People v. Brooks

Decision Date26 May 1965
Docket NumberCr. 4604
Citation44 Cal.Rptr. 661,234 Cal.App.2d 662
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Lionel R. BROOKS, Defendant and Appellant.

Fred W. Armstrong, Menlo Park, for appellant.

Thomas C. Lynch, Atty. Gen., of California. Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant appeals from judgment entered upon his conviction of one charge of possession of marijuana (Health & Saf. Code § 11530) on December 21, 1962, of charges of possession of heroin (idem., § 11500), possession of marijuana (idem., § 11530) and sale of marijuana (idem., § 11531) on July 2, 1963, and of a charge of possession of hereoin (idem., § 11500) July 11, 1963.

He originally appeared with the public defender, was arraigned on the indictment containing thr first charge and on an information setting forth the last four charges and entered his pleas of guilty to counts I and III of the latter. Counts II and IV of the information and the indictment were dismissed. At a hearing on his motion for probation he was denied probation, was sentenced to the State Prison, and was granted a one-week's stay of execution. He then substituted private counsel and a motion to set aside the judgment was granted, the dismissed counts and indictment were reinstated and he entered a plea of not guilty to each charge. Thereafter the indictment containing the first charge was consolidated with the information for trial. Motions to dismiss count IV of the information under Penal Code section 995 and to suppress evidence were both denied.

The December 1962 Offense

On December 21, 1962, at about 4:00 a.m., defendant was going down Buchanan Street toward McAllister Street in the City of San Francisco to catch a bus to his place of employment at the Rincon Annex Post Office where he worked the 4:30 to 1:30 p.m. shift. As he passed near the corner of Golden Gate and Buchanan he heard. 'That's him. Get him.' This cry, otherwise described as 'There he goes' or 'There he is. That's him' emanated from the wife of the owner of a service station which had been held up earlier that morning, and stirred into action two police officers and two special patrolmen who were at the scene. They immediately took the defendant into custody at gunpoint and searched him for a gun and handkerchief which the victim had described as being used in the robbery. Four cigarettes were found which proved to be marijuana. No gun was found, and although the bulk when first felt by the searching officer could have been a knife, he realized before he extracted it from the right side outer pocket of the defendant's overcoat that it was not a weapon but four separated pieces of some substance. The accuser then came over and advised the officers that defendant was not the man who held up the service station.

Defendant concedes that the officers had a right to stop the defendant for interrogation and search him for weapons. (People v. Mickeson (1963) 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Martin (1956) 46 Cal.2d 106, 108, 293 P.2d 52.) He asserts, however, that insofar as the search exceeded a superficial search for concealed weapons it was illegal and that the contraband thereby secured cannot be used in evidence against him. (See People v. Schaumloffel (1959) 53 Cal. 2d 96, 346 P.2d 393; People v. Gale (1956) 46 Cal.2d 253, 257, 294 P.2d 13; and People v. Mills (1957) 148 Cal.App.2d 392, 402-404, 306 P.2d 1005.) Defendant's reliance on the foregoing authorities is misplaced. This is not a case of detention for interrogation on suspicion. Here a felony, robbery, had been committed and the officers had reasonable cause to believe that the defendant, identified as such, was the perpetrator. There was reasonable cause for the arrest which was effected. (People v. Ingle (1960) 53 Cal.2d 407, 412-413, 2 Cal.Rptr. 14, 348 P.2d 577; Gorlack v. Ferrari (1960) 184 Cal.App.2d 702, 703, 7 Cal.Rptr. 699; People v. Jackson (1960) 183 Cal.App.2d 562, 570, 6 Cal.Rptr. 884; and Pen.Code § 837(3).) The arrest being legal, the search predicated thereon for the gun and handkerchief used in the robbery was proper. (People v. Ingle, supra, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Jackson, supra, 183 Cal.App.2d 562, 569-571, 6 Cal.Rptr. 884.) The fact that the search revealed evidence of an offense other than that for which the arrest was made does not render the search illegal or preclude the use of the evidence discovered against the defendant in a prosecution for the second offense (People v. Ghimenti (1965) 232 A.C.A. 111, 116, 232 Cal.App.2d 111, 42 Cal.Rptr. 504; People v. Beard (1962) 199 Cal.App.2d 67, 68, 18 Cal.Rptr. 350; People v. Lopez (1961) 196 Cal.App.2d 651, 655, 16 Cal.Rptr. 728; People v. Nebbitt (1960) 183 Cal.App.2d 452, 461, 7 Cal. Rptr. 8; People v. Gonzales (1960) 182 Cal.App.2d 276, 280, 5 Cal.Rptr. 920; People v. Simpson (1959) 170 Cal.App.2d 524, 530, 339 P.2d 156; People v. Ortiz (1956) 147 Cal.App.2d 248, 251-252, 305 P.2d 145; and see People v. Roberts (1956) 47 Cal.2d 374, 379, 303 P.2d 721; and Harris v. United States (1947) 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399), nor does the fact that it subsequently developed that the person arrested did not commit the offense for which the original arrest was made. (See People v. Burgess (1959) 170 Cal.App.2d 36, 41, 388 P.2d 524.)

