People v. Anthony

• Decision Date: 19 May 1970
• Docket Number: Cr. 3841
• Citation: 7 Cal.App.3d 751,86 Cal.Rptr. 767
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph James ANTHONY, Defendant and Appellant.

Page 767

86 Cal.Rptr. 767

7 Cal.App.3d 751

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph James ANTHONY, Defendant and Appellant.

Cr. 3841.

Court of Appeal, Fourth District, Division 2, California.

May 19, 1970.

Herbert A. Moss, Santa Ana, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Defendant was charged by information with the crimes of robbery (Count I, Pen.Code, sec. 211) and kidnaping for the purpose of robbery (Count II, Pen.Code, sec. 209) and with being armed with a deadly weapon at the time of the commission of the offense. Defendant's motions under sections 995 and 1538.5 of the Penal Code were denied, and, in a jury trial, defendant was found guilty on both counts. The robbery was found to be first degree, and, with respect to Count II, the jury found it true that defendant was armed with a deadly weapon. Defendant's motions for a new trial and to institute narcotic addiction proceedings were denied. Judgment was pronounced, and defendant was sentenced to prison for the term prescribed by law on each count. Execution of the sentence on Count I, however, was suspended until such time as sentence and conviction on Count II should become final, suspension at that time to become permanent. Defendant appeals from the judgment of conviction.

Defendant contends that substantially all of the incriminating evidence admitted at the trial was the product of an unlawful search and seizure; that his in-the-field identification at a time when he was unrepresented by counsel constituted a deprivation of his right to counsel; and that the in-the-field identification was so unnecessarily suggestive as to deprive him of due process of law. It is also necessary that we review defendant's conviction of kidnaping for the purpose of robbery in light of People v. Daniels, 71 A.C. 1165, 80 Cal.Rptr. 897, 459 P.2d 225.

The Facts

John C. Branham, Jr., a United States Marine Corps sergeant, was working at a gas station located at the intersection of First and Raitt Streets in Santa Ana. At about 3:00 a.m. on February 1, 1969 defendant entered the station office and, holding a cocked, loaded chrome revolver in his hand and pointing the revolver at Sergeant Branham, defendant demanded that Branham give him money, which he did. The amount taken in the robbery was $96 and some cents, including three rolls of quarters, which had been on the back counter of the station, wrapped in standard coin wrappers by Sergeant Branham and which were found to be missing after the robbery.

After Sergeant Branham handed over the money, defendant, who still had the gun, ordered Sergeant Branham around back of the station into a rest room, a distance of 30 to 45 feet from the office. Defendant told Branham that if he stuck his head out, defendant would blow it off. After the door shut, Sergeant Branham heard footsteps running east, toward Raitt, and dogs barking. After remaining in the rest room approximately 15 to 20 seconds, he left and went back to the office, where he immediately reported the robbery to the police by telephone. He had not seen or heard anything indicating the use of an automobile in connection with the robbery.

On the telephone he described the person who had robbed him as a male Negro, five feet eight inches to five feet ten inches tall, with a mustache, and wearing a cap and a bluish-gray zipper jacket. He also gave the police a description of the gun, but did not mention the rolls of quarters. While still on the telephone, and at most one minute after he left the rest room, Sergeant Branham saw two police vehicles on the street in front of the station. One, a marked vehicle, was westbound on First Street and the other, an unmarked vehicle, made a U-turn and came back past the station, headed west on First Street.

Officer Foley of the Santa Ana Police Department was patrolling in an unmarked police vehicle directly in front of the service station, eastbound on First Street, when he received a radio call from the Santa Ana Police Station about the robbery. ¹ On receiving the call, Officer Foley looked at the gas station, saw no one, and remembered that, seconds before, he had seen a Pontiac automobile on Townsend Street, two or three blocks away. His attention had been attracted to this vehicle because it had been the only automobile on the streets and was considerably damaged in the rear portion. This was the only automobile Officer Foley had seen in the area during the immediately preceding five minutes. Many of the surrounding streets, including Townsend, are dead end streets, and First Street is one of the few through streets in the immediate vicinity of the gas station.

