrantless search is that it is per se unreasonable, "subject only to a few carefully circumscribed and jealously guarded exceptions." (People v. Dalton (1979) 24 Cal.3d 850, 855, 157 Cal.Rptr. 497, 598 P.2d 467.) The search may be no broader or more intrusive than is necessary to achieve the governmental purpose which justifies it. (Chimel v. California (1969)395 U.S. 752, 762-763, 89 S.Ct. 2034, 2039-2040, 23 L.Ed.2d 685; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201, 101 Cal.Rptr. 837, 496 P.2d 1205; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 813-814, 91 Cal.Rptr. 729, 478 P.2d 449.) "[A] search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." (Terry v. Ohio (1968) 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889; People v. Brisendine (1975) 13 Cal.3d 528, 538-541, 119 Cal.Rptr. 315, 531 P.2d 1099; People v. Harwood (1977) 74 Cal.App.3d 460, 466-467, 141 Cal.Rptr. 519; see also People v. Laiwa (1983) 34 Cal.3d 711, 726-727, 195 Cal.Rptr. 503, 669 P.2d 1278.)
Thus, the beginning of any analysis in a warrantless search situation is to articulate the governmental needs which justify it. This court has not yet had occasion to define those needs in a true booking search situation. However, in People v. Laiwa, supra, 34 Cal.3d at page 726, 195 Cal.Rptr. 503, 669 P.2d 1278, the court observed, albeit in dictum, that "[a]lthough those justifications have been variously stated in our decisions ... they properly fall into two broad categories--inventory and jail safety. First, in California several statutes impose on jail officials the duty to take charge of, give receipts for, keep safely, and account for the personal property of all persons delivered into their custody. ( §§ 1412, 4003; Gov.Code, § 26640.) Each of these purposes is served by a search of the prisoner at the time he is booked. Secondly, by virtue of their office jailers have the general responsibility to prevent escapes, safeguard both staff and inmates, and protect jail property; to discharge that responsibility they have the corresponding right to prevent the introduction into jail of anything that could be used to attempt an escape or harm persons or property, such as weapons or contraband. Again, a booking search promotes these several goals."
As Laiwa did not review a true booking search, this court had no occasion to determine the "ultimate limits of such a search." (34 Cal.3d at p. 727, fn. 9, 195 Cal.Rptr. 503, 669 P.2d 1278.) Thus, it has never been spelled out whether the demands of jailhouse security and accurate inventory justify a thorough investigation of all the arrestee's possessions, including containers "associated with the expectation of privacy" (Arkansas v. Sanders (1979) 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235) after those containers have been removed from the arrestee and reduced to exclusive police control.
However, under California's traditional principles of search and seizure law, the answer is clear. The need to ensure security and to inventory inmate property cannot justify a search which ismore intrusive than is necessary to accomplish those ends. In the ordinary situation, those ends are satisfied once the arrestee's possessions, including unopened containers, are reduced to the exclusive control of the authorities. Any more thoroughgoing search must be justified by specific and articulable facts pointing to the need for it. It cannot be deemed reasonable simply because it occurs in connection with a jailhouse booking.
The model for this analysis is best provided by People v. Brisendine, supra, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099. There, this court refused to follow the United States Supreme Court's broad, categorical definition of the scope of a search incident to a custodial arrest. In United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, and Gustafson v. Florida (1973) 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, the high court had found that a traffic arrest where the police would be required to transport the arrestee justified a full field search, including a search through closed containers found on the arrestee's person.
That court noted that the accepted justifications for a search incident to a custodial arrest were (1) to protect the officer's safety by finding and removing any weapons which the arrestee might use against him, and (2) to remove evidence or fruits of the crime from the arrestee's person in order to prevent their destruction. (Robinson, supra, 414 U.S. at pp. 226, 234, 94 S.Ct. at pp. 472, 476.) These justifications, the court held, would permit a full search of the person following any custodial arrest. No inquiry would be required as to whether a patdown gave reason to believe that the arrestee actually was armed. Nor would inquiry be made as to whether the crime for which the suspect was arrested (in Robinson, for driving with a revoked license) was one which involved fruits or evidence likely to be found on the person. "It is the fact of the lawful arrest which establishes the authority to search" (id., at p. 235, 94 S.Ct. at p. 477) and which makes the full body search reasonable under the Fourth Amendment.
