Opinion
For Opinion on Hearing, see 60 Cal.Rptr. 472, 430 P.2d 30.
Luke McKissack, Los Angeles, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David N. Rakov, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
KERRIGAN, Associate Justice.
Defendant was charged with the crime of burglary (Pen.Code, § 459), and the information also contained the allegation of a Under cover of night, in the early morning hours of November 12, 1965, forcible entry was gained into a men's store located at 719 North Harbor Boulevard, Fullerton, California, and 29 suits were stolen. At 5:30 a.m. of the same day, a Fullerton police officer received a radio call advising the burglar alarm was ringing at the clothing store. At the time of receiving the call, the officer was approximately seven blocks south and 2 1/2 blocks west of the retail outlet. The officer immediately drove north on Highland Avenue, which parallels Harbor Boulevard and lies two blocks west of Harbor. When the officer reached the 200 block on Highland Avenue, he observed headlights approximately five blocks to the north at a site approximately 1 1/2 blocks west of the clothing store. There were no other moving vehicles in the area. The opposing vehicle continued southward, stopping at a boulevard stop sign, and then passed the officer's police unit. This car was a Model 1957 Plymouth occupied solely by a male driver. The officer made a U-turn and followed the Plymouth for several blocks, during the course of which the Plymouth's driver made several turns. The police car's red light and siren were activated and the Plymouth's operator accelerated to a speed of 70-80 miles per hour and drove through five stop signs in the course of a high-speed chase. Finally, the Plymouth abruptly stopped and its driver fled on foot.
During the chase, the original investigating officer received reinforcement from two other patrol units and all three units immediately converged on the abandoned vehicle. The keys were still in the ignition, and the officers noted a wooden cane in the rear seat. The original investigating officer opened the unlocked trunk and observed 25-30 suits on wooden hangers. He directed a fellow officer to 'stand-by' the vehicle, to completely inventory the contents of the trunk, and to impound the Plymouth.
The remaining officers then conducted a search of the immediate neighborhood, and ultimately detected and arrested defendant in the rear of a house approximately one block from the site of the abandonment. Only 15-20 minutes elapsed between the original search of the trunk and defendant's apprehension. Immediately after being taken into custody and before making any statements, defendant was advised of his right to counsel and of his right to remain silent. As he was being handcuffed, defendant cautioned the officers that he had a bad back, and when the officer inquired as to whether the back condition was the reason for having a cane in the rear seat of his car, the defendant replied in the affirmative and indicated he wore a brace for support.
A subsequent inventory of the vehicle, which was formulated at the police storage garage, reflected 29 suits bearing the label of the burglarized men's store. Supplementally, a black golf cap, a Halloween mask, a pair of work gloves, transparent overshoes, a pair of tin shears, two screw drivers, a large pry bar, a tire tool, and a large round bar were found in the vehicle.
The issues are defined a follows: (1) legality of the search of defendant's car which culminated in discovery of the stolen merchandise in the trunk; (2) whether the trial judge had a duty to determine from the defendant at the time of his admission of the prior conviction whether defendant was advised of his constitutional right to counsel, was actually represented by counsel, or knowingly and understandingly waived his right to counsel in the prior criminal proceeding. Defendant urges the investigating officer had no right to open the trunk of the Plymouth at the site where the automobile was abandoned, and further maintains the inventory effected at the police storage garage was illegal as not being incidental to a lawful arrest. Manifestly, the officer did not obtain a search warrant at the abandonment site, but searched the trunk immediately after defendant took flight.
A police officer may lawfully arrest a person without a warrant in the event the arresting officer has reasonable cause to believe the person arrested has committed a felony. (Pen.Code, § 836; People v. Privett, 55 Cal.2d 698, 701, 12 Cal.Rptr. 874, 361 P.2d 602; People v. Coleman, 235 Cal.App.2d 612, 617, 45 Cal.Rptr. 542.) Reasonable or probable cause has been defined as such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that a person is guilty of a crime. (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Brice, 234 Cal.App.2d 258, 265, 44 Cal.Rptr. 231; Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250; People v. Cockrell, 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967.)
Multiple factors have been considered in determining the existence of reasonable cause for effecting an arrest or conducting a search incidental to a lawful arrest. The observation of a suspect at night or in the early morning hours is one factor in ascertaining the existence of reasonable cause. (See People v. Martin, 46 Cal.2d 106, 112-113, 293 P.2d 52; People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Myles, 189 Cal.App.2d 42, 46, 10 Cal.Rptr. 733; People v. Wiley, 162 Cal.App.2d 836, 839, 328 P.2d 823; People v. Paul, 147 Cal.App.2d 609, 616, 305 P.2d 996; People v. Shannon, 147 Cal.App.2d 300, 302-303, 305 P.2d 101.) Proximity to the scene of the crime is another factor. (See People v. Ketchel, 59 Cal.2d 503, 526, 30 Cal.Rptr. 538, 381 P.2d 394; People v. Romero, 156 Cal.App.2d 48, 49-50, 318 P.2d 835.) Flight from an officer may not be sufficient in itself to establish reasonable cause, but high-speed flight and evasive action upon the approach of an officer lends support to the existence of reasonable cause. (See People v. Martin, supra, 46 Cal.2d at p. 108, 293 P.2d 52; People v. Dewson, 150 Cal.App.2d 119, 129, 310 P.2d 162.)
