People v. Brice

• Decision Date: 07 May 1965
• Docket Number: Cr. 4729
• Citation: 44 Cal.Rptr. 231,234 Cal.App.2d 258
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Carlton BRICE and Samuel Andrews, Defendants and Respondents.

Page 231

44 Cal.Rptr. 231

234 Cal.App.2d 258

PEOPLE of the State of California, Plaintiff and Appellant, v. Carlton BRICE and Samuel Andrews, Defendants and Respondents.

Cr. 4729.

District Court of Appeal, First District, Division 1, California.

May 7, 1965.

Hearing Denied June 30, 1965.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Michael R. Marron, Deputy Attys. Gen., San Francisco, for appellant.

Richard A. Bancroft, San Francisco, for respondent Carlton Brice.

John D. Nunes, Public Defender, Alameda County, R. Donald Chapman, Chief Asst. Public Defender, James R. Jenner, Asst. Public Defender, Oakland, for respondent Samuel Andrews.

SULLIVAN, Presiding Justice.

Defendants were charged in an information with robbery. (Pen.Code, § 211.) Their motion to set aside the information was granted (Pen.Code, § 995) and the People appeal.

At the preliminary hearing Sam Pedone, the manager of a bar, testified that on March 9, 1964 at about 1 p. m., he went to the Bank of America at 5920 San Pablo Avenue, Oakland, to cash some checks and obtained $1,668 in cash, including $1,500 in currency, one hundred silver dollars, four rolls of quarters and four rolls of dimes. He placed the money in an ordinary grocery bag and got into his car in the parking lot of the bank. Two men approached him, one with a pistol and the other with a sawed-off shotgun. The former demanded that Pedone hand over the money, took the bag and ran across the parking lot towards 60th Street. The latter, after holding Pedone with the shotgun, ran off in the opposite direction. According to Pedone, the man with the pistol wore a dark blue suit; the man with the shotgun wore a light brown sweater or jacket.

James Clark Williams testified that on March 9, 1964, at about 1:15 p. m. he was riding as a guest in the right front seat of an automobile on San Pablo Avenue near 60th Street. After Williams' car had made a right turn onto 60th Street and had proceeded about halfway up the block, the witness saw a Negro run out of the parking lot and up the street on the right side of 60th Street. According to the witness, the man was five feet seven or eight inches tall, of stocky build and wearing a dark suit. Williams did not see if he was carrying anything but he 'heard coins jingling, sounded like coins jingling.' He then saw the man cross 60th Street at Herzog, cross Herzog to the east side of the street and walk up to a parked car which had just pulled up. Williams described the car as a red and white 1955 or 1956 Buick, which he had just seen driven across the intersection of 60th and Herzog. He saw the car pull to a stop and its sole occupant, a Negro, whom he identified as defendant Brice get out of the car and walk across Herzog Street and stand there.

At this point Williams' car was proceeding away from the Buick. Looking back, Williams saw the Negro, whom he had seen running out of the parking lot, look into the parked Buick and get into it. The Williams car then made a U-turn and came back up Herzog Street. Williams saw Brice standing in front of an apartment building and the other Negro driving off in the Buick. Williams and his driver followed the car while it turned right on 61st, where it suddenly stopped, the door opened, and a third Negro who had been running up the street jumped into the car. This man was wearing a light-colored trench-coat or overcoat. On the same day Williams reported what he had seen to a police officer standing in the bank parking lot.

Officer Carlo Cristiani of the Emeryville Police Department testified that on March 9, 1964 at about 1 p. m. he was off duty, in plain clothes and driving a Chevrolet pickup in a northerly direction on San Pablo near 59th Street. As he approached the bank, he noticed a number of people standing in front of the parking lot looking into the yard of the bank. Sensing 'something was wrong' he proceeded north, made a right turn onto 61st Street, drove east to Herzog and then made a right turn on Herzog to go south. As he turned the corner, he saw a red and white Buick parked on the east side of Herzog. The officer saw a Negro, whom he identified as defendant Brice, get out of the Buick and walk in front of the pickup to the west side of the street.

