People v. Adams

• Decision Date: 17 December 1985
• Docket Number: No. B005186,B005186
• Citation: 221 Cal.Rptr. 298,175 Cal.App.3d 855
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin ADAMS, Defendant and Appellant. 2

Page 298

221 Cal.Rptr. 298

175 Cal.App.3d 855

The PEOPLE of the State of California, Plaintiff and Respondent, v. Benjamin ADAMS, Defendant and Appellant.

2 No. B005186.

Court of Appeal, Second District, Division 7, California.

Dec. 17, 1985.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing Jan. 13, 1986.

Review Denied April 17, 1986.

Dan Mrotek, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Ivy K. Kessel, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Defendant appeals from his convictions of kidnapping for robbery, robbery and attempted robbery. He also challenges the sentence enhancements imposed under Penal Code section 12022.1 and imposition of dual sentences for robbing and kidnapping the same victim. We affirm the convictions and sentence enhancements but remand for resentencing.

FACTS AND PROCEEDINGS BELOW

Defendant was found guilty after a jury trial of robbing two men and attempting to rob a third on separate occasions. As to one victim, defendant was found guilty of both robbery and kidnapping for purposes of robbery and sentences were imposed on both counts. The trial court imposed two-year sentence enhancements under Penal Code section 12022.1 because defendant committed the additional crimes while he was free on bail after his arrest for the first robbery.

We summarize the evidence and pretrial motions below. Where necessary, more detail is provided as we discuss the issues raised on appeal.

1. SUMMARY OF THE EVIDENCE

Defendant followed a similar modus operandi in each robbery. He approached the victim and requested the victim help him start his car. One victim agreed to help. Defendant got into the victim's car and pretended to show the victim the location of defendant's disabled automobile. The second victim told defendant he had no jumper cables. Defendant struck the victim on the head with the blunt end of a knife and forced the victim into his vehicle. Defendant directed both victims to a deserted area where he robbed them. The third victim was spared this fate by the intervention of a police officer who was familiar with the defendant's operation and saw defendant approach the intended victim.

Each robbery occurred in daylight and each victim had ample opportunity to observe defendant at close range for several minutes. Each victim was positive in his identification of defendant.

Defendant was arrested shortly after the first robbery based on a description given by the victim and recovery of the victim's wallet from defendant's pocket. The pertinent facts of this search and seizure are discussed below at pp. 300-301. Defendant was released on bail the day following this arrest, May 23. He kidnapped and robbed the second victim the next day, May 24. He attempted to rob the third victim on May 28 and was arrested during the attempt. He remained in custody thereafter.

Defendant was the only defense witness. He explained the presence of the first victim's wallet in his pocket by stating he had

seen some men throw it on the ground and had picked it up. He claimed the victims were mistaken in identifying him as the robber.

2. THE FARETTA AND MARSDEN MOTIONS ¹

3. THE SUPPRESSION MOTION

Defendant, through his counsel, moved to suppress evidence of the wallet belonging to the first victim. The ground for the motion was the officer who recovered the wallet went beyond what is permissible in a detention search by reaching into defendant's back pocket, removing and examining the wallet. The suppression motion was denied.

ISSUES ²

DISCUSSION 2

I. DENIAL OF THE DEFENDANT'S MARSDEN MOTIONS WAS NOT AN ABUSE OF DISCRETION

II. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT'S MOTION TO PROCEED IN PRO. PER.2

III. THE COURT CORRECTLY DENIED THE MOTION TO SUPPRESS EVIDENCE A VICTIM'S WALLET WAS FOUND IN DEFENDANT'S POSSESSION PRIOR TO HIS ARREST

Before addressing this issue an expanded statement of the facts is necessary.

The record shows Long Beach Police Officer Bryan Buchanan received information from robbery victim Sherman Elsbury that a light-skinned Black male, approximately forty years old and over six feet tall, wearing a white straw hat, dark pants and a light shirt had robbed Mr. Elsbury of his wallet in the vicinity of 36th Street and Atlantic Boulevard. Officer Buchanan was also informed that the robber was possibly armed with a gun and had made his "get away" in a Lincoln Continental bearing Arizona license plates.

