People v. Ross

429 P.2d 606, 67 Cal. 2d 64, 60 Cal. Rptr. 254, 1967 Cal. LEXIS 204

• Court: California Supreme Court
• Decided: July 20, 1967
• Docket: Crim. 10533
• Status: Published

Opinions

McCOMB, J.

Defendant appeals from a judgment óf conviction of (a) robbery in the first degree and (b) attempted murder.

Facts: Walter Williams, general manager of a San Bernardino ice cream company, was in his office about 10 p.m. on September 20, 1964, counting daily receipts. A company driver, Mr. Asa Brown, was present. A person later identified as defendant appeared at the door and declared, “This is a stickup, Walt. ” Mr. Williams, known by that nickname, had never seen the person before. The intruder wore black shoes, dark trousers, a zippered jacket, gloves, and a woman’s nylon stocking over his head. ITe was carrying a single-barreled shotgun with tape around it. The gun was pointed at the head and chest of Mr. Brown seated at the office desk.

The intruder ordered the two employees to get down on the floor and face the wall. They complied with the order, although Williams continued to face in the direction of the intruder and was thus able to observe the thief take an unknown amount of currency from the desk and place it in his pocket. The thief then said, “Let’s go to the safe room.” The employees were ordered to open the safe and to again get down on the floor.

The neon lights in the room were defective and occasionally flickered, prompting the thief to say; “What is that? Who turned that light on? You know, if anybody walks through that back door now, he is a dead man.” The thief reached into the safe for a large sack of money, and finding it too heavy to lift with one hand he placed the shotgun on the floor to use both of his hands. Williams yelled, “Let’s get him,” and the employees rushed the intruder. The thief was able to regain possession of the gun and used it as a club, striking Williams repeatedly on the head, arms and body. During the scuffle with their assailant, both employees were able to closely observe his features despite the stocking. They later positively identified defendant as the robber.

Mr. Brown broke away to call the police, while Williams continued the struggle, but the thief was able to escape with a sack containing rolled money and currency. Williams later estimated the entire amount taken was approximately $800.

As the thief fled he warned “Don’t come any closer or I will shoot.” Nevertheless, Williams and Brown followed him outside and saw him retreating with the shotgun and a traveling bag. The thief pointed the gun at them and ordered-, “Don’t try to follow; get back.” After the robber disappeared from view, Williams advanced to the corner of the building and observed a person he believed to be the thief behind an automobile approximately 100 feet away. He next heard a blast from a shotgun and felt pellets strike both legs.

Police officers arrived shortly thereafter, and during their investigation they found coins tying on the street where the shot was fired. Bystanders provided a description of the suspect’s automobile, and Brown described the physical characteristics of the thief. This information was transmitted by radio to a police dispatcher, who alerted all units.

About 10 :40 p.m. a vehicle answering the radio description was sighted by a San Bernardino police patrol unit. The officers immediately attempted to halt the vehicle with a red light and siren. Instead of stopping, the driver accelerated and attempted to evade pursuit. Realizing the fleeing automobile was not going to stop, the officers fired seven shots during the ensuing pursuit, to which the suspect responded with a shotgun blast. During the pursuit the officers were' able to observe that the driver of the vehicle wore a white shirt and red vest.

During the chase the officers were in radio contact with other police units, and when the pursuit reached the jurisdictional border of the neighboring community of Colton, an alerted police unit was waiting to intercept. The latter took over with red light, siren and spotlight. The driver of the suspect vehicle leaned out of the car window and swung a taped, sawed-oif shotgun towards the pursuing Colton police approximately two car lengths behind. The officer beamed his spotlight directly into the suspect’s face and slid down on the front seat. He saw a flash and heard the report of the shotgun. Pellets struck the police vehicle, breaking a headlight, puncturing the radiator, and richocheting off the windshield. Pursuit, however, continued until the escape route became blocked by gates to a mill yard entrance. The suspect increased his speed and broke through, but further progress was prevented by a variety of materials stacked in the yard. As the suspect jumped from his vehicle, the officer trained a spotlight directly on the fugitive, who looked back toward tlie light, enabling the officer to "observe at close range his face and profile. The officer later positively identified defendant as the person pursued.

