People v. Keogh

By information defendant Keogh was charged with burglary in violation of Penal Code section 459. He was then charged in a second information with four counts of forgery in violation of Penal Code section 470. The two informations were consolidated for trial, the burglary count as count I, and the four forgery counts as counts II, III, IV and V. The consolidated information was subsequently amended to add, as count VI, the crime of receiving stolen property in violation of Penal Code section 496.

Defendant entered a “not guilty” plea to all counts. His motion to dismiss (Pen. Code, § 995) was heard and denied. His motion to suppress evidence (Pen. Code, § 1538.5) was heard and denied, reopened, granted in part and denied in part.

Pursuant to a plea bargain, defendant withdrew his “not guilty” pleas to counts II and VI. He pled guilty to those counts, but moved to set aside the guilty pleas. The motion was granted. Trial was by jury. Defendant was found not guilty of burglary as charged in count I; guilty of forgery, as charged in counts II through V and guilty of receiving stolen property as charged in count VI. Defendant’s motion for a new trial was denied, as was probation. The trial court judge sentenced defendant to state prison. The sentences on counts II, III, IV and V were' ordered to run consecutively to each other. The sentence on count VI was ordered to run concurrently with those imposed on counts II through V. Defendant’s petition for a writ of mandate was denied. This appeal is from the judgment of conviction.

Briefly stated, the evidence adduced below shows that in late December 1972 the Downey Heating and Air Conditioning Company was broken into; a check-writing machine was taken as were blank company payroll checks consecutively numbered from 2200 to 3100. The company’s owner, Koehler, testified that defendant had been employed by him four or five years before.

The People produced four checks bearing the name of the Downey company and numbers in the missing sequence. The amounts payable, which had been written by a check-writing machine, were $132.03; $127.47; $96.22; and $113.82. The checks were made payable to defendant Keogh, and the drawer of each check was purportedly the owner of Downey Heating, Russell Koehler. The checks .had been

The People also introduced into evidence two similarly executed checks, also showing numbers in the missing sequence, which had been found in defendant’s wallet at the time of his arrest. In addition, a bundle of the missing company checks were admitted into evidence; they had been found by arresting officers in defendant’s apartment. Defendant, aged 32 at trial, was addicted to heroin and the record strongly supports the conclusion that he undertook the criminal activity described herein to support his addiction.

On this appeal defendant first contends that the trial court judge who heard the section 1538.5 motion (a different judge than the one who presided at trial) erred in refusing to suppress certain evidence obtained by the police officers who arrested defendant. It is claimed that the arresting officers failed to comply with Penal Code section 844 and section 1531 in gaining entry to defendant’s apartment, and that the evidence they seized there (the bundle of blank checks and the two checks in defendant’s wallet) was inadmissible pursuant to the Fourth Amendment (U.S. Constitution) guarantee against unreasonable searches and seizures.

Much evidence was heard below concerning the entry, at two preliminary hearings, hearings on the section 1538.5 motion, and at trial. A review of the section 1538.5 evidence shows that Officer Pearce, an experienced narcotics officer assigned to the Long Beach Narcotics Bureau, was in possession of an arrest warrant for defendant, who had been charged with the misdemeanor violation of Health and Safety Code section 11721 (use of narcotics). On January 11, 1973, Pearce and his partner, Hill, neither of whom was in uniform, went to Apartment J, 4426 Village Road, Long Beach, in search of defendant. They knocked on the door of Apartment J, but received no response. Pearce and Hill found the manager of the apartment house, a Mr. Risener. Officer Hill testified that he and Pearce told Risener they had a warrant for Michael Keogh. Risener stated that the tenant in Apartment J called himself Thompson, but from the description of “Thompson” the officers concluded he and Keogh were one and the same.