Thus, in Robinson the high court found reasonable a search of the contents of a cigarette package found in arrestee's pocket following a traffic stop. That holding did not depend on the premise that the officer reasonably believed the arrestee possessed either weapons or evidence of the offense. (See id., at pp. 250-259, 94 S.Ct. at pp. 483-488 (dis. opn. of Marshall, J.).)
In Brisendine, this court rejected the United States Supreme Court's uncritical view of the scope of a "search incident." The court rejected the notion that the simple fact of a custodial arrest could justify the most intrusive search appropriate to any arrest. Instead, it held that the scope of a search incident was limited by the nature and circumstances of the arrest. Where the arrest was for the citable offense of maintaining an illegal campfire, the police could not justify a search through a knapsack as a search for fruits or evidence of the crime. As with traffic offenses (see Robinson, supra, 414 U.S. at pp. 250-259, 94 S.Ct. at pp. 483-488 (dis. opn. of Marshall, J.); People v. Superior Court (Kiefer), supra, 3 Cal.3d 807, 813, 91 Cal.Rptr. 729, 478 P.2d 449; People v. Superior Court (Simon), supra, 7 Cal.3d at pp. 201-202, 101 Cal.Rptr. 837, 496 P.2d 1205) the offense was not one which produces fruits or evidence. (13 Cal.3d at pp. 539, 547, 119 Cal.Rptr. 315, 531 P.2d 1099.) The search could only be justified by the need to discover weapons--and then only because in Brisendine it was necessary for the officers to accompany the arrestees for a considerable distance. (Cf. People v. Maher (1976) 17 Cal.3d 196, 130 Cal.Rptr. 508, 550 P.2d 1044; People v. Longwill, supra, 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753; Kiefer, supra, 3 Cal.3d at p. 829, 91 Cal.Rptr. 729, 478 P.2d 449; Simon, supra, 7 Cal.3d at pp. 204-206 (maj. opn.) and 212-215, 101 Cal.Rptr. 837, 496 P.2d 1205 (conc. opn. of Wright, C.J.).) As a weapons search, the search could be no more intrusive than was necessary to find ordinary weapons. (Brisendine, supra, 13 Cal.3d at pp. 543-544, 119 Cal.Rptr. 315, 531 P.2d 1099.)
As the Robinson dissenters reminded, "[i]t is the role of the judiciary, not of police officers, to delimit the scope of exceptions to the warrant requirement." (Robinson, supra, 414 U.S. at p. 243, 94 S.Ct. at p. 480 (dis. opn. of Marshall, J.).) Brisendine and its predecessors adhere to this principle.
Yet Lafayette represents exactly the same broad delegation to the police as do Robinson and Gustafson. Approaching booking searches as Robinson and Gustafson approached searches incident to arrest, Lafayette found that the occasion which justifies the search at its inception justifies a search of unlimited scope and intensity. Reasoning that the government's security and inventory needs justify some intrusion, the Supreme Court has found that any "standardized inventory procedures" (Lafayette, supra, 462 U.S. at p. 649, 103 S.Ct. at p. 2610) are constitutionally acceptable, even if those standardized procedures go beyond what is necessary to safeguard the jail and the prisoner's effects.
Several state courts have looked at booking searches in the manner of Brisendine and Longwill rather than of Lafayette. These courts have refused to accept the notion that a booking search is constitutionally reasonable regardless of its scope and intensity. Both Reeves v. State (Alaska 1979) 599 P.2d 727 and State v. Kaluna (1974) 55 Haw. 361, 520 P.2d 51 have held, on independent state grounds, that a booking search must be limited "by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances." (Kaluna, supra, 520 P.2d at pp. 58-59.)
