Petition — Altbaum v. California

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

mA

No. G O94

MARTIN L. ALTBAUM,

Petitioner,

versus

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL — STATE OF CALIFORNIA

Harrington, Waddell & Briggs

Patrick J. Briggs

520 West Ash Street, Suite 300

San Diego, California 92101

Telephone: (714) 238-1355

Attorneys for Petitioner

i

TABLE OF CONTENTS

Page

re Ui. ae eatadekadivcnhes 1

I an thio 4 te Ankh wae Rie « a 2

QUESTIONS PRESENTED ........................- 2

CONSTITUTIONAL PROVISIONS INVOLVED..... 2

ts cob nhs bu duh wc eme seen oebes us 3

STATEMENT OF THE CASE ..................-000- 3

REASONS FOR GRANTING THE WRIT........... 11

EE a ee ee 17

NS a iin bok uvikvde dccntdecueosabiee 18

APPENDICES

A — Opinion of the Court of Appeal

State of California, Fourth

Appellate District

B — Denial of Hearing by the

Supreme Court — State of California

C — Remittitur

‘i

TABLE OF AUTHORITIES

CASES Page

Chapman v. California, 386 U.S. 18, 17 L.Ed.......... 13

2d 705, 87 S.Ct. 824, 24 ALR 3rd 1065

Miranda v. Arizona, (1966) 384 U.S. 436........... 11,12

16 L.Ed. 2d 694, 86 S.Ct. 1602, 10 A.L.R. 3d 974

People v. Arnold (1967) 66 Cal.2d 438, 448,........... 12

58 Cal.Rptr. 115, 425 P.2d 515

People v. Boinus, 153 CA 2d 618, 314 P2d 787........ 15

People v. Boyden, (1953) 116 C.A. 2d 278; 253 ........ 15

P.2d 773

People v. Cale, 74 CA 2d 689; 169 P.2d 649........... 15

People v. Clausen, 120 C 381; 52 P 658............... 15

People v. Dorado, (1965) 62 Cal. 2d 338, ....... 11, 13, 14

398 P.2d 361

People v. Hartridge, 134 CA 2d 659, 286 ............. 15

P.2d 72

People v. Kelley, (1967) 66 Cal. 2d 232, 246, .......... 12

57 Cal.Rptr. 363, 424 P.2d 947

People v. Merchant, 260 CA2d 875, 67 ............... 13

Cal.Rptr459

People v. Reynolds, 149 C.A.2d 290; 308 P.2d 48 ..... 15

People v. Scaggs, (1957) 153 C.App.2d 339, .......... 15

314 P.2d 793

People v. Stewart, 62 Cal.2d 571, 43 Cal.Rptr. 201, ...12

400 P.2d 97

People v. Stout, 66 C.2d 184, 57 Cal.Rptr. 152, ....... 13

424 P.2d 704

Thompson v. Louisville, (1960) 362 U.S. 199, ......... 15

4 L.Ed.2d 654, 80 S.Ct. 624

STATUTES

California Penal Code §496.1 ...............005. 2, 3, 15

SE I Dn. co tcccccesscvececoesese 4

California Penal Code $1118.1 ...........cccsccccccess 10

California Penal Code §1538.5 ...............00000e- 3, 4

California Penal Code §12020(a) .................00005 3

ili

CONSTITUTIONAL PROVISIONS

United States Code, Title 28 §1257(3)........

United States Constitution, Amendment V ..

United States Constitution, Amendment XIV

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No.

MARTIN L. ALTBAUM,

Petitioner,

versus

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEAL — STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

The Petitioner, MARTIN L. ALTBAUM, respectfully

prays that a writ of certiorari issue to review the judgment

of the Court of Appeal, Fourth Appellate District, State of

California, entered September 27, 1978.

OPINIONS BELOW

The Court of Appeal, Fourth Appellate District, State of

California rendered its opinion on July 25, 1978. A copy of

the opinion is attached as Appendix A. The Supreme Court

of the State of California denied Petitioner's Petition for a

Hearing on September 20, 1978. A copy of said Notice of

Denial is attached hereto as Appendix B. The opinion of

the Court of Appeal was entered on September 28, 1978. A

copy of the Remittitur is attached hereto as Appendix C.

JURISDICTION

. On September 28, 1978, the Court of Appeal entered

judgment affirming the judgment of the trial court as to

Count I. Count I violated California Penal Code §496.1 on

March 22, 1977.

The jurisdiction of this Court is involved under Title 28

United States Code, §1257(3). .

QUESTIONS PRESENTED FOR REVIEW

l. Whether Petitioner was questioned and statements

made in violation of the Fifth Amendment?

2. Whether the judgment of conviction was supported

by the evidence in violation of the Fourteenth

Amendment?

CONSTITUTIONAL PROVISIONS INVOLVED

1. UNITED STATES CONSTITUTION,

AMENDMENT V:

‘No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be

taken for public use, without just compensation."’

2. UNITED STATES CONSTITUTION,

AMENDMENT XIV:

‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

ie,

citizens of the United States and of the State

wherin they reside.”’

STATE STATUTES

CALIFORNIA PENAL CODE SECTION 496.1:

‘Every person who buys or receives any property

which has been stolen or which has been obtained

in any manner constituting theft or extortion,

knowing the property to be so stolen or obtained,

or who conceals, withholds or aids in concealing or

withholding any such property from the owner,

knowing the property to be so stolen or obtained,

is punishable by imprisonment in a state prison for

not more than 10 years, or in a county jail for not

more than one year; provided, that where the

district attorney or the grand jury determines that

such action would be in the interests of justice, the

district attorney or the grand jury, as the case may

be, may, if the value of the property does not

exceed two hundred dollars ($200), specify in the

accusatory pleading that the offense shall be a

misdemeanor, punishable only by imprisonment in

the county jail not exceeding one year.”

