Myers

After a jury trial defendant was convicted of first degree robbery (Pen. Code, § 211) and receiving stolen property (Pen. Code, § 496). He is appealing from the judgment. The notice of appeal also refers to “the denial of the 1538.5 motion” which is not an appealable order (see Pen. Code, § 1237).

There is no contention that the evidence was insufficient. The robbery victim identified defendant, and some of the victim’s property was found in defendant’s apartment. The search of defendant’s apartment also disclosed a checkbook which had been taken from the victim of another robbery. This checkbook was the basis of the conviction for receiving.

■ Defendant’s contention here is that the articles found in his apartment were inadmissible upon the ground they were taken by an illegal search. Prior to trial defendant moved, under Penal Code section 1538.5, for the suppression of these articles. After hearing the evidence the court denied the motion.

The evidence tending to support the ruling of the trial court includes the following:

*271 The officer’s testimony includes this:

When Foster arrived, Officer Beasley arrested him and then made a search of the apartment, in the…

I dissent. I agree with my colleagues that the legality or illegality of the first search of the apartment is immaterial. Nothing in the record shows either that anything then found contributed to defendant’s conviction or that Officer Beasley and his partner knew that the first search had occurred.

However, I feel that the second search was illegal. Since evidence thereby secured was the sole evidence to support the verdict on count III, and contributed to the proof on count I, its illegality demands a reversal.

The crime report and the interrogation with the victim of the rape-robbeiy-kidnaping charge gave him reasonable cause to arrest both defendant and his roommate. And I must accept, as the trial court did, the fact that he believed that one or both suspects might be in the apartment. But the record is silent as to any attempt to comply with section 844, nor does the officer’s testimony contain any claim that, at the time of entry, he regarded himself in danger. He simply talked the manager into giving a consent to enter which she had no right to give and, acting on that consent, entered. In short, if the officer did not believe that at least one suspect was in the…

After a jury trial defendant was convicted of first degree robbery (Pen. Code, § 211) and receiving stolen property (Pen. Code, § 496). He is appealing from the judgment. The notice of appeal also refers to "the denial of the 1538.5 motion" which is not an appealable order (see Pen. Code, § 1237).

There is no contention that the evidence was insufficient. The robbery victim identified defendant, and some of the victim's property was found in defendant's apartment. The search of defendant's apartment also disclosed a checkbook which had been taken from the victim of another robbery. This checkbook was the basis of the conviction for receiving.

Defendant's contention here is that the articles found in his apartment were inadmissible upon the ground they were taken by an illegal search. Prior to trial defendant moved, under Penal Code section 1538.5, for the suppression of these articles. After hearing the evidence the court denied the motion.

The evidence tending to support the ruling of the trial court includes the following:

During the evening of January 21, 1969, Officer Beasley, of the Los Angeles Police Department robbery detail, and his partner went…