As Cristiani continued south on Herzog, he saw another Negro who had been walking north on the east side, open the door of the Buick on the passenger side, look around, get in the car, and close the door. According to the officer, this man was about five feet seven inches tall, weighed about 145 to 150 pounds, 'had heavy cheek bones,' was wearing either a brown sweater or brown jacket and was carrying a grocery bag tucked underneath his arm with his hands inside his sweater. When this man got into the Buick, Brice was on the west side of Herzog, 'looking right across the street at the car.' Cristiani wrote down the license number of the Buick (AXS 791), checking both front and rear license plates. He then returned to the bank parking lot where, learning of the robbery, he gave the foregoing information to a police officer.

Fletcher L. Drake, defendant Brice's uncle, testified that he resided at 998-54th Street, Oakland, and that Brice lived there with him. Drake stated that on March 9 (the day of the robbery) at about 8 a. m. Brice was in the house and a person named 'Sam,' identified by the witness as Andrews, called at the house in a Buick to pick up Brice. The two men then left in the car which had a red body and a white or cream-colored top. The witness did not see Andrews again that day but Brice returned to the house for a while around 1 p. m. About ten or fifteen minutes after Brice went out again, Inspector Zweigle of the Oakland Police Department appeared.

Defendant Brice surrendered himself to the police later in the day on March 9. Defendant Andrews was arrested on March 10 at about 11:45 a. m.

The following testimony of Inspector Zweigle was admitted to establish that Andrews' arrest although without a warrant was made upon probable cause: The inspector arrived at the scene of the robbery on March 9 at about 1:25 p. m. Upon investigation, he ascertained that the robbery had been committed by two male Negroes who were armed, that there had been an automobile licensed AXS 791 'around the corner,' that a male Negro had been seen getting out of the car and a male Negro had been seen getting in the car, picking up another male Negro around the corner and leaving the scene. He thereafter ascertained that the registered owner of the car was Carlton Brice, residing at 998-54th Street, Oakland, about six blocks from the scene of the robbery.

Within a short time, the inspector testified, he went to the 54th Street address where he learned from Fletcher Drake that Brice had just left. Drake also told Zweigle that at about 8 a. m. that day a person named Sam had called after Brice in a red and white Buick and that both men had left together in the car. At about 7 p. m. that day, the inspector had a conversation with Brice who had already surrendered himself. Zweigle asked Brice who 'Sam' was, Brice told him that he was Sam Andrews, and Brice identified a photograph of Andrews as the person who had bought his car. At that time, Zweigle knew that Andrews had been convicted of a holdup in 1959, had been sentenced to San Quentin, and had been released on parole.

The inspector further testified that on the following day, March 10, he received information that a red and white Buick, license number AXS 791, was parked on 23rd Street near San Pablo Avenue. He dispatched two inspectors to 'stake out' the car, who were later relieved by Sergeants Jones and Sever. Zweigle spoke to Jones, showed the latter a photograph of Andrews and ordered him to arrest Andrews if the latter approached the car.

Sergeant Jones testified that on March 10 at about 11 a. m. he, together with Sergeant Sever, went to the intersection of 23rd and Grove Streets in Oakland. The officers located the Buick and staked it out. At about 11:45 a. m., Jones saw a man walk from the sidewalk around to the street side of the car and get in. He was carrying a small suitcase and an overnight toilet kit which he placed on the rear seat of the car. Another person (later identified as Andrews' 'girl friend') entered the car on the curb side at the same time. Sergeant Jones, recognizing Andrews, approached the car on the street side, and addressing Andrews by name, ordered him to get out and placed him under arrest. The officer then searched the suitcase and the kit, finding in the latter 'a considerable number of silver dollars.' Jones then radioed Inspector Zweigle, who came to the scene, searched defendant, found $245 on defendant's person, and counted 34 silver dollars in the toilet kit. The officers had no warrant for Andrews' arrest or for the search of his person or automobile.

Evidence was also received at the preliminary hearing of certain statements made by Brice and Andrews to the police. We discuss this in detail infra.

Although the minute order granting defendants' motion under Penal Code, section 995 and setting aside the information states no grounds for the court's action, the transcript of the hearing of the motion indicates a belief on the part of the court that under the decisions in People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658 and People v. Gibson (1963) 220 Cal.App.2d 15, 33 Cal.Rptr. 775, while the police may have had probable cause to temporarily detain Andrews for questioning (a course they did not pursue), they lacked probable cause for arresting him. As a result the court apparently reasoned that evidence obtained as a result of the arrest and incidental search was illegally secured and that such evidence was indispensable to establishing reasonable cause for holding both defendants to answer.

The Attorney General contends on appeal that there was probable cause for the arrest of Andrews and sufficient evidence...