Both cases held that jailers could not open closed containers which had been removed from an arrestee's possession and control. Jail security does not provide a rationale: "Once the internee has turned over his possessions for safekeeping it is no longer possible that he may take them into the jail." (Kaluna, supra, 520 P.2d at p. 61; see Reeves, supra, 599 P.2d at p. 736.)
Nor does the need to inventory or to protect the state against claims of loss justify examining the contents of a closed container. "If there is any question as to the contents of any container, the arrestee should be 'consulted and offered the opportunity to request that an inventory be made of the contents' of such containers." (Reeves, supra, 599 P.2d at p. 737, fn. omitted; see Kaluna, supra, 520 P.2d at p. 62.)
Were this court to analyze the present search in the same manner, as precedent dictates, it would be compelled to conclude that the search was unreasonable. Not only was governmental justification absent from this search. The privacy interests at stake were considerable. An address book, like a personal diary may well contain a record of a person's private life and activities. (See People v. Frank (1985) 38 Cal.3d 711, 742-743, 214 Cal.Rptr. 801, 700 P.2d 415 (conc. and dis. opn. of Bird, C.J.).) Even when such an item is seized and searched pursuant to a warrant, the warrant must conform to rigorous particularity requirements in order to avoid indiscriminate police perusal of an individual's private writings. (See Frank, supra, 38 Cal.3d at pp. 722-729, 214 Cal.Rptr. 801, 700 P.2d 415 (plur. opn. of Mosk, J.).) Where the search is warrantless, the need for it must be compelling. It cannot be constitutionally reasonable for the police to read through private papers based on nothing more than "standardized inventory procedures."
The seizure and scrutiny of appellant's address book was unreasonable under article I, section 13 of the California Constitution. However, since it does not appear that admission of that evidence was prejudicial as to the guilt verdicts, I concur with the majority's disposition.
GRODIN, Associate Justice, dissenting.
From my review of the record, I conclude it is inconceivable that any reasonable juror would have found defendant lacked intent to kill, no matter what evidence (other than evidence of diminished capacity) he might have produced on that issue.
As the court's opinion discloses, the evidence that defendant was the perpetrator and that he intended to kill is overwhelming. The record reveals defendant met convicted murderer Clarence Ray Allen in Folsom Prison; that Allen's son Kenneth sent defendant $100 five days after defendant was released from prison; that defendant and his girlfriend Barbo stayed with Kenneth Allen days before the murders; that defendant "cased" the market at closing time the night before the murders; that defendant entered the market on September 5 with a sawed-off shotgun and at least seven shotgun shells; that when arrested defendant had a list, in his own handwriting, of witnesses who had testified against Clarence Ray Allen at Allen's former murder trial; that the list contained the name and address of Fran's Market; and that Bryon Schletewitz's name was on the list.
Of most significance, the record shows that each of the victims was shot at point blank range with a sawed-off shotgun that had to be broken open and reloaded after each deadly shot. After defendant shot Bryon in the middle of the forehead from inches away he released the lock lever, broke open the gun, removed the spent shell and apparently put it in his pocket (none was found at the scene), inserted a live shell from the six in his pocket, closed the gun, walked to the next room where White was lying under guard by Barbo, asked him where the safe was, and shot him in the neck at point blank range, that while Rocha lay on the floor crying he repeated the above procedure and shot her in the chest; and that he thereafter stalked down Rios, opened the bathroom door, repeated the above loading procedure as he faced Rios, pointed the gun at Rios' face and fired from a few feet away. Given this methodical sequence of events, the evidence of planning, and the unusually solid victim-witness and expert witness testimony supporting these facts, nothing defendant could possibly have said or produced, and nothing within the realm of reasonable speculation as to that evidence, could possibly have detracted from the conclusion that defendant intended to kill.
