People v. Cerda

• Citation: 254 Cal.App.2d 16,61 Cal.Rptr. 784
• Decision Date: 30 August 1967
• Docket Number: Cr. 303
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John M. CERDA, Defendant and Appellant.

Page 784

61 Cal.Rptr. 784

254 Cal.App.2d 16

PEOPLE of the State of California, Plaintiff and Respondent, v. John M. CERDA, Defendant and Appellant.

Cr. 303.

Court of Appeal, Fifth District, California.

Aug. 30, 1967.

Hearing Denied Oct. 25, 1967.

Roslyn R. Dienstein, Fresno, appointed by Court of Appeal for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse, Sacramento, Jack R. Winkler, Deputy Attys. Gen., for respondent.

CONLEY, Presiding Justice.

The defendant, John M. Cerda, was convicted by a jury of two counts of forgery (Pen.Code § 470), and a third count of possession of a fictitious check with intent to pass it. (Pen.Code § 475a.) The record shows that he and a codefendant, Robert Richard Lopez, concocted what they apparently thought was a well-organized plan to issue numerous forged checks in the Bakersfield area. Unhappily for the defendants, they did not reckon on the efficient working of the Bakersfield Police Department and the faith in local law enforcement agents of the owners of business establishments who were damaged.

Several felonies preceded those for which convictions were secured. The Star Automatic Transmission Company in Bakersfield was burglarized over a weekend and among the articles stolen was a Paymaster check protector. The burglary was discovered by the owner, Mr. Edward F. Wolf, when he opened his place of business on Monday, May 2. This check writer, serial number 3702809, later turned up in the possession of the defendants and was received in evidence. Mr. Wolf testified that on the Thursday before the burglary three men had come to his place of business in a 1957 Pontiac, which he thought was maroon in color, and one of these was the defendant Cerda, whom he had previously known.

Another burglary in the Bakersfield area followed on May 4. When Robert Hiebert of Hiebert's Wheel and Brake Shop opened his store on the morning of May 5, 1966, he noticed that the desk drawers in the office desk were open, the window in the waiting room had been broken and glass was scattered throughout the room. The burglar, or burglars, had stolen his checkbook; it was a loose-leaf type of book, the inserted checks, being three to a page consecutively numbered, were drawn on the main branch of the Community National Bank in Bakersfield. All printed checks contained both the business name and business address of the shop, and were numbered consecutively from 1001 to 1300. Approximately three hundred checks were stolen. Among the significant checks introduced at the trial were checks numbered 1032, 1030, 1024, and 1019. The check book was ultimately found after Cerda's arrest, in his room; several numbered checks were missing, including the foregoing.

The owner of The Food Spot Market in Bakersfield, John Lindley, testified that on May 5, 1966, he was working at the check stand of the grocery store when two men of Mexican descent approached after picking up $8 or $10 worth of groceries from the shelves; they put the groceries on the cash register stand, and presented one of the Hiebert checks, later identified by Officer Munoz as the Hiebert check numbered 1032. The payee was Joe M. Melendez and the signature of the owner was pretended to be that of Robert Hiebert. Mr. Lindley asked the purported purchasers for identification. He was shown a health club card, bearing the name of Joe M. Melendez, the specified payee. Mr. Lindley requested a driver's license, but as the party said he did not have one with him, Lindley went into the back room and made a telephone call to Hiebert's Wheel and Brake Shop. Mr. Hiebert told him that he had not signed the check and that his shop had been burglarized. When the grocery man returned to the check stand, he found that the two purported purchasers had left. Mr. Lindley then called the Bakersfield Police Department, and Officer Munoz came to the store within a few minutes.