STATEMENT OF THE CASE

Petitioner was charged in Information No. 40472, Count

One with violation of California Penal Code Section 496.1

(receiving stolen property); Count Two charged violation of

California Penal Code 12020(a) (possession of sawed-off

shotgun). It was also alleged that Petitioner had suffered

seven (7) prior convictions on March 29, 1977, for violation

of Penal Code Section 496.1 (C.T. 1-2).

Prior to trial, on July 20, 1977, petitioner brought

Motions to Suppress Evidence, (California Penal Code

Section 1538.5), and to Dismiss the Indictment (California

—

4

Penal Code Section 995). (C.T. 11). By Minute Order dated

July 21, 1977, the Honorable WILLIAM T. LOW, Judge of

the Superior Court, denied Petitioner's Motions brought

pursuant to Penal Code Sections 1538.5 and 995. (C.T. 12).

Trial on this matter was held on September 12, 13, 14, 15,

19 and 20, 1977, without jury, the Honorable WILLIAM

A. YALE, Judge Presiding. (C.T. 19-24). At the close of the

Peoples case Petitioner's Motion for Judgment of

Acquittal pursuant to California Penal Code Section

1118.1 was denied as to Count One and granted as to Count

Two. (C.T. 23). On September 20, 1977, after hearing

closing argument by both parties, Petitioner was found

guilty of violation of Penal Code Section 496.1 as charged

in Count One. (C.T. 24).

On October 25, 1977, Judge YALE placed Petitioner on

probation for a period of three years, however, as a

condition of probation ordered Petitioner into the custody

of the Sheriff for a period of one year, sentence executed

forthwith. (C.T. 25).

At the trial of this matter, witness Irving Aronson was

called by the People and testified that sometime between

11:00 a.m. and 6:00 p.m., on April 27, 1976, his residence,

located at 730 Country Club Lane, Coronado, California,

was burglarized. (Reporter's Transcript, page 7

(hereinafter R.T.)). Mr. Aronson testified that of a total of

26 rings stolen in the burglary, two (2) rings were his. (R.T.

8). The remaining 24 rings belonging to his wife, Agatha

Aronson. Mr. Aronson identified People’s Exhibit 2 as his

gold ring with black onyx stone (R.T. 8-10) stolen in the

April 27, 1976, burglary. Mr. Aronson testified that his

other ring has never been recovered. (R.T. 14).

Agatha Aronson was called as a witness by the People

and testified that she has resided at 730 Country Club

Lane, Coronado, California, for nine years (R.T. 15); that on

April 27, 1976, she returned home with her husband and

discovered her residence had been burglarized. (R.T. 17-18)

and 26 rings stolen (R.T. 19, 1. 8). Of the 26 missing rings,

two belonged to Mr. Aronson (R.T. 19).

5

After discovering the theft she contacted the Coronado

Police Department and supplied the Police with an

appraisal list of the rings. (R.T. 19).

The next time Mrs. Aronson saw any of the stolen rings

was on March 13, 1977, while she and her husband were

shopping at the Coin Mart store in Chula Vista, California.

(R.T. 20). At that time out of a few hundred rings in the

store (R.T. 21), she recognized seven (7) of her rings (R.T.

20, 1.26) distributed in different display cases within the

Coin Mart (R.T. 21).

Mrs. Aronson called the Coronado Police Department

and reported her discovery of the seven rings to Sgt. Hall

(R.T. 22) indicating to him on her appraisal list the rings

she had seen at the Coin Mart (R.T. 23).

Approximately a week later, Mrs. Aronson returned to

the Coin Mart with San Diego County Deputy Sheriffs and

Sgt. Hall, and again observed the seven (7) rings (R.T.

23-24). Later Mrs. Aronson accompanied the deputy

sheriffs serving a search warrant at the Coin Mart. At that

time she identified seven (7) rings for the deputy sheriffs

(R.T. 24). Again the store contained, in Mrs. Aronson’s

estimation, a few hundred rings. (R.T. 26).

Mrs. Aronson identified the following exhibits as rings

belonging to her and stolen in the April 23, 1976, burglary:

Exhibit 1 — gold cameo ring (R.T. 28).

Exhibit 3 — gold ring with six colored jadite stones (R.T.

33).

Exhibit 4 — gold and black or blue pear! ring (R.T. 37).

Exhibit 5 — gold ring with 2 gray pearls and 2 diamonds

(R.T. 41).

Exhibit 6 — gold ring with cluster of white pearls (R.T.

45).

Exhibit 7 — gold ring with pearl and 2 diamonds (R.T.

49).

On cross-examination, Mrs. Aronson testified that all of

the rings she identified as hers had been on public display

at the Coin Mart, visible to all parties entering that store.

6

(R.T. 55). That she had ample time to go through the store

and determine that the balance of the rings stolen from her

were not located at the Coin Mart. (R.T. 57).

Mrs. Aronson testified she purchased People’s Exhibit 4

at FedMart for $30.00 (R.T. 73), that she has seen a lot of

rings like Exhibit 4; in fact, on the evening the search

warrant was executed, she observed a ring, “‘. . . just like iv:,

but just a little larger.” (R.T. 73, line 22).

Mrs. Aronson testified that she saw a ring identical co

People’s Exhibit 2 within the past couple of months (R.T.

