Soli

Petitioners Joseph Soli and Raymond Soli stand charged in the superior court with grand theft of a bovine animal *75 (Pen. Code, § 487, subd. 3), and with the misdemeanor offense of violating Penal Code section 597a. On their petition for a writ of prohibition, we inquire into the legal sufficiency of an order denying their motion to suppress certain evidence essential to their prosecution. (See Pen. Code, § 1538.5.)

(We shall for convenience hereafter refer to the two petitioners, without distinction, simply as petitioners, and as they themselves do in their briefs.)

In our ensuing discussion, we follow the well-settled rule stated by the high court in People v. Lawler (1973) 9 Cal.3d 156, 160 [ 107 Cal.Rptr. 13 , 507 P.2d 621 ], in this manner: “‘“A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact”...’ . . .In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and…

I concur in the result reached by Justice Elkington, but for somewhat different reasons.

It will be remembered that the ultimate source of the information which led to petitioners’ arrest and conviction was the casual observation, made by a private person, of the remnants of a recently butchered cow. This information was conveyed to a deputy sheriff, who, upon investigation, determined that the cow belonged to Mr. Sizemore. Upon hearing of his loss, the latter decided, of his own volition, and independently of a later suggestion by the deputy that he do so, to “have a look around.” In doing so, Sizemore became a technical trespasser, because, while unsure of whose land he had come upon, he knew that it was not his own. But the fact of such technical trespass does not vitiate the truth, or preclude the use, of the observations he then made and imparted through the deputy to the affiant upon whose sworn statement the warrant issued. (People v. Cook (1978) 22 Cal.3d 67 [ 148 Cal.Rptr. 605 , 583 P.2d 130 ]; Emslie v. State Bar (1974) 11 Cal.3d 210, 222 [ 113 Cal.Rptr. 175 , 520 P.2d 991 ].)

The Cook decision cannot, I think, reasonably be read as a holding that wherever a…

With all respect for my colleagues, I view this case as indistinguishable from Burkholder v. Superior Court (1979) 96 Cal.App.3d 421 [ 158 Cal.Rptr. 86 ], as regards the validity of the second search; and I believe People v. Cook (1978) 22 Cal.3d 67 [ 148 Cal.Rptr. 605 , 583 P.2d 130 ], precludes the rationale relied upon in the alternative by Justice Elkington (but forming the sole basis for Justice Newsom’s opinion) that the validity of the second search is irrelevant to the admissibility of the evidence. I therefore dissent.

There is in this case little if any dispute concerning the facts. I quote from the parties’ stipulated description of Soli’s land, the road leading to it, and the clearing where the entrails were found:

It is undisputed that the entrails were found at the edge of the clearing, only 20 or 30 feet from the cabin. Soli testified that he located the cabin and trailer in the clearing for privacy reasons, and that he lived there on weekends. In addition to the “private property keep out” sign described in the stipulation, there was a “no trespassing” sign on the gate itself.

We are not dealing, therefore, with “open fields”; we are dealing with a trespass into…

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson, Jr., and Morris Lenk, Deputy Attorneys General, for Real Party in Interest.

OPINION

ELKINGTON, Acting P.J.

Petitioners Joseph Soli and Raymond Soli stand charged in the superior court with grand theft of a bovine animal (Pen. Code, § 487, subd. 3), and with the misdemeanor offense of violating Penal Code section 597a. On their petition for a writ of prohibition, we inquire into the legal sufficiency of an order denying their motion to suppress certain evidence essential to their prosecution. (See Pen. Code, § 1538.5.)

(We shall for convenience hereafter refer to the two petitioners, without distinction, simply as petitioners, and as they themselves do in their briefs.)

(1) In our ensuing discussion, we follow the well-settled rule stated by the high court in People v. Lawler (1973) 9 Cal.3d 156, 160 [ 107 Cal. Rptr. 13 , 507 P.2d 621 ], in this manner: "`"A proceeding under section 1538.5 to suppress evidence is one in which a full hearing is held on the issues before the [trial] court sitting as a finder of fact. "…