The highly unusual circumstances of this case justify, in my view, a modification of the otherwise rigid Garcia (People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826) formula. (People v. Hamilton (1985) 41 Cal.3d 408, dis. opn., by Grodin, J. at p. 437, fn. 3, 221 Cal.Rptr. 902, 919, fn. 3, 710 P.2d 981, 998, fn. 3.)
Assuming no other reversible error exists, I would affirm the penalty verdict subject to defendant's right to present diminished capacity evidence, or any other lack-of-intent evidence he may claim to have, in a habeas corpus proceeding.
MOSK and LUCAS, JJ., concur. --------------- * Before BIRD, C.J., and MOSK, BROUSSARD, REYNOSO, GRODIN, LUCAS and KAUS (Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council), JJ. 1 All statutory references are to the Penal Code unless otherwise indicated. 2 Counts I, II and III charged the murder of Josephine Rocha, Douglas White, and Bryon Schletewitz, respectively. Count IV charged the attempted robbery of Bryon Schletewitz. Counts V and VI charged assault with a deadly weapon on Joe Rios and Jack Abbott, respectively. A gun use allegation ( § 12022.5) was found true in connection with count IV. 3 Jack Abbott had loaded his gun with shells containing No. 6 pellets. By contrast, the pellets found inside Fran's Market and in the bodies of the victims were No. 4 size. 4 Bryon's parents Ray and Fran Schletewitz were the owners of Fran's Market. 5 It was stipulated that appellant was not involved in the 1974 burglary and murder. 6 The relationship between appellant and Barbo was reinforced by evidence that a month after his arrest appellant sought permission from jail authorities to marry Barbo. 7 Only ABO typing was successfully completed for the bloodstains in the two cars. The stains were Type B, which occurs in 12.1 percent of the Caucasian population. However, bloodstains found in the front of the store were typed in the P.G.M. and heptaglobin systems as well. These stains matched appellant's blood types but none of the victims'. An expert witness testified that such a combination of blood types occurred in only 1 in 300 Caucasian males. The prosecutor argued that they must have come from the laceration of appellant's thumb, caused by the shotgun. 8 The court reminded the jury that there was no evidence connecting appellant with the threats or with Kathy Allen's letter. The threats were admitted only for the limited purpose of showing Callaway's state of mind in testifying for the defense. The threats may well have originated with the Allens rather than with appellant. Kenneth Allen was facing trial on the same charges as appellant and appellant's acquittal would be very helpful to Allen. 9 Dunham did not actually specify the date when appellant worked at the center, but said he had known appellant for approximately four years. The trial was held in September and October of 1981. 10 Government Code section 26640 provides that "[t]he sheriff shall take charge of, safely keep, and keep a correct account of, all money and valuables found on each prisoner when delivered at the county jail. Except when otherwise ordered by a court of competent jurisdiction, the sheriff shall pay such money or sums therefrom and deliver such valuables or portions thereof as the prisoner directs and shall pay and deliver all the remainder of his money and valuables to the prisoner or to his order upon release from the jail...." Penal Code section 1412 provides in part that "[w]hen money or other property is taken from a defendant, arrested upon a charge of a public offense, the officer taking it must at the time give duplicate receipts therefor, specifying particularly the amount of money or the kind of property taken...." Additionally, Penal Code section 4003 provides that "[w]henever any weapon or other personal property is taken from an arrested person, it shall be the duty of the desk clerk or other proper officer of any city, county or city and county jail, to which such person is committed for detention, to give a receipt to such person without delay for the property taken." 