75); that she has seen rings similar to People’s Exhibit 6

(R.T. 77); that she has seen rings identical to People’s

Exhibit 7 at a couple of places, and that it is mass-

produced (R.T. 78-79); that rings similar to Exhibit 3

(multi-colored jade) are common. (R.T. 79).

The People next called Gary T. Fisher, Deputy Sheriff,

County of San Diego (R.T. 85) who testified he was

assigned to the Fencing Detail of the Sheriff’s Department

(R.T. 86). Deputy Fisher testified that Sgt. R. Hall of the

Coronado Police Department contacted him and related

that he (Hall) had been contacted by a victim of a burglary

(Mrs. Aronson), occurring approximately a year ago, that

she related that she knew the whereabouts of some of her

stolen property. Sgt. Hall asked Deputy Fisher’s

assistance in the matter. (R.T. 88-89).

Deputy Fisher testified that Petitioner, MARTIN L.

ALTBAUM is the owner of the Coin Mart located at 255

Third Avenue, Chula Vista, California (R.T. 93).

After Deputy Fisher procured a search warrant for a

search of the Coin Mart on March 22, 1977 (R.T. 95) he,

Mrs. Aronson and nine other officers proceeded to the Coin

Mart (R.T. 95-96).

At approximately 4:00 p.m., Deputy Fisher entered the

Coin Mart (R.T. 95, 1. 19), contacted the Petitioner (R.T.

96, 1. 13) and identified himself as a deputy sheriff. (R.T.

97, 1. 20-21). Deputy Fisher stated to Petitioner that he

was the investigating officer, that he had a search warrant

Ege <=

for the premises and that if Petitioner had any questions,

to direct them to Deputy Fisher. (R.T. 98, 1. 8-10). Deputy

Fisher exited the store and returned with Mrs. Aronson

(R.'T. 100). Mrs. Aronson entered the store and picked out

seven rings she identified as hers {R.T. 100 1. 19-24).

Petitioner indicated to Deputy Fisher that he would be

more than glad to cooperate in the investigation. (R.T. 100,

1. 8-12). As the seven rings were removed from the display

case, Deputy Johnson marked each ring (R.T. Vol. II, 2).

After the rings had been removed from the display cases

and tried on by Mrs. Aronson, Deputy Fisher asked

Petitioner if he could produce any documents, pawn slips,

invoices, bills of lading, receipts or any documents that

could substantiate his ownership of these particular rings

or how they came into his possession. (R.T. Vol. II 6).

Over objection of defense counsel that Petitioner’s

response to Deputy Fisher’s question would be hearsay if

not an admission, or in the alternative, made without an

admonishment of constitutional rights (R.T. Vol. II, 7), the

Court allowed Deputy Fisher to testify that Petitioner said

he did have evidence of ownership and that the documents

were in the possession of his attorneys. (R.T. Vol. II, 8).

Petitioner, after receiving permission, called his

attorneys, who subsequently arrived at the Coin Mart.

(R.T. Vol. II, 8).

During voir dire examination, on the issue of whether a

Miranda admonishment should have been given Petitioner

prior to eliciting any statements regarding how Petitioner

had come into possession of the rings, Deputy Fisher

testified that: ‘he possessed a search warrant for the Coin

Mart on March 22, 1977, when he entered that store (R.T.

Vol. II, 20); he knew Petitioner had just stood trial and had

been convicted of receiving stolen property (R.T. Vol. II,

21); the victim, Mrs. Aronson had identified property at

the Coin Mart (seven rings), she believed to have been

stolen in a burglary of her residence on April 27, 1976 (R.T.

Vol. II, 23); the rings identified by Mrs. Aronson matched

8

the victim's appraisal list in Deputy Fisher's possession

(R.T. Vol. II, 26); Deputy Fisher had a very strong

suspicion that the rings seized belonged to Mrs. Aronson

(R.T. Vol. II) and that Petitioner was in possession of

stolen property (R.T. Vol. Il, 26, 1. 14; 26 1. 4); further,

Deputy Fisher entered the Coin Mart with nine (9) other

Police Officers (R.T. Vol. II, 40).

Over further objection of defense counsel that a Miranda

admonishment should have been given Petitioner (R.T.

Vol. II, 66-74), or that the testimony if not an admission,

was hearsay (R.T. Vol. II, 77) Fisher was permitted to

testify that: Petitioner showed him an invoice (People's

Exhibit 20) showing ownership of People’s Exhibit 3

(multi-colored jade ring) (R.T. Vol. II, 75); that Petitioner

said that People’s Exhibit 3 was a new ring which had

come into the store on April 23, 1976 (R.T. Vol. II, 77):

Petitioner produced a cash receipt dated January 28, 1976,

from the Department of Treasury, U.S. Customs Service

(People’s Exhibit 21 — R.T. Vol. II, 80) which listed 1,139

pieces of assorted gold jewelry, rings, bracelets, metals,

broaches and miscellaneous pieces and indicated that

People’s Exhibit 1 was contained in that purchase. (R.T.

Vol. II, 50). Petitioner indicated that, “. . . he’s purchased

quite a large quantity of jewelry from these auctions, and

that it was his belief that the reason it happened to be in

that particular auction was that possibly it was there

because it did not have any “K”’ marking to denote the

quality of the gold in the ring, and so he stated to me that’s

why Customs seized the ring.” (R.T. Vol. II, 7-12);

Petitioner stated people's Exhibit 2 had been in his store

for over a year and a half, that he didn’t have a written

invoice and did not know how the ring came to be in his

store (R.T. Vol. II, 83); Petitioner did not produce any

papers showing ownership of People’s Exhibit 4 and

indicated that he didn’t know where it came from or how it

happened to be in the store. (R.T. Vol. II, 84). Petitioner

said People's Exhibit 6 and 7 possibly could have been part

——— ee ee - =

9

of the Customs purchase described in People’s Exhibit 20

(R.T. Vol. II, 84) because he believed - = been in the

tore since early 1976 (R.T. Vol. II, 85, 1. 4).

