Petition — Zaby v. California

Yr Supreme Qowtt, U, $,

\ FILED

pec 1 lr?

MICHAEL RODAK, JR. CLERIC

SUPREME COURT OF THE UNITED STATES

IN THE

TERM, 19

No. %Z= G89

CARL ZABY, THOMAS ZABY, REGINALD SIGUR,

MITCHELL MATCHABIE, ANGELA ZABY DE MARCO

and ROSE ZA3Y McMULLEN,

Petitioners

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEAL, STATE OF CALIFORNIA, SECOND DISTRICT

RENZI & KILBRIDE

1025 North Brand Blvd.,

Suite 310

Glendale, Calif. 91202

Telephone: 240-5050

Attorneys for Petitioners

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 19 __

CARL ZABY, THOMAS ZABY, REGINALD SIGUR,

MITCHELL MATCHABIE, ANGELA ZABY DE MARCO

and ROSE ZABY McMULLEN,

Petitioners

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPESL, STATE OF CALIFORNIA, SECOND DISTRICT

RENZI & KILBRIDE

1025 North Brand Blvd.,

Suite 310

Glendale, Calif. 91202

Telephone: 240-5050

Attorneys for Petitioners

Sar te eo

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TOPICAL INDEX

Page

Opinions and Orders in the Courts Below....... .

Jurisdiction cccscceccccce Sevcecceseecee ecccceces 2

Gepnttame Prmpagehed ccccccccotcccccecesecee ecnees 2

Statement of the Case «cveecceccccess eC eccecccccs 3

(1) Evidence of Consent «..-.-..eeeees séececcene 8

(2) Sentencing Procedures --++-+ssscesccscececes 7

Argument <--->: ee ee eevee YO

Th> GH GH BRAD ci cdcndccccccesesecssécés fe)

Cm) BeiremESGe ence cc ccccccccceccocencses g

iD De cp cdbneneseeedeedssseeesece 11

(2) Servbemmdrge ccc ccc cccccccccccccccccece ee l2

APPENDIX

Orders Made in the Courts Below ...........06. 16

Opinions of the Courts Below ...... isnaectass 18

(1)

TABLE OF AUTHORITIES

Cases

Page

Page Terry v. Ohio (1968)

United States Constitution 392 U.S. 1, 20, 20 L.Ed. 2d 389,

7 Kien peewewe 10

POUNCE RUINS ccc cccccccececccccosecesooessess 3 Townsend v. Burke (1948)

Poem Oeenehh AES cccccccccocecsesceeseesceece 3 334 U.S. 736, 92 L.Ed. 1690, 68

Sede EEE SEUSSeCrSedCeeCeCtécoecede wecccccee 12

U.S. v. Dichiarinte (C.A. 9th, 1971)

Statutes EE EE eek ins cha ecsuucseenscsec 1l

RD. ME on ced cpsaieskidinndesdiedednes 2 U.S. v. Matlock (1974)

Pertinent State Penal Statutes .......ccccccccees 3 Me ye ty igh oo ae — 10

Williams v. New York (1949)

Cases 337 U.S. 241, 93 L.Ed. 1337. 69

sisi isis ieimiinais aaa eS St shed did cand bdnecboeesceabe 13

rv. Nort

Williams v. Oklahoma (1959)

hg pedadenmanstnossetion des. ed 358 U.S. 576, 3 L.Ed.2d 516, 79 S.Ct.

. © 4f/OO sees eeresrerereseeeeeeeeerererenee 7 421, Reh. den. 359 U.S. 956, 3 L.Ed.2d

Kent v. U.S. (1966) I 13

383 U.S. 541, 560-562, 16 L.Ed.2d

Bes Ge Bele BE Kaceceactccocsecstusecsecsecs 13

Mempa v. Rhay (1967)

389 U.S. 128, 19 L.Ed. 2d 336,

a i. Me kdene Riwdeeeéoee senecteeenesoetas 12

Miranda v. Arizona (1966)

384 U.S. 436, 16 L.Ed.2d 694, 86

B.CS. 1602, 10 MR BB OTS cccccccccccccscccece 11

People v. Vatelli (1971)

1S Gad Be. DE Tha GR cccccccccccccccceccseses 14

Specht v. Patterson (1967)

386 U.S. 605, 18 L.Ed.2d 326, 87

Bebe ED 6600cSeseceeceeseccsacsoeuvessdeces 13

Taylor v. U.S. (1950)

C.A. 9th Wash. 179 F.2d 640, Cert.

Den. 339 U.S. 988, 94 L.Ed. 1389,

TO B.Sc MED cccccceccesecceseceeovessevesoes 13

(ii) ‘ j (1411)

IN THE

SUPREME COURT OF THE UNITED STATES

TERM, 19 __

CARL ZABY, THOMAS ZABY, REGINALD SIGUR,

MITCHELL MATCHABIE, ANGELA ZABY DE MARCO

and ROSE ZABY McMULLEN,

Petitioners,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF APPEAL, STATE OF CALIFORNIA, SECOND DISTRICT

The Petitioners above-named respectfully pray

that a writ of certiorari issue to review the judgments

of the Court of Appeal of the State of California,

Second District (located at the address set forth in

the proof of service which accompanies this petition).