Police officers are required “(1) to knock or utilize other means reasonably calculated to give adequate notice of their presence to the occupants, (2) to identify themselves as police officers, and (3) to explain the purpose of their demand for admittance.” (Duke, supra, p. 319; Greven v. Superior Court, 71 Cal.2d 287 , 289 [ 78 Cal.Rptr. 504 , 455 P.2d 432 ]; People v. Rosales, 68 Cal.2d 299 , 302 [ 66 Cal.Rptr. 1 , 437 P.2d 489 ].) Failure to comply with these statutes results in the inadmissibility of evidence seized after an unlawful entry. (People v. Kanos, 70 Cal.2d 381 [ 74 Cal.Rptr. 902 , 450 P.2d 278 ].)

Substantial compliance is sometimes found even though officers have failed to state their purpose before entering. (Duke, supra, p. 319; People v. Thornton, 8 Cal.App.3d 741 [ 87 Cal.Rptr. 535 ].) However, compliance does require, at the very least, that police officers identify themselves prior to entry. (Garcia v. Superior Court, 29 Cal.App.3d 977 , 981 [ 106 Cal.Rptr. 98 ].)

In the instant case, the fact that someone else opened the door of defendant’s apartment did not excuse the officers from compliance with section 844 and section 1531. Viewing the situation disclosed by the record as favorably to the judgment as possible, it seems clear that Officers Pearce and Hill neither announced their identities nor their purpose while they were standing outside defendant’s apartment. The statements made during entry do not fulfill the statutory requirements; acceptance of such conduct as compliance would vitiate the underlying policy of the entry statutes which compels notice prior to entry for the reason set forth herein.

We find nothing in the record showing the type of “exigent circumstances” which have been found to justify noncompliance with these sections of the law, i.e., peril to the arresting officers, possibilities of escape or destruction of evidence. Had the officers believed that criminal activity was in progress behind defendant’s door

Defendant first contends that Penal Code section 473 is unconstitutional on its face because it provides a cruel, unusual punishment, i.e., 14 years, for forgery.

Traditionally, the appellate courts have been reluctant to subject sentencing statutes to critical review, preferring not to interfere with what has been regarded as a prerogative of the legislative branch of government. The California Supreme Court departed from that tradition in In re Lynch, 8 Cal.3d 410 [ 105 Cal.Rptr. 217 , 503 P.2d 921 ], and in In re Foss, 10 Cal.3d 910 [ 112 Cal.Rptr. 649 , 519 P.2d 1073 ], holding that sentencing statutes were subject to judicial scrutiny to determine whether the sentences imposed thereunder exceeded the limits of the California Constitution, article I, section 6. Citing Weems v. United States (1910) 217 U.S. 349 [ 54 L.Ed. 793 , 30 S.Ct. 544 ], the court stated that if the punishment exacted for a crime is disproportionate, the statute decreeing such punishment may not withstand constitutional attack.

Lynch and Foss established three criteria for determining the presence of disproportionality in a sentencing statute:

(1) The nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. (In re Lynch, 8 Cal.3d at p. 425.) “Relevant to this inquiry are the facts of the crime in

question, the nonviolent nature of the offense, and whether there are rational gradations of culpability that can be made on the basis of the injury to the victim or to society in general. Although not mentioned in Lynch, also relevant is a consideration of the penological purposes of the prescribed punishment.” (In re Foss, 10 Cal.3d at pp. 919-920.)

(2) A comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious (In re Lynch, 8 Cal.3d at p. 426.)

(3) A comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision (In re Lynch, 8 Cal.3d at p. 427; for recent appellate application of these criteria, see People v. Morgan, 36 Cal.App.3d 444 [ 111 Cal.Rptr. 548 ].)

Applying these standards to Penal Code section 473, we conclude that the statute, itself, does not prescribe a cruel or unusual punishment. It is true that the statute does not distinguish degrees of forgery relative to the monetary amount involved, in contrast to theft, which, by statutory definition, consists of petty theft and grand theft, i.e., grand theft is defined as a taking over $200. (Pen. Code, §§ 486, 487.) It is also true that forgery is a nonviolent crime; however, it is often committed, as it was here, against small business establishments, victimizing those who can least afford the losses incurred. With respect to the second criterion, both defendant and the Attorney General devote considerable argument in their briefs to the enumeration of various provisions of the Penal Code which prescribe punishment for offenses against property or person.

