Full opinion text
Opinion BURKE, J. A jury found defendant guilty of first degree murder of Senator Robert Kennedy and fixed the penalty at death for that crime. The jury also found defendant guilty on five counts charging assault with a deadly weapon with intent to commit murder upon Paul Schrade, Irwin Stroll, William Weisel, Elizabeth Evans and Ira Goldstein respectively, and prison sentences were imposed on those counts. The court denied a motion for a new trial, and defendant’s automatic appeal is now before us. (Pen. Code, § 1239, subd. (b).) Defendant contends that (1) the death penalty is cruel or unusual punishment; (2) in view of proof of his diminished capacity the evidence is insufficient to support the first degree murder conviction; (3) he was denied a fair trial as a result of certain publicity; (4) his right to be secure against unreasonable searches and seizures and his privilege against self-incrimination were violated by the receipt of evidence found in his bedroom and in his yard; (5) other evidence was erroneously admitted; (6) his constitutional rights were violated by having the prosecution initiated by an indictment rather than an information; (7) the court erred in failing to hold an evidentiary hearing on whether the exclusion of veniremen opposed to the death penalty results in an unrepresentative jury on the issue of guilt or substantially increases the risk of conviction; and (8) the petit and grand juries were illegally selected. People v. Anderson, 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], holds that the death penalty violates our state constitutional provision against cruel or unusual punishment (Cal. Const., art. I, § 6). The first of defendant’s contentions thus is meritorious. We have concluded that the other contentions set forth above cannot be upheld and that the judgment should be modified to provide for life imprisonment and as so modified affirmed. At the trial it was undisputed that defendant fired the shot that killed Senator Kennedy. The evidence also established conclusively that he shot the victims of the assault counts. The principal defense relied upon by defendant was that of diminished capacity. Extensive evidence was presented of the circumstances surrounding the shootings and of defendant’s mental condition, which evidence may be summarized as follows: About 8:30 p.m. on June 2, 1968, two days before defendant shot Senator Kennedy, the senator made a speech in the Coconut Grove at the Ambassador Hotel in Los Angeles, following which he delivered a second speech outside the hotel. Defendant was seen at the hotel about 8:45 that night by an acquaintance. A half hour or less after the senator’s second speech a hostess saw a man who looked like defendant in the kitchen near the Coconut Grove. During the day on June 4, 1968, defendant practiced firing at a gun range for several hours and had also practiced shooting at ranges on several prior occasions. On June 4 he engaged in rapid fire with the .22 revolver he used a few hours later to kill Senator Kennedy. The revolver had been obtained by defendant in February 1968 when his brother Munir paid a fellow employee for it. A person who talked with defendant at the gun range on June 4 testified that defendant stated he was “going to go on a hunting trip with his gun,” that he told defendant it was not permissible to use pistols for hunting “because of the accuracy,” and that defendant said, “Well, I don’t know about that. It could kill a dog.” About 10 or 11 p.m. on June 4, 1968, a secretary whose duties included seeing that unauthorized persons were not near the Embassy Ballroom of the Ambassador Hotel, saw defendant near that room and asked him. who he was, and he turned and walked toward the doors leading into the ballroom. Shortly before midnight on the same day defendant asked hotel employees if Senator Kennedy was going to come through the pantry, and they told him that they did not know. One of the employees observed defendant for about a half hour in the pantry and noticed nothing unusual about his manner or activity. About midnight on June 4, Senator Kennedy made a speech in the Embassy Ballroom announcing his victory as a Democratic candidate for president in the California primary. Following the speech he and his entourage proceeded toward the hotel’s Colonial Room, which was then being used as a press room. En route the senator stopped in the pantry to shake hands with the kitchen staff. Suddenly defendant darted toward the senator, pulled out a revolver, and fired several shots. The senator and a man adjacent to him, Paul Schrade, fell. Pandemonium ensued. A hotel employee grabbed defendant around the wrist of the hand holding the gun, but defendant, who was still able to move that hand, continued shooting. Irwin Stroll, William Weisel, Elizabeth Evans and Ira Goldstein were injured by the gunfire. Several persons joined in the struggle and succeeded in restraining defendant, and one took the gun from. him. When asked “Why did you do it?,” defendant replied something to the effect “I can explain.” The senator was taken to a hospital where he underwent surgery. He subsequently died on June 6, 1968. According to the autopsy surgeon, the cause of death was a gunshot wound “to the right mastoid” that penetrated the brain; the senator also received two additional gunshot wounds, one in an armpit and another slightly lower. Expert testimony indicated that the gun was an inch and a half or less from the senator’s head when the fatal bullet was fired and in contact with him or within a few inches when the other wounds were inflicted. Around the time that the senator was taken to the hospital the police arrived at the hotel and took custody of defendant. Two officers, defendant, and Jesse Unruh got into a car and drove to the police station. En route the officers advised defendant of his constitutional rights. Subsequently Unruh asked defendant “Why did you shoot him?” and defendant replied “You think I am crazy? You think I will tell you so you can use it as evidence against me?” Unruh also heard defendant say “I did it for my country.” Unruh believed that defendant was not intoxicated, and police officers who were with defendant at the time of his arrest or shortly thereafter reached the same conclusion. About 12:45 a.m., minutes after defendant arrived at the police station, he was seen by Officer Jordan. The officer estimated that he was with defendant between four and five hours on this occasion. Jordan stated that defendant never appeared irrational and that in the officer’s many years on the force defendant was “one of the most alert and intelligent people I have ever attempted to interrogate.” Jordan initially identified himself and asked defendant his name but received no response. The officer then advised defendant of his constitutional rights, and defendant, after asking a few questions, indicated he wished to remain silent. Defendant, Jordan, and other officers subsequently discussed various matters other than the case. Tapes of the conversations were played to the jury. The police found various items on defendant’s person, including a newspaper article which in part noted that in a recent speech Senator Kennedy “favored aid to Israel ‘with arms if necessary’ to meet the threat of