OPINIONS AND ORDERS IN THE COURTS BELOW

All petitioners herein were originally indicted

together, on a common set of allegations, which ulti-

mately came before the same state appellate court by

way of two appeals, which were decided as follows:

(1) M®m July 11, 1977, the California Court of

Appeal, Second District, filed its opinion affirming

judgments of conviction of Petitoners Carl Zaby, Thomas

Zaby, Reginald Sigur, and Mitchell Matchabie, in 2d

Criminal Case No. 29105. (see appendix)

(2) On July 11, 1977, the California Court

of Appeal, Second District, filed its opinion affirm

ing judgments of convictions of Petitioners Angela

Zaby DeMarco and Rose Zaby McMullen, in 2d Criminal

Case No. 27984. (see appendix)

(3) On September 8, 1977, the California

Supreme Court filed its order denying the petitions

ef the petitioners herein for a hearing. (see

appendix )

JURISDICTION

The jurisdiction of this court is invoked

under Title 28, U.S. Code, Section 1257 (3).

QUESTIONS PRESENTED

(1) When law enforcement officers, having a

suspect under arrest at his residence, induce him

to believe that he may be released if he gives per-

mission for a general search of his residence,

thereby obtaining such permission, may a trial court

thereon make a finding that consent was given, and

hold that the consequent search, otherwise unlawful,

did not violate the Fourth and Fourteenth Amendments?

(2) When a guilty plea has been induced by a

court-approved plea-bargain, whereby the prosecutor

agrees to confine himself on the issue of penalty to

commenting on the probation officer's report, may the

prosecutor, disagreeing with a favorable probation

report, then put into evidence police opinions that

the defendants are guilty of numerous uncharged crimes,

and, further, may such evidence be used against the

defendants even though the police refuse to disclose

the alleged sources of their opinions?

STATEMENT OF THE CASE

Petitioners were indicted in the County of

Los Angeles, State of California, on charges of

Receiving Stolen Property, Conspiracy to Receive

Stolen Property, Attempt to Receive Stolen Property,

and Solicitation to Commit Burglary. 2/

1/ The pertinent statutory provisions, none of which

is in issue herein, are: California Penal Code

Sections 182.1 (Conspiracy), 496 (Receiving Stolen

i ih 653f (Solicitation and 664 (Attempted

Felony).

A detailed statement of the assignment of the

various charges among the defendants, which matter

is not in issue herein, is set forth in the opinions

of the California Court of Appeal, reproduced in

the appendix hereto.

-3-

(1) Evidence of Consent:

On April 14, 1975, all petitioners made a pre-trial

oral motion to suppress evidence seized by Los Angeles

County Sheriff's deputies in a search of the residence of

Petitioner Carl Zaby and other petitioners, on the ground

that evidence which was indispensible to the indictment

and to the trial was seized as a result of a search which

violated petitioners’ rights under the Fourth Amendment

and under California State law not herein involved.2/

The prosecutor contended that the search, which

was without a warrant and in which a four-bedroom home

was ransacked, was with the consent of Petitioner Carl

Zaby, who, Petitioners concede, had the necessary actual

and ostensible authority.

Before the search, a shoplifter had made a

"controlled sale" to one or more Petitioners herein of

a paper bag-full of purportedly-stolen toothpaste and

cold tablets, at Zaby'’s market, next to which stood the

residence which was later subjected to a general search.

The bag of toothpaste and cold-pills was found in plain

view in the market, and a few of the items were found

on a table in the kitchen of the residence. Consent for

the recovery of these items was sufficiently established.

2/ Petitioners' Motion to Suppress is noted at Pp. 40-61

(Proceedings) and P. 83 (Motion Denied) of the Clerk's

Transcript, and the People's Written Opposition is set

forth at Pp. 76-81 of the Clerk's Transcript.

-4-

After the "controlled sale" the market was entered

by twelve to fourteen officers with weapons drawn. Every-

one in the market was arrested and taken to the county

jail, with the exception of Petitioner Carl Zaby. The

search of the residence, in which numerous items of alleg-

edly stolen nroperty were seized, later being presented

in support of the indictment, commenced at about 2:00 p.m.

and continued until about 2:00 a.m. of the following day.

The officer in charge of the operation required

Petitioner Carl Zaby to accompany him as he went about

the premises, and from time to time asked him if he could

examine specific items, for example, the bag of tooth-

paste and cold pills, and a watch and some canned meat

which were displayed in the market, and from time to

time Petitioner answered, "fine". It was clear that

the officer intended a general search of the market and

the residence for all possible evidence of crimes, but

that he did not reveal this intent to Petitioner. When

the officer began to explore the residence, Petitioner

requested and was granted permission to call his attorney.

This development occurred about 4:30 p.m. Petitioner's

attorney testified that Petitioner told him that his

store and residence were being overrun by the officers.

The attorney did not arrive until 8:00 p.m. Meanwhile,

by telephone, the attorney asked the officers whether

or not Petitioner was going to jail, to which the officer

in charge replied,

"And I told him at that point

that I hadn't determined whether

he was going to jail, but his

attitude was fine. And he [the

attorney] said, 'Fine. I have

instructed him to be cooperative.'"

Earlier in the search, the officer stated to

Petitioner that he wanted to look around for armed per-

sons, to which Petitioner had replied, "fine" and,

thereafter, the officer said that he wanted to look

around for stolen property, but that Petitioner did

not reply. The only other gesture of obtaining consent

was the officer's request that Petitioner accompany

him, to which Petitioner said, "Yeah."

