People v. Davis
People v. Davis
Opinion of the Court
Defendant was charged with robbery (§ 211, Pen. Code) and violation, Dangerous Weapons Control Law (§ 12020, Pen. Code). His motions under sections 995 and 1538.5, Penal Code, were denied. The court found defendant guilty as charged and fixed the degree of the robbery at first degree but made no finding on the allegation that defendant had suffered two prior felony convictions (grand theft and violation, Dyer Act). He appeals from the judgment.
Around 3 p.m. on May 30, 1968, defendant entered a liquor store and pointing a shotgun at Herman Goldberg, ordered him to give him the money; Goldberg was seven to eight feet from defendant who was wearing a blue jacket. He opened the cash register and gave defendant over $300, then defendant demanded a wallet from a man who had entered the store; the man started to fight defendant and Goldberg ran out crying for help. Defendant drove away in a 1958 or 1959 black Chevrolet Convertible; Goldberg gave the first three letters of the license plate (FZE) to police, and a girl who arrived just as defendant departed got the rest of the license number for the officers.
Upon reading the robbery report, Officer Hambly recognized the license of the car (FZE 449) as connected with the arrest of James Morgan in April 1968, thus on May 30, 1968, he caused a bulletin to be circulated within the police department asking that the car be stopped and any occupants held for investigation on the robbery. On June 1 Morgan and Eddy Potter were apprehended in the vehicle. Officer Hambly advised Morgan of his constitutional rights; Morgan told him that on the evening of May 29 he loaned the car to Potter who was to return it within about 30 hours, when the car was not returned he went to look for it and found it parked near 6th and Union Drive. After Officer Hambly advised Potter of his constitutional rights, Potter told him he borrowed the car from Morgan and drove to 508 Union Drive (near 6th and Union) where he met others including Steve Cassidy and “Pete” in apartment 209; he, “Pete” and Cassidy had a party there which lasted through the evening until the next day; he became so intoxicated he could not say what happened to the car during that time but Cassidy had the key. Potter described “Pete” as tall and slender—approximately 6 feet 2, weighing 170 pounds and having sandy brown crewcut hair.
On June 3, Officers Hambly and Patterson knocked on apartment 209; defendant answered. Officer Hambly asked if Steve was there; defendant said, “No”; then they identified themselves as police officers and asked if they could come in and look; defendant said they could and stepped back from the door; after the officers entered, Officer Hambly asked defendant
On June 4 the officer talked to defendant and asked him if he recalled being admonished of his constitutional rights the day he was arrested and defendant said that he did; he continued, “Well, understanding these things, do you want to discuss with me this case of robbery?” and defendant said, “Yes,” but “How many cases did you make on me?” the officer replied “Well, would you go for two?” and defendant said, “Which ones?”; he asked defendant if he would go for the robbery on May 30 and defendant replied, “Okay.” Then he asked defendant about the shotgun and defendant said a friend who occupied the apartment before him brought it to the apartment and he had used it in the robbery; when asked if the blue jacket he was then wearing was the same he wore during the robbery defendant said it was; he asked if there was anything else he would like to tell concerning the robbery and defendent said he and a couple of others had gone to the store in the black Chevrolet Convertible and he went in alone with the shotgun and held it up; he was kind of drunk and mixed up and did not know how much money he got, he returned to the car and they drove away. Asked if he had any difficulty in the store, defendant replied some drunk or somebody came sticking his nose in and got in the way.
Defendant neither testified nor offered a defense.
In support of his contention that there was not probable cause
“A peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person whom he arrested has committed a felony. Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officer at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (People v. Talley, 65 Cal.2d 830, 835-836 [56 Cal.Rptr. 492, 423 P.2d 564].)” (People v. Hogan, 71 Cal.2d 888, 890 [80 Cal.Rptr. 28, 457 P.2d 868]; People v. Lara, 67 Cal.2d 365, 374 [62 Cal.Rptr. 586, 432 P.2d. 202]; People v. Schader, 62 Cal.2d 716, 722 [44 Cal.Rptr. 193, 401 P.2d 665].) “Each case must be decided on its own facts and circumstances [citations].” (People v. Ingle, 53 Cal.2d 407, 412 [2 Cal.Rptr. 14, 348 P.2d 577].) “In reviewing the trial court’s finding on this question we must bear in mind that the rule allowing the trial court to determine the credibility of witnesses and the weight of their evidence is applicable, and that we must accept all evidence and all reasonable inferences therefrom in support of the lower court’s ruling.” (People v. Shapiro, 213 Cal.App.2d 618, 620 [28 Cal.Rptr. 907].) After a full hearing of the matter the trial court found the officers had probable cause, and there is sufficient evidence to support its determination. (People v. Lara, 67 Cal.2d 365, 374 [62 Cal.Rptr. 586, 432P.2d 202].)