the Soviets.” A trash collector testified that on one occasion he told defendant he was going to vote for Kennedy in the primary election and that defendant replied “What do you want to vote for that son-of-a-b for? Because I’m planning on shooting him.” On cross-examination the witness admitted that following the assassination when asked if he would testify he stated he “would not want to take the oath because [he] hated Sirhan so much that [he] would do anything to- see him. convicted.” The prosecution also introduced documents found by the police at defendant’s home. The documents contain statements in defendant’s handwriting regarding various matters including, inter alia, killing Senator Kennedy. Defendant, testifying in his own behalf, admitted having shot Senator Kennedy, but claimed that he did not remember having done so. He conceded, however, that he stated “I killed Robert Kennedy wilfully, premeditatively, with twenty years of malice aforethought.” (The context in which this statement was made is set forth later herein.) Defendant further testified that he “must have,” or had no doubt that he, shot the victims of the assault counts. Defendant’s account of what transpired on June 4 and 5, was as follows: He intended to go to the races on June 4, but did not like the entries and decided to go target shooting instead. He took his revolver to a gun range, stopping en route to buy ammunition, and stayed at the range until about 5 p.m. He practiced shooting there but was not the person who engaged in rapid fire. He had gone to gun ranges on several prior occasions and practiced with the gun because he “liked to” and “was interested . . . in . . . target practicing perfection.” He first developed .an interest in guns as a member of a high, school cadet corps. He did not recall making a statement about killing a dog. He might have said “it [apparently his gun] is strong enough to kill an animal,” but he did not have in mind killing Senator Kennedy. After leaving the range, he stopped to eat and subsequently saw an article concerning a march for Israel, which made him angry. He drove to the area where the march was scheduled but found it was not on that date. On the drive he passed Thomas Kuchel’s headquarters and went in. There someone mentioned a “bigger party” at the Ambassador. The person did not mention whose party it was, and defendant did not know there was to be a Kennedy party that night. He went to the Ambassador, was mad at the Zionists, and started to drink. He bought two Tom Collins during about an hour. He does not recall how many drinks he had that evening. After a while he felt high and returned to his car to go home but was afraid to drive because of his condition and decided to return to the hotel for coffee. He did not recall picking up his gun but as a result of what subsequently transpired he realized he must have done so. Upon returning to the Ambassador, he found some coffee and talked with a girl. The next thing he remembered he was being choked. He did not remember asking anyone “where Kennedy was going to come through” and did not know if he asked “what time [Kennedy] would be there.” He did not remember saying “I did it for my country” but “Jesse Unruh must have been correct in saying that [defendant made the statement].” He recalled getting into the police car, being advised of his constitutional rights, and various other matters following his arrest. Defendant also admitted having gone to the Ambassador Hotel on June 2 where he heard Senator Kennedy speak but denied having been in the kitchen that night. He stated that the senator “looked like a saint” but that defendant still had in the back of his mind a broadcast in which the senator committed himself to sending jet bombers to' Israel. Defendant denied having made the statement to' the trash collector regarding killing Senator Kennedy. Defendant further testified regarding his background as follows: He is a Palestinian Arab. He was bom in 1944 in New Jerusalem, and in 1948 he and his family moved to Old Jerusalem where they remained until coming to the United States in 1956. Throughout his eight years in Old Jerusalem there were intermittent bombings. He attended school there. His family lived under poor conditions in Old Jerusalem [e.g., the whole family resided in one room with grossly inadequate toilet facilities]. He was told they were living as they were because “The Jews kicked us out of our home.” He was also told of a massacre in which 250' people including children were slaughtered in cold blood by the Jews. While living in Old Jerusalem he went to a well for some water, and when the bucket came up it contained a hand and it sickened him. On one occasion he saw the exploded remains of a grocer he knew. In 1956 he heard about aggression by Israel against the Arabs in the Suez Canal. About a year after they came to the United States his father returned to Jordan. In 1963 defendant graduated from high school and subsequently attended college but was dismissed in 1965 after missing classes. He thereafter worked with horses but left his job in 1966 and did not find another job for a year. He read everything available on the Arab-Israel conflict and on the occult, in which he became interested in 1965. He joined the Rosicmcian Order in 1965. He performed several experiments such as concentrating on a mirror and seeing the face of Robert Kennedy instead of his own. Defendant also described in detail his views regarding the Arab-Israel conflict and his hatred of the Zionists. Additional evidence was introduced by the defense regarding the bombings in Old Jerusalem during the period defendant resided there, the various gruesome matters he saw during his childhood, and his poor living conditions in that city. Several defense witnesses also testified that they saw defendant with a drink in his hand on the night of June 4, 1968. In support of his defense of diminished capacity defendant called to the stand two psychiatrists Eric Marcus, M.D. (a court-appointed psychiatrist) and Bernard Diamond, M.D.; two psychologists who administered psychological tests to defendant (Drs. Orville Richardson and Martin Schorr) and four psychologists who evaluated, the tests administered, to defendant by Dr. Richardson and/or Dr. Schorr (Drs. Stephen Howard, William Crain, Georgene Seward, and George De Vos). Doctors Marcus and Diamond testified that at the time of the alleged murder defendant was a paranoid schizophrenic, and Dr. Diamond further stated that defendant was then in a “dissociated state of restrictive consciousness as a . . . consequence of [his] psychotic condition.” According to both psychiatrists, defendant lacked, the capacity to maturely and meaningfully reflect upon the gravity of the contemplated act of murder and to comprehend his duty to govern his actions in accord with the duties imposed by law, and they explained the reasons for their conclusion. They further testified, concerning the origin, development, and manifestations of the illness. Doctors Richardson, Schorr, Crain, De Vos and Seward likewise testified that defendant was a paranoid schizophrenic, and, according to Dr. Schorr, defendant went into a dissociate state before the shooting. Doctors Richardson and Schorr also agreed with the psychiatrists that