Summary
In People v. Mickelson (Cal.App.) 26 Cal.Rptr. 152, a police officer while on patrol was given the description of a person wanted for robbery.
Summary of this case from State v. HarrisOpinion
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Harry Wood, Deputy Dist. Atty., Harry Sondheim, Deputy Dist. Atty., for appellant.
Gladys Towles Root and Eugene V. McPherson, Los Angeles, for respondent.
FOX, Presiding Justice.
This is an appeal by the People from an order granting defendant's motion to set aside the information.
Defendant was charged with two counts of burglary. Count 2 charged that on October 23, 1961, defendant entered a telephone booth at 349 North Glenoaks Boulevard, Burbank, with intent to commit theft. The motion was granted as to Count 2 on the ground that defendant's constitutional rights were violated by reason of the failure to bring him before a magistrate for arraignment for a period of some nine days.
The People concede that the evidence as to Count 1 is insufficient.
The evidence as to Count 2 is that the gasoline service station located at 349 North Glenoaks Boulevard, Burbank, has two pay telephones facing Glenoaks Boulevard. On Monday, October 23, the owner observed that one of these telephones had been damaged; that it was broken off the wall. A police officer who examined this telephone booth discovered that the inside mechanism of the telephone and a small amount of change in the form of nickels and dimes were lying on the floor. The upper housing of the telephone was sticking out from its mounting approximately three-quarters to an inch from its normal position; that it was more or less set back into place but not fastened in any way.
Between one and two o'clock in the morning of October 23 a burglary alarm was turned in from Bill's Ranch Market which was located in the general area of the telephone booth here in question. Officer Matheson of the Burbank police force was dispatched to the market. He was informed by other officers who reached the scene of the market robbery prior to his arrival, that the suspect was wearing a red sweater, was a rather tall Caucasian with dark hair and large build, and had used a .45 automatic in the robbery. The officer thereupon began to drive around the area in widening circles in search of the suspect. Approximately 15 or 20 minutes after his arrival at the market, he passed a vehicle some five or six blocks from the market, which was the only car on the highway in that immediate vicinity. The driver had dark hair, was wearing a red jacket or sweater and appeared to be a large man. There was a passenger with him. The movements of the car were such that it seemed to the officer that the occupants either were trying to evade him or they were confused and did not know the area very well. The officer proceeded to overtake the vehicle and while doing so, he observed the passenger bend forward and down and raise back up. The officer then turned on his red light and the driver of the other vehicle stopped. The officer's purpose in stopping the car was to check out the occupants as possible suspects in the robbery of the market.
As the suspect car was pulled over to the curb, the officer, according to custom, radioed Officer Matheson went to the passenger side of the car and opened the door. He was looking for a weapon. Without looking under the seat, the officer saw an overnight bag sticking out from under the seat, directly underneath where the defendant had been sitting. When he removed the bag he asked Zauzig what was in it. Zauzig replied that it contained his basketball equipment. The officer, concerned with the possibility of a gun being in it, unzipped the bag. Examination revealed four screwdrivers of various sizes, a two-cell flashlight, a pair of canvas gloves and two socks, one grey and one white. The grey one was knotted at the top and filled with something that jingled. The officer asked Zauzig what was in the sock. He replied there were some dimes. The officer thereupon unknotted the top and opened it up. At a glance he saw nickels, dimes and quarters; whereupon the officer said, 'Dimes?' Zauzig replied, 'Well, there are some nickels and dimes. I have a collection of nickels and dimes.' The officer then placed the defendant and Zauzig under arrest on suspicion of burglary (1) because of the presence of the coins in the sock which was not satisfactorily explained; (2) because Zauzig changed his story a couple of times; and (3) because of the presence of the screwdrivers which Zauzig could not explain to the officers, two of which were bent at the tip and appeared to have been used for prying, which led the officers to believe that this money had been acquired by some means other than the way Zauzig related. At the police station the money in the sock was counted and found to total $85.90. When the defendant was placed under arrest at the scene where the vehicle was stopped, Matheson informed him of the charge. Defendant made no comment. When they arrived at the police station, the officer had some conversation with defendant about the charge; the defendant just laughed and stated he was on parole and was going back to prison anyway. The officer explained that he was being booked on suspicion of burglary and that the officer thought that the defendant got the coins either from a phone booth or a laundromat. Defendant made no reply.
