People v. Hanamoto

• Decision Date: 28 April 1965
• Docket Number: Cr. 4476
• Citation: 44 Cal.Rptr. 153,234 Cal.App.2d 6
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Shoji HANAMOTO, Defendant and Appellant.

Page 153

44 Cal.Rptr. 153

234 Cal.App.2d 6

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Shoji HANAMOTO, Defendant and Appellant.

Cr. 4476.

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

April 28, 1965.

As Corrected May 26, 1965.

Machado, Feeley & Machado, by Peter E. Tiernan, Jr., San Jose, for appellant.

Stanley Mosk, Atty. Gen. of the State of California, Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed from his conviction of robbery in the first degree in violation of section 211 of the Penal Code by judgment entered on a jury verdict entered in an action in which he was acquitted of two similar charges which involved other victims on other occasions. Delay in filing his notice of appeal, first perceived and alluded to by the People after the record and appellant's opening brief had been filed with the court, has been excused by the granting of defendant's application for relief under Rule 31(a), California Rules of Court.

Appellant originally asserted that his arrest was without probable cause and that therefore the evidence resulting therefrom should have been ruled inadmissible; and that the evidence is insufficient to support his conviction. At oral argument the issues were broadened to include an examination of the propriety of the admission of testimony concerning statements of the defendant which were elicited from him at the time he was arrested and thereafter while in custody.

The facts concerning the robbery of which he was convicted are as follows: About 9:15 p.m. on January 11, 1963 a black and yellow car drove up to the entrance to the Moonlight Drive-In motion picture theater in Santa Clara. The car pulled ahead a little out of line so the cashier had to reach and could not see into the car. The driver kept his face turned to the side and just held his hand out as he gave her two one-dollar bills and received a quarter and fifty cent piece in change, along with a ticket torn lengthwise to indicate to anyone checking the cars that there was only one person in the car when it entered. The driver's actions attracted her notice as similar to those that might be exhibited by one who had a person in the trunk or planned to pick someone up who came in over the fence. She did notice that he was an oriental, of an age in his late 20's or early 30's, and at the time was hatless, had no dark glasses on, and wore no coat, only a sweater or shirt of a soft tone, grey-tan or brown.

Shortly before 10:00 p.m. the cashier made up her hourly box-office ticket report which involved making a record of the numbers on the tickets, and counting the money. She retained $121 in currency consisting of twenty-one $1 bills, and $100 in five, ten and twenty dollar denominations, and some coin, and dropped the excess into a safe.

At approximately 10:00 p.m. a car coming out of the drive-in pulled up on the other side of the cashier's booth and stopped. The door was bolted and as the cashier started to pull the bolt someone pounded on the door and she proceeded to open it. She was confronted by the man she had seen about forty-five minutes before in the same black and yellow car. At this time he was attired in a grey topcoat, had a black scarf draped over his head hanging down to his shoulders, had a hat on his head and was wearing dark glasses, and black or dark gloves. He pointed a gun at the cashier and told her it was a holdup and that he wanted all the currency. She pressed an emergency buzzer and picked up the currency out of the drawer and gave it to him. In order to convince him she had no more currency when he insisted she did, she pulled out the drawer and held it up to him. He told her not to answer a buzzer that sounded in the office, and he left in his car.

The cashier observed and put down three letters from the license plate of the vehicle, and picked up the phone. She found that the manager already had the police department on the line and she gave them the description of the car as best she could and told them the perpetrator was an oriental with hat, topcoat and glasses. A few minutes later she repeated the information to officers who arrived at the scene. At about 10:02 p.m. a broadcast went out describing the robbery suspect as 'male oriental, approximately 28 to 30 years old, wearing a felt hat with a dark black scarf wrapped around his head, dark sun glasses and a grey topcoat,' and the vehicle as a '1955 and/or 1956 yellow and black Plymouth with the letters of a license DGY.'

At about 10:30 p.m. Patrolman Hawkins of the Santa Clara Police Department, who with a partner was cruising around the area looking for the person responsible or the vehicle involved, observed a male oriental in the middle of the block on Humboldt Street walking on a lawn on the north side of the street in a southwesterly direction. He was attired in slacks, sport shirt and black sweater, and wore no jacket or overcoat although it was a very cold night with ice crystals on the tops of parked cars and an estimated temperature in the twenties or low thirties.

