People v. Lewis

Decision Date02 March 1966
Docket NumberCr. 10852
Citation240 Cal.App.2d 546,49 Cal.Rptr. 579
PartiesThe PEOPLE, Plaintiff and Respondent, v. Raymond Jerry LEWIS, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Stiles Wegener, Palos Verdes Estates, under appointment by District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

On December 23, 1964, defendant was charged with one count of burglary, a violation of section 459 of the Penal Code. The information was amended before trial to allege six prior convictions. Defendant pled 'Not Guilty' and admitted the second, third, fourth, fifth and sixth priors. On motion of the district attorney, the first prior was stricken in the interest of justice. Jury trial was duly waived. Defendant was found guilty of burglary in the second degree. Probation was denied and defendant was sentenced to state prison, from which judgment he appeals.

Sufficiency of the Evidence

Horace C. Owens, who lived almost directly across from the Friendly Cleaners, was watching television at home when he heard breaking glass and a burglar alarm. He looked across the street and saw a person come out of the Friendly Cleaners, reenter a few moments later, and come out again carrying clothes. Mr. Owens' son called the police. When Officer Bryant arrived Mr. Owens went to the street and met him. While they were talking, Mr. Owens saw defendant walking along 131st Street, some 50 to 100 feet away. Mr. Owens said "That's him. I can tell the way he is walking." The officer then stopped the defendant. The officer's description of what then occurred is as follows:

'I asked him where he was going, and he told me 2747 East El Segundo, which was only several blocks from there. I asked him where he had been, and he said he had been at a relative--I believe it was a sister--at 527 West Caldwell.

'I asked him why he was walking on 131st Street, and he stated that he had left his sister's house and walked over to Central Avenue and then north on Central Avenue to 131st and then had come across 131st.

'At that point I told him he was under arrest for suspicion of burglary.'

Officer Bryant searched the defendant's pockets and found a group of loose pennies, a roll of pennies, a silver dollar, and a distinctive button that was later found to match the buttons which were in the cash register of the Friendly Cleaners. Following the search, the officer took the defendant back to the scene in order the Mr. Owens might confirm his identification. Defendant was then taken to the police station and booked.

At the trial Mr. Owens testified that the defendant was the man whom he had seen enter the cleaning establishment, though his testimony was not as positive as the statement he had made to Officer Bryant at the time of the arrest. The witness added 'Well, to be honest I could not say by features because I couldn't see the features from where I was.' He then explained that he could identify the defendant by his build, walk and mannerisms. This testimony is sufficient to support the finding of the trial court.

The strength or weight of identification testimony is for the jury, or for the trial court in a nonjury trial. (People v. Knight (1941) 44 Cal.App.2d 887, 891, 113 P.2d 226.) In People v. Van De Wouwer (1949) 91 Cal.App.2d 633, 639, 205 P.2d 693, 696 the court said: 'The identity of a defendant may be established by proof of any peculiarities of size, appearance, similarity of voice, features or clothing.' (See also People v. Lindsay (1964) 227 Cal.App.2d 482, 38 Cal.Rptr. 755.) Lack of positiveness in identification does not destroy the value of the identification but goes only to its weight. (People v. Ash (1948) 88 Cal.App.2d 819, 825, 199 P.2d 711.)

Legality of the Arrest

Since the distinctive button and the roll of pennies taken from defendant's pockets added to the weight of the evidence against him it is necessary to consider the admissibility of that evidence. It was and is the contention of defendant that Officer Bryant had no legal grounds to make an arrest. Without a lawful arrest the search could not be justified and the evidence so acquired would be inadmissible.

An officer may make an arrest without a warrant when he has reasonable cause to believe that the person to be arrested has committed a felony. (Pen.Code, § 836, subd. 3.)

Legal cause to arrest exists when there is '* * * such a state of facts as would lead a man of ordinary care and prudence to believe 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 Cal.Rptr. 14, 17, 348 P.2d 577, 580.)

Officer Bryant knew from his own observation that someone had just broken into the cleaning establishment, setting off the burglar alarm. He knew someone had telephoned the police to report a burglary in progress. A citizen emerging from the house across the street had given him an eyewitness description of the crime, as seen from the window of the house, and this purported eyewitness had positively identified a man on the street nearby as the burglar. When Officer Bryant questioned the accused, he received answers which were nonincriminating, but which were not persuasive of innocence. The suspect might well have been walking home from his sister's house, as he had asserted, and committed the burglary seen by Mr. Owens. The officer had no reliable way of determining this matter as he stood on the street corner. His immediate alternatives were to make an arrest or to allow the accused man to go his way, perhaps never to be found again. If the law allowed Officer Bryant to place any credence whatever in Mr. Owens' statements, it was his duty to make the arrest.

In bookmaking and narcotics cases the courts have developed the concept of the 'reliable informant,' which, in that context means a person who has previously given the police information which has been found to be true. By that standard a known criminal, a drug addict, or even an anonymous voice on the telephone may become a 'reliable informant,' upon whose word the police may make warrantless arrests, break in doors and conduct searches. (See, e. g., People v. Prewitt, 52 Cal.2d 330, 341 P.2d 1.)

But experienced stool pigeons are not the only sources of credible information, and the tests of reliability which must be applied to such persons are not necessarily applicable to every citizen who assists the police.

Bookmaking and narcotics offenses are crimes which are usually committed in the presence...

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