' On cross pty otahind Deputy Fisher testified that 75 to

80 percent of the time Petitioner's Attorney Beccarelli was

present during his conversations with Petitioner regarding

where Petitioner had obtained the rings. (R.T. Vol. I, 92).

Deputy Fisher observed three to four hundred rings in

the show cases of the Coin Mart. (R.T. Vol. II, 99).

Petitioner told Deputy Fisher that he has purchased

jewelry ‘Trém Customs, estate sales, other pawn shops,

jewelers, wholsesalers and swap meets. (R.T. Vol. II, p.

110-111).

Witness Lynn Carey who has been employed by G. H.

Sanders, jewelry store for six years (R.T. Vol. II, 131) was

called by the People and testified that: People’s Exhibit 1

(cameo ring) is a ring manufactured in any number of

similar rings (R.T. Vol. I1, 138) and that she has seen such

rings in other stores (R.T. Vol. II, 139); People’s Exhibit 3

(gold ring with six multi-jade stones) was a common ring

that she has seen many of (R.T. Vol. II, 142); People’s

Exhibit 4 (Fed Mart ring) is a common cast ring (R.T. Vol.

I, 140). yen

sites Cavey testified that if somebody were to bring in

the seven rings into her store for either pawn or for the

purchase of sale that there was nothing about the rings

that would indicate they were stolen or belonged to

someone else. (R.T. Vol. II, p. 138-149, 1. 4-7). Miss Carey

said the pawn loan price of the seven rings would be less

than $200.00.

Edward Benjamin, a stipulated jewelry expert was called

by the People and testified that: People’s Exhibit 4 and

defendant’s Exhibit A are almost identical, and that he

couldn’t tell the difference. (R.T. Vol. II, 169); People’s

Exhibit 3 and 5 are common rings (R.T. Vol. II, 179); he has

sold six or seven dozen rings identical to People’s Exhibit 2

(man’s black onyx ring) (R.T. Vol. II 180); it's impossible

10

for a pawn broker just looking at the seven rings to be able

to know the ownership of them (R.T. Vol. II, 180-181); if he

purchased the seven rings from someone he would pay the

same value that a pawn shop would pay, $125.00. (R.T. Vol.

II, 183-184); from his personal knowledge of the pawn shop

business, the seven rings identified by Mrs. Aronson would

be a very insignificant purchase for a pawn shop. (R.T. Vol.

II, 185).

At the close of the People’s case, Petitioner moved for a

judgment of Acquittal pursuant to Penal Code Section

1118 (R.T. Vol. I1, 16-30). The Court denied the Motion as

to Count I but granted the judgment of Acquittal as to

Count II (R.T. Vol. III, 34-35).

Kurt Reichert, an employee at the Coin Mart, was called

and testified that during March or April 1976, Petitioner

also owned a second pawn shop that was managed by

another person. That two or three times a month

merchandise, including rings, could be brought from the

second store to the Coin Mart in Chula Vista for sale to the

public. Further, that this merchandise was not inventoried

at the Coin Mart. (R.T. Vol. III, 40). Mr. Reichert testified

that the 1,138 pieces of assorted jewelry, represented in

People’s Exhibit 21 (U.S. Customs receipt) arrived at the

Coin Mart in two or three cardboard boxes containing

plastic bags and that the items were not inventoried before

being put on display for sale. (R.T. Vol. III, 41). There were

four to five thousand rings in the Coin Mart on March 22,

1977, of which two thousand were on display. (R.T. Vol.

III, 47). Mr. Reichert testified that he had seen the seven

rings identified by Mrs. Aronson in the store prior to

March 22, 1977, but did not know where they came from,

although he very possibly could have purchased them

himself. (R.T. Vol. III, 48). During the months of April to

December 1976, Petitioner spent a major portion of his

time running another business, spending only

approximately 1 hour per day at the Coin Mart (R.T. Vol.

III, 8-81) while Mr. Reichert was responsible for running

—

eS cree

11

the store (R.T. Vol. III, 48-49). All of the rings were

regarded as common by Mr. Reichert. (R.T. Vol. III, 49).

Mr. Reichert testified he would give a loan (pawn) on the

seven rings of $50.00, and if it were an outright purchase,

he would pay $75.00 to a maximum of $100.00 (R.T. Vol.

III, 60). 7

Petitioner’s attorney, Anthony S. Beccarelli, testified

that he and attorney, Thomas R. Waddell, went to the Coin

Mart on March 22, 1977 (R.T. Vol. III, 100). At the Coin

Mart, Mr. Beccarelli testified that at no time did he hear

Petitioner state to the deputy sheriff that he specifically

knew where any of the rings came from (R.T. Vol. III, 104),

but that after Petitioner examined the rings he indicated

that the rings ‘“‘possibly’’ came from U.S. Customs auction

because of the lack of ‘‘K”’ markings on some of the rings.

(R.T. Vol. III, 104).

After the close of testimony and argument the Court

found Petitioner guilty of Count One (Receiving Stolen

Property), although the Court indicated that “there is the

susceptibility of dual interpretations from the evidence.

(R.T. Vol. III, 131-132).