11 While Laiwa was the first decision in which this court expressly considered whether to recognize an "accelerated booking search" exception on facts expressly presenting that issue, previous decisions had announced in dictum that such an exception would be recognized. In People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753, the court considered an accelerated booking search of an arrestee who could, and probably would, be released without being booked. Longwill held that under these circumstances a booking-type search could not be justified on the theory that it would take place in any event. In so holding, Longwill observed that "[w]e have no quarrel with this rationale [of an accelerated booking search] if in fact the individual is to be subjected to the booking process." (Id., at p. 948, 123 Cal.Rptr. 297, 538 P.2d 753.) Following Longwill, the Courts of Appeal universally relied on the proposition that an accelerated booking search was permissible in appropriate cases. "Where it is shown that a suspect would have been jailed and thus subject to a booking search, the fact that a thorough search of the booking type occurs prior to the actual booking process does not render the search illegal, since no additional or greater intrusion on the privacy of the suspect is involved. [Citations.]" (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 87, 164 Cal.Rptr. 163, overruled in Laiwa, supra, 34 Cal.3d at p. 728, 195 Cal.Rptr. 503, 669 P.2d 1278, and cases cited therein.) 12 A third member of the Carlton-Blickenstaff firm, Dorin Ladd, had also joined the district attorney's office as a deputy. 13 At the time of appellant's recusal motion, no charges had yet been filed against Allen. However, the Attorney General's office was investigating the case in anticipation of filing such charges. 14 Greer had held that a district attorney might be recused "when the judge determines that the attorney suffers from a conflict of interest which might prejudice him against the accused and thereby affect, or appear to affect, his ability to impartially perform the discretionary functions of his office." (Greer, supra, 19 Cal.3d at p. 269, 137 Cal.Rptr. 476, 561 P.2d 1164, fn. omitted.) Greer emphasized that a court need not find that the accused's rights would actually be violated in order to recuse a prosecutor. "Nor can we accept the argument that before he recuses a prosecutor, the trial judge must first determine that failure to do so would permit a violation of the defendant's basic constitutional rights. [Fn. omitted.] In a trial process which, as noted above, is 'fundamentally judicial in nature' [citation], the power of the court under the separation of powers doctrine is not exhausted by the bare enforcement of constitutional guarantees of a fair trial. [Citation.] Indeed, those constitutional provisions would seem better served when judges have discretion to prevent even the possibility of their violation." (Id., at pp. 264-265, 137 Cal.Rptr. 476, 561 P.2d 1164, emphasis added.) Section 1424 was enacted three years after the Greer decision. 15 Vicarious disqualification of entire prosecutorial offices has been urged either on the basis of the rule of imputed knowledge, or in order to avoid the appearance of impropriety. "The imputed knowledge theory holds that knowledge by any member of a law firm is knowledge by all of the attorneys in the firm, partners as well as associates. [Citations.] [p] The principal codification of the rule occurs in the ABA's Disciplinary Rules (hereafter, DR), DR 5-105(D): 'If a lawyer is required to decline employment or to withdraw from employment under a disciplinary rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.' " (Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 116, 164 Cal.Rptr. 864.) " 'The premise upon which disqualification of law partners is based is that there is within the law partnership a free flow of information, so that knowledge of one member of the firm is knowledge to all.' [Citation.]" (In re Charles L. (1976) 63 Cal.App.3d 760, 765, 132 Cal.Rptr. 840.) Thus, "all authorities agree that all members of a partnership are barred from participating in a case from which one partner is disqualified. [Citations.] And once a partner is thus vicariously disqualified for a particular case, the subsequent dissolution of the partnership cannot cure his ineligibility to act as counsel in that case." (Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures (2d Cir.1955) 224 F.2d 824, 826-827.) California courts have declined to extend this categorized rule from private law firms to prosecutorial offices. Instead, the courts have looked to whether knowledge has actually flowed from the disqualified