People v. Hogan

• Decision Date: 20 August 1969
• Docket Number: Cr. 13388
• Court: California Supreme Court
• Parties: , 457 P.2d 868 The PEOPLE, Plaintiff and Respondent, v. Londell HOGAN, Defendant and Appellant.

Page 28

80 Cal.Rptr. 28

71 Cal.2d 888, 457 P.2d 868

The PEOPLE, Plaintiff and Respondent, v. Londell HOGAN, Defendant and Appellant.

Cr. 13388.

Supreme Court of California In Bank.

Aug. 20, 1969.

David M. Rothman, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen and Edward M. Belasco, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

After a trial without a jury, defendant was found guilty of robbery in the first degree. The court also found that he was armed at the time of the commission of the offense. The court denied probation, sentenced him to imprisonment for the term prescribed by law, ordered a diagnostic study, and retained jurisdiction pursuant to sections 1168 and 5079 of the Penal Code. Defendant has appealed.

James H. Brown testified that after a dice game in which defendant, whom he had known for two years, won seven dollars from him, defendant went to his automobile, a 1964 Thunderbird, obtained a gun, forced Brown to take approximately $500 from his pocket and throw it on the ground, ordered Willie Cason who had picked up $400 to hand it to him, and then drove away with a friend, James Perry, Jr. Brown reported the robbery to the police. Cason, who was a fellow employee of Brown, corroborated his testimony in most significant respects.

Defendant testified that after the dice game Brown said he was going to kill him, that Brown went to this car and defendant to his, that Brown came from behind his car with his hand in his pocket, that, thinking Brown had a gun, he drew a pistol and told Brown to pull his hand out of his pocket, that as Brown did so money fell out of his pocket, that he and Perry drove off, and that he did not ask for any money, did not take any of it and did not know what happened to it. Perry, who was a friend of defendant's for 25 years, corroborated defendant's testimony in most significant respects, except that he said that after the money fell to the ground and blew around, a 'tall guy' came to the car and gave defendant some money.

Six days after the robbery defendant was arrested while driving the Thunderbird on the freeway. The arresting officer testified that four or five days earlier there was an all units broadcast of two described robbery suspects and a vehicle description of a 1964 Thunderbird, black over green, with a license number SSD 198. Upon spotting the car, he called police communications and was advised that the vehicle was stolen and to hold the occupants for robbery. As the officer approached the car, he noticed defendant had his hand in the center console of the car and that in his hand was a revolver. He told defendant to drop the gun, defendant did so, and the officer arrested him. The gun was introduced into evidence and identified as the one used in the robbery.

A peace officer may arrest a person without a warrant whenever he has reasonable cause to believe that the person whom he has arrested has committed a felony. Reasonable or probable cause exists when the facts and cicumstances 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.)

Although information provided by an untested informer or by an anonymous informer is not, without some showing justifying reliance, sufficient to justify an arrest (People v. Talley, Supra, 65 Cal.2d 830, 835--836, 56 Cal.Rptr. 492, 423 P.2d 564), information from a citizen who purports to be the victim of a robbery or an assault has been held sufficient even though his reliability has not been previously tested. (People v. Gardner, 252 Cal.App.2d 320, 324--325, 60 Cal.Rptr. 321; People v. Griffin, 250 Cal.App.2d 545, 550--551, 58 Cal.Rptr. 707; People v. Wright, 216 Cal.App.2d 866, 871, 31 Cal.Rptr. 432; see People v. Lewis, 240 Cal.App.2d 546, 549--551, 49 Cal.Rptr. 579.) Such a person, who may expect to be called to testify after an arrest, and may be exposing himself to an action for malicious prosecution if he makes unfounded charged, is more than a mere informer who gives a tip to law enforcement officers that a person is engaged in a course of criminal conduct.

Reliable information furnishing probable cause for an arrest does not lose its reliability when it is transmitted through official channels to arresting officers, and 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, 88 S.Ct. 1850, 20 L.Ed.2d 750; People v. Gardner, Supra, 252 Cal.App.2d 320, 325--326, 60 Cal.Rptr. 321.) In the instant case Brown, who had known defendant for two years previously, ¹ reported to the police after the crime, and although his information was not directly imparted to the arresting officer, this does not preclude the latter from relying upon it. This information received by the arresting officer specified the make and license number of the car and furnished an adequate basis for the arrest. Although the information received by the arresting officer turned out to be false in one particular, that is as to the car being stolen, this factor was unknown to the officer at the time of arrest and does not vitiate the arrest. The gun was seized incident to that arrest and was properly received in evidence.

Defendant next contends that the trial judge misinterpreted Penal Code section 1203 in denying probation. In doing so the court stated that defendant was ineligible for probation since he had been found guilty of first degree robbery. He then remarked: 'I have no alternative at this point since I don't feel at this point it is...