Arguing the suppression motion of the trial court,

the prosecutor said,

"Now, in my opinion, that is a broad

consent [referring to the officer's state-

ments, which Zaby never answered,

that he would like to look around

for stolen property] and entitles

everything that followed to be

legal, in spite of the fact that I

don't think Carl Zaby realized how

detailed or how long of a search

was about to follow from that, “haa va

(Emphasis supplied)

(2) Sentencing Procedures:

On May 20, 1975, after the suppression motions

were denied, Petitioners Carl Zaby, Thomas Zaby, Reginald

Sigur and Mitchell Matchabie entered into a plea-bargain

with the prosecutor, who represented to them at that time,

(1) Your sentence will be deter-

mined entirely by the judge, at

the sentencing hearing.

(2) The Probation Officer will

make a report.

(3) At the hearing, your attorneys

will be heard.

(4) “And I will have a chance to

argue what should happen to each

of you."

(5) “At that time the judge will

decide." 3/

Sentencing was set for June 26, 1975. The Probation —

Officer's reports (Supplemental Clerk's Manuscript Pp. l-

237) noted that Petitioners were, for all practical pur~

poses, devoid of prior criminal records and recommended

3/ On May 20, 1975, there was a severance of pro-

ceedings as to Petitioners Angela Zaby DeMarco

and Rose Zaby McMullen. ‘Those petitioners raise

the illegal search and seizure but do not raise

the issue of denial of due process in sentenc-

ing.

that drobation be granted without imprisonment. The

prosecutor thereupon obtained a continuance, and on

August 11, 1975 presented, through testimony, the

opinions of Captain Searcy, a divisional commander of

the Los Angeles Police, and Sergeant Gailey, a vice

and gambling specialist in the same police force, that

Petitioners Carl and Thomas Zaby, with lesser Anvolve-

ment by other petitioners, were the center of a book-

making! ring which grossed $35,000.00 per week and

were tpe principal agency for the "fencing" of stolen

property in a large area of central Los Angeles.

Petitioner Carl Zaby was said to be the "master-mind".

Aside from some suspicions which were generated

by sut'veillance of Zaby's market, the police informa-

tion depended on the assertions of various alleged

criminal informants, whom the Police described as

"Reliable". At the conclusion of the prosecutor's

presentation, the defense moved that the identities

of the purported informants be disclosed, so as to

permit further cross-examination, and possible pro-

duction and examination of the purported informants.

The prosecutor and the police declined to reveal the

ir formation, and the trial court denied the defense

motion. (Supplemental Reporter's Transcript, August 11,

1975, P. 91).

Several months later a new probation report,

written by a different probation cfficer, was filed.

This report, although noting the prosecution evidence

of other criminal activity, still recommended against

a prison sentence for Petitioner Carl Zaby, although

-8-

it did recommend that he be required to serve a periad

of time in the county jail as a condition of probation.

As to the other Petitioners herein the report recommended

probation, and the court followed the recommendation;

however, it is the position of each Petitioner that the

police opinion evidence resulted in a decision by the

court to impose more serious punishment than that which

would otherwise have been imposed. Petitioner Carl Zaby

was sentenced to the state prison, ard the other petition

ers were granted probation, but with the requirement that

Petitioner Thomas Zaby serve a year in jail and that

Petitioners Reginald Sigur and Mitchell Matchabie serve

90 days.

ARGUMENT

(1) Consent to Search:

(a) Authorities:

"It is well settled under the Fourth and

Fourteenth Amendments that a search conducted without a

warrant issued upon probable cause is 'per se unreasonable

- Subject only to a few specifically established and

well-delineated exceptions.' [Citations.] It is equally

well settled that one of the specifically established

exceptions to the requirements of both a warrant and prob-

able cause is a search that is conducted pursuant to con-

sent." (Schneckloth v. Bustamonte (1973) 412 U.S. 218,

219 (36 L.Ed2d 854, 858, 93 S.Ct. 2041].)

The courts have not looked with favor on the prac-

tice of substituting consent for the authorization of a

search warrant: "Police must, whenever possible, obtain

advance judicial approval of searches and seizures through

the warrant procedure." Terry v. Ohio (1968) 392 U.S. 1,

20, 20 L.Ed.2d 889, 88 S.Ct. 1968.

When a prosecutor relies on consent to justify a

search, he has the burden of proving that the defendant's

"consent was, in fact, freely and voluntarily given."

(Bumper v. North Carolina (1968) 391 U.S. 543, 20 L.Ed.2d

797, 88 S.Ct. 1788).

The burden is to establish actual consent by at

least a preponderance of the evidence. (U.S. v. Matlock

(1974) 415 U.S. 164, 177-178, fn. 14, 39 L.Ed.2d 242,

253-254, 94 S.Ct. 988).

The question of voluntariness is to be determined

from the totality of all the circumstances. (Schneckloth

v. Bustamonte, supra (1973) 412 U.S. 218, 36 L.Ed. 854,

93 S.Ct. 2041).

". ,. . the Fourth and Fourteenth Amendments require

that a consent not be coerced, by explicit or implicit

means, by implied threat or covert force. For, uo matter

how subtly the coercion were applied, the resulting 'con-

sent' would be no more than a pretext for the unjustified

police intrusion against which the Fourth Amendment is

directed." (Schneckloth v. Bustamonte, supra 412 U.S. 218,

at 228).

"In examining all the surrounding circumstances

to determine if in fact the consent to search was coerced,

account must be taken of subtly coercive police questions,

as well as the possibly vulnerable subjective state of

the person who consents." (Schneckloth v. Bustamonte,

supra 412 U.S. 218, at 229).

Custodial interrogation by the police is inherently

coercive. (Miranda v. Arizona (1966) 384 U.S. 436, 16

L.Ed.2d 694, 86 S.Ct. 1602, 10 ALR 3d 974).