defendant lacked the capacity to maturely and meaningfully reflect upon the gravity of his contemplated act of murder and to- harbor malice aforethought. Dr. Howard concluded that defendant has “paranoid features” and is “a borderline psychotic person,” i.e., a person “who can go in and. out of psychosis, depending on the . . . relative minor stresses ... in daily life.” In rebuttal the prosecution called to the stand Seymour Pollack, M.D., a professor of psychiatry and law at the University of Southern California. Dr. Pollack interviewed defendant eight times, spending about 24 hours with him. The first such interview was on January 19, 1969. The doctor also observed defendant in the courtroom, during preliminary proceedings that began June 28, 1968, and. during the trial. In addition he interviewed members of defendant’s family; reviewed the psychological tests given by Drs. Richardson and Schorr to defendant and numerous other matters such as the grand jury transcript and tapes of defendant’s conversations after his apprehension; and attended a conference with other psychiatrists and psychologists concerning the case. The overall time Dr. Pollack spent on the case was close to 200 hours. With respect to his diagnosis, Dr. Pollack testified: Defendant was not “clinically psychotic,” i.e., there were “no observable signs or symptoms to a degree and of a kind that would allow [the witness] as a psychiatrist to say that [defendant] was mentally ill as a psychotic person.” There was insufficient proof of schizophrenia. On the other hand, according to Dr. Pollack, defendant is, and was at the time of the killing and for “some time before that,” mentally ill and emotionally disturbed, and his mental illness was substantial, i.e., of a degree and kind that is not present in most of the population. Dr. Pollack concluded that defendant is a paranoid personality, which is not a psychosis but a form of mental illness in which there is an exaggeration of certain personality characteristics. Such a personality is more suspicious and sensitive than most people, “takes things more personally to a greater degree than the average person,” and tends to collect grievances. Dr. Pollack testified that defendant also is “a borderline schizophrenic,” i.e., “a person who has ... or shows some minimal evidence of peculiarity in his thinking, in his feeling . . . but who doesn’t have, who hasn’t shown . . . any clnical signs or symptoms of psychosis.” According to Dr. Pollack, there are indications that defendant has “a psychotic personality structure,” and a person with such a structure is not “held together as well” and becomes “more easily unglued than ordinary.” Dr. Pollack further stated: Defendant demonstrated, evidence of psychosis in the psychological tests. However, in the interviews he did not have the degree of personality disorganization that the doctor would have expected from the tests, although the interviews revealed specified matters indicating the possibility of psychosis. For example, during the interviews after the initial ones defendant exhibited a degree of paranoid thinking with accompanying emotional responses that led the witness to suspect that there were psychotic characteristics in his personality. “[T]he paranoid element” is quite strong in defendant’s notebooks, but Dr. Pollack did not believe that the notebooks were evidence of psychosis since he found none of the peculiarities therein that would have been “more definite proof of [defendant’s] being clinically psychotic.” The doctor believed the repetitious statements in the writing relating to killing Senator Kennedy were examples of defendant’s attempts to strengthen “his courage [and] capability to carry out his intention to kill Kennedy.” Part of the writing was not “the writing of a healthy mature mind.” He acknowledged that had he spent many additional hours with defendant it is possible or probable that more definite evidence of psychosis would have been found. Dr: Pollack traced defendant’s life history and the effect of various incidents upon him. He stated, inter alia, that “defendant’s personality standard as it was on June 5, 1968, was related to- the experiences he had as a boy, experiences in Jerusalem and these all, significantly, substantially affected him to a certain extent and were related to- what he did.” Dr. Pollack stated that he believed that defendant was exposed to the turmoil and violence that accompanied the Arab-Jewish conflict but that he had no material that defendant had any greater exposure than others in his family and community and that there were many times they were reasonably secure. Dr. Pollack believed that in spite of defendant’s early life experiences defendant developed “into a much stronger person than, others believe him to be,” although “these experiences to some degree left [him] vulnerable in the development of this subsequent character formation . . . .” Dr. Pollack further testified that “I believe the assassination of Senator Robert Kennedy was triggered by political reasons with which [defendant] was highly emotionally charged; I believe that Sirhan focused on Senator Robert Kennedy as an individual who should die, not only because of the Kennedy promise to give Israel the jet bombers that would cause death to thousands of Arabs, in Sirhan’s opinion, but also because Sirhan wanted the world to see . . . how strongly our United States policy was in the pro-Israel-anti-Arab movement in . . . spite of our Government’s professed interest for the underdog, and world justice” and “Sirhan . . . saw himself as a defender of the Arab cause and, as an individual who through this act would bring world attention to the Arab plight and also . . . materialize his fantasy of success.” He testified, “In my opinion when Sirhan shot Kennedy, Sirhan’s mental capacity was not impaired to the extent of diminished capacity to maturely and meaningfully premeditate and deliberate and reflect upon the gravity of the contemplated act of shooting the Senator” and that Sirhan “did not have . . . diminished mental capacity to harbor malice aforethought.” The doctor explained that he considered the following “functions” in reaching the foregoing conclusions: He found no evidence of any altered state of consciousness or dissociate state, and various matters indicated to the contrary. For example, testimony of eyewitnesses showed defendant was aware of the significance of questions asked him and the tape recordings of his conversations at the police station indicated “a great deal of reasoning ability.” There was no substantial impairment of his attention (i.e., ability to attend to his environment in a meaningful manner), perception (i.e., ability to perceive objects in a meaningful manner, using past experiences), understanding (i.e., ability not simply to know but to appreciate “in a fuller sense”), ability to associate ideas logically, and freedom of choice. His emotions were “not that disturbed.” He was becoming more irritable and explosive but there was no substantial evidence that “this was an impulsive explosion.” His foresight (i.e., his ability to look forward and plan) appeared to be reasonably intact, and the same was true regarding his memory. Dr. Pollack stated that mental capacity is on a continuum, ranging from