At the time officer extracted the four cigarettes from defendant's clothing, he asked him if they were marijuana and the defendant stated yes they were. In response to a question where he got them, the defendant stated that he bought them from another gentlemean that he knew only by the name of Moe.

The probation officer who interviewed defendant between his plea of guilty to two counts of the indictment and the time the report was rendered and probation was denied, testified in respect of the December arrest as follows: 'Let me say that he first told me that he had been arrested at sometime time in a service station as a suspect in a--as a suspect in a robbery or questioned in regards to a robbery, at which time the police discovered some marijuana on his possession, and he felt that it wasn't fair. * * * He said he had just purchased them for his own personal use.'

The defendant took the witness stand and denied possession of any marijuana cigarettes on this occasion; denied he was asked any questions or gave any statement about marijuana cigarettes at the time of his arrest; and denied that he made the statements attributed to him by the probation officer.

No objection was made to the testimony concerning the statements at time of the arrest. The defendant objected to the statements made to the probation officer on the grounds they were hearsay and as such highly prejudicial. The probation officer testified that the statements were made without 'any promises of immunity or hope of reward held out to' the defendant, that no force or violence was used in obtaining the statements, and they were free and voluntary. Despite reference to People v. Ouinn (1964) 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705, no attempt was made by cross-examination or by voir dire or direct examination of the defendant to show that the circumstances were other than stated. As noted above, defendant denied making the statements but he admitted having the interview.

It is contended that all statements made by the defendant are inadmissible because '(1) the investigation was no longer a general inquiry into an unsolved crime but had begun to focus on a particular suspect, (2) the suspect was in custody, (3) the authorities had carried out a process of interrogations that lent itself to eliciting incriminating statements, (4) the authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights.' (People v. Dorado (1965) 62 A.C. 350, 365-366, 42 Cal.Rptr. 169, 179, 398 P.2d 361, 371; People v. Modesto (1965) 62 A.C. 452, 461-463, 47 Cal.Rptr. 417, 398 P.2d 753; People v. Stewart (1965) 62 A.C. 597, 602-606, 43 Cal.Rptr. 201, 400 P.2d 97.)

In reference to the first statement it is clear that the defendant was in custody ['(2)'] and that he had not been informed of his right to counsel or right to remain silent ['(4)']. Under the principles of Stewart, supra, it is clear that by reason of the arrest the investigation of the robbery had begun to focus on him. (62 A.C. at pp. 603-604, 43 Cal.Rptr. 201, 400 P.2d 97.) The discovery of the four cigarettes interjected a new element into the investigation. It might be questionable under some circumstances whether 'focus' predicated upon arrest for one offense, is automatically transferred to a second offense which comes under investigation, but here there could be no focal point for the crime of possession of contraband other than defendant upon whom the substance was found ['(1)']. Stewart recognizes that 'Escobedo [Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977] indicates that the accusatory or critical stage is not reached unless another event occurs: the police must 'carry out a process of interrogations that lends itself to eliciting incriminating statements.' (Id. at pp. 490-491, 84 S.Ct. at p. 1765; see also Id. at pp. 485, 492, 84 S.Ct. at pp. 1762, 1766.) That process may be undertaken either before or after arrest. Whenever the two conditions are met, that is, when the officers have arrested the suspect and the officers have undertaken a process of interrogations that lends itself to eliciting incriminating statements, the accusatory or critical stage has been reached and the suspect is entitled to counsel. * * *

'We turn to the further requirement of Escobedo that, beyond the 'focus' and custody, the...

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