People v. MitchellPeople v. Mitchell
Defendant was convicted of the offense of burglary; admitted two prior felony convictiоns; was sentenced to imprisonment in the state prison; and appealed. The judgment was entered on September 14, 1961, and this court
In substance, all contentions presented by counsel on the reinstated appeal, with one exception, were presented by defendant in propria persona on the original appeal; were considered by this court; and were determined without merit.
[1] The one issue not heretofore considered arises out of defendant‘s contention the judgment should be reversed because, under the rule announced in Griffin v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], on April 28, 1965, which was four years after the trial of the case and almost two years after the judgment became final, certain instructions by the court and comments by the prosecuting attorney constituted error.
The Griffin rule does not apply to cases in which the judgment of conviction became final before it was announced. (O‘Connor v. Ohio, 385 U.S. 92 [17 L.Ed.2d 189, 87 S.Ct. 252, 253]; Tehan v. United States, 382 U.S. 406 [15 L.Ed.2d 453, 86 S.Ct. 459, 467].) In People v. Rivers, 66 Cal.2d 1000, 1005 [59 Cal. Rptr. 851, 429 P.2d 171], the California Supreme Court held the rules in Escobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado, 62 Cal.2d 338 [42 Cal. Rptr. 169, 398 P.2d 361], did not apply to reinstated appeals where the original appeal in the case hаd become final before those rules were announced. The rationale of the decisions in Tehan v. United States, supra, 382 U.S. 406 [86 S.Ct. 459, 464-467] and People v. Rivers, supra, 66 Cal.2d 1000, dictates the conclusion the ruling in Griffin v. California, supra, 380 U.S. 609 [14 L.Ed.2d 106], does not apply to reinstated appeals. (See People v. Garner, 258 Cal. App.2d 420, 427 [65 Cal. Rptr. 780]; cf. People v. Curry, 265 Cal. App.2d 785, 792 [71 Cal. Rptr. 573].) We hold accordingly.
[2a] Contrary to defendant‘s reiterated contention, our further examination of the evidence in the case supports the previous conclusion of this court the evidence sustains the judgment.
[3] A conviction of burglary is sutained by proof an accused was in conscious possession of property stolen in the burglary, corroborated by other evidence, even though slight, tending to show his guilt. (People v. McFarland, 58 Cal.2d 748, 754 [26 Cal. Rptr. 473, 376 P.2d 449]; People v. Citrino, 46 Cal.2d 284, 288 [294 P.2d 32].) [2b] Corroborating circumstances in the case at bench are: The defendant was in the city where the burglary occurred on the day of the occurrence, left shortly thereafter, and went to Mexico. (People v. De Leon, 236 Cal. App.2d 530, 534 [46 Cal. Rptr. 241].) His exрlanation to the customs inspector he obtained the money gambling, in light of all the circumstances, was so fanciful as to support the conclusion it was false. A false explanation is evidencе of guilt. (People v. McFarland, supra, 58 Cal.2d 748, 754; People v. Wayne, 41 Cal.2d 814, 822 [264 P.2d 547]; People v. Hanz, 190 Cal. App.2d 793, 803 [12 Cal. Rptr. 282]; People v. Kefry, 166 Cal. App.2d 179, 189 [332 P.2d 848].) His equivocal and evasive answers in response to inquiries by the deputy sheriffs showed a consciousness of guilt. (People v. Romano, 197 Cal. App.2d 622, 635 [17 Cal. Rptr. 399].) The period of time was short between the theft of the money and finding it in defendant‘s possessiоn. (People v. Holley, 194 Cal. App.2d 538, 541 [15 Cal. Rptr. 44].) The money was United States currency and it may be inferred it was taken from the United States into Mexico. The fact a person would take such a large sum of money from the United States into Mexico cоrroborates the inference the money was stolen. (People v. Dickerson, 273 Cal. App.2d 645, 648 [78 Cal. Rptr. 400].) Defendant was a farm worker, and had been released from jail with less than $30 only a month before he had $5,411 in his possession and the $450 watch.
[4a] Defendant reasserts his contention the evidence showing he was in possession of the stolen $5,411 was the product of an illegal search and seizure.
[5] A border search by a United States Customs Officer is lawful; does not dеpend upon probable cause; and is not governed by state laws. (
[6] Evidence discovered in the course of a lawful search, even though its discovery was not the purpose for which the search was instituted, is not illegally obtained. (Abel v. United States, 362 U.S. 217 [4 L.Ed.2d 668, 80 S.Ct. 683, 697]; People v. Monson, 255 Cal. App.2d 689, 691 [63 Cal. Rptr. 409]; People v. Jones, 255 Cal. App.2d 163, 169-170 [62 Cal. Rptr. 848]; People v. Kraps, 238 Cal. App.2d 675, 679-690 [48 Cal. Rptr. 89].)
[4b] When the customs inspector and the border patrolman observed in excess of $5,400 in defendant‘s possession, the circumstances then known to them supported probаble cause to believe the money had been stolen. Actually it had been stolen. It is a federal offense to transport in interstate or foreign commerce any known stolen property, including money, of the value of $5,000 or more. (
Defendant relies upon the decision in People v. Kelley, 66 Cal.2d 232, 248 [57 Cal. Rptr. 363, 424 P.2d 947], in support of his position. His reliance is misplaced. The evidence оbtained by the border search, including the $5,411 in possession of defendant, is admissible in the California courts because
Defendant‘s further contentions the evidence produced by the border search is not admissible because the border patrolman allegedly unlawfully detainеd defendant pending arrival of the deputy sheriffs or because allegedly there was not probable cause to arrest defendant at the time he was taken into custody by them is based on the false рremise the evidence in question was the product of the alleged detention or arrest. The search had been conducted and the evidence obtained before the detention and arrеst in question. The only issue at hand is whether the border search and seizure was lawful. We need not consider the issue whether the subsequent detention or arrest was unlawful.
[8] Defendant‘s trial was continued beyond the 60-day рeriod prescribed by Penal Code section 1382. He made no objection in the premises until after the People had presented and rested their case. Thereupon he moved for dismissal. The сourt properly denied the motion on the ground he failed to move prior to commencement of trial. (People v. Wilson, 60 Cal.2d 139, 146 [32 Cal. Rptr. 44, 383 P.2d 452]; Ex parte Apakean, 63 Cal. App. 438, 440 [218 P. 767].)
Furthermore, it is a matter of note defendant in his brief on the original appeal said the continuance beyond the 60-day period was granted at the request of the prosecution because of an absent witness. (People v. Mitchell, supra, 209 Cal. App.2d 312, 320.) A continuance upon this ground would constitute good cause for delay beyond the prescribed statutory period.
Defendant asserted contentions in his briefs on the original appeal not asserted in the briefs on the reinstated appeal. Assuming those contentions are before us for disposition, we find them without merit for the reasons set forth in the former opinion of this court in People v. Mitchell, supra, 209 Cal. App.2d 312, which we adopt.
The judgment is affirmed.
Brown (Gerald), P.J., and Ault, J. pro tem.,* concurred.