zero (close to absence of capacity) to 100 percent (which none attain); that psychiatrists are not specialists as to where society wants to draw the line, but that as a psychiatrist he “can say that if an individual is considered to have . . . substantial impairment of any of these functions it should be below 50 percent” and those persons with a substantial impairment of any of the recited functions would have diminished capacity. Dr. Pollack further testified that in his opinion defendant’s mental illness “affected” what he did “some” but not “enough” and that it related to the assassination. In a report to the district attorney Dr. Pollack stated, “Sirhan’s mental illness was related to his act of assassination in that his paranoid convictions went beyond those of a normal personality in the average citizen .... This mental illness should be considered a substantial mitigating factor on the issue of penalty. . . .” Dr. Pollack also testified that defendant believed it was “good” and “right” to kill Senator Kennedy and had that belief when he made the entries in his notebooks. Defense counsel then asked, “As a matter of fact, he felt it was his duty almost to do it, didn’t he?”, and Dr. Pollack replied, “Almost, yes. As an Arab he felt that it was his duty, that he would be looked up to by the Arab world and that he would be considered a hero.” Dr. Pollack indicated that he did not consider defendant’s belief that it was “right” and “good.” to kill the senator a delusion and stated that “it’s there that I think a major difference exists between the other psychiatrists and myself.” He testified defendant gave no evidence of believing himself to be a person chosen by God to kill Kennedy whom he regarded as the devil—that such a belief would have been a delusion. Dr. Pollack further testified that defendant did not expect to be punished for his act because in his view Kennedy and others having the senator’s views about the Arab-. Israel conflict were murderers. Leonard Olinger, a clinical psychologist, was also called in rebuttal by the prosecution. He contacted the prosecution after concluding on the basis of news reports that some of Dr. Schorr’s testimony was unwarranted by the material presented to support it. The prosecution furnished Dr. Olinger with, among other things, the tests given to defendant by Drs. Schorr and Richardson. So far as appears Dr. Olinger never personally examined defendant. After criticizing various interpretations given to defendant’s test responses by other witnesses and techniques employed in administering certain of the tests, Dr. Olinger stated that in his opinion it appeared from the tests that defendant was “a borderline schizophrenic with primary neurotic features.” He stated that on the basis of the capacity demonstrated by the tests, such an individual could maturely and meaningfully premeditate and deliberate to commit the act of murder. He further stated that the tests suggest that defendant had the capacity to comprehend his duty and to conform it to the dictates of society. 1. Sufficiency of Evidence to Support First Degree Murder Conviction Defendant contends that in view of proof of his diminished capacity the evidence is insufficient to support his conviction of first degree murder and that he should have been convicted of manslaughter or at most second degree murder. “ ‘It has long been settled under the Wells-Gorshen rule of diminished capacity that in cases other than those where a felony murder is charged, a defendant cannot be convicted of murder of the first degree if, at the time of the alleged offense, he was operating under a mental disability not amounting to legal insanity that prevented him from acting with malice aforethought or with premeditation and deliberation.’ ” (People v. Risenhoover, 70 Cal.2d 39, 51 [73 Cal.Rptr. 533, 447 P.2d 925], quoting from People v. Ford, 65 Cal.2d 41, 54-55 [52 Cal.Rptr. 228, 416 P.2d 132].) The recited evidence, including, among other things, the expert testimony introduced by the prosecution and proof of the circumstances surrounding the crime, is sufficient to support the jury’s implied finding that defendant committed the killing with malice aforethought. (Cf. People v. Risenhoover, supra, 70 Cal.2d 39, 51; People v. Goedecke, 65 Cal.2d 850, 854 et seq. [56 Cal.Rptr. 625, 423 P.2d 777, 22 A.L.R.3d 1213]; People v. Nicolaus, 65 Cal.2d 866, 869-878 [56 Cal.Rptr. 635, 423 P.2d 787].) It may be noted that at the trial defense counsel told the jury that in his opinion the evidence and law justified a second degree murder conviction. We turn next to whether the evidence is also sufficient to support the jury’s implied finding that the murder was wilful, deliberate and premeditated. The meaning of deliberation and premeditation was elucidated in People v. Wolff, 61 Cal.2d 795, 821-822 [40 Cal.Rptr. 271, 394 P.2d 959], a case involving a 15-year-old boy who had a permanent form of schizophrenia according to undisputed psychiatric testimony and was charged with the murder of his mother. Wolff stated that the true test “must include consideration of the . . . extent to which . . . defendant could maturely and meaningfully reflect upon the gravity of his contemplated act. . . . Certainly . . . defendant had ample time for any normal person to maturely and appreciatively reflect upon his contemplated act and to arrive at a cold, deliberated and premeditated conclusion. He did this in a sense— and apparently to- the full extent of which he was capable. But, indisputably on the record, this defendant was not and is not a fully noftnal or mature, mentally well person. He knew the difference between right and wrong; he knew that the intended act was wrong and nevertheless carried it out. But the extent of his understanding, reflection upon it and its consequences, with realization of the enormity of the evil [italics added], appears to have been materially—as relevant to appraising the quantum of his moral turpitude and depravity—vague and detached.” Wolff theretofore had pointed out (at p. 820) that “ ‘Dividing intentional homicides into murder and voluntary manslaughter was a recognition of the infirmity of human nature. Again dividing the-offense of murder into two degrees is a further recognition of that infirmity and of difference in the quantum of personal turpitude of the offenders. . . . \W]hen it is claimed that the homicide is by “any other kind of willful, deliberate, and premeditated killing” there is necessity for an appraisal which involves something more than the ascertainment of objective facts. . . . [People v. Holt, 25 Cal.2d 59, 86 (153 P.2d 21); italics added.]’ ” (See also People v. Bassett, 69 Cal. 2d 122, 124 et seq. [70 Cal.Rptr. 193, 443 P.2d 777]; People v. Nicolaus, supra, 65 Cal.2d 866, 876-578; People v. Goedecke, supra, 65 Cal.2d 850, 855-858.) Here, defendant had ample time to reflect upon the killing, and, although the evidence is conflicting, the heretofore summarized evidence constitutes substantial proof that at the time of the shooting defendant was not a paranoid schizophrenic, in a dissociate state, or intoxicated. Also, as we have seen, Dr. Pollack, who examined defendant on eight occasions as well as having reviewed extensive materials and interviewed members of defendant’s family, testified that although defendant was mentally ill, defendant did not have diminished capacity to harbor malice aforethought or to maturely and meaningfully reflect upon the gravity of his contemplated act, and the doctor explained the reasons for his conclusions. There was also evidence that the assassination was politically motivated, and defendant’s actions in carrying out the crime are, of course, additional proof of his then mental state. In addition a lay witness who observed defendant for about a half hour shortly before the killing noticed nothing unusual about defendant’s manner or activity, and an officer who was with defendant for several hours shortly after the killing found him highly alert and intelligent. We conclude that the evidence is sufficient to support the first degree murder conviction. 2. Alleged Denial of Fair Trial as a Result of Publicity Defendant contends that as a result of publicity during the trial he was denied his right to an impartial jury in violation of the due process clause of the Fourteenth Amendment of the federal Constitution. On February 5,1969, the regular jury was sworn. On February 10, 1969, a motion to enter a plea of guilty to first degree murder provided that defendant receive life imprisonment was made in chambers and denied. The court ordered that the record pertaining to the motion be sealed. On February 11, 1969, the alternates were sworn. The court did not at this time sequester the jurors and alternates and instead allowed them to return to their homes until the following evening. The court admonished them not to discuss the case with anyone and “not to read any newspaper or any . . . article or listen to any TV or radio broadcast related to this case, and if you should inadvertently see or hear such report, you are to disregard it and not permit it to influence you in your deliberations.” On February 12, 1969, an article appeared in the Los Angeles Times bearing the headline “Sirhan Guilty Plea Now Appears Likely—Defense Shift Could Shorten Trial, Avert Death Sentence.” (Italics added.) The article stated, among other things, that: “[I]t was learned that defendant probably will plead guilty to first-degree murder in the slaying of Sen. Robert F. Kennedy”; “The willingness of the three defense lawyers to change the plea is said to be based- on their conviction that, while psychiatric evidence would not warrant a death penalty, they could not hope for a jury verdict of less than first-degree murder”; there had been an: in-chambers discussion between defense and prosecution lawyers, and, although “both sides were uncommunicative about the reason for the meeting,” the Times had “learned . . . that a possible change in plea was discussed.” (Italics added.) The newspaper article received radio coverage. The KFWB broadcast stated: “. . . Speculation arose this morning when the Los Angeles Times said Sirhan would probably change his plea, putting himself at the mercy of the jury. . . . Cooper would not discuss the newspaper claims that Sirhan himself was the one who wanted to change his plea to guilty in hopes of being sentenced to life imprisonment instead of death.” KMPC and KNX broadcasts contained similar statements. Defense counsel represented that there was also- television coverage of the matter. The publicity on the subject was massive. In the words of the trial judge, “Everybody knows it has been on the radio every hour; it has been in the newspapers, certainly the Times ... in the most important spot .'. . .” On February 13, 1969, defendant moved for a mistrial on the ground that he could not receive a fair trial as a result of the newspaper article and subsequent radio and television coverage. Both defense counsel and the prosecution assured the court that they had not been the source of the information in the article, and the court stated it was certain its staff had not revealed the information. At defendant’s request the twelve jurors and six alternates were then questioned individually in chambers concerning the matter. With respect to the 12 jurors who rendered the verdicts it may be inferred from the record that none had read the body of the Times article. Several had heard or read either nothing or only comments of a general nature such as that “[a friend] thought there was not going to be a trial.” At least four, however, had seen the Times headline or heard on the radio or television that defendant “was pleading guilty” or a comment by an acquaintance such as that defendant “pled guilty” or “was going to plead guilty,” and at least two indicated that they had also heard certain additional statements, which might have been viewed as suggesting that the guilty plea was to first degree murder. Several stated that they could set aside anything they had heard or read and decide the case solely on the evidence produced in court and law as given by the court. The trial court, in denying the motion for a mistrial, stated “practically everyone, if not everyone’s responses to questions by the Court said they could set aside these matters if they did hear them and decide the case only on the evidence produced here in court and the law as stated to them by [the court].” At the conclusion of the trial defendant made a motion for a new trial on the ground, among others, that the denial of his motion for a mistrial deprived him of an impartial jury, and the court denied the motion for a new trial. “Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.” (Sheppard v. Maxwell, 384 U.S. 333, 362 [16 L.Ed.2d 600, 620, 86 S.Ct. 1507]; see also Groppi v. Wisconsin, 400 U.S. 505, 508 [27 L.Ed.2d 571, 574, 91 S.Ct. 490]; Maine v. Superior Court, 68 Cal.2d 375, 382, 384-385 [66 Cal.Rptr. 724, 438 P.2d 372].) In most cases involving claims of due process deprivations a showing of identifiable prejudice to the accused is required (see Estes v. Texas, 381 U.S. 532, 542-543 [14 L.Ed.2d 543, 549-550, 85 S.Ct 1628]), but under some circumstances, there is such a probability of prejudice to the accused that prejudice is presumed. (E.g., Sheppard v. Maxwell, supra, 384 U.S. 333, 352 [16 L.Ed.2d 600, 614] [probability of prejudice from “totality of circumstances”]; Estes v. Texas, supra, 381 U.S. 532 [probability of prejudice from televising and broadcasting of trial]; Turner v. Louisiana, 379 U.S. 466, 473 [13 L.Ed.2d 424, 429, 85 S.Ct. 546] [probability of prejudice from key prosecution witnesses also serving as jury shepherds during trial]; Rideau v. Louisiana, 373 U.S. 723, 726 [10 L.Ed 2d 663, 665, 83 S.Ct. 1417] [probability of prejudice from television exposing the community “repeatedly and in depth to the spectacle of [the accused] personally confessing in detail to the crimes with which he was later to be charged.”]) Here neither prejudice to defendant from the publicity nor a probability thereof is shown by the record, even if it be assumed that the jurors were unable to disregard the matters they had heard or seen relating to a guilty plea by defendant. Insofar as the jurors had heard or read only of (1) a guilty plea by defendant without any indication of whether it was to first degree murder or to a lesser crime or (2) statements of an even more general nature, it is unlikely that defendant was prejudiced by their being aware of the foregoing since at the trial