The officer had his partner stop the car, ran around the back of the car, and told the suspect, who was then about six or seven feet off the left rear of the vehicle, to 'Hold it.' He proved to be the defendant, George Hanamoto, and gave his correct name and the block and street on which he was then residing in response to the officer's questions. He was unable to produce a driver's license or other identification. The officer directed him to take his hands out of his pockets and to place everything in his pockets on the trunk of the patrol car. He produced one nickel, one Marlboro cigarette and a cigarette lighter. ¹ The defendant allegedly stated, "that he and his wife were enroute to the Jamaica Inn, that she had let him out of the car at Kiely and Benton Street [one block to the south] because she wanted to go buy some hair spray and he was willing to get out of the car because he wanted to make a telephone call at that corner, and he was just walking around the area waiting for her to pick him up." There was no phone booth in the vicinity of Kiely and Benton Streets, or in the vicinity of Kiely and Humboldt Streets at that time. The closest booths were at the Moonlight Drive-In, or a quarter of a mile west on Benton. Following this five minute exchange the defendant was placed under arrest, taken into the patrol car, and transported to the scene of the robbery.

Legality of Defendant's Arrest

At this point at the trial defendant did and by his appeal he does interpose the objection that his arrest was illegal, and that the evidence subsequently developed by exhibiting him to the cashier for identification, and from statements attributed to him while in custody was erroneously admitted. Reliance on this proposition involves the establishment of two predicates, first, that the arrest was unlawful, and, secondly, that the evidence obtained was obtained not merely during the period of an illegal detention but as a result thereof.

Defendant relies upon the provisions of section 836 of the Penal Code which require that an officer have 'reasonable cause to believe that the person to be arrested has committed a felony' in order to justify an arrest without a warrant; and cites People v. Mickelson (1963) 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Hilliard (1963) 221 Cal.App.2d 719, 34 Cal.Rptr. 809; Hood v. Superior Court (1963) 220 Cal.App.2d 242, 33 Cal.Rptr. 782; People v. Gibson (1963) 220 Cal.App.2d 15, 33 Cal.Rptr. 775; People v. Zabala (1963) 217 Cal.App.2d 550, 31 Cal.Rptr. 712; People v. Ellsworth (1961) 190 Cal.App.2d 844, 12 Cal.Rptr. 433; and People v. Harris (1956) 146 Cal.App.2d 142, 304 P.2d 178, as setting forth the applicable principles. He concedes, as set forth in Mickelson, supra, 59 Cal.2d 448, 450-451, 30 Cal.Rptr. 18, 20, 380 P.2d 656, 660, that, '[I]n this state, however, we have consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. [Citations.]' (See also People v. One 1960 Cadillac Coupe (1964) 62 A.C. 89, 93, 41 Cal.Rptr. 290, 396 P.2d 706; People v. Hilliard, supra, 221 Cal.App.2d 719, 723, 34 Cal.Rptr. 809; People v. Gibson, supra, 220 Cal.App.2d 15, 20-21, 33 Cal.Rptr. 775; People v. McLaine (1962) 204 Cal.App.2d 96, 100-101, 22 Cal.Rptr. 72; People v. Porter (1961) 196 Cal.App.2d 684, 686, 16 Cal.Rptr. 886; People v. Ellsworth, supra, 190 Cal.App.2d 844, 846-847, 12 Cal.Rptr. 433; People v. Cantley (1958) 163 Cal.App.2d 762, 766, 329 P.2d. 993; People v. Harris, supra, 146 Cal.App.2d 142, 145, 304 P.2d 178 and cf. Hood v. Superior Court, supra, 220 Cal.App.2d 242, 245, 33 Cal.Rptr. 782; People v. Freeland (1963) 218 Cal.App.2d 199, 201, 32 Cal.Rptr. 132.) It is further asserted, however, that in this case, as in Mickelson, the investigation failed to reveal probable cause to make an arrest, and that therefore any further detention was illegal and the results thereof should not be used against the defendant at his trial. (59 Cal.2d 448, 452-454, 30 Cal.Rptr. 18, 380 P.2d 658; and see People v. One 1960 Cadillac Coupe, supra, 62 A.C. 89, 93-94, 41 Cal.Rptr. 290, 396 P.2d 706; Hood v. Superior Court, supra, 220 Cal.App.2d 242, 245-249, 33 Cal.Rptr. 782; People v .Gibson, supra, 220 Cal.App.2d 15, 21-26, 33 Cal.Rptr. 775; People v. Zabala (1963) 217 Cal.App.2d 550, 552-555, 31 Cal.Rptr. 712; People v. Macias (1960) 180 Cal.App.2d 193, 195-197, 4 Cal.Rptr. 256;...