Zauzig testified that he and defendant went to a gas station which was closed and which had two telephone booths facing the street. They went over to one of the booths where defendant lifted off the telephone case from the wall. There was a coin box at the bottom, out of which defendant took several handfuls of coins. Zauzig and defendant then got into the automobile and drove away. Zauzig was wearing a red jacket. Shortly thereafter his car was stopped by Officer Matheson.
It was stipulated that Clifford Crump, an expert forensic chemist, would testify that a lock which came from the pay telephone had markings which were made by People's Exhibit 1, a screwdriver. People's Exhibits 6 and 7 had small black fragments of lacquer paint similar to that which is used to paint telephone equipment.
Following is a summary of the testimony relative to defendant's confinement by the Burbank police prior to his arraignment. The investigating officer, Albert Madrid, notified parole officer Cosey, or one of the other agents in that office, on the morning of October 23 that defendant had been arrested on suspicion of burglary. At about 10:30 that same morning Officer Madrid received a teletype from a parole officer placing a After defendant's arrest Officer Madrid submitted certain items to the sheriff's crime laboratory for analysis and comparison. He then contacted the District Attorney's office for the purpose of obtaining a complaint against defendant and was told to wait until the report from the crime lab was available and he had certain further information on said items. On the morning of October 25 Madrid contacted Cosey and advised him that he, Madrid, would be unable to file a complaint within the specified 48-hour period due to the tie-up at the sheriff's crime lab and inquired of Cosey whether he wanted defendant sent to the county jail or held in the Burbank jail until it was determined whether they would file on him. Madrid was advised it did not make any difference where defendant was held; that the parole hold was still in effect. Madrid received a report from the sheriff's crime lab on October 31 and obtained a complaint on November 1, and defendant was then arraigned. The information, however, was later dismissed by the court upon defendant's motion. It was then refiled and again dismissed upon the grounds stated at the outset of this opinion. It is from this latter order, particularly the portion thereof dismissing Count 2, that the People have appealed.
The 'hold' was placed on defendant pursuant to section 3056, Penal Code. It was not affected by the dismissal of the earlier informations. The 'hold' the parole officer placed on defendant would go with him to wherever he might be transferred and would be effective until released by a parole officer.
The People persuasively argue that the trial court erred in concluding that any constitutional or statutory rights of defendant, a parolee upon whom a parole 'hold' had been placed while in custody of the police, had been violated. They rely upon People v. Goss, 193 Cal.App.2d 720, 14 Cal.Rptr. 569, which holds that a detention of a defendant who was a parolee for a period of 27 days from the time of his arrest to the time of his arraignment was not a not a violation of either section 825, Penal Code, or Article I, section 13 of the state constitution. The reasoning of the court, which is here apposite, is set out at pp. 724-725, 14 Cal.Rptr. p. 571:
'The first argument on appeal is that his detention for 27 days from the time of his arrest on October 29 to the time of his arraignment on November 24 was a violation of section 825 of the Penal Code and Article I, section 13, of the state Constitution. Section 825 of the Penal Code provides so far as relevant, that: 'The defendant must in all cases be taken before the magistrate without unnecessary delay, and, in any event within two days after his arrest, excluding Sundays and holidays * * *' Article I, section 13 of the state Constitution provides, so far as relevant: 'In criminal prosecutions, in any court whatever the party accused shall have the right to a speedy and public trial * * *' See also Pen. Code, §§ 686, 849 subd. (a), and 1050. The basic policy underlying both the constitutional and statutory provisions is to protect the accused from having criminal charges pending against him an undue length of time. [Citation.]
'As the record here indicates that the defendant was a parolee, the first question is whether he is entitled to the protection of the above mentioned statute and the constitutional provision. It is clear that although on parole, the defendant was 'a prisoner under sentence and in the legal custody * * * of the Department of Corrections.' [Citation.] He was subject to the rules and regulations of the Adult Authority (Pen. Code, § 3052), and had the civil rights disabilities prescribed by section 2600 of the Penal Code (People v. Denne, 141 Cal.App.2d 499, 297 P.2d 451). The granting of parole does not change his status as a prisoner but simply pushes back the prison walls for him, allowing him wider mobility and greater personal opportunity while serving his sentence. (People v. Denne, supra, 141 Cal.App.2d at p. 508, 297 P.2d 451). Section 3056 of the Penal Code provides: People v. Contreras,In re Ferguson,
Furthermore, even assuming defendant was detained too long before being arraigned, the following language from People v. Combes, 56 Cal.2d 135, at 142, 14 Cal.Rptr. 4, at page 7, 363 P.2d 4, at page 7, is applicable: 'A violation of a defendant's right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was deprived of a fair trial or otherwise suffered prejudice as a result thereof. [Citations.]' As was said in the last cited case, 'The record in the present case affords no basis for an inference that defendant was prejudiced by any delay in being taken before a magistrate or that the was deprived of a fair trial.'