defense counsel made it clear to the jury that the defense was not seeking an acquittal and that the sole issue was whether defendant was guilty of first degree murder, second degree murder, or manslaughter. The matters heard or read by some of the jurors were thus not inconsistent with the position of defense counsel at the trial. Although part of defendant’s, own testimony indicated that he was unconscious at the time of the killing and the jury was instructed regarding unconsciousness as a complete defense, there was abundant proof that he was not then unconscious as was impliedly recognized by defense counsel in advising the jury that he was not seeking an acquittal. Furthermore, it is significant that at the trial defense counsel introduced evidence of another, later occasion during the trial when defendant attempted to plead guilty to first degree murder, testimony by psychiatrists also referred to that later attempt, and on cross-examination defendant admitted having stated “I killed Robert Kennedy wilfully, premeditatively, with twenty years of malice aforethought.” (Cf. Stroble v. California, 343 U.S. 181, 195 [96 L.Ed. 872, 883, 72 S.Ct. 599], wherein the defendant claimed that he had been denied due process by certain news reports, and the court stated in part, “It is significant that ... the confession which was one of the most prominent features of the newspaper accounts . . . was introduced in evidence at the trial itself”; see People v. Tahl, 65 Cal.2d 719, 731 [56 Cal.Rptr. 318, 423 P.2d 246]; 56 J. Crim. L., C. & P. S., pp. 13-14; see generally A.B.A. Standards Relating to Fair Trial and Free Press, Proposed Final Draft, December 1967, §§ 3.5, subd. (f), and 3.6; 24B C.J.S., Criminal Law, § 1927, subd. (c), p. 244.) Under the circumstances defendant was not prejudiced by the information of which some jurors were aware regarding a guilty plea to an undesignated crime or matters of an even more general nature. (Cf. People v. Jacobson, 63 Cal.2d 319, 330-331 [46 Cal.Rptr. 515, 405 P.2d 555]; People v. Cotter, 63 Cal.2d 386, 397-398 [46 Cal.Rptr. 622, 405 P.2d 862] [vacated on another ground, 386 U.S. 277 (18 L.Ed.2d 43, 87 S.Ct. 1035)].) Nor v/as he prejudiced by any additional statements heard by two or more of the jurors from which they might have inferred that the guilty plea was to first degree murder since the evidence received at the trial showed the later attempt to plead guilty to first degree murder and the above stated admission. This case differs from Rideau v. Louisiana, supra, 373 U.S. 723, wherein the court apparently regarded as immaterial the fact that evidence similar to the publicity was received at the trial. Rideau held a conviction invalid on the ground that the denial of a motion for a change of venue was a denial of due process where the community had repeatedly been exposed to television broadcasts of a film in which the defendant confessed to the crimes with which he was later charged. Three jurors who convicted the defendant had seen at least one of the broadcasts. According to Rideau, “Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.” It appears in the Rideau dissent that at the trial other confessions by the defendant were received in evidence, but the court apparently regarded that fact as immaterial. Here, however, the publicity of which the jurors had knowledge would have far less damaging impact on a juror than a home-viewed confession and would not necessarily render subsequent court proceedings “but a hollow formality.” 3. Asserted Violation of Right to Be Secure Against Unreasonable Searches and Seizures and Privilege Against Self-incrimination Defendant contends that his right to be secure against unreasonable searches and seizures (U.S. Const., 4th and 14th Amends.; Cal. Const., art. I, § 19), and privilege against self-incrimination (U.S. Const., 5th and 14th Amends.) were violated by the introduction by the prosecution of (1) several pages from two of his notebooks and an envelope that were found in his bedroom on June 5, 1968, and (2) an envelope that was found in a trash box in the rear yard of his residence on June 6, 1968. The Attorney General contends, inter alia, that defendant is precluded from claiming that the receipt of the foregoing evidence was error since the remaining pages of the notebooks were introduced into evidence by the defense and the defense used the entire notebooks and envelopes as proof of diminished capacity. The Attorney General asserts that the pages offered by the defense were more damaging than “those portions” offered by the prosecution “from the standpoint of showing [defendant’s] praise of communism and hatred toward this country, stated in occasionally profane terms, and [defendant’s] willingness to resort to political assassination,” and the Attorney General claims that the introduction by the defense of the pages was not impelled by the prosecution’s introduction of the subject evidence but by, if anything, a desire of the defense to use the notebooks in support of its defense of diminished capacity. “It is, of course, difficult to unravel the many considerations that might have led” the defense to offer the pages. (See Harrison v. United States, 392 U.S. 219, 224 [20 L.Ed.2d 1047, 1052, 88 S.Ct. 2008].) However, we believe that there is at least a reasonable possibility that their introduction was impelled by the prosecution’s introduction of part of the notebooks. (See People v. Quicke, 71 Cal.2d 502, 518 [78 Cal.Rptr. 683, 455 P.2d 787]; People v. Spencer, 66 Cal.2d 158, 168 [57 Cal.Rptr. 163, 424 P.2d 715].) It was'only after the prosecution introduced part of the notebooks over objection, that the defense introduced the remaining pages. When defense counsel offered in evidence the first page of one notebook he stated he did so “For the purpose of showing all of [defendant’s] writings and to explain the pages that have heretofore been offered in evidence . . . .” Presumably he did not have a different purpose for the other pages. The defense may have been seeking to show that the pages introduced by the prosecution, when viewed in the context of the notebooks in their entirety, should be considered by the jury as containing merely declarations of a mentally unbalanced person. Under the circumstances we are satisfied that defendant by introducing the remaining pages of the notebooks did not waive his right to contend on appeal that the introduction of the evidence by the prosecution was error. (See, e.g., People v. Zavala, 239 Cal.App.2d 732, 741 [49 Cal.Rptr. 129].) The Attorney General has cited no authority that any use by defendant of the subject evidence after a defense objection thereto was overruled bars defendant from claiming error on appeal, and it would not seem that it would have that effect. It is thus necessary to consider the merits of defendant’s contentions. A. Alleged Illegal Search and Seizure on June 5, 1968 A pretrial motion to suppress the evidence obtained in the June 5, 1968, search was made on the ground that the search and seizure were unlawful. The motion was denied following an evidentiary hearing. At the trial evidence was also received bearing on the matter. Defendant in effect made a second motion to suppress by making an “objection,” and the “objection” was overruled. On the