Information obtained from others may be relied upon to show probable cause. Although information provided by a known informant of unproved reliability or by an anonymous informer ordinarily is not alone sufficient to warrant an arrest, it is sufficient if it is corroborated in essential respects by such other facts, sources or circumstances as would justify the conclusion that reliance on the information was reasonable. (People v. Talley, 65 Cal.2d 830, 835-836 [56 Cal.Rptr. 492, 423 P.2d 564]; People v. Gallegos, 62 Cal.2d 176, 179 [41 Cal.Rptr. 590, 397 P.2d 174]; People v. Reeves, 61 Cal.2d 268, 273-274 [38 Cal.Rptr. 1, 391 P.2d 393]; Willson v. Superior Court, 46 Cal.2d 291, 294. [294 P.2d 36].) “Such corroboration need not itself amount to reasonable cause (P arrest; its only purpose is to provide the element of ‘reliability’ missing when the police have had no prior experience with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the
The information obtained from Potter was sufficiently corroborated to warrant the officers’ reliance thereon. Immediately after the robbery Goldberg gave police the first three letters of the license plate of the get-away car (the three numerals were supplied by another witness) and a description of the robber.
In our opinion Potter’s information was sufficiently corroborated so that reliance thereon by the officer was reasonable (People v. Lara, 67 Cal.2d 365, 375 [62 Cal.Rptr. 586, 432 P.2d 202]; People v. Sandoval, 65 Cal.2d 303, 308-309 [54 Cal.Rptr. 123, 419 P.2d 187]), and the trial court’s determination that the search was valid as incident to a lawful arrest (People v. Berutko, 71 Cal.2d 84, 94 [77 Cal.Rptr. 217, 453 P.2d 721]; People v. Ross, 67 Cal.2d 64, 69 [60 Cal.Rptr. 254, 429 P.2d 606]; People v. Cockrell, 63 Cal.2d 659, 666 [47 Cal.Rptr. 788, 408 P.2d 116]) was proper. Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034], limiting the scope of searches incident to an arrest, is not here applicable inasmuch as the trial of the cause was had seven months before the effective date of Chimel (June 23, 1969). People v. Groves, 71 Cal.2d 1196, 1199 [80 Cal.Rptr. 745, 458 P.2d 985]; People v. Edwards, 71 Cal.2d 1096, 1107 [80 Cal.Rptr. 633, 458 P.2d 713].
The record shows that defendant was not advised of his right to have counsel present at the lineup. (United States v. Wade, 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926].) However, in the light of the overwhelming evidence pointing to defdndant’s guilt, we can only conclude that the prosecution has proved “beyond a reasonable doubt that the error complained of” did not contribute to defendant’s conviction. (Chapman v. California, 286 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065].) Appellant’s claim that the lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law is without substance. On the evening of the day he was arrested defendant was in a lineup of eight men all of whom were wearing blue jackets similar to the one defendant wore when he robbed the liquor store; defendant was at the end and the tallest;
The record, however, shows by “clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” (United States v. Wade, 388 U.S. 218, 240 [18 L.Ed.2d 1149, 1164, 87 S.Ct. 1926].) Goldberg testified that at times defendant was only seven or eight feet from him and he observed him in the course of the robbery which lasted five or six minutes. In the courtroom he identified defendant as the man who robbed him based on his observations of defendant during the robbery independant of any identification of defendant in the lineup. The record affirmatively shows that Goldberg’s in-court identification was not based on his recollection of defendant at the lineup.
The judgment is affirmed.
Wood, P. J., and Thompson, J., concurred.
A petition for a rehearing was denied December 22, 1969.
Information from a victim may be sufficient even though his reliability has not been previously tested. (People v. Hogan, 71 Cal.2d 888, 890 [80 Cal.Rptr. 28, 457 P.2d 868].)
Reliable information furnishing probable cause for an arrest does not lose its reliability when it is transmitted through official channels to arresting officers. The latter may rely upon it when making an arrest. (People v. Ross, 67 Cal.2d 64, 70 [60 Cal.Rptr. 254, 429 P.2d 606] [reversed on other grounds, 391 U.S. 470 (20 L.Ed.2d 750, 88 S.Ct. 1850)]; People v. Hogan, 71 Cal.2d 888, 891 [80 Cal.Rptr. 28, 457 P.2d 868].)
Officer Hambly described the description in the crime report as “a composite description as perhaps provided by all of the listed witnesses as well as the reporting party [Goldberg], that this is generally the way they described them, and the officer made that composite description on there from the information he learned from those people.”
Potter described Pete as a male Caucasian, tall and thin, about 6 feet 2, 170 pounds with dark hair in a crewcut.
“THE Court : And you are identifying him again today as the person who robbed you; is that right?
“The Witness: Yes.
“The Court: Is this identification based on your recollection of the person who robbed you?
“The Witness: Yes.
"
“The Court: Mr. Goldberg, are you saying that this man is the man who robbed you merely because you saw him in a line-up, or are you saying he is the one that robbed you because you remember that he was the person who robbed you?
A. I remember it was the person who robbed me.”
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