Approximately two hours later, Officer Buchanan was patrolling the vicinity in which the robbery had occurred when he noticed a Black male, later identified as defendant, who matched the physical description of the robber in every detail including the white straw hat. Approximately 100 feet away, Officer Buchanan also noticed a green Lincoln Continental bearing Arizona license plates. Officer Buchanan along with his partner drove the patrol unit toward defendant who looked toward the officers, became nervous and started to walk away from them. Officer Buchanan ordered defendant to halt. He did. Officer Buchanan's partner then conducted a patdown search for weapons. After defendant was found to be unarmed, Officer Buchanan asked defendant to produce identification. Defendant became noticeably nervous and stated that he did not possess any identification. At that point Officer Buchanan looked at defendant's rear pants pocket and observed the outline of a wallet. Officer Buchanan asked defendant, "Don't you have identification in the wallet." Defendant replied, "No. My name is Ben." Believing the defendant was lying, Officer Buchanan seized the wallet from defendant's pocket. As he did so Officer Buchanan saw a card protruding out of the wallet bearing the name of robbery victim Sherman Elsbury. At that point, another patrol unit was instructed to bring Mr. Elsbury to the scene to see if he could identify defendant as the robber. Mr. Elsbury arrived within ten minutes and positively identified defendant as the robber. Defendant was then placed under arrest.

At the suppression hearing, Officer Buchanan testified at the time he ordered defendant to halt he was "detaining" defendant based on his physical description, his presence in the area where the robbery had taken place two hours before and his close proximity to an automobile that matched the description of the getaway car.

The parties do not dispute good cause for defendant's detention. It is further conceded the search that produced the wallet went beyond what is permissible in a search incident to detention. (See Terry v The fact defendant was not formally arrested until after the search does not invalidate the search if probable cause to arrest existed prior to the search and the search was substantially contemporaneous with the arrest. (People v. Marshall, supra, 69 Cal.2d at p. 61, 69 Cal.Rptr. 585, 442 P.2d 665; People v. Terry (1969) 70 Cal.2d 410, 429, 77 Cal.Rptr. 460, 454 P.2d 36.) The record shows defendant was placed under formal arrest about ten minutes after the search. Accordingly, we find the search was contemporaneous with the arrest.

                Ohio (1968) 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889;  People v. Leib (1976) 16 Cal.3d 869, 876, 129 Cal.Rptr. 433, 548 P.2d 1105.)   The People seek to validate the search on the theory it was incident to a lawful arrest.  In the alternative the People argue the wallet was subject to seizure under the plain view doctrine.  (Skelton v. Superior Court (1969) 1 Cal.3d 144, 157, 81 Cal.Rptr. 613, 460 P.2d 485.)   Under the facts of this case we reject the "plain view" test out-of-hand. 3  We turn now to the question whether the search was incident to a lawful arrest
                

Probable cause to arrest defendant for robbery existed prior to the search. An officer has probable cause for a warrantless arrest if the facts known to him "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. Frierson (1979) 25 Cal.3d 142, 169, 158 Cal.Rptr. 281, 599 P.2d 587.) Here, a citizen witness--not a criminal informant--had supplied information a crime had been committed and described the perpetrator in great detail. The description of the robber matched this defendant in every detail, including the white hat. The defendant was found in close proximity to a green Lincoln Continental with Arizona license plates. The vehicle matched the getaway car in every respect except the color, which the victim described as gray. Defendant attempted to flee when approached by the officers. He appeared nervous and gave vague and evasive answers regarding his identity. He claimed to have no identification even though he clearly possessed a wallet in his pocket. These facts were sufficient to supply the officer with an honest and strong suspicion that defendant was the person who robbed Mr. Elsbury. (Cf. In re Louis F. (1978) 85 Cal.App.3d 611, 615-616, 149 Cal.Rptr. 642.)

Defendant argues whether or not the officer could have held such a belief, in fact he did not. If he had, he would have arrested defendant at the time he first encountered him rather than merely detain him. According to defendant, probable cause to arrest does not exist unless the officer believes that it exists. Absent this subjective belief probable cause cannot be established.

Defendant misconstrues the nature of the "subjective belief" referred to in cases such as Agar v. Superior Court (1971) 21 Cal.App.3d 24, 28-30, 98 Cal.Rptr. 148 approved in People v. Miller (1972) 7 Cal.3d 219, 226, 101 Cal.Rptr. 860, 496 P.2d 1228; People v. Superior Court (Simon ) (1972) 7 Cal.3d 186, 198, 101 Cal.Rptr. 837, 496 P.2d 1205 and People v. Frierson, supra, 25 Cal.3d at p. 169, 158 Cal.Rptr. 281, 599 P.2d 587.

Courts use "subjective belief" when...