morning of June 5, 1968, defendant’s brothers, Adel and Munir, upon seeing a newspaper picture of defendant in connection with the Kennedy shooting, went to the police station, where Adel was interviewed by Sergeant Brandt, one of the officers who made the search. The officer then knew that the senator had been shot earlier that same morning and presumably was aware that the senator was the successful Democratic candidate for President in the California primary. The officer further knew that the suspect was in custody and apparently knew that the suspect’s identity had not theretofore been revealed. Adel advised the officer of the suspect’s identity and stated that he (Adel), his two younger brothers, Sirhan and Munir, and their mother lived at a specified address in Pasadena and that their father was in another country. The officer asked if they could search the home, and Adel replied that “as far as he was concerned [they] could, however it was his mother’s house.” When asked if he wanted the police to call her for permission, Adel replied that she did not know what had happened and he did not want to alarm her. Sergeant Brandt, accompanied by two other officers and Adel, then went to the Sirhan residence, arriving about 10:30 a.m. on June 5, 1968. Brandt testified that they “were interested in evidence of possible conspiracy in that there might be other people that were not yet in custody.” He stated that there was nothing which “indicated [defendant] was engaged in any conspiracy” but that there was no evidence “there was not a conspiracy.” Adel admitted the officers into the house. They asked which bedroom belonged to, defendant, and Adel directed them to a back bedroom. There the officers opened a closed dressing table drawer and found an envelope bearing the notation “RFK must be disposed of like his brother was.” On the floor in plain sight they saw a closed notebook. They opened it to' see its cbntents; it contained a prediction of America’s downfall, an attack upon its leaders, and comments relating to “doing away” with those leaders. On top of the dressing table they saw a second notebook which looked “like a school book.” They looked through it, and in it were notations such as “R.F.K. must be assassinated” and “Ambassador Goldberg must die.” The envelope and pages from the two notebooks containing the foregoing comments were introduced into evidence by the prosecution. The handwriting on the envelope and in the notebooks was identified as defendant’s. Since the search was without a warrant, the burden was on the People to show proper justification therefor. (People v. Edwards, 71 Cal.2d 1096, 1099 [80 Cal.Rptr. 633, 458 P.2d 713]; People v. Henry, 65 Cal.2d 842, 845 [56 Cal.Rptr. 485, 423 P.2d 557]; People v. Haven, 59 Cal.2d 713, 717 [31 Cal.Rptr. 47, 381 P.2d 927].) In the trial court one theory relied upon by the People was Adel’s consent, and the trial court upheld the search on the ground that the officers had the consent of Adel, “one they conscientiously and reasonably believed . . . could grant authority.” Defendant argues on appeal that Adel had neither actual nor apparent authority to consent to' a search of defendant’s notebooks and dresser drawer. We heed not, however, consider whether the search can be sustained on the basis of Adel’s consent, since, as we shall see, the search was lawful upon another ground. The Attorney General asserts that there was a pressing emergency to ascertain the existence of a possible conspiracy to assassinate presidential candidates or high government officials, and he relies on the emergency exception to the warrant requirement. Defendant, on the other hand, argues that no emergency was shown justifying the search, and he points to testimony that the officers had no- evidence of a conspiracy. As a preliminary matter it is necessary to consider whether the emergency theory was relied upon by the People in the trial court. Ordinarily the People cannot introduce for the first time in the appellate court a theory to' justify a search since the defendant, being entitled to assume that the only purported justification for the search is that advanced by the prosecutor, has no reason to cross-examine prosecution witnesses and adduce evidence of his own to rebut the theory argued for the first time in the appellate court. (People v. Superior Court (Simon), ante, p. 186 [101 Cal.Rptr. 837, 496 P.2d 1205]; People v. Miller, ante, p. 219 [101 Cal.Rptr. 860, 496 P.2d 1228].) Here at the motion for a new trial the prosecutor clearly enunciated that theory. Although the Attorney General has not directed us to any place where that theory was theretofore explicitly set forth in the trial court, we believe that the prosecutor’s remarks and examination of witnesses during the hearing on the motion to suppress and trial gave defendant sufficient notice that the prosecutor was relying on that theory, and defendant makes no argument to the contrary on appeal. Although at the motion for new trial defense counsel referred to the prosecution’s “new suggestion,” apparently referring to the theory in question, he made no claim that the defense was taken by surprise and his cross-examination in which he brought out that there was no evidence of a conspiracy suggests that he was not. We conclude that the People are not barred from, urging the theory on appeal. We turn next to a consideration of whether the theory is a valid one. In Johnson v. United States, 333 U.S. 10, 14-15 [92 L.Ed. 436, 440-441, 68 S.Ct. 367], a case involving narcotics law violations, the court declared that “There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.” The court concluded that such circumstances were not there present, stating “ . . . No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction . . . .” The doctrine in Johnson v. United States, supra, 333 U.S. 10, 14-15, repeatedly has been reiterated by the United States Supreme Court. (See, e.g., Vale v. Louisiana, 399 U.S. 30, 34-35 [26 L.Ed.2d 409, 413-414, 90 S.Ct. 1969]; United States v. Jeffers, 342 U.S. 48, 51-52 [96 L.Ed. 59, 64-65, 72 S.Ct. 93]; McDonald v. United States, 335 U.S. 451, 456 [93 L.Ed. 153, 158, 69 S.Ct. 191].) In McDonald, supra, which involved the crime of carrying on a lottery, the court, after concluding that no emergency there appeared justifying the search, stated, “We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law. . . . We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” (Italics added; see also Coolidge v. New Hampshire, 403 U.S. 443, 445 [29 L.Ed.2d 564, 570, 91 S.Ct. 2022]; Chimel v. California, 395 U.S. 752, 761 [23 L.Ed.2d 685, 692, 89 S.Ct. 2034].) Warden v. Hayden, 387 U.S. 294, 298-300 [18 L.Ed.2d 782; 787-788, 87 S.Ct. 1642] held that “the exigencies of the situation made [the course there followed] imperative.” In that case the police were informed that an armed robbery had taken place and that the suspect had entered a specified address less than five minutes before they reached it, and the court stated that the police “acted reasonably when they entered the house and began to search for a man of the description that had been given and for weapons which he had used in the robbery or might use against them.” (See also People v. Smith, 63 Cal.2d 779, 797 [48 Cal.Rptr. 382, 409 P.2d 