People v. Reed

STEPHENS, J.

— Defendant John Tyrone Reed was charged, along with codefendant Cockerham, with violation of Penal Code section 211, robbery (count I); violation of Penal Code section 459, burglary (count II); and that at the time of commission of these offenses defendant was armed with a deadly weapon, a gun, and committed an assault upon a person; violation of Penal Code sections 664 and 187, attempted murder (count III). A prior conviction of defendant of robbery, a felony, was also alleged. Defendant pleaded

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not guilty, but admitted the prior. After jury trial defendant and eodefendant were each found guilty on each count, and each count was found to be of the first degree. The jury found defendant to have been armed at the time of the burglary. Count I was reduced to attempted robbery, a lesser included offense. Motion for new trial was denied, probation was denied, and sentence imposed to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

The sole issue is the legality of the search of a residence and the seizure of the gun admitted into evidence.

On July 21,1965, about 4:30 p.m., two men entered a drugstore in Paeoima which was owned by Mr. Shone. Donna Scott was an employee and at work in the store at the time. One man (later identified as Beed) confronted Scott. The other (later identified as Cockerham) went to the rear of the store. Scott was informed that it was a holdup. Shone saw the man in the rear of the store with his hand in the safe. Shone jumped Cockerham and a scuffle ensued. Beed fired a shot at Shone and wounded him. Cockerham dropped his glasses during the scuffle. After the shot was fired, both men ran from the store. The glasses bore Cockerham’s fingerprints, and a spent slug was found and identified as of 38 caliber. At 5:30 p.m. that day, Cockerham and Beed were taken into custody in a Paeoima apartment.

On July 23, 1965, Sergeant Cohen, the arresting officer, returned to the Paeoima apartment, knocked on the door, and was invited in. Sergeant Cohen had no search warrant. The evidence is conflicting as to whether one Campbell answered the door, and after Cohen made known the purpose of his visit, said “Come on in,” or whether one Miss Davis answered the door at Campbell’s direction. Likewise, there is a conflict as to whether Campbell said he was a “renter” or that Miss Davis was the “renter.” In either event, Campbell was staying at the apartment, and called it “home.” Campbell assisted Cohen in the search which resulted in finding the gun immediately beneath the couch and at the location defendant had been seated when arrested two days previously. Later the gun was determined to have been the one which shot the slug found in the drugstore. The gun was admitted into evidence over objection.