(b) Discussion:

There was evidence that petitioner Carl

Zaby consented to an examination of a few articles which

were in plain view; however, "Government agents may not

obtain consent to search on the representation that they

intend tc look only for certain specified items and

subsequently use that consent as a license to conduct a

general exploratory search." U.S. v. Dichiarinte (C.A.

9th, 1971) 445 F.2d 126, 129.

The heart of the case is the coercion which was

implicit in the officer's representation to Petitioner

Carl Zaby and his attorney that he could save Petitioner

from going to jail if he "cooperated" in the ongoing

general search. Petitioners say that consent was negated

by that implicit threat and promise, that the showing

of consent is not saved by the fact tnat Petitioner's

attorney was overawed along with Petitioner, and that

the prosecution showing of consent was, as a matter of

law, insufficient. The situation, a householder under

arrest, the officers telling him that they may not put

him in jail if he cooperates, was too coercive for the

consequent search to be permitted. The situation was

fully comparable to that in Bumper v. North Carolina,

supra, where the court said, at Page 550 of 391 U.S.

", . . the situation is

instinct with coercion—albeit

colorably lawful coercion.

Where there is coercion there

cannot be consent.”

Petitioners are entitled to an order directing

the California court to suppress and return all evi-

dence, other than the toothpaste and cold pills,

which was seized by virtue of the warrantless search

of the residence. ¢

(2) Sentencing:

Due process must be observed at all critical

stages of the proceedings, and this court has held

that sentencing is a critical stage. Mempa v. Rhay

(1967) 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254.

Fundamental unfairness in a sentencing pro-

cedure, for example, where the defendant had no

attorney, or where the court made incorrect assump-

tions concerning the defendant's record, violates

the Fourteenth Amendment. (Townsend v. Burke (1948)

334 U.S. 736, 92 L.Ed. 1690, 68 S.Ct. 1252. It is

Petitioners position that the refusal of the police to

state the alleged sources of their claims, and the

refusal of the trial court to order disclosure, did

render the instant proceeding fundamentally unfair

within the intent of Townsend v. Burke.

It is true —at least where the prosecutor's

information appeared to be reliable-—- that this

court has declined to disapprove a sentencing pro-

cedure in which the prosecuting attorney, in an

unsworn statement, set forth details of the defendant's

past crimes and of the crime for which he was

sentenced, despite the loss of the defendant's right

of cross-examination (Williams v. Oklahoma (1959)

358 U.S. 576, 3 L.Ed.2d 516, 79 S.Ct. 421, Reh. den.

359 U.S. 956, 3 L.Ed.2d 763, 79 S.Ct. 737; Williams v.

New York (1949) 337 U.S. 241, 93 L.Ed. 1337, 69 S.Ct.

1979 ). It has also declined to disapprove a

sentencing procedure in which a government agent

testified to reliable hearsay information of other,

uncharged, offenses. (Taylor v. U.S. (1950) C.A. 9th

Wash. 179 F.2d 640, Cert. Den. 339 U.S. 988, 94 L.Ed.

1389, 70 S.Ct. 1010). But it has not yet permitted

the prosecuting attorney or the testifying police

agent simultaneously to allege such information and to

decline to state its source.

This court has held that federal juvenile

proceedings, where a district court certified a

juvenile for adult prosecution, required observance

of due process. (Kent v. U.S. (1966) 383 U.S. 541,

560-562, 16 L.Ed.2d 84, 86 S.Ct. 1045). Also, in

Specht v. Patterson (1967) 386 U.S. 605, 18 L.Ed.2d

326, 87 S.Ct. 1209, this court held that a psychiatric

evaluation of a defendant, considered by a trial court

without a proper hearing, including the element, of

confrontation, violated the due process clause.

The California Courts have, at times, been

excessively indulgent to violations of due process

in sentencing procedures, even, for example, where

. ¥% trial court has obviously based a choice of a more

severe sentence on speculation and conjecture: See

People v. Vatelli (1971) 15 Cal.App.3d 54, 64; Trial

court, learning that defendant had thirteen prior

convictions, stated that it assumed that he had

committed 130 burglaries, "since you don't get caught

every tim."

In the instant case a California trial court

has followed, and the California appellate courts have

declined to correct, a procedure in which the prosecu-

tor induced the accused to plead guilty on a promise,

little short of express, that he would limit himself

on the issue of sentence to argument on the probation

officer's report, where the prosecutor then violated

his plea bargain by presenting evidence where the

evidence consisted of police opinions which were based

on hearsay sources, and where the police and the pro-

secutor even declined to identify their purported

sources.

Obviously, the sentences imposed herein were

not selected merely on the basis of the offenses to

which Petitioners pleaded guilty. The violation of

the plea bargain gave the state an unfair advantage,

and the unfairness was compounded by the use of secret

“it~

sources of purported information. Petitioners Carl

Zaby, Thomas Zaby, Reginald Sigur and Mitchell

Matchabie are entitled to an order directing the

California court to permit them to withdraw their

pleas of guilty, or, at their option, to be re-

sentenced without regard to undisclosed sources of

governmental claims of other, uncharged, criminal

activities.

Wherefore, Petitioners pray that this court

issue its writ of certiorari to the California Court

of Appeal, Second District, to resolve the issues

stated hereinabove.

Dated: November 29, 1977

ORDERS MADE IN THE COURTS BELOW

CLERK’S OFFICE, SUPREME COURT.

4250 STATE BUILDING

San Francisco, CALIFORNIA 94102

SFP 8 1977.

I have this day filed Order.