deputy to his colleagues. (See Chadwick v. Superior Court, supra, 106 Cal.App.3d at p. 118, 164 Cal.Rptr. 864; In re Charles L., supra, 63 Cal.App.3d at p. 765, 132 Cal.Rptr. 840.) Where there is credible testimony that the disqualified deputy has honored his obligations of confidentiality and will continue to do so, recusal of an entire office has been found necessary only where unusual circumstances create the appearance of impropriety. (See People v. Lopez (1984) 155 Cal.App.3d 813, 202 Cal.Rptr. 333; Love v. Superior Court (1980) 111 Cal.App.3d 367, 168 Cal.Rptr. 577; Chadwick v. Superior Court, supra, 106 Cal.App.3d 108, 164 Cal.Rptr. 864; Younger v. Superior Court (1978) 77 Cal.App.3d 892, 144 Cal.Rptr. 34; In re Charles L., supra, 63 Cal.App.3d 760, 132 Cal.Rptr. 840.) 16 Another proffered basis of unfairness is the possibility that the district attorney's office could not be impartial and evenhanded after a newspaper published a report that Carlton was named on Allen's threat list. Appellant argues that this report created the appearance of impropriety notwithstanding the fact that it was false and the district attorney's office knew it was false. Even under a pre-section 1424 standard, the newspaper report would not compel recusal. While the recusal power may be used to protect public confidence in the integrity and impartiality of the criminal justice system (Greer, supra, 19 Cal.3d at pp. 268-269, 137 Cal.Rptr. 476, 561 P.2d 1164, see also People v. Rhodes (1974) 12 Cal.3d 180, 185-186, 115 Cal.Rptr. 235, 524 P.2d 363), it is not necessary to take such a drastic step as recusal of an entire prosecutor's office in order to compensate for an erroneous newspaper report. Public confidence could be maintained with less extreme measures. 17 Conner, supra, 34 Cal.3d 141, 193 Cal.Rptr. 148, 666 P.2d 5, which clarified that the section 1424 standard was more restrictive than Greer 's, was decided more than two years after the court's ruling on the recusal motion. 18 Callaway had returned to California from Utah to testify for the defense. Had he been in this state pursuant to subpoena, he would have been immune from arrest under the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases. (See § 1334.4.) However, Callaway had agreed to testify without subpoena, and none was issued. 19 Defense counsel had also moved to exclude the threat evidence before Callaway testified for the prosecution. The court admitted the evidence but gave a cautionary instruction that it should be considered only to show Callaway's state of mind and not appellant's consciousness of guilt. 20 It is even more clearly coercive for a prosecutor to warn a witness that he will be prosecuted, or that he is likely to be prosecuted, as a result of his testimony. (People v. Warren, supra, 161 Cal.App.3d at pp. 972-974, 207 Cal.Rptr. 912; People v. Bryant, supra, 157 Cal.App.3d at pp. 590-593; see also United States v. Hammond (5th Cir.1979) 598 F.2d 1008, 1012-1013 [FBI agent warned witness he would have "nothing but trouble" if he testified for the defense]; see cases reviewed in United States v. Blackwell (D.C.Cir.1982) 694 F.2d 1325, 1333-1336.) 21 Frank advice from counsel to a witness about that witness's legal position can scarcely be deemed coercion attributable to the prosecutor or the court. On the contrary, cases have recommended that such advice come from a defense counsel rather than the prosecutor to avoid intimidation inherent in prosecutorial advice on the subject. (People v. Warren, supra, 161 Cal.App.3d at p. 974, 207 Cal.Rptr. 912; see United States v. Smith, supra, 478 F.2d at p. 979.) 22 Appellant's alternative argument that the jury should have been required to find that the murders were premeditated is not persuasive. The premise of this argument is that only premeditated murders can be distinguished in a principled way from noncapital murders. (See Carlos, supra, 35 Cal.3d at p. 152, 197 Cal.Rptr. 79, 672 P.2d 862.) But nothing in the 1978 statute or in Carlos supports this argument. As Carlos recognized, premeditation is not the only possible principled basis of distinction between capital and noncapital murders. The distinction may validly be based on whether an intentional murder is committed in the course of another felony. (Ibid.; see also People v. Green (1980) 27 Cal.3d 1, 61-62, 164 Cal.Rptr. 1, 609 P.2d 468.) 