No clear picture emerges with which to resolve the issue, i.e., comparison of the penalty to that exacted for other crimes in the same jurisdiction. Some serious offenses involving violence, i.e., assault with intent to commit murder (Pen. Code, § 217), mayhem (Pen. Code, § 204) and manslaughter (Pen. Code, § 193) carry penalties similar to the one exacted for forgery. The 14-year term is also exacted, however, for other offenses similar to forgery, i.e., offenses involving property (Pen. Code, § 474 through Pen. Code, § 484f), and some other “crimes against property” are, or may be, subject to a sentence in excess of 14 years (burglary, Pen. Code, § 461; arson, Pen. Code, §§ 447a, 448a).

This does not dispose of the constitutional issue presented, by the use of an otherwise valid sentencing statute to impose 4 consecutive 14-year terms on defendant. He correctly contends that the sentence, even though imposed within the confines of a constitutionally valid statute, constitutes that “cruel or unusual punishment” prohibited by the California Constitution.

In the past, California has subscribed to “the . .. widely held view . . . that if the [sentencing] law is not declared unconstitutional on its face, a defendant may not argue that he has received an unduly harsh sentence within the limits of that valid statute.” (California's Cruelty Criteria: Evaluating Sentences After In Re Lynch (1974) 25 Hastings L.J. 636 , 646; see also, 33 A.L.R.3d 335 (1970)).

Lynch and Foss, cited supra, all dealt with sentencing statutes rather than with sentences imposed in particular cases. In People v. Schueren, 10 Cal.3d 553 , 561 [ 111 Cal.Rptr. 129 , 516 P.2d 833 ], the California Supreme Court struck down a sentence imposed as “cruel or unusual” and noted that a statute valid on its face may be unconstitutionally applied. The court also observed that disproportionality is only one standard for determining whether a penalty is “unusual,” and that if a penalty is contrary, under the circumstances, to “ ‘the requirements of regularity and fairness’ embodied in article I, section 6” it violates the California Constitution.

There appears to be no logical reason why a defendant may not raise for appellate determination the issue of whether consecutive sentences imposed upon him produce a resulting penalty so severely disproportionate, irregular and unfair in relation to his crimes that it constitutes an infringement of his right to be free from “cruel or unusual punishment.” In the present case we consider it our responsibility to conduct such review.

Turning to the case before us, we apply the Lynch-Foss criteria to the extent that is possible, and conclude that the imposition of a life sentence for the forgery of checks in an aggregate amount of less than $500 is so severely disproportionate as to violate the California Constitution, article I, section 6.

Considering first the nature of the offense and the offender, we note that defendant was, at time of trial, 32 years of age; he had a previous felony conviction and other minor convictions all of which were related directly or indirectly to the use of heroin. Defendant’s criminal conduct, while serious, has been nonviolent in nature. It appears that the only violence involved is the self-abuse of his heroin addiction.

As to the second Lynch standard, we note that far more serious crimes are punishable by life imprisonment in California, including second degree murder (Pen. Code, § 190); kidnapping for ransom or robbery (Pen. Code, § 209), robbery (Pen. Code, § 213, subds. 1 and 2); assault with a deadly weapon (Pen. Code, § 245, subds. (a) and (b)); and rape (Pen. Code, § 264).

While we have no information on the frequency of sentencing forgers to life terms in other jurisdictions, the record before us discloses that the California judge who approved the initial plea bargain apparently thought that county jail time would serve the penal purpose adequately. The 1972 Adult Prosecution Reference Tables, published by the State of California Department of Justice, Bureau of Criminal Statistics, in Crime and Delinquency in California reveal some interesting information about the fate of forgers in California during that year. The tables, at page 33, show that 3,633 persons were convicted of forgery and similar