FRED KILBRIDE

Attorney for Petitioners

CARL ZABY, THOMAS ZABPY,

REGINALD SIGUR, MITCHELL

MATCHABIE, ANGELA ZABY DE MARCO

and ROSE ZABY McMULLEN

Lcsesnecd Doswod

People

os.

__.__—ZABY, ef al.

Respectfully,

G. E. BISHEL

Clerk

90487.877 4-77 36 OSF

ote

OPINIONS OF THE COURTS BELOW

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

CLERK'S OFFICE, SUPREME COURT DIVISION ONE

4250 STATE BUILDING

San Francisco, Cauuronnia 94102

SEP 8 1977 THE PEOPLE, ) 2a Crim. No. 29105

v. } A 311556)

CARL ZABY, THOMAS ZABY, )

REGINALD SIGUR, and )

; MITCHELL MATCHABIE, )

BEAEE§ LEM Defendants and Appellants. )

)

Appeals from judgments of the Superior Court

of Los Angeles County. Earl F. Riley, Judge. Affirmed.

People

= Negata and Masuda, and Jed Quinn Beebe, for

_DeMarco et al. Defendants and Appellants.

Respectfully,

G. E. BISHEL Evelle J. Younger, Attorney General, Jack R.

C

-_ Winkler, Chief Assistant Attorney General, S. Clark

Moore, Assistant Attorney General, Juliet H. Swoboda

and ShunjiAsari, for Plaintiff and Respondent.

90487.877 4.77 3™ OSPF

(page 2)

In an indictment, defendants Carl Zaby,

Thomas Zaby, Reginald Sigur, and Mitchell Matchabie

were accused in count 1 of conspiracy to receive

stolen property in counts 2 through ll, Carl Zaby

was accused of receiving stolen property; and in

count 14, Carl Zaby, Thomas Zaby, and Mitchell

Matchabie were accused of attempt to receive stolen

property.

Motions by defendants to dismiss certain

counts of the indictment were denied, except that

Matchabie's motion to dismiss count 14 was granted.

Their motions to quash search warrants and to

suppress evidence were denied.

Carl Zaby withdrew his plea of not guilty to

counts 1, 7, and 11; and he pleaded guilty to those

counts. Sigur, Matchabie, and Thomas Zaby withdrew

their pleas of not guilty to count 1; and each one

pleaded guilty to that count. Sugsequently, the

motion of each defendant to withdraw his plea of

guilty was denied. Carl Zaby was sentenced to state

prision for the term prescribed by law

(page 3)

on counts 1, 7, and 11; and probation was granted as

to the other defendants. Each defendant appeals from

the judgment against him.

1 Other defendants indicted were Angela Zaby De

Marco and Rose Zaby McMullen. Those defendants are

- 2 ne in People v. De Marco et al., 2d Crim. No.

27¢

-19-

Appellants Tiled an opening brief, and after

a substitution of counsel, filed an amended opening

brief. Contentions therein are in sistance that the

trial court erred in denying their motions to

suppress evidence and the motions to withdraw the

pleas of guilty; they could not be guilty of

"conspiracy to commit a non-existent crime"; there

was prejudicial misconduct by the prosecutor; the

trial judge was biased; and the court erred pre-

judicially in hearing third party claimants regarding

rights to the stolen property prior to sentencing

the defendants.

On August 19, 1974, Barbara Hurt, who was

arrested for stealing cold-medicines and toothpaste

from a drugstore ,° told officers that she had been

stealing Contacs, Excedrin, aspirin, ham, cigarettes,

liquor,

(page 4)

crystal, and steaks from stores, and that three or

four times a day she would take the stolen merchandise

to Zaby's Market and sell it to Carl Zaby. On seven

occasions she had been arrested for shoplifting; and

on each occasion s.ie telephoned Carl Zaby for bail.

He told her that s:nce she "stole so well," he would

buy a car for her so that she could get around more

quickly to get Contacs — he said that he wanted 16

dozen Contacs a day. He bought a car for her.

é Factual statement is based on evidence at the

motion to suppress evidence. Portions of the grand

jury transcript were received in evidence at the

hearing of that motion.

-20-

On August 20, 1976, Hurt went to Zaby's

Market with an undercover Officer Henderson. In a

bag she took Contacs and toothpaste which she had

stolen from the drugstore. (Before she entered the

market, another officer (Reed) marked the packages

of Contacs anc tubes of toothpaste with a yellow

pencil.) In the market, she gave the bag to Willie

Thomas who counted the articles which were in the

bag and called out the quantities to Carl Zaby.

Defendant De Marco, who was present, asked Hurt when

she (Hurt) was going to get two coats from Wards or

Sears for De Marco's grandchildren.

(page 5)

Hurt asked Thomas for money for the articles

which were in the bag. Carl Zaby said, $10." She

(Hurt) said that she "almost got busted" getting the

Contacs. Then Willie Thomas obtained $15 from Thomas

Zaby and gave the money to Hurt.

Hurt left the market and told officers,

including Officer Reed, what had occurred. She also

said that in the market there were guns and dangerous

people who would use the guns. Then Officer Reed

and other officers entered the market. Officer Reed

displayed his badge, identified himself, and detained

the persons in the market. On a counter where Hurt

said the Contacs and toothpaste were placed, he saw

toothpaste and the Contac packages which he had

marked with the yellow pencil.