222] [cert. den. 388 U.S. 913 (18 L.Ed.2d 1353, 87 S.Ct. 2119); rehg. den. 389 U.S. 893 (19 L.Ed.2d 211, 88 S.Ct. 13)]; People v. Terry, 70 Cal.2d 410, 424 [77 Cal.Rptr. 460, 454 P.2d 36] [cert. den. 399 U.S. 911 (26 L.Ed.2d 566, 90 S.Ct. 2205); rehg. den. 400 U.S. 858 (27 L.Ed.2d 97, 91 S.Ct. 26)].) The emergency or exigency theory has also been applied in cases where the officers’ conduct was prompted by the motive of preserving life and reasonably appeared to’ be necessary for that purpose. (See, e.g., People v. Roberts, 47 Cal.2d 374 [303 P.2d 721] [police heard moaning sound as if from person in distress, entered defendant’s apartment, looked in several rooms, and found evidence in plain sight in the kitchen]; People v. Superior Court (Peebles) 6 Cal.App.3d 379 [85 Cal.Rptr. 803] [circumstances suggesting the possibility of an unexploded bomb in an apartment held to constitute exigent circumstances justifying search]; People v. Gomez, 229 Cal.App.2d 781, 782-783 [40 Cal.Rptr. 616] [officer searched pockets of unconscious man having convulsions for purpose of discovering what was wrong with him].) The Attorney General urges that the “exigencies of the situation” in this case likewise made it imperative for the officers to follow the course they took. The heretofore recited evidence indicates that the officers believed that there might be a conspiracy, and although none of the officers mentioned the object thereof they undoubtedly contemplated the obvious possibility of a conspiracy to assassinate political leaders in this country. It also may be inferred from the recited evidence that they believed that an emergency existed and that prompt action on their part was necessary. Their beliefs were entirely reasonable. The crime was one of enormous gravity, and the “gravity of the offense” is an appropriate factor to take into consideration. (See People v. Schader, 62 Cal.2d 716, 724 [44 Cal.Rptr. 193, 401 P.2d 665], quoting from a dissent by Mr. Justice Jackson in Brinegar v. United States, 338 U.S. 160, 182 [93 L.Ed. 1879, 1894, 69 S.Ct. 1302].) The victim was a major presidential candidate, and a crime of violence had already been committed against him. The crime thus involved far more than possibly idle threats. Although the officers did not have reasonable cause to believe that the house contained evidence of a conspiracy to assassinate prominent political leaders, we believe that the mere possibility that there might be such evidence in the house fully warranted the officers’ actions. It is not difficult to envisage what would have been the effect on this nation if several more political assassinations had followed that of Senator Kennedy. Today when assassinations of persons of prominence have repeatedly been committed in this country, it is essential that law enforcement officers be allowed to take fast action in their endeavors to combat such crimes. The scope of the search must, of course, be “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. [Citations.]” (Terry v. Ohio, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904, 88 S.Ct. 1868].) Officer Brandt testified that after Adel admitted them into the house they began “a general search” and that they went there to determine both “whether or not there was anyone else involved in [the crime]” and “whether or not there were any other things that would be relative to the crime.” Even if the exigent circumstances in this case made lawful a warrantless search only for evidence of a possible conspiracy to' assassinate prominent political leaders, it is clear from the record that the officers were searching for such evidence. (See Warden v. Hayden, supra, 387 U.S. 294, 299-300 [18 L.Ed.2d 782, 787-788].) Only a thorough search in the house could insure that there was no evidence therein of such a conspiracy. Defendant’s objection to the notebooks and envelope found in his bedroom and his pre-trial motion to suppress that evidence were on grounds other than that the notebooks and envelope were “communicative” or “testimonial” in nature so that their very nature precluded them from being the object of a reasonable search and seizure. (See Warden v. Hayden, supra, 387 U.S. 294, 302-303 [18 L.Ed.2d 782, 789-790]; People v. Thayer, 63 Cal.2d 635, 642-643 [47 Cal.Rptr. 780, 408 P.2d 108] [cert. den. 384 U.S. 908 (16 L.Ed.2d 361, 86 S.Ct. 1342)]; see generally A.L.I., A Model Code of Pre-arraignment Procedure, Proposed Official Draft No. 1 (April 1972) § 210.3, pp. 34-36.) The issue whether the very nature of the notebooks and envelope precluded them from being the object of a reasonable search and seizure therefore will not be reviewed on appeal. (Evid. Code, § 353; People v. Floyd, 1 Cal.3d 694, 717 [83 Cal.Rptr. 608, 464 P.2d 64]; People v. De Santiago, 71 Cal.2d 18, 22 [76 Cal.Rptr. 809, 453 P.2d 353]; People v. Washington, 11 Cal.2d 1061, 1083 [80 Cal.Rptr. 567, 458 P.2d 479].) Even if defendant’s memorandum in support of his motion for a new trial raised that issue, this did not constitute a timely motion to exclude the evidence on that ground. We conclude that the trial court did not err in admitting the evidence found in defendant’s bedroom. B. Alleged Illegal Search and Seizure on June 6, 1968 The prosecution introduced into evidence, over objection, an envelope on which appears writing (identified as defendant’s) stating “RFK must be . . . disposed of properly Robert Fitzgerald Kennedy must soon die die die die . . . .” The envelope was found on June 6, 1968, by Police Officer Young, who was “assigned to security at the rear of the Sirhan residence” and had the duty of guarding the place to< keep unauthorized persons away. Young testified that he made a “search” of the Sirhan residence rear yard, at the back of which there was a fence. Several boxes of trash were in the rear yard, and Young stated that he found the envelope “laying in a box of trash .... There was garbage, lots of papers . . . and this was partly folded and wadded up, lying in the trash.” When subsequently asked whether when he made “a search [he] was looking for . . . whatever [he] could find,” the officer replied, “Not at the moment. I had . . . a paper cup of coffee, and I walked over there to drop it in the trash and seeing here is quite a bit more trash, and the trashman apparently hadn’t been able to get in yet, and I threw it in the trash and that is when I noticed this envelope and it had writing on it.” He picked it up out of curiosity, looked at it, and later delivered it to another officer. Officer Young did not have a search warrant. The burden is on the prosecution to justify a search or seizure without a warrant. (People v. Edwards, supra, 71 Cal.2d 1096, 1099; People v. Marshall, 69 Cal.2d 51, 56 [69 Cal.Rptr. 585, 442 P.2d 665].) At the trial the prosecution, in seeking to sustain its burden, relied upon People v. Bly, 191 Cal.App.2d 352, 357 [12 Cal.Rptr. 542], which states that “It can hardly be said that papers discarded to the trash can are the object of an illegal search and seizure.” Bly, however, was disapproved after defendant’s trial in People v. Edwards, supra, page 1105. In Edwards officers found marijuana during a search of the contents of trash cans that were in the “open backyard area” behind the defendant's residence, a few feet from the back do