The suspect began to run despite an order to halt. Thé officer returned to the police unit and radioed" a report".'in which he described the suspect as blond, wearing a white shirt, tie, dark trousers and a bright red vest.

A San Bernardino police vehicle, who had been monitoring the chase by radio and heard the description, observed a man in a white shirt, black pants and a red sweater vest walking across an open field. He was carrying a necktie in his hand, his clothes were disheveled, and he appeared to be tired. Defendant was arrested and transported to the San Bernardino city jail. An examination Avas made of the suspect Apellide, identified as belonging to defendant. Officers discoA'ered therein $131 in currency, $298 in rolled coin, $154.23 in loose coin, five money bags, shotgun shells, numerous articles of clothing, a traveling bag, and a pair of gloves. The money bags contained daily receipts and stamped coin AAorappers identified as belonging to the plundered ice cream company. Also recovered was a check bearing the endorsement of Asa BroAvn which he had cashed and placed in the company safe prior to the robbery. Approximately 100 feet from defendant’s abandoned vehicle, officers found a sawed-off shotgun AA'ith Avhite tape on the barrel.

The day following the robbery Brown Avas requested to view a police showup, and he identified defendant as the thief from a lineup of four persons.

Questions: First. Was the incidental search of defendant’s person proper?

Yes. It is axiomatic that a search of the person incidental to a lawful arrest is valid. (United States v. Rabinowitz, 339 U.S. 56, 60, 64 [94 L.Ed. 653, 657, 659, 70 S.Ct. 430] ; Agnello v. United States, 269 U.S. 20, 30 [70 L.Ed. 145. 148, 46 S.Ct. 4, 51 A.L.R. 409] ; People v. Simon, 45 Cal.2d 645, 648 [2a] [290 P.2d 531]; In re Dixon, 41 Cal.2d 756, 761-762 [9] [264 P.2d 513].)

A peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a felony. (Pen. Code, § 836, subd. (3).) “Reasonable cause” is defined as that state of facts as Avould lead a man of ordinary care and prudence to belieA^e and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (People v. Ingle, 53 Cal.2d 407, 412 [2] [2 Cal.Rptr. 14 348 P.2d 577] ; People v. Fischer, 49 Cal.2d 442, 446 [1] [317 P.2d 967].) No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act. (People v. Ingle, supra, at p. 412 [1] ; People v. Ferguson, 214 Cal.App.2d 772, 775 [4] [29 Cal.Rptr. 691].)

The arresting officers, through official radio communication, were fully apprized of the commission of an armed robbery; they had a description of the car, which they had pursued until the Colton police took command; they also had a detailed description of the driver from the Colton police and they kneAV that the pursuit had terminated at the mill yard. They were entitled to rely on information from official sources. (People v. Estrada, 234 Cal.App.2d 136, 152 [11] [44 Cal.Rptr. 165, 11 A.L.R.3d 1307] ; People v. Schellin, 227 Cal.App.2d 245, 251 [7] [38 Cal.Rptr. 593].) Shortly thereafter, while patrolling in the vicinity of the mill yard, the officers observed defendant walking through an open field; his description matched precisely that given by the officer Avho had him in the spotlight; his clothes were disheveled, and he appeared tired. The arresting officers clearly had probable cause to arrest defendant, and the incidental search of his person was, therefore, valid. (Brinegar v. United States, 338 U.S. 160, 175-176 [93 L.Ed. 1879, 1890-1891, 69 S.Ct. 1302] ; People v. Schader, 62 Cal.2d 716, 722 [2a], 725 [2b] [44 Cal.Rptr. 193, 401 P.2d 665].)

Second. Was the seizure of defendant’s personal effects, including money found on his person, lawful?