Thomas Zaby told Officer Reed that Carl Zaby

was in charge. Officer Reed told Carl Zaby that the

afin

officers were investigating stolen property and the

receiving of stolen property. The officer advised

Carl Zaby of his Miranda rights; and Carl Zaby said

that he understood his rights and did not need an

attorney. Then the

(page 6)

officer said that the market had purchased stolen

property and that he wished to examine and recrieve

the property. Carl also said that he would be glad

to cooperate and that he did not know anything about

the stolen property.

The officer asked Carl whether he (officer)

might look at certain merchandise that he saw while

he was talking with Thomas Zaby -—- merchandise on

which there were labels such as Thriftimart, Sav-On,

Drug King, and Clark. Carl Zaby replied that he

would cooperate. Then the officer seized the Contacs

and some of the toothpaste that Hurt had taken into

the market.

The officer saw guns near the counter in the

market. He also saw living quarters behind the

counter. Because Hurt had told him (Officer Reed)

that the persons in the store would use the guns, he

told Carl Zaby that he was concerned about the guns

and who might use them, and he asked Carl whether

anyone was in the living quarters behind the counter.

Carl replied: "Look around. I'll be cooperative.

I don't have anything to hide.”

Officer Reed asked Carl to accompany him; and

x é

(page 7)

they went into the living quarters. In the kitchen

the officer saw some tubes of toothpaste that had the

same labels as the labels on the toothpaste which

Hurt took into the market. He examined the tubes and

saw the pencil markings he had put on them.

Officer Reed then said that he would like to

look for stolen property upstairs. Carl Zaby tele-

phoned his attorney, and the officer stood by the

telephone. The attorney instructed Carl to cooperate

with the officers. Then the officer searched the

upstairs area and found defendants De Marco and

McMullen in a bedroom. Near the counter of the

market officers found several shotguns and revolvers.

They also found large quantities of watches, appliances,

and clothes on which there were labels of other

stores, large quantities of steaks and canned ham

bearing, labels of other markets, and cigarettes and

liquor stored in bulk in the living quarters.

Appellants contend that the court erred in

denying their motion to suppress evidence. They

argue that although Carl Zaby'’s words "may be con-

strued as a consent to the search," the officers did

not advise Carl

(page 8)

of his right to counsel and did not advise defendants

that they had a right to withdraw the consent; that

the search was not justified by the "supporting

evidence" (affidavits for issuance of two search

<2}

warrants) ;> and that the search of the living quarters

was not incident to "the controlled sale of stolen

property." |

In reviewing the determination of the trial

court upon a motion to suppress evidence, the function

of this court is to determine whether there was sub-

stantial evidence to support the findings. (People v.

Waters, 30 Cal.App.3d 354, 359 [106 Cal.Rptr. 293].)

As the trier of fact, the superior court adjudges

credibility of the witnesses (People v. West, 3 Cal.

34 595, 602 [91 Cal.Rptr. 385, 477 P.2d 409]), and

all factual conflicts must be resolved in the manner

most favorable to the court's disposition on the

motion. (People v. Martin, 9 Cal.3d 687, 692 [108

Cal.Rptr. 809, 511 P.2d 1161).)

(page 9)

As to asserted duty of an officer to advise

a defendant that he has a right to refuse permission

to enter and search premises, it has been said

(People v. James, 19 Cal.3d 99, 115 [__Cal.Rptr.__,

___ P.2d ___j:_:~=S"In a@ long line of decisions begin-

ning at least a decade ago [citation], the Courts of

Appeal developed a rule that a waiving of the right

to refuse permission to search is not 2 precondition

of a valid consent." (See People v. Roberts, 246 Cal.

App. 2d 715, 728-729 [55 Cal.Rptr. 62]; People v.

3 Apparently there were two search warrants. No

search warrant or affidavit for issuance of warrant

has been included in the record on appeal.

-24-

DeStrulle, 28 Cal.App.3d 477, 482 [104 Cal.Rptr.

639]. )

In the present case, when the officers

entered the market, Thomas Zaby said that Carl Zaby

was in charge; an officer told Carl that they were

investigating stolen property; the officer advised

Carl of his Miranda rights; Carl said he understood

his rights and did not want an attorney; the officer

said he wished to examine stolen property purchased

by the market; Carl said he was glad to cooperate;

the officer asked whether he could look at certain

merchandise; Carl replied that he would cooperete;

(page 10)

the officer saw guns near the counter and living

quarters behind the counter; the officer was con-

cerned about the guns, and asked Carl whether anyone

was in the living quarters; Carl replied: "Look

around. I'll be cooperative. I don't have anything

to hide"; the officer and Carl went into the living

quarters where the officer saw some of the stolen

merchandise; the officer said that he would like to

look upstairs for stolen property; Carl telephoned

his attorney, who instructed him to cooperate with

the officers; and the officer went upstairs and

found the defendants in a bedroom. Under the circum

stances, the trial court could properly find that

voluntary consent was given to search of the market

and the living quarters. The court did not err in

denying the motion to suppress evidence.

~25-

In further argument with reference to their

contention that the court erred in denying the

motion to suppress evidence, appellants assert that

the search warrants were based upon observations and

seizures made during a warrantless search and that

the warrants were

(page 11)

not justified by such supporting evidence. The

evidence with reference to the warrantless search

and seizure was as above stated regarding Officer

Reed's entering the market and receiving consent of

Carl Zaby to search the premises. As hereinabove

concluded, that search was made properly pursuant to

consent voluntarily given. Thus the observations

and seizures during that search were proper.