REASONS FOR GRANTING THE WRIT

I

The Decision Of The Court Below Is In Conflict

With This Court’s Ruling in Miranda v. Arizona

Petitioner contended at the time of trial, and now

contends that prior to any questioning, Petitioner should

have been advised of his “Miranda” rights (Miranda v.

Arizona, (1966) 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct.,

1602; People v. Dorado, (1965) 62 Cal.2d 338, 398 P.2d 361),

and that any alleged statements made to deputy Fisher

should not have been admitted during the trial.

12

Under Miranda, supra, the duty of the police to advise a

defendant of his rights arises ‘‘when the individual is first

subjected to police interrogation while in custody at the

station or otherwise deprived of his freedom of action in

any significant way.’ It was specifically noted by the court

that “Our decision is not intended to hamper the

traditional function of police officers in investigating crime

. In such situations the compelling atmosphere

inherent in the process of incustody interrogation is not

necessarily present.”’

In People v. Arnold, (1967) 66 Cal.2d 438, 448, 58

Cal.Rptr. 115, 426 P2d 515), the California Supreme Court

recognized that custody could occur other than by the

physical deprivation of a subject’s freedom of action in any

significant way. It was there held that custody occurs if a

suspect “‘is led to believe, as a reasonable person,”’ that he

is being deprived or restricted of his freedom of action

under pressures of official authority. (See People v. Kelley,

(1967) 66 Cal.2d 232, 246 (57 Cal.Rptr. 363, 424 P2d 947).

In People v. Kelley, supra, (at page 245), the Court

discussed the practical application of the Miranda, supra,

rules:

‘The rule is that a confession is inadmissible when

at the time it is obtained (1) the investigation no

longer is a general inquiry into an unsolved crime

but has begun to focus on a particular suspect, (2)

the suspect is in custody, (3) the authorities have

carried out a process of interrogations that lends

itself to eliciting incriminating statements, and (4)

the authorities have not effectively informed

defendant of his rights to counsel or of his absolute

right to remain silent, and no evidence establishes

that he has waived these rights.” (People v.

Dorado, 62 Cal.2d 338, 353-354 (42 Cal.Rptr. 169,

398 P.2d 361); People v. Stewart, 62 Cal.2d 571 (43

Cal.Rptr. 201, 400 P.2d 97); Miranda v. Arizona,

13

384 U.S. 436 (16 L.Ed2d 694, 86 S.Ct. 1602, 10

A.L.R. 3d 974).

“The second issue, whether defendant was in

custody at the time she made the statement,

presents the crucial problem of the case. Although

we have consistently and expressly held that

custody constitutes an essential element of the

accusatory stage, we have recognized that custody

could occur in a situation in which defendant had

not been arrested but his freedom of movement

curtailed. In the instant case we are called upon to

define more precisely the elements in the

curtailment of that freedom of movement .. .”’

The admission into evidence of Petitioner's statements

was prejudicial error. Self incrimination deemed to have

resulted from an improperly received admission does not

necessarily require reversal, as distinguished from an

improperly admitted confession. (People v. Stout, 66 C2d

184, 57 Cal.Rptr. 152, 424 P2d 704). Under a provision of

the constitution of California (See Const. Art. VI, Section

13), an appellate court is required to disregard error that is

non-prejudicial, (People v. Merchant, 260 CA2d 875, 67

Cal.Rptr. 459), and federal rights are concerned if the error

is non-prejudicial beyond a reasonable doubt. (Chapman v.

California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, 24

ALR 3d 1065, reh.den. 386 U.S. 987, 18 L.Ed.2d 241, 87

S.Ct. 1283.). This means that before a_ federal

constitutional error can be held harmless, the reviewing

court must be able to declare a belief that the error was

harmless beyond a reasonable doubt. Stated differently,

the reviewing court must determine whether the

prosecution has proved beyond a reasonable doubt that the

error in receiving the admission in evidence did not

contribute to the verdit obtained.

The following facts bring the instant case within the

Miranda, Dorado rules.

14

The Deputy Sheriff had been advised by Mrs. Aronson

that her stolen jewlery was located at the Coin Mart (R.T.

88-89); Deputy Fisher accompanied Mrs. Aronson to the

Coin Mart where she identified seven rings in open display

cases as belonging to her (R.T. 23-24); the deputy checked

the descriptions of the seven rings with an appraisal list

supplied by Mrs. Aronson and they matched said

descriptions (R.T. 23); the deputy knew Petitioner was the

owner of the Coin Mart (R.T. 93); the deputy knew

Petitioner had been arrested and charged with receiving

stolen property recently, and was in fact on trial for said

offense at that very time (R.T. Vol. II, 20); Deputy Fisher

applied for and received a search warrant for the Coin Mart

on March 22, 1977 (R.T. 95); Deputy Fisher proceeded to

the Coin Mart with Mrs. Aronson and nine other officers to

execute the search warrant (R.T. 95-96); at the Coin Mart,

Mrs. Aronson identified the rings, tried them on and they

appeared to fit (R.T. Vol. II, 2-3); Petitioner appeared

visibly shaken at that time (R.T. Vol. II, 5); Petitioner

asked if he could telephone his attorneys (R.T. Vol. II, 8);

prior to questioning the Deputy Sheriffs began an

extensive search of the Coin Mart in Petitioner's presence

(R.T. Vol. Il, 40); Deputy Fisher had a strong suspicion

that Petitioner was in possession of stolen property (R.T.

Vol. II, 26 & 29); that Petitioner was questioned without

being admonished of his constitutional rights (R.T. Vol. II,

66-74); there was no testimony that Petitioner was ever

told that he was free to leave the Coin Mart.