When first observed, defendant was driving away from the location of a retail store where a burglar alarm had been triggered. The investigating officer had actual knowledge that the alarm had been engaged and was proceeding to the scene for the purpose of ascertaining whether there had been a burglary of the premises. When pursued, defendant resorted to elusive and reckless tactics to avoid being stopped and questioned. During the course of his flight from the officer, he ignored 5-6 stop signs and traveled at a highly dangerous rate of speed; subsequently he abandoned his vehicle and hid from the police. These compound factors were certainly sufficient to justify the officer in conducting a search of the vehicle.
When reasonable cause exists for an arrest and when incident to such arrest a search would be permissible, reasonable cause is to be ascertained at the time the search is begun, whether the search precedes or follows the arrest in point of time. (See People v. Ingle, supra, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Simon, supra, 45 Cal.2d 645, 648, 290 P.2d 531; People v. Holloway, 230 Cal.App.2d 834, 838, 41 Cal.Rptr. 325; People v. Hollins, 173 Cal.App.2d 88, 93, 343 P.2d 174.)
Inasmuch as the original search was accomplished as an incident to a lawful arrest, and the search was not remote in time or place from the site of the arrest, the police authorities were merely seizing and inventorying goods known to be stolen at the time the inventory was conducted at the police storage garage, which facts were clearly People v. Burke,
Preston v. United States,It does not appear from the record of the trial proceedings that at the time defendant admitted the prior felony conviction for grand theft in the State of Arizona the trial court inquired as to whether he was properly advised of his constitutional right to counsel, or was represented by counsel, or knowingly waived his right to counsel in the foreign criminal proceeding. The issue is thus presented whether it was incumbent upon the trial judge herein to make such a determination and finding before pronouncing judgment inasmuch as if such duty existed, the case would then be required to be remanded to the trial court for the purpose of making such a determination.
In PEOPLE V. SHANKLIN, 243 Cal.App.2d 94, 52 CAL.RPTR. 28 , defendant was charged with a crime of petit theft with a prior conviction of a felony and, consequently, the prior conviction became a necessary element of the felony charge. In the cited case, defendant admitted the allegation of a prior conviction, but the trial court made no determination as to whether his constitutional rights had been protected at the time the prior judgment of conviction was imposed. In Shanklin, the reviewing tribunal affirmed the conviction but remanded the case to the trial court for the purpose of determining whether or not defendant was represented by counsel upon his former conviction of felony and, if not, whether he intelligently and understandingly waive such right, thereby complying with the rule that it is incumbent upon the trial court in cases involving an adjudication of habitual criminality or for the purpose of elevating an offense from a misdemeanor to felony status to ascertain whether at the time of the former conviction or guilty plea defendant was properly advised of his constitutional right to legal assistance and whether he had counsel or knowingly waived the right to counsel.
243 A.C.A. 94, 102 [hrg. den.].
However, the Shanklin doctrine should be limited to situations where the prior conviction is used to determine habitual criminality or to raise a misdemeanor to a felony. (See People v. Ebner, 64 Cal.2d 297, 305, 49 Cal.Rptr. 690, 411 P.2d 578 [habitual criminality]; In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 694, 409 P.2d 921 [habitual criminality]; In re luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918 [prior offense used to raise charged offense from misdemeanor to felony]; In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913 [habitual criminality].) The use of prior convictions for the purpose of establishing habitual criminality or to elevate an offense from a misdemeanor-to-felony status may be attacked for lack of representation by counsel in the prior criminal proceedings. (People v. Espinoza, 241 Cal.App.2d 718, 50 Cal.Rptr. 879.) The distinction between the cited cases and the present appeal is significant because of the drastic consequences attaching to a determination of habitual criminality or in elevating a misdemeanor to a felony. A conviction of habitual criminality requires imposition of a life sentence. (Pen.Code, § 3048.5.) In elevating a misdemeanor to a felony in the event of a prior conviction, a greater punishment must be imposed if the previous conviction is charged in the indictment and found to be true by the court or jury. (See Pen.Code, § 654.) In the case under review, the admission of the prior conviction has no such dire consequences. The primary purpose of alleging a prior conviction and requiring a finding as to its truth or falsity, in the absence of a determination of habitual criminality or raising a misdemeanor to felony status, is defined in section 3024 of the Penal Code. This section fixes the minimum term of sentence and imprisonment in the case of armed or prior offenders; for example, an armed or prior offender must be sentenced to a minimum of four years (Pen.Code, § 3024(b)), whereas an unarmed Consequently, we hold that under the factual situation presented herein when defendant admitted the allegation of a prior conviction, the trial judge had not duty to determine whether the defendant was represented by counsel or knowingly and understandingly waive his right to counsel in the prior criminal proceeding.
Judgment affirmed; purported appeal from order denying motion for new trial is dismissed inasmuch as said order is nonappealable. (Pen.Code, § 1237(2).)
McCABE, P. J., and TAMURA, J., concur.