Yes. A search of an arrested person at the time of his booking has always been considered contemporaneous to his arrest and is a reasonable search. His personal effects may be removed from him; the police may examine them to see if they have been stolen, return them to the prisoner on his release, or preserve them for use as evidence at the time of trial. (People v. Rogers, 241 Cal.App.2d 384, 389 [7-8] [50 Cal.Rptr. 559] ; People v. Wickliff, 144 Cal.App.2d 207, 213 [6] [300 P.2d 749] ; Bruce v. Sibeck, 25 Cal.App.2d 691, 697-698 [3] [78 P.2d 741].)

Section 1412 of the Penal Code provides that when “money or other property” is taken from an arrested defendant the officer taking it must give a receipt therefor. This statutory requirement necessarily assumes that “money or other property” may be lawfully seized from one arrested for a crime. (44 Cal.Jur.2d, Searches and Seizures, § 23, pp. 305-306.) The fact that the court ordered a portion of the money found on defendant’s person at the time of his arrest returned prior to trial does not derogate the fact of its lawful seizure. The money was surplus to the amount reported stolen from the ice cream company, and the overage was not involved with issues in the present case.

Third. Were defendant’s clothes and money properly admitted in evidenced

Yes. The personal effects taken from defendant which were of evidentiary value were properly received in evidence. (People v. Davis, 205 Cal.App.2d 517, 521 [7] [23 Cal.Rptr. 152].) Where a defendant is charged with robbery, evidence relating to money found on his person when arrested is relevant and admissible, particularly where, as here, the emploj’ees testified that they saw defendant take money from the company desk and place it in his pocket.

The fact that the money was not identified as the coins or currency taken in the robbery did not require its exclusion. In People v. Harsch, 44 Cal.App.2d 572 [112 P.2d 654], the defendant made a similar objection to the admission of money and coins found in his ear and on his person at the time of his arrest. The court at page 576 stated: “While it is true that the coins were not. capable of identification, and appellant, said he obtained them in a crap game, nevertheless, it was definitely established by the testimony of the two men, who were held up, that the money taken from the cash register consisted mainly of small change, consequently, the coins found in appellant’s car at the time of the arrest were ‘admissible in evidence, not as being sufficient in themselves to warrant or sustain his conviction, but as a circumstance which it was proper to place before the jury for their consideration in passing upon the guilt or innocence of the defendant [citation].’ ” (See also People v. Hickok, 198 Cal.App.2d 442, 444-445 [1b] [17 Cal.Rptr. 875].)

Furthermore, it should be noted that defendant made no objection at the trial to the introduction of his personal effects into evidence¹ on the ground of unlawful search and seizure, and he cannot raise the matter for the first time on appeal. (People v. Talbot, 64 Cal.2d 691, 709 [11] [51 Cal.Rptr. 417, 414 P.2d 633] ; People v. Cockrell, 63 Cal.2d 659, 667 [9] [47 Cal.Rptr. 788, 408 P.2d 116].)

Fourth. Was defendant prejudiced by his appearance in handcuffs 2

No. In the presence of the jury, defendant was brought into the courtroom handcuffed, and the restraints were removed prior to the initiation of any judicial proceedings. In chambers defendant moved for a mistrial, which was denied.

In general, unless there is danger of escape, an accused is entitled to appear during the progress of his trial free of shackles. (People v. Harrington, 42 Cal. 165 [10 Am. Rep. 296].) However, “When reasonable precautions are taken to retain custody of an accused the fact that they bring before the jury information that a defendant is a convict and perhaps a dangerous character does not deprive him of a fair trial.” (People v. Burwell, 44 Cal.2d 16, 32 [14] [279 P.2d 744].)

In the present ease, defendant was facing a life sentence and had been previously convicted of robbery. It was a reasonable practice for the sheriff to keep prisoners handcuffed while in transit, and the fact that the handcuffs were removed inside the courtroom rather than outside added to the security. (See People v. Hillcry, 65 Cal.2d 795, 805-806 [5] [56 Cal.Rptr. 280, 423 P.2d 208].) There was no harmful effect of such practice, since the jury knew defendant was in custody.