It clearly appears from the above facts that the

investigation was no longer a general inquiry into an

unsolved crime but had begun to focus on Petitioner; that

the authorities had carried out a process of interrogations

that leads itself to eliciting incriminating statements; that

Petitioner was, or believed, he was in custody or deprived

of his freedom in any significant way; and that Petitioner

was not admonished of his constitutional rights prior to

making the statements sought to be excluded. (People v.

Dorado, supra.)

15

II

The Decision Of The Court Below Is In Violation

Of The Fourteenth Amendment

Petitioner contends that there was no evidence to

support the finding of the court that Petitioner was guilty

of violation of California Penal Code Section 496.1.

The landmark case on the question whether a denial of

due process of law inheres in a conviction of crime at the

conclusion of a trial is Thompson v. Louisville, (1960) 362

U.S. 199, 4 L.Ed.2d 654, 80 S.Ct. 624, 80 ALR 2d 1355. In

that case Justice Black, speaking for a unanimous Court,

found that a criminal conviction based upon the lack of any

evidence violated the due process clause of the United

States Constitution.

Petitioner contends that the evidence presented at trial

taken as a whole, lacks any evidence sufficient to support

his conviction of counts of violation of Penal Code Section

496.1, particularly, that there was no evidence of his

‘‘knowledge”’ that the property was stolen.

A conviction for receiving stolen property cannot

withstand appellate scrutiny unless substantial evidence

was presented to the trier of fact that (1) the property was

received, concealed, or withheld by the accused; (2) such

property had been obtained by theft or extortion, and (3)

the accused knew that the property had been so obtained.

(People v. Scaggs, (1957) 153 C.App.2d 339, 314 P2d 793).

Guilty knowledge may be inferred from surrounding

conditions and circumstances (People v. Cale, 74 CA2d 689;

169 P2d 649; People v. Boyden, (1953) 116 C.A.2d 278; 253

P2d 773), such as inadequacy of price, (People v. Clausen

120 C381; 52 P658; People v. Reynolds, 149 C.A.2d 290,

308 P2d 48), character of the vendor (People v. Boyden,

supra; People v. Boinus, 153 CA2d 618, 314 P2d 787), the

kind of property, and the time when received (People v.

Hartridge, 134 CA2d 659, 286 P2d 72).

16

Essentially, the trial evidence in the instant case can be

summed up as follows: Mr. and Mrs. Aronson’s residence

was burglarized on April 27, 1976, some 26 rings veing

stolen (R.T. 8); eleven months later, on March 13, 1977,

Mrs. Aronson observed only seven of the stolen rings in a

pawn shop, known as the Coin Mart, in Chula Vista (R.T.

20); a search warrant was issued for the Coin Mart on

March 22, 1977, and executed, seven rings belonging to the

Aronson's being seized (R.T. 65); that some two thousand

rings were on display at the Coin Mart for sale on March

22, 1977 (R.T. Vol. III, 41); that there was nothing inherent

in the rings to suggest they had been stolen (R.T. Vol. II,

180-181); that the seven rings were common types (R.T.

Vol. III, 49); that in April to December 1976 Petitioner

spent only approximately 1 hour per day at the Coin Mart

because he was running another business (R.T. Vol. III,

80-81); three witnesses testified the purchase value of the

rings to be less than $200 (Lynn Carey, R.T. Vol. II,

149-150; Edward Benjamin R.T. Vol. II, 183-184; Kurt

Reichert R.T. Vol. III, 60); that a purchase of the seven

rings in issue would be a very insignificant purchase for a

pawn shop (R.T. Vol. III, 185); that Petitioner allegedly

stated to Deputy Fisher, without being advised of his

constitutional rights, an invoice (People’s Exhibit 20)

which reflected the purchase of a multi-colored jadite ring

that Petitioner believed to be People’s Exhibit 3 (R.T. Vol.

II, 75); and that Petitioner produced a cash receipt from

U.S. Customs (People’s Exhibit 21) listing 1,139 pieces of

assorted jewelry from which he allegedly told Deputy

Fisher People’s Exhibit 1 came from (R.T. Vol. II, 50).

To sustain Petitioner's conviction in this case would

necessitate the elimination of the element of ‘‘guilty

knowledge”’ from the offense of receiving stolen property

and instead make it a violation of law merely to be in

possession of property that at some point in time was

stolen.

17

CONCLUSION

For the foregoing reasons, the Petitioner, MARTIN L.

ALTBAUM, respectfully prays that a Writ of Certiorari

issue to review the decision below.

December 14, 1978

HARRINGTON, WADDELL & BRIGGS

py PATRICK J. BRIGGS

PATRICK J. BRIGGS

Attorney for ALTBAUM

18

MARTIN L. ALTBAUM, Petitioner

versus

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent

Attorney:

HARRINGTON, WADDELL & BRIGGS

520 West Ash St., Ste. 300

San Diego, CA 92101

(714) 238-1355

CERTIFICATE OF MAILING

I, the undersigned, say: I am over 18 years of age,

employed in the County of San Diego, California, in which

County the within mentioned mailing occurred, and not a

party to the subject cause. My business address is 520

West Ash Street, Suite 300, San Diego, California 92101.

I served the PETITION FOR A WRIT OF

CERTIORARI TO THE COURT OF APPEAL — STATE

OF CALIFORNIA, of which a true and correct copy of the

document filed in the cause is affixed, by placing a copy

thereof in a separate envelope for each addressee named

hereafter, addressed to each such addressee respectively,

as follows:

EVELLE J. YOUNGER, Attorney General

110 West A Street, Suite 600

San Diego, California 92101

19

Each envelope was then sealed and with the postage

thereon fully prepaid deposited in the United States mail

by me at San Diego, California, on

I declare under penalty of perjury that the foregoing is true

and correct.

