Odom

A jury convicted George E. Odom of murder in the second degree with the finding he used a firearm in the commission *105 of the crime. The jury denied his plea of not guilty by reason of insanity, concluded he was sane. Odom was committed to prison for a term of eight years. On appeal, Odom’s contentions are fivefold: (1) A warrantless search of his truck and seizure of materials violated his constitutional rights. (2) He further contends the later search of the truck with a warrant was constitutionally impermissible since the warrant was issued on the basis of information gained through the original warrantless search. (3) The curbstone “showup” violated his rights to due process as being impermissively suggestive and denied him effective assistance of counsel. (4) The trial court erred in failing to grant his Penal Code section 1118.1 motion to withdraw the first degree murder charge from the jury. (5) Finally it is argued that the presentation of the defense of diminished capacity precluded instruction by the court on implied malice.

Facts

Elze Hunt’s Fiat was stopped for a red light in the middle lane on one-way Fourth Avenue at Elm Street, San Diego, when defendant…

I concur in the judgment and reasoning of the court in all respects except as to its conclusion there were justifiable circumstances to permit a warrantless search of the truck. Admittedly, this is an area of considerable confusion. (See, e.g., People v. Rodriguez (Crim. 21522) petition for hearing granted by the California Supreme Court on June 19, 1980.) Based upon existing precedent, the admission of the weapon was error. However, any error is harmless beyond a reasonable doubt. The weapon was only cumulative to the testimony from the witnesses who personally observed the shooting and who identified both the vehicle and the defendant.

Appellant’s petition for a hearing by the Supreme Court was denied September 4, 1980.

A jury convicted George E. Odom of murder in the second degree with the finding he used a firearm in the commission of the crime. The jury denied his plea of not guilty by reason of insanity, concluded he was sane. Odom was committed to prison for a term of eight years. On appeal, Odom's contentions are fivefold: (1) A warrantless search of his truck and seizure of materials violated his constitutional rights. (2) He further contends the later search of the truck with a warrant was constitutionally impermissible since the warrant was issued on the basis of information gained through the original warrantless search. (3) The curbstone "showup" violated his rights to due process as being impermissively suggestive and denied him effective assistance of counsel. (4) The trial court erred in failing to grant his Penal Code section 1118.1 motion to withdraw the first degree murder charge from the jury. (5) Finally it is argued that the presentation of the defense of diminished capacity precluded instruction by the court on implied malice.

Elze Hunt's Fiat was stopped for a red light in the middle lane on one-way Fourth Avenue at Elm Street, San Diego, when…