Unlike People v. Harrington, supra, 42 Cal. 165, and People v. Thompson, 23 Cal.App.2d 339 [72 P.2d 927], where the defendants were chained and shackled during the progress of their trials, here the handcuffs were removed after the sheriff brought defendant into the courtroom. Moreover, in the Thompson case, the error was held not prejudicial because the defendant’s guilt was so clear and convincing that no miscarriage of justice resulted.

Fifth. Was it prejudicial error to admit a picture of a police lineup in which defendant was clothed in coveralls and the others in street clothes?

No. In People v. Branch, 127 Cal.App.2d 438, 440 [1] [274 P.2d 31]. identification by means of a standard police lineup was discussed. It was held that a police “showup” is not based on any legal requirement but is designed to assist the jury in weighing evidence relative to identification. In the present case, the introduction of the picture may have been advantageous to defendant, rather than prejudicial, since it afforded him an opportunity to impeach the veracity of the lineup identification. The circumstances of the identification was a matter to be considered by the jury in determining the weight it should be given. (People v. Knowles, 35 Cal.2d 175, [1] [217 P.2d 1] ; People v. Shaw, 237 Cal.App.2d 606, 622 [12] [47 Cal.Rptr. 96].)

Sixth. Did the prosecutor’s comments and the court’s instruction on defendant’s failure to testify constitute harmless error?

Yes. At the time of defendant’s trial, the California Constitution permitted comment by the. court and counsel on an accused’s failure to testify (art. T, §13). Thereafter, on April 28, 1965, the United States Supreme Court in Griffin v. California, 380 US. 609 [14 L.Ed.2d 106. 85 S.Ct. 1229]. held that adverse comment violated the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution and made applicable to the states through the Fourteenth Amendment. The Griffin rule is applicable to eases pending on direct appeal at the time it was announced. (See Tehan v. Shott. 382 U.S. 406. 409. fn. 3 [15 L.Ed.2d 453, 86 S.Ct. 459] ; People v. Peres, 65 Cal.2d 615, 620 [4], fn. 2 [55 Cal.Rptr. 909, 422 P.2d 597] ; People v. Ing, 65 Cal.2d 603, 609 [1], fn. 2 [55 Cal.Rptr. 902, 422 P.2d 590].)

Tn Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], the Supreme Court held that constitutional errors do not require automatic reversal of convictions without regard to the facts and circumstances of each ease, but that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” (386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].)

We have recently recognized that the Chapman rule does not permit us to affirm a conviction " simply because we deem it improbable that a result more favorable to the defendant would have been reached in the absence of the Griffin error. ’ ’ (People v. Modesto (1967) 66 Cal.2d 695, 712 [59 Cal.Rptr. 124, 427 P.2d 788].) The Supreme Court required in Chapman that we focus on “reasonable possibility” rather than “probability” (386 U.S. at p 23 [17 L.Ed.2d at p. 710]) and that we cast “on someone other than the person prejudiced by [a federal constitutional error] a burden to show that it was harmless.” (Id. at p. 24 [17 L.Ed.2d at p. 710].) The court did not, however, require that we ignore the possible impact of the error upon the outcome of the ease.

In this connection, the meaning of the court’s reference to errors which “ ‘might have contributed to the conviction’ ” (id. at p. 23 [17 L.Ed.2d at p. 710]) becomes clear in the context of the entire opinion, since the court expressly stated that it sought “a rule that will save the good in harmless-error practices while avoiding the bad.” (Ibid.) The court explained the “good” which it wished to preserve by its formulation: Harmless error rules, the court said, “serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the resiilt of the trial.” (Id. at p. 22 [17 L.Ed.2d at p. 709] ; italics added.)

In essence, then, the court avoided any statement of intention to compel the reversal of convictions on the basis of errors which are “harmless’ ’in the sense that there is no reasonable possibility of their having affected the outcome of the trial. The prosecution bears the burden of proving beyond a reasonable doubt that a federal constitutional error proved harmless in this sense; once that burden has been discharged, the error “no longer serves as a basis for reversal.” (People v. Modesto, supra, 66 Cal.2d at p. 712.)