Executedon _DEC 18 1978 at San Diego, California.

PATRICK J. BRIGGS

PATRICK J. BRIGGS

CERTIFICATE OF MAILING

la

APPENDIX A

COURT OF APPEAL: FOURTH DIST,

IN THE COURT OF APPEAL, Bw ws H.

FOURTH APPELLATE DISTRICT ie WA ve JU

DIVISION ONE | “

STATE OF CALIFORNIA anes 5 Spay ar,

The People of the State of California )

Plaintiff and Respondent, 4 Cr. No. 8775

versus (Sup. Ct. No, CR

MARTIN LAWRENCE ALTBAUM, 40472)

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San

Diego County. William A. Yale, Judge. Affirmed.

After unsuccessful pretrial motions to suppress evidence

(Pen. Code, §1538.5) and to dismiss (Pen. Code, §995),

defendant Martin Lawrence Altbaum (Altbaum) waived

jury, was tried by the court and found guilty of one count

of receiving stolen property (Pen. Code, §496.1). Altbaum

was granted three-year’s probation conditioned upon one

year in custody of the Sheriff of San Diego County.

On appeal he contends (1) he should have been given a

Miranda (Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602})

warning before the police solicited any statements from

him; therefore admission of his statements so obtained was

prejudicial, and (2) the evidence is insufficient to support

his conviction — to show “guilty knowledge.”

FACTS

On April 27, 1976, the Coronado residence of Mr. and

Mrs. Aronson was burglarized and 26 rings stolen. Most of

the rings had been professionally appraised; as a result, the

police were given a detailed inventory of the stolen jewelry.

2a

In March 1977, eleven months after the burglary, Mrs.

Aronson spotted 7 of the missing rings in showcases at the

Coin Mart, the pawn shop, second-hand store Altbaum

then operated in Chula Vista. She immediately notified the

Coronado police.

On March 22 Deputy Sheriff Fisher accompanied by 9

other law enforcement officers and Mrs. Aronson went to

the Coin Mart to execute a search warrant for the stolen

property. Fisher identified himself to Altbaum and

explained he was there to investigate a year-old burglary

and to search for stolen jewelry. Mrs. Aronson pointed out

the 7 rings and Altbaum removed them from the display

cases. Mrs. Aronson tried on the 7 rings and each in turn

fit. Altbaum “appeared to be visibly shaken.’’ Deputy

Fisher then asked Altbaum if he could produce any

documents, pawn slips, invoices, bills of lading, receipts or

other documents that could substantiate his ownership of

these particular rings or how he came into their possession.

Altbaum said he did have evidence of ownership but the

documents were in the possession of his attorneys.

Altbaum then telephoned his attorneys and asked them to

bring the documents to the Coin Mart. For the next hour

whi'e awaiting their arrival, Altbaum moved freely about

the store making telephone calls, talking to his employees.

No officer was assigned to watch him, no announcement of

arrest was made. He was at times out of sight of the police.

When Altbaum’s two attorneys arrived, they talked

briefly with Deputy Fisher, read the search warrant and

then conferred privately with Altbaum several times, at

least once outside the store. The search then began with

Altbaum and his attorneys cooperating. From this point

onward all the police conversation with Altbaum as well as

his attempts to substantiate ownership of the 7 rings,

verbal and documentary, were in the presence of one or

both of his attorneys.

With an attorney aiding, Altbaum showed documents to

Fisher purporting to be evidence of purchase of certain otf

3a

the rings and gave verbal explanations concerning the

characteristics (new or used, gold quality, etc.) of certain of

the rings.

These conversations, these efforts by Altbaum to

substantiate the ownership by documents precipitated his

immediate arrest. He was then given the Miranda

warnings.

ISSUES

Altbaum asserts before any questioning by the police in

this fact circumstance he should have been advised of his

Miranda rights; the police knew he had stolen rings on his

premises; when 10 officers appeared at his store with a

search warrant, he as a reasonable man could believe his

freedom of movement was restricted in a significant way.

Therefore he argues he was in ‘‘custody"’ and the Miranda

warning due.

The duty to give the Miranda admonishment arises when

(1) the investigation has begun to focus on a particular

suspect, (2) the suspect is in custody, and (3) the

authorities are about to subject him to a process of

interrogation which lends itself to eliciting incriminating

statements. (Miranda v. Arizona, supra, 384 U.S. 436 [86

S.Ct. 1602]; People v. Kelley, 66 Cal.2d 232, 246.) A suspect

is in custody when he is led to believe, as a reasonable

person, that his freedom of movement is restricted under

pressure of official authority. (People v. Arnold, 66 Cal.2d

438, 448.)

The Miranda rule was prompted by the recognition of the

dangers inherent in ‘incommunicado interrogation of

individuals in a police-dominated atmosphere."’ (Miranda v.

Arizona, suprg, at p. 445.) Its requirement of warning is

triggered when the suspect is subject to ‘‘custodial inter-

rogation.”’ (/d at p. 444, 478.) Thus custody is the critical

element. However, every temporary detention — albeit a

da

species of custody — need not be preceded by the admon-

ishment. There must be a ‘‘significant restraint.’’ The point

in time when a transitory restraint becomes in any way

significant and the warning required was bracketed thus in

People v. Manis, 268 Cal.App.2d 653, 667:

“Temporary detention only slightly resembles

custody, ‘as the mist resembles the rain.’* True

enough, a person temporarily detained has been

subjected to some restraint and his freedom of

movement has been temporarily restricted. But

the person detained is in no sense an accused but

rather one merely suspected of misconduct. Since

the police can make no valid accusation against

him, we do not think the process has shifted from

investigatory to accusatory [citation], or that an

investigation has ‘focused on an accused’

[citation]. Only when suspicion focuses sharply

enough to provide reasonable cause for arrest or

charge does the relationship between the police

and the person detained become that of accuser

and accused.”’