At this moment, Officer Pennington of the Santa Ana Police Department passed Foley going west on First Street. Officer Foley made a U-turn behind Pennington and by radio simultaneously relayed to him and all cars in the area a description of the automobile he had seen. Foley testified that he could still see the Pontiac as he made the U-Turn and kept it in view continuously from that time until it was overtaken. It was proceeding west on First Street away from the gas station. Foley told Pennington to 'get that car.'

Officer Pennington received a radio call about the robbery at about 3:00 a.m. He saw Officer Foley in his vehicle as he passed, but saw no other cars in the vicinity of the robbery. Officer Foley talked to him on the radio about the 'possible vehicle' ² which Officer Pennington at that time saw, two or three blocks away, proceeding west on First Street.

Both police units followed the 'possible vehicle,' Officer Pennington's car in front. They increased their speed ³ and overtook the Pontiac about one mile from the gas station. When he got very close to the Pontiac, Officer Pennington turned on his red light.

A third officer, Officer Anderson of the Santa Ana Police Department, was patrolling in a police unit about one and one-half to two miles away, when he heard the call about the robbery from the police station and immediately started toward the intersection of First and Raitt Streets. He then heard the radio call of Officer Foley concerning the 'possible vehicle' westbound on First Street. As he proceeded toward the scene, the police station continued to give information about the robbery as they obtained it over the telephone. ⁴ He testified at the preliminary hearing ⁵ that the information supplied by the police station included the description of the robber and the fact that he was wearing a 'dark 'sporty-type' hat and a blue or light blue-gray jacket' and that a .38 revolver was used in the robbery. Officer Anderson passed the Pontiac just as it was stopping and observed Officer Pennington's red light on. Officer Anderson turned his vehicle and stopped it in front of the Pontiac with the passenger side of his vehicle toward the Pontiac. When he stopped his vehicle, Officer Anderson saw that defendant was a passenger in the Pontiac, which was being driven by another male Negro, later identified as Mr. Swan.

What occurred next is referred to as a 'felony stop.' Officer Anderson's vehicle was to the left front of the Pontiac. Officer Pennington's vehicle was behind the Pontiac, and Officer Foley's vehicle was behind Officer Pennington's. The officers got out of their vehicles and took defensive positions with guns drawn. The officers did not approach the Pontiac immediately. First, Officer Foley, and then Officer Anderson called to the occupants of the Pontiac to get out of the vehicle. From this point on, Officer Anderson took charge of the situation. The driver of the Pontiac was instructed to stay where he was and raise his hands, and defendant was instructed to raise his hands, step around the vehicle and stand next to the driver. Both were instructed to turn and face the vehicles behind the Pontiac. No questions were asked of the suspects at this moment, nor was identification asked for. Officer Anderson immediately began a pat-down search of defendant for weapons. He felt something like bullets in defendant's jacket pocket. By feel, he could tell that they were not large caliber bullets. He reached into the pocket and removed four or five rounds of .38 bullets and a watch. He continued his pat-down search but found no gun. Officer Anderson testified that bullets can be set off by striking the primer cap with a sharp object and that he had fear for his personal safety.

At this point, Officer Anderson handcuffed defendant and told him that he was under arrest for suspicion of armed robbery. He then turned defendant over to Officer Pennington and requested Officer Pennington to search defendant. Officer Pennington did so and removed approximately $50 in United States currency and one roll of quarters from defendant's left front trouser pocket. Officer Anderson searched the Pontiac and found, in a pillow case located between the two front seats, a .38 chrome revolver and two rolls of quarters. The gun was identified at trial as like the one used in the robbery. The bullets found on defendant fit the revolver. Officer Anderson also found a hat which was like the one worn by the robber. Defendant was wearing a jacket like the one worn by the robber.

The station attendant testified that about ten minutes after the robbery, the police brought defendant and the other occupant of the Pontiac to the gas station. They were handcuffed and in a marked police vehicle. The station attendant was asked by a policeman 'which was the one that came in.' The attendant at first could not identify either of the men. Upon his request, they got out of the police vehicle to enable Branham to take a better look at them. Then Branham identified defendant as the robber. Defendant was still wearing the...