Mr. Munoz, a little later, brought some photographs to the store and out of the group of seven or eight Mr. Lindley picked Lopez as being one of the men who had attempted to cash the check. Lindley showed Officer Munoz a house at 1019 East Third Street, which had been pointed out to him. Mr. Munoz had prior knowledge that one Robert Lopez lived at that address; he testified that the police department put out a broadcast describing the color of the car used by Lopez as pink or salmon colored and that it was a Pontiac which had a partial temporary plate on it; on a previous occasion he had stopped Lopez in his car because it did not have license plates on it, and he was thus familiar with the appearance of the automobile.

Later, on May 5, 1966, a person of Spanish or Mexican descent came up to the counter where Mary Sinichko was working in Bruce's Discount House and asked her to cash a Hiebert check for $186.42 dated May 4; the payee's name was Joe M. Melendez; it was apparently signed by Robert Hiebert; when she asked for identification, he showed a gun permit, a Selective Service card, and a temporary driver's license, all in the name of Joe Melendez. Mrs. Sinichko noticed that the man who presented the check had the tattoo of a bug or spider on his right arm above the wrist; that he was about 5 feet 9 inches in height and of Mexican descent. Mrs. Abraham, wife of the owner of the store, who was in the office with Mrs. Sinichko, directed her to cash the check for the full amount; $186.42 was paid to the person who purported to be Joe M. Melendez; he endorsed the check in the Melendez name in the presence of the two women.

Claud Yeargan, an officer with ten years experience in the Bakersfield Police Department, had, in the course of his duty, visited The Food Spot Market and The Miracle Market, where an attempt had also been made to cash a check, and also Bruce's Discount House, from which he had pieced together an account of duplicate Mexican males and the automobile which they had used. In his police car, he passed the 1000 Block on East Third Street at about 8:30 p.m. He observed a pink or salmon-colored 1957 Pontiac parked in front of the house at 1019 East Third Street; one person sat on the passenger side of the car, which was facing east, while the police car was passing in a westerly direction. As Officer Yeargan went by the house, he noticed that another man got into the driver's side of the car, and it then started to leave the area. The officer made a 'U' turn and followed the vehicle as it moved north onto Augusta Street. Officer Yeargan stopped the Pontiac on Virginia Street; he saw that there was no license plate on the rear of the vehicle. The driver of the Pontiac got out of the automobile and walked back to meet the officer; he was asked for his driver's license, and when he removed the wallet from his pocket he looked into it and said he did not have his license with him but had left it at home. The officer asked his name and he admitted that it was Robert Lopez. Officer Yeargan then asked Mr. Lopez to sit on the passenger side of his police car and he radioed for assistance.

Lopez had his wallet in his hand; he took money out of it, as well as some papers, and he was making waving motions with the wallet and its contents, causing the officer to think he might be attempting to toss some money or the wallet out of the open window; however, Lopez only threw one paper out of the window.

Officers Netherton and Henkle soon arrived. When Henkle got into the police car with Lopez, and Officer Yeargan looked outside the car and found an insurance company card in the street below the window, he asked Lopez why he dropped it; the latter specifically denied that he had done so.

Officer Yeargan had prior information, by official briefing, that an attempt had been made at The Food Spot Market to pass a check which had been taken in a burglary from Hiebert's Wheel and Brake Shop; that a suspect, Robert Lopez, had been named as a participant, that a description of his automobile had been given as a pinkish-colored Oldsmobile which had a temporary license number, and that the Lopez home address was 1019 East Third Street. When the officer had gone to Bruce's Discount House with this information, he was also given supplemental information including a partial description of the man who cashed one of the checks there.

At the trial there was an objection to the introduction of evidence secured by Officer Netherton on the ground of lack of probable cause. Outside the presence of the jury the judge determined, after lengthy testimony, that the evidence should be admitted and so ruled.

Netherton testified that when he arrived at the scene, he asked Yeargan what he wanted him to do, and he said, 'Watch the fellow in the front. Watch Mr. Cerda.' Netherton then asked Cerda for some identification; Cerda gave him a draft card and a Social Security card with the name John Cerda on them. Netherton asked if he had further identification. As Cerda was looking through his wallet, the officer had the flashlight shining into it and among the contents was what...