Each appellant contends further that the

court erred in denying his motion to withdraw his

plea of guilty in that he did not understand the

meaning of "conspiracy," and because the pleas were

a family package whereby Carl Zaby made the plea

decisions for the codefendants "in his role as head

of the family and employer," and Carl Zaby "indicated"

that he was influenced by the ill health of his

sisters and the prospect of putting them as well as

himself and his codefendants shrough long and painful

trial.

The motions to withdraw the guilty pleas were

submitted on the notices of motion, declarations by

defendants, points and authorities and oral argument.

—~26-

(page 12)

Carl Zaby's declaration stated in part: "[BlJeing

lacking in education, I could not understand the

legal basis"; and the thought of dragging his sisters,

brothers and employees through a three or four month

trial weighed heavily on him until he "felt that the

only way out was the most expedient way, to just

plead guilty and get it over with," even though he

knew he was innocent.

Thomas Zaby’s declaration stated that "[N]ot

being an educated man, [he] was thoroughly confused

by the nature of the charges"; he had a deep and

abiding faith in his family; he felt tremendous

anxiety over "this upset" his family was suffering;

he Gecided to plead guilty to relieve that feeling

of anxiety and "get it over with"; and he supposed

that his anxieties would diminish as soon as the

matter was over.

Matchabie's declaration stated that when his

employer (Carl Zaby) and the family decided to change

their pleas to guilty, he "felt in a very strange

circumstance, since [he] did not know what had tran-

spired, and did not understand the charges that were

being made against us... ."

(page 13)

Sigur's declaration was similar to Matchabie’s

declaration. No testimony was presented at the

hearing of the motion; and there was no declaration

or statement by counsel for defendants as to advice

x =

given to defendants at the time the pleas were made.”

Section 1018 of the Penal Code provides that

on application of the defendant at any time before

judgment the court may for good cause shown permit a

plea of guilty to be withdrawn. The granting or

denial of such application is within the trial court's

discretion (People v. Waters, 52 Cal.App.3d 323, 328

[125 Cal.Rptr. 46], and denial thereof may not be dis-

turbed on appeal unless the trial court has abused

its discretion. (In re Brown, 9 Cal.3d 679, 685 [108

Cal.Rptr. 801, 511 P.2d 1153].)

In the present case, the trial court did not

abuse its discretion in denying the motions to with

draw

(page 14)

the pleas of guilty. It is to noted further that

each appellant in effect attacks validity of the

pleas,” and he did not obtain a certificate of

probable cause. (See Pen. Code, § 1237.5; Cal.

Rules of Court, rule 31, subd.(d); People v. Ribero,

4 Cal.3d 55, 63-64 [92 Cal.Rptr. 692, 480 P.2d 308];

People v. Nigro, 39 Cal.App.3d 506, 510 [114 Cal.

Rotr. 213].)

4 Appellants refer to testimony given by a probation

officer and the Zaby sisters (defendants in companion

case) at a hearing of a petition for writ of error

coram nobis; however, that hearing occurred approxi-

mately two months after the motions to withdraw the

pleas of guilty were denied.

5

Cf. People v. Kaanehe, 19 Cal.34 1, 8 [__ Cal Rptr.

P.2d l.

5

-28-

Appellants contend further that there was pre-

judicial misconduct by the prosecutor in that he

referred (at the hearing of the motion to suppress

evidence) to testimony presented before the grand

jury. Portions of the testimony before the grand

jury were received in evidence at the hearing of the

motion. References thereto were proper. Defendants

pleaded guilty; and thus no evidence was presented

on the issue of guilt. This contention is without

merit.

Appellant Carl Zaby contends that the trial

judge was "predisposed to the case" in that he did

not

(page 15)

consider the recommendation in the probation report

that Carl's application for probation be granted, and

did not consider that this was Carl's "first offense."

Granting or denial of probation was a matter within

the trial court's discretion. The trial court did

not abuse its discretion in denying probation as to

Carl Zaby.

Appellant's contend further that the trial

judge was "predisposed" in that he refused to dis-

qualify himself. On the last day of the probation-

and-sentence hearing, defendants requested that the

trial judge ask another judge to preside, because the

trial judge allegedly had made an out-of-court state-

ment that the probation report was a "whitewash."

Appellants also assert that prejudice on the part of

-29-

the judge was indicated by his statement regarding

the request for another judge. That statement was:

"And, lastly, I congratulate you [defense counsel]

on your ability to read minds because you are assuming

that what you have done has made absolutely no differ-

ence in the idea that the Court had when it read the

probation report initially, and that is a fact not yet

(page 16)

in evidence. You may proceed. The motion is denied

for the purpose of the record."

The matter of probation and sentence was

called for hearing in Jume 1975, and the ruling

thereon was made in May 1976. During that eleven-

month period, the court permitted substitution of

defense counsel, and took evidence for nine days.

The court read the probation reports, and granted

probation as to all of the defendants in this action,

except Carl Zaby. (Aiso, probation was granted to

Carl's sisters [De Marco and Mullen] in the companion

case.) The court d‘d not err in denying defendant's

motion, made on the last cay of the probation-and-

sentence hearing, that the judge d‘squalify himself.

Appellants contend that the court erred pre-

judicially in hearing third-party claimants regarding

rights to the alleged stolen property prior to

sentencing defendants. They argue that section 1408

of the Penal Code only permits such claims "against

the person accused of stealing or embezzling it," and

therefore the section does not apply herein because

-30-

it does not mention a person

(page 17)

accused of receiving stolen property. °. They also

assert that since section 1408 of the Penal Code pro-

vides for such claims "at any time after the final

determination of the action or proceedings," they can-

not be heard prior to sentencing.

