People v. Ramos

look for a ride home. He saw a young lady named Terry Welch by a trash can throwing up. Mendivil tried to help Terry, whom he had known about two years, into the house. Another individual named Dickie told Mendivil that he should get away, that he was watching the girl. He tried to fight with Mendivil. Mendivil turned around and saw a person in a white T-shirt and fire coming out of a gun. The person in the white T-shirt said, “Did you feel it,” and then he started running. Mendivil could not see this person’s face, but he noticed that he was short and stocky, had black hair, and was of Mexican descent.

Mendivil was taken to the hospital where he was operated on for a stomach wound. Mendivil testified that the gun used by the man in the T-shirt looked like People’s Exhibit I and that it was a small revolver.

Sherie Welch, hostess of the party, was a witness to the shooting. When Mendivil and Dickie were having the argument, she identified defendant as one of the individuals standing nearby. She saw defendant go to his car. She next saw him walking towards her and Mendivil, approximately 12 feet from them. She saw a small dark-colored gun in defendant’s right hand. He fired three shots at the ground and one at Mendivil and said. “This is what you are going to get for messing around with my partner.” Mendivil smiled and put out his hand as though to shake hands, and. defendant started to laugh. Dickie said to defendant, “Come on, let’s split. You shot him.” Then Dickie and defendant walked rapidly to the car from which defendant had come.

Detective James A. Raines of the Los Angeles County Sheriff’s Department was assigned to investigate the Mendivil shooting. On March 29, 1970, at 5:30 a.m. he talked with Sherie Welch at her residence. Sherie identified defendant as the man who had shot Mendivil.^[1] She said she did

not know defendant’s address but she knew that Sally Rodriguez was defendant’s wife’s maiden name. Sherie also gave him a description of defendant.

Raines called the Firestone Station and obtained an address for a Sally Rodriguez, who turned out to be defendant’s mother-in-law. He did not find defendant there. Defendant’s mother-in-law told Raines that defendant and his wife lived in Compton. Raines obtained an address for defendant from the Compton Police Department records. He arrived at defendant’s address at approximately 8:30 a.m. that same day. It was a one-story triplex. Raines knocked at the door nearest the street. A woman answered and in reply to his question told him that defendant lived in the back apartment. Raines and his partner, Deputy Henri, knocked in a normal fashion on the front door of the back apartment. When there was no response they knocked louder “in case somebody was asleep.” Raines knocked approximately six times; then he heard sounds of one or more persons walking within the apartment. Raines announced in a loud clear voice that he was from the sheriff’s office and was there “conducting an investigation for [s/c] Manuel Ramos.” Then he heard what sounded like fast running or walking within the apartment. Deputy Henri went around to the side of the house and looked through a window into the front room. He observed defendant standing by the front door clad only 'in his shorts. Officer Henri yelled, “Open up, Sheriff’s Department” several times. Defendant looked over, saw Henri, and then ran into the bedroom. Henri found that the window was. open, stepped through it, and ran. across the front room into the bedroom where he apprehended defendant. Henri entered the house because defendant fit the description of the suspect and because he knew that the suspect had possession of a gun.^[2]

The next thing Raines saw was his partner, Henri, opening the front door. Defendant was standing in the doorway between the bedroom and the living room. Raines asked him if he was Manuel Ramos. When defendant said “Yes”, Raines told him he was under arrest for a violation of Penal Code section 217. Raines’ partner then advised defendant “[t]hat he

could remain silent; that anything he said could be and would be used against [him] in a court of law; [that] he had a right to have an attorney present before [they] talked to him, and [that] if he could not afford to hire an attorney one would be appointed to represent him free of charge.” Defendant said that he understood his rights. He was then asked if he wished to talk about the case. Defendant said, “Sure, I will tell you what happened.” Raine asked defendant if he had been at Sherie Welch’s house the previous evening, and defendant replied that he had. Raines asked him if he had fired the shot. Defendant said that he had been there but that Robert Gonzales had fired the shots.^[3] Raines asked him if he had any guns in the house. Defendant replied, “No, go ahead and look.” Raines said, “Is it all right for us to look around?” Defendant replied, “Sure, man. Go ahead.” Defendant’s wife was sitting on the corner of the bed, and Raines asked her to stand up. She said, “Why?” Raines replied that he wanted “to look under the mattress for a weapon.” She stood up. Raines looked under the mattress and observed a .22 caliber black revolver with a short barrel and two boxes of .22 cartridges.