(See also People v. Herdan, 42 Cal.App.3d 300, 310, fn. 17;

People v. Murphy, 8 Cal.3d 349, 362.)

We conclude the Miranda rules do not apply to general

on-the-scene investigatory questioning where probable

cause to arrest has not yet surfaced. (People v. Hill, 12

Cal.3d 731, 767; People v. Miller, 71 Cal.2d 459, 480-482.)

Possession of stolen property without ‘‘guilty knowledge”’

is not a crime. At the outset of the contact with Altbaum,

Deputy Fisher had no factual base for inferring that

Altbaum knowingly received or possessed the stolen

property. Altbaum may have purchased the property from

some legitimate source without knowing it was stolen. The

questions Fisher first asked were calculated to elicit

*Longfellow: ‘The Day Is Done.”’

5a

statements which could exonerate Altbaum. When

Altbaum stated his attorneys had the records of owner-

ship, the questioning stopped. The statements made after

the attorneys had arrived and in their presence gave rise to

probable cause to arrest. As to these latter statements

Miranda rules do not apply. In People v. Honeycutt, 20

Cal.3d 150, 160, the court said:

“It must be remembered that the purpose of

Miranda is to preclude police interrogation unless

and until a suspect has voluntarily waived his

rights or has his attorney present.’’ (Emphasis

added.)

Finally, the uncontested facts here warrant our

conclusion that Altbaum could not reasonably have

believed his freedom was subject to any significant

restraint. He moved about, even outside, without

hindrance, without supervision by the police. He

telephoned and talked to employees. Such restriction is not

the custody that triggers the Miranda warnings.

Altbaum’s next contended the evidence is insufficient to

support his conviction. Upon such a challenge, we view the

evidence in the light most favorable to the People and

presume, as we must, in support of the judgment the

existence of every fact the trier could reasonably deduce

from the evidence. (People v. Reilly, 3 Cal.3d 421, 425.) The

test is not whether we are convinced upon a reasonable

doubt but whether the conclusion of the trier of fact is

reasonable, i.e. whether it is supported by substantial

evidence. (People v. Reyes, 12 Cal.3d 486, 496-497.) The

testimony of Mrs. Aronson and Deputy Fisher established

beyond doubt the first two elements of the offense:

Altbaum’s possession of the stolen property. One element

remained to be proved — that Altbaum knew the property

was stolen. (People v. Vann, 12 Cal.3d 220, 224.) Such state

of mind may be shown by circumstantial evidence.

Altbaum’s guilty knowledge could reasonably be

inferred from these circumstances: (a) When Mrs. Aronson

6a

placed the rings on her finger and each in turn fit, Altbaum

was ‘visibly shaken.’’ This without doubt described

conduct is ambiguous and its weight questionable, but this

is for the trier of fact to evaluate; (b) Altbaum showed a

document to Deputy Fisher as proof of his ownership of a

ring. Competent evidence contradicted Altbaum’s

assertion. The invoice was not for that ring; (c) Altbaum

told the police certain of the rings were new. Competent

evidence indicated the rings were worn — used; (d)

Altbaum said he obtained three of the rings from a United

States Customs auction. He, however, had no invoice

except one covering 1139 pieces of assorted jewelry; (e)

Despite his efforts, aided by his counsel, Altbaum

produced no documentary evidence whatsoever of title to

any of the 7 stolen rings. Therefore his first representation

that he had documents of title was false; (f) In the record

producing effort there appears a glaring void. Altbaum

lacked inventory records, acquisition records, cost records,

absolutely essential for tax purposes as well as for his

ordinary accounting needs as a business man needing to

know his profit or loss status. Altbaum’s conduct, his

arguably false statements, his tendering of, reliance upon

inapplicable documents of ownership, his total lack of

business records, add, in sum to substantial evidence

warranting the trial court’s conclusion that Altbaum

possessed the required guilty knowledge.

Judgment affirmed.

J. Staniforth

WE CONCUR:

P. J. Brown

J. Cologne

7a

APPENDIX B

CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

Cafe ria)) aaa CauirorniA 94102

I have this day filed Order-

—____People ss ace

VS,

Altbaum Sr.

Respectfully,

G. E. BISHEL

Clerk

57371.077 1.78 3m Os

8a

APPENDIX C

IN THE

Court of Appeal, Fourth Appellate District

State of California

DIVISION__ONE. i L Et

Robert 0 Jumwelt, Clerk A)

4 Crim. No, 8775 SEP 2 71978

"—$— cf

THE PEOPLE OF THE STATE OF \ REMITTITUR

CALIFORNIA,

Plaintiff and Respondent,

Surenmon Count No. CR 40472

VS. } County or San Diego

MARTIN LAWRENCE ALTBAUM, |

Defendant and Appellant.

ROBERT L. FORD

Clerk of the Court of Appeal, Fourth Appellate District, State of

) 8

California, certify the attached is a true and correct copy of the original opinion or decision entered

in the above entitled causeon = July 25, 1978 and this opinion or decision

has now become final. Judgment affiyme

KNTERED

SEP 271978

1180 2sy

Judgment Rook 7) a

Wirness my hand and seal

of the Court this September 25, 1978.

RODENT L. FORD

Rags Deas, Clerk:

», Widen