In the present case the court permitted claim

ants to make claims to ownership of the seized

property which had been seized by the officers;

however, the court did not make any finding of owner-

ship adverse to any defendant. The record shows that

the claims of ownership

(page 18)

were withdrawn. The court's actions with reference

to the claims did not constitute prejudicial error.

The judgments are affirmed.

WOOD, P.J.

We concur:

THOMPSON, J.

HANSON, J.

6

Section 1408 of the Penal Code provides:

"On the application of the owner and on satis-

factory proof of his ownership of the property, after

reasonable notice and opportunity to be heard has been

given to the person from whom custody of the property

was taken and any other person as required by the magis-

trate before whom the complaint is laid, or who examines

the charge against the person accused of stealing or em

bezzling it, shall order it to be delivered, without

prejudice to the state, to the owner, on his paying the

necessary expenses incurred in its preservation, to be

certified by the magistrate. The order entitled the

owner to demand and receive the property."

-71-

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGELA ZABY DE MARCO and

ROSE ZABY McMULLEN,

Defendants and Appellants.

2d Crim. No. 27984

) (Super. Ct. No.

} A 311556)

Appeals from judgments of the Superior Court

of Los Angeles County. Earl F. Riley, Judge.

Affirmed.

Charles M. Berg for Defendants and Appellants.

Evelle J. Younger, Attorney General, Jack R.

Winkler, Chief Assistant Attorney General, S. Clark

Moore, Assistant Attorney General, Juliet H. Swoboda

and Shunji Asari, Deputy Attorneys General, for

Plaintiff and Respondent.

(page 2)

fn count 1 of an indictment, defendants Angela

Zaby De Marco and Rose Zaby McMullen and other

defendants? were accused of conspiracy to receive

stolen property (Pen. Code, §§ 182.1, 496); in count

12 Angela De Marco was accused of solicitation to

commit burglary (Pen. Code, § 653f); and in count 13

Rose McMullen was accused of solicitation to commit

burglary. Their motions to set aside the indictment,

to quash a search warrant, and to suppress evidence

were denied. Each defendant [De Marco and McMullen]

withdrew her plea of not guilty, and pleaded guilty to

count 1. Each one was sentenced to county jail for

one year; sentence was suspended; probation was

granted; and, upon motion of the People, the other

counts were dismissed.

Each defendant appeals from the judgment (order

granting probation) in her case, and contends that

(1) the court erred in denying the motion to suppress

evidence,

(page 3)

(2) she could not be guilty of "conspiring to commit

a non-existent crime," and (3) the court abused its

discretion in denying her petition for writ of error

coram nobis, wherein she sought an order setting

1 In the 14-count indictment, other defendants were

Carl Zaby, Thomas Zaby, Mitchell Matchabie, and

Reginald Sigur. Those defendants are appellants in

People v. Zaby, et al., 2d Crim. No. 29105.

aside her plea of guilt: 2

{Discussion of search and seizure issue, deleted here,

is identical to discussion of the same issue in the

same case, reprinted in this appendix, hereinabove,

at pages 3-9.

(page 10)

Appellants contend further that they "cannot

be guilty of conspiring to commit a non-existent

crime." They argue that "There can be no crime to

receive property which is not stolen." In effect,

appellants' argument is that the offense of receiving

stolen property was not committed, and therefore they

could not be guilty of conspiracy to receive stolen

property.

As above stated, each appellant appeals from

a judgment on her plea of guilty. By entering such

plea, she admitted each element of the offense

a On August 11, 1975, each defendant filed a notice

of appeal from the "judgment of conviction" entered

July 29, 1975, and stated that the ground for appeal

was the "denial" of the motion to suppress evidence.

Approximately two months after filing those notices

of appeal, defendants petitioned the superior court

for writ of error coram nobis, to set aside the pleas.

After thet petition was denied, each defendant filed

(on December 5, 1975) an "amended notice of appeal"

from the "judgment of conviction" entered August 11,

1975, and stated the grounds for appeal were denial of

the motion to suppress evidence, [denial] of motion

for continuance, denial of petition for writ of error

coram nobis, and denial of equal protection of the law

"because no work furlough program for women."

charged (People v. Stanworth, 11 Cal.3d 588, 605 [114 | (page 12)

Cal.Rptr. 250, 522 P.2d 1058); no other proof was | jurisdiction to take such action during pendency of

necessary (People v. Warburton, 7 Cal.App.3d 815, 821 | the appeal from the judgment.

(86 Cai.Rptr. 894]); | | The judgments are affirmed.

(page 11) | WOOD, P.J.

and the judgment entered upon such plea is not review- | We concur:

able on the merits. (Id.) Because each defendant | THOMPSON, J.

admitted sufficiency of the evidence by pleading | HANSON, J.

guilty, she cannot properly question the sufficiency

evidence on appeal.

Each appellant contends that the trial court

erred in denying her petition for writ of error coram

nobis, wherein she sought an order setting aside her

plea of guilty. Each petition was filed more than two °

months after each petitioner had filed a notice of

appeal from the judgment in her case. Each petition °

alleged in substance that petitioner pleaded guilty

by reason of representations by her counsel that the

jury would not believe her defense, and that she

plead guilty because there was a "package deal" with

her brothers and sisters.

In People v. Haynes,270 Cal.App.2d 318 [75 Cal.

Rptr. 800], defendant (pp. 318-319) filed a notice of

appeal from the judgment before he petitioned the

trial court for writ of error coram nobis. The trial

court granted the petition and vacated the judgment.

On appeal it was held (p. 320) that the trial court

did not have