Thus, in applying its rule to the circumstances of the case before it, the court in Chapman stressed the fact that “absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.” (386 U.S. at pp. 25-26 [17 L.Ed.2d at p. 711].) On the compelling record which we have summarized above, we can conceive of no reasonable possibility that this jury could have reached any verdict other than one of guilt even if the prohibited comments² had never been uttered.

Defendant’s attorney in no way suggested here, either through the testimony of witnesses or in argument to the jury, that someone other than the defendant might have perpetrated this crime and that the defendant might simply have driven the getaway ear from the scene of the robbery or that he might have replaced the robber in the car at some later time. Thus, as the case was presented to this jury, only two conclusions were possible: Either the defendant’s possession of a vehicle matching the getaway ear and containing the proceeds of the robbery was purely fortuitous, or the defendant must have been the robber. Given the fact that the defendant fled from the police and fired at them with a sawed-off shotgun similar to that used in the course of the robbery, the first of these two possibilities evaporated into the inherently incredible, leaving no real gap in the prosecution’s case.

Under these circumstances, our remarks in People v. Modesto, supra, 66 Cal.2d at p. 714, bear repetition here: “In order to prove prejudicial, a comment which could not serve to fill an evidentiary gap in the prosecution’s case must at least touch a live nerve in the defense, not one which has been rendered inert by such intrinsic improbability as would prevent it from generating any real doubt in the mind of a reasoning juror. Thus the posture of the defense in the instant ease minimized to the point of insignificance the possible impact of the comment.’’ We need not speculate here whether the comment might have assumed significance if the defense had planted the suggestion that the defendant had an accomplice who actually committed the robbery and did the shooting; our function under Chapman is not to assess the prejudicial impact of an error in a trial which did not occur but to evaluate that impact as the case in fact unfolded at this trial. Placing the burden of proof upon the prosecution, we have concluded that the challenged comments proved entirely inconsequential in the case before us. Accordingly, Chapman does not require the state to conduct a new trial.

The judgment is affirmed.

Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

1 Tlic record shows that before defendant’s personal eifeets (clothes, gloves, tie, wallet, identification, etc.) were admitted in evidence, defendant’s counsel and the prosecutor stipulated that certain identification papers disclosing defendant’s parole number be excluded. There was no objection to the other items.

2 The trial court gave the standard instruction permitting the jury to draw an inference adverse to defendant from his failure to explain or deny facts within his knowledge.

In his closing argument the deputy district attorney said: “. . . The witness cannot be compelled to testify. He has a constitutional right to remain silent.

“We have the burden of proof and we have to prove the charges involved in this ease. Remember, where a defendant fails to testify and there are facts within his own knowledge, facts within his own knowledge which he cannot explain or deny such as the facts in this ease, he can very well say, ‘I didn’t go into this place. You have got the wrong man.’

“In fact that is probably the argument you mil hear, but he hasn’t even denied or explained any aggregated circumstances.

“So you may take his failure to explain all that as indicating they are true. And the inference that he may draw from our evidence is that the evidence is probably true and as adduced in this ease. ’ ’

With reference to defendant’s crashing through a gate when his escape route was blocked, the prosecutor said: '‘ What do you think of a person who would deliberately ram through a fence that way? You can see that he ran right through the fence. Deliberately slowed down and ran right through it. What kind of a person are we dealing with in this case? He hasn’t even come up here to deny any of this. We have all those photographs. You can look at them. ’ ’

Near the end of his argument the prosecutor said: ‘‘JTolks, I think that I usually talk about an hour, but in this case the evidence is so over- • whelming, yet the evidence is so aggravating, so terrifying; and he, as I have been saying, he hasn’t wanted even to get up here .and .say, ÍI." didn’t do it.’ He is not guilty, but he could say that much.”