People v. Bly

• Decision Date: 18 April 1961
• Docket Number: Cr. 7385
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Fonie BLY, Jimmie Frank Blaylock, Lena Mae Burns and Clarence Walker, Jr., Defendants, Fonie Bly, Defendant and Appellant.

Page 542

12 Cal.Rptr. 542

191 Cal.App.2d 352

PEOPLE of the State of California, Plaintiff and Respondent, v. Fonie BLY, Jimmie Frank Blaylock, Lena Mae Burns and Clarence Walker, Jr., Defendants Fonie Bly, Defendant and Appellant.

Cr. 7385.

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

April 18, 1961.

Rehearing Denied May 16, 1961.

Fonie Bly, in pro. per., for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, John F. Foran, Deputy Attys. Gen., for respondent.

ASHBURN, Justice.

Defendant Bly was found guilty as charged in Court I with conspiracy to commit forgery (Pen.Code, § 182, 470), and as charged in Counts II, III, IV and V, Forgery of Fictitious Name (Pen.Code, § 470). Two prior felony convictions were found true as alleged.

Appellant claims illegal search and seizure and, absent the evidence obtained as a result of said search, that there is insufficient evidence to support the judgment. It is also contended that the refusal of this court to appoint counsel to assist appellant in this appeal was a denial of due process and equal protection of the law.

On February 3 or 4, 1960, one Howard (or Joe) Morrison called upon Sergeant Bonk of the Los Angeles Police Department. He had in his possession four checks of the Custom Built Fence Company which he showed to the sergeant saying that he had received them from the appellant with instructions to pass them. 'Mr. Morrison told me [Bonk] that Fonie Bly and a fellow by the name of Blaylock and a girl by the name of Lena were engaged in the passing of checks of the Custom Built Fence Company and of the Apex Press, and of a trucking company located in Sacramento, the name of which he could not recall.' At this time appellant was well known to the police; Bonk knew that appellant had had control of check protectors which were taken in a burglary some time in November of 1958 and that he had been arrested for distribution and recruiting of passers for checks and possession of check protectors. From the description given him of 'Lena Mae,' Bonk knew her as a person who was involved in the cashing of fictitious checks. Bonk did not know Morrison prior to this meeting, and he was not in custody. Morrison told him that he had cashed four of the Custom checks. Sergeant Bonk had information at this time that checks had been stolen from the Custom Built Fence Company and that some of these checks had been passed in Los Angeles. After this conversation, Bonk and his fellow officers conducted an investigation and learned that checks obtained in a burglary of Simmons-Akers Music Room, as well as those taken from Custom, were being passed, and the police had obtained some of the checks that had been so reported.

On February 10, Morrison again met with Sergeant Bonk at the 77th Street Station. He had in his possession three checks written on the Simmons-Akers firm, which Bonk recognized as being a part of a series of checks taken in the reported burglaries. Morrison told Bonk they had been given to him by a distributor named Fonie Bly [appellant]; that he was supposed to cash them, then give half of each check to appellant less approximately $5 for a purchase. The sergeant then said, 'All right, we will give you some marked money, which will be for half of one of the checks, and we will destroy that check and tell him you have cashed one.' The sergeant then tore part of another one of the checks and told Morrison to tell appellant that he had presented it to an intended victim who became suspicious and he, Morrison, grabbed it out of his hand and in so doing tore it. Morrison then went to appellant's residence with $25 in marked money, which was also dusted with fluorescent powder. The police followed Morrison and about 10 to 15 minutes after Morrison entered, Officer Fallon, stationed at the rear of the house, observed appellant on the steps at the rear door of his residence in a 'bent over' position. He also observed a wrapper or container consisting of folded sheets of newspaper in the bushes approximately two feet from the rear door and alongside the porch. The officers identified themselves as police officers and asked appellant his name. Appellant replied that it was Fonie Bly and at this time the officers informed him he was under arrest and that they would like to talk to him. Appellant said 'Come in the house.' There was no warrant for arrest or search. Morrison had left the house and was talking to Sergeant Bonk about a half block away at the time the other officers were making the arrest. Any information Bonk obtained from Morrison was not transmitted to the arresting officers.

Thereafter, Officer Fallon recovered the package from the bushes outside appellant's residence where he was seen bending over and it was found to contain a series of 25 checks stolen from the Simmons-Akers Music Room. A palm print on the newspaper wrapping was, in the opinion of the fingerprint expert, that of appellant. Included in the package was check No. 862, the same check torn by Sergeant Bonk and given to Morrison with instructions, as aforesaid; this check bore the thumb print of appellant. Also in this package was check No. 864, another of the checks seen in Morrison's possession earlier that day. Inside the house, the marked money was taken from appellant's pocket.

Officer Hogue found an envelope containing four checks of the Custom firm in the trash can on the premises of appellant. Writing on the envelope was identified as that of defendant Walker.

Officer Bonk picked up a package on the front stoop of appellant's residence which contained five checks stolen from Simmons-Akers. Finger and palm prints upon the checks and newspaper wrappings were identified as those of defendant Blaylock. Also, writing on the face of the checks was that of Blaylock.

Approximately an hour after the arrest of appellant, defendant Blaylock arrived at appellant's residence. He was arrested and a search of his person revealed a driver's license bearing the name Jesse Lee DeVaughn, which the evidence shows was used by defendant Burns to cash two of the checks in question. Also found in his pocket was a courtesy credit card and another identification card in the name of 'Eddie Wilbert Handy.' Shortly thereafter defendant Burns arrived and was placed under arrest. Defendant Walker was arrested at another location.

It was stipulated that Officer Bonk was 'an expert in the manner and means by which checks are commonly passed by groups of one or more persons,' and, based upon all of the evidence presented, it was his opinion that the facts presented an extensive check and burglary operation; the operation resembled that in other similar cases.

It is appellant's claim that there was no probable cause for the arrest and 'nothing that happened thereafter could make that arrest lawful or justify a search as its incident.' As stated in People v. Wright, 153 Cal.App.2d 35, 39-40, 313 P.2d 868, 871: 'Appellant's argument seems to assume that search, and seizure of the articles found, is justified only when there is a lawful arrest. This is not the rule. It is true that the great bulk of the cases involve an effort to justify the search by showing a lawful arrest. But it does not follow that a search or seizure may be made only in connection with such an arrest.' The Supreme Court stated in People v. Brown, 45 Cal.2d 640, 643, 290 P.2d 528, 530: 'It should be noted at the outset that the legality of an arrest is not necessarily determinative of the lawfulness of a search incident thereto. Just as...