Defendant claims that People’s Exhibit I (the revolver) was the product of an illegal search and that the trial court erred in denying his motion to suppress. Defendant’s position is that the search was illegal (1) because he was not warned of his right to refuse consent to the search and (2) because defendant’s consent was not freely and voluntarily given. A case in point is People v. Tremayne, 20 Cal.App.3d 1006 [ 98 Cal.Rptr. 193 ]. There the court fully analyzed the postulate that a consent given without prior advisement of “the right” to refuse such consent is violative of the Fourth Amendment, noting that the Constitutional protection is only against unreasonable searches and seizures “and does not confer a right not to be searched or not to be searched without a warrant.” The Court of Appeal concluded, “Consent to a search confers authority to search; establishes the reasonable nature of a search premised thereon; is not a waiver of a constitutional right; and is effective without warning the person giving the consent he might refuse to consent.” (P. 1015.) (See also People v. Thomas, 12 Cal.App.3d 1102 , 1107, fn. 1 [ 91 Cal.Rptr. 867 ] [dicta to the same effect]; People v. Hidalgo, 7 Cal.App.3d 525 , 529 [ 86 Cal.Rptr. 660 ].)

The real issue here is whether the consent was freely and voluntarily

Ramos, on or about the 28th day of March, 1970, ., . . did willfully, unlawfully and feloniously and with malice aforethought, assault Fred Mendivil, a human being, with intent to commit murder.” Defendant was found guilty of . . Assault with a deadly weapon, a felong [sic] in violation of 245 Penal Code of State of California, a lesser but necessarily included offense than that charged in Count I of the information.” Defendant claims that the judgment must be reversed because he was convicted of a crime that was not necessarily included in the offense charged.^[4]

We turn, therefore, to the case of People v. McCurdy, 165 Cal.App.2d 592 , 595 [ 332 P.2d 350 ], in which it was held that assault with a deadly weapon was a lesser necessarily included offense within Penal Code section 217. The authority of this case is weakened by dicta in the Supreme Court’s opinion in People v. Marshall, 48 Cal.2d 394 , 403-404 [ 309 P.2d 456 ], to the effect that assault with a deadly weapon is not a lesser necessarily included offense within the statutory definition of assault with intent to commit murder.

The McCurdy court seems to have arrived at its conclusion by setting up, apparently inadvertently, an alternative premise incompatible with the facts. In analyzing Penal Code section 245, it lumped together the two separate acts set forth in that section (assault with a deadly weapon and assault by means of force likely to produce great bodily injury) and laid considerable emphasis on the fact that assault by means of force likely to produce great bodily injury is obviously a lesser included offense in a charge of assault with intent to commit murder.^[5] The charging language

in McCurdy was identical to the language used in the information in the instant case and made no mention of assault by means of force likely to produce great bodily injury. In all probability the court, in McCurdy, was not confronted with the logic that the two acts mentioned in Penal Code section 245 must be treated separately.^[6] Although assault by means of force likely to produce great bodily injury may well be a lesser included offense within Penal Code section 217, nevertheless, assault with a deadly weapon is not. “The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.” (People v. Greer, 30 Cal.2d 589 , 596 [ 184 P.2d 512 ]; In re Hess, 45 Cal.2d 171 , 174 [ 288 P.2d 5 ]; People v. Krupa, 64 Cal.App.2d 592 , 598 [ 149 P.2d 416 ].) Not every assault with intent to commit murder implies the employment of a deadly weapon. In light of the above analysis and because our view conforms to the Supreme Court’s discussion in People v. Marshall, supra, 48 Cal.2d 394 , 403-404, we do not feel that People v. McCurdy, supra, 165 Cal.App.2d 592 , should govern this case.

However, a finding that assault with a deadly weapon is not a lesser necessarily included offense within Penal Code section 217 does not dispose of the issue as presented here.

Defendant requested that an instruction on assault with a deadly weapon be given, and it was given as requested. The only theory upon which defendant could have offered such an instruction was that assault with a deadly weapon was a lesser included offense. The trial court, following defendant’s lead, gave an instruction on its own motion to the effect that assault with a deadly weapon was such an included offense. Discussions among counsel and the trial court conducted prior to the determination of what instructions were to be given clearly indicate that all parties believed that assault with a deadly weapon and simple assault were lesser necessarily included offenses in the crime actually charged. The evidence clearly supports a verdict of assault with a deadly weapon. In fact defendant testified that he shot the victim, although asserting that it was only after Mendivil drew a knife on him. It was, of course, to defendant’s advantage that the jury be allowed to consider the lesser charge.