The next question is: 'Was there an unlawful search or seizure? Because of (1) the similarity between the description of the robber of the market which the officer had previously obtained and the appearance of the driver of the vehicle as observed by the officer; (2) the possibility that the driver of the vehicle was attempting to evade the officer; (3) the furtive act of defendant in bending over and appearing to place something under the seat, as the officer was overtaking the suspect vehicle; and (4) the lateness of the hour (approximately 2:00 a. m.), Officer Matheson was reasonably justified in stopping the vehicle and interrogating the occupants. (People v. Dore, 146 Cal.App.2d 541, 304 P.2d 103.)
In the course of such investigation, it was certainly reasonable and proper for the officer to determine what, if anything, the defendant had placed under the seat of the automobile, especially since the officer knew that the robbery had been committed with a revolver and thought it likely that the revolver might have been furtively placed under the seat. To that end the officer was entitled to investigate the contents of the oernight bag that was partially under the seat that defendant occupied.
The statement of the court in People v. Jiminez, 143 Cal.App.2d 671, at p. 673, 300 P.2d 68, 70, is here pertinent: 'We are, of course, mindful of the proposition that the reasonableness of any search is not to be justified by what the search turns up but by the appearances to the searcher at the time of his action. We believe the officers were thoroughly justified in interrogating defendants and in ordering them from the car. The information they had received at the police station was corroborated by the intelligence that other persons had been seen carrying weapons for a fight. The officers had a right to interrogate persons on the streets in the nighttime. [Citation.] When, as they approached defendants to perform this lawful duty, they saw the Balazs movement, they were justified in thinking it likely that he had a weapon. If the proposition holds true that the search is not justified by its results, the converse holds true that a search based on appearances is not rendered unlawful by the fact that the contraband actually on hand was not that which reasonably was thought to be present.'
Finally, in connection with the reasonableness of the search of the car, it should be noted that instead of waiting for the officers to approach his car, which is the customary thing, Zauzig left his car and walked back to the officer's vehicle, evidently hoping that he would not have any occasion to look his car. (People v. Williams, 196 Cal.App.2d 726, 728, 16 Cal.Rptr. 836.)
Upon discovering there was no gun in the overnight bag but instead it contained four The final question involves the asserted application of the doctrine of res judicata. Defendant contends, relying on People v. Mora, 120 Cal.App.2d 896, 262 P.2d 594, that his previous dismissal (see supra) is res judicata as to his constitutional rights. This argument has been answered in People v. Van Eyk, 56 Cal.2d 471, p. 477, 15 Cal.Rptr. 150, p. 153, 364 P.2d 326, p. 329, wherein it was stated: 'The untenable contention is made by defendant that, in view of the order setting aside the information in the action charging him with possession of narcotics, the doctrine of res judicata is available to establish that the evidence introduced against him here, which is the same as that involved in the prior action, was illegally obtained. Section 999 of the Penal Code provides, 'An order to set aside an indictment or information, as provided in this chapter, is no bar to a future prosecution for the same offense.' In People v. Prewitt, 52 Cal.2d 330, 340, 341 P.2d 1, where a magistrate at a preliminary hearing had dismissed a complaint, determining that the evidence was illegally obtained, we held, citing section 999, that res judicata does not apply in a subsequent prosecution. Insofar as People v. Mora, 120 Cal.App.2d 896, 899-900, 262 P.2d 594, is to the contrary, it is disapproved.'
If it be argued that the first information was dismissed under section 1385, Penal Code, it is apparent that such dismissal was not a bar to another prosecution for the charge was a felony and section 1387, Penal Code, provides: 'An order for the dismissal of the action, made as provided in this chapter, is a bar to any other prosecution for the same offense if it is a misdemeanor, but not if it is a felony.'
Sections 1385 and 1387, Penal Code, are in the same chapter.
The order setting aside the information as to Count 1 is affirmed; as to Count 2, it is reversed.
ASHBURN and HERNDON, JJ., concur.