23 Respondent's argument that appellant conceded the issue of intent by requesting instructions on self-defense and unreasonable self-defense (People v. Flannel (1979) 25 Cal.3d 668 160 Cal.Rptr. 84, 603 P.2d 1) must be rejected. Appellant maintained that he had not been involved in the crime at all. He requested unreasonable self-defense instructions, as he was entitled to do, because that theory was arguably supported by Joe Rios's testimony that he heard appellant say to Bryon Schletewitz, "You'd better not go for that gun." As this court held in People v. Wickersham (1982) 32 Cal.3d 307, 328, 185 Cal.Rptr. 436, 650 P.2d 311, unreasonable self-defense instructions must be given on request whenever they are supported by the evidence, even though the defense primarily relies on another theory. A request for such instructions cannot fairly be deemed a concession that the primary defense theory is false. 24 The record does not indicate any reason for the request for instructions on diminished capacity. The request was not discussed at all at the instruction conference and appears only in the clerk's transcript in the form of a notation that "defense instructions refused." Refusal appears to have been proper, since there was no evidence to support the instructions. 25 Appellant's other assignments of error concerning the guilt verdicts lack merit in light of recent decisions of this court. These assignments of error include: (1) that the felony-murder rule is invalid (see People v. Dillon (1983) 34 Cal.3d 441, 462-476, 194 Cal.Rptr. 390, 668 P.2d 697); (2) that death qualification of the jury deprived him of the right to a jury representative of a cross-section of the community (see People v. Fields (1983) 35 Cal.3d 329, 342-353, 197 Cal.Rptr. 803, 673 P.2d 680); and (3) that death qualification resulted in a conviction prone jury. (See Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-69, 168 Cal.Rptr. 128, 616 P.2d 1301.) 1 For example, it would be justifiable to open a container with reason to believe that it contained an explosive device. 2 See also People v. Longwill (1975) 14 Cal.3d 943, 946, 123 Cal.Rptr. 297, 538 P.2d 753: "As we have been careful to explain [in Simon, Brisendine, and People v. Norman (1975) 14 Cal.3d 929, 123 Cal.Rptr. 109, 538 P.2d 237], the permissible scope of a search of the person incident to a valid arrest is dependent not on the single fact of the existence of a 'custodial arrest,' but rather on the relative danger to the officer associated with each particular arrest." 3 Kaluna reviewed a search of a closed paper packet taken from the arrestee's underwear at the time of her incarceration. The court analyzed the reasonableness of that search considered both as a search incident to arrest and as a stationhouse booking search. Both exceptions to the warrant requirement, however, were applied "only with dogged and meticulous reference to [their] theoretical underpinnings." (Kaluna, supra, 520 P.2d at p. 56, 60-62.) Kaluna 's "dogged and meticulous" analysis of the "search incident" exception was relied on extensively in Brisendine, as persuasive precedent for California's decision to depart from Robinson and Gustafson. (13 Cal.3d at pp. 551-552, 119 Cal.Rptr. 315, 531 P.2d 1099.) 4 The dissenting opinion in Robinson suggested similar limitations on the scope of a booking search. (Robinson, supra, 414 U.S. at pp. 258-259, fn. 7 94 S.Ct. at pp. 487-488, fn. 7 (dis. opn. of Marshall, J.).) Similarly, People v. Counterman (1976) 192 Colo. 152, 556 P.2d 481, 485, found that a knapsack "did not give any indication that its contents were dangerous or particularly valuable and in need of a special inventory. The legitimate purposes of the inventory search could have been fully accomplished by merely noting the item as a sealed knapsack. The defendant could have been offered the choice of a full inventory of the contents at the police station." (See also State v. Houser (1980) 95 Wash.2d 143, 622 P.2d 1218, 1226-1228; State v. Sierra (Mont.1985) 692 P.2d 1273 [police required to use least intrusive method of carrying out inventory]; but see State v. Gelvin (N.D.1982) 318 N.W.2d 302, 305-306 [purposes of booking search justify inventory of contents of wallets]; Delatte v. State (Fla.App.1980) 384 So.2d 245, 250 [duffel bag removed from arrestee and placed in property room could be searched for weapons, since inmates might gain access to property room].)