People v. Jardine, Cr. 36901

Citation116 Cal.App.3d 907,172 Cal.Rptr. 408
Decision Date16 March 1981
Docket NumberCr. 36901
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Frankie Lee JARDINE, Alan Deal Pridgen and Eddy Gayland Rucker, Defendants and Appellants.
Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant Frankie Lee Jardine

Glen H. Schwartz, Encino, under appointment by the Court of Appeal, for defendant and appellant Alan Deal Pridgen.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Michael Tanaka, Deputy State Public Defender, for defendant and appellant Eddy Gayland Rucker.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Gary R. Hahn and Richard B. Cullather, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Appellants Eddy Gayland Rucker, Alan Deal Pridgen and Frankie Lee Jardine were jointly charged with the crime of robbery. (Pen.Code, § 211.) In addition Jardine was charged with personally using a firearm, to wit, a shotgun (Pen.Code, § 12022.5), and Rucker and Pridgen were charged with being armed with a shotgun. (Pen.Code, § 12022(a).) Following denial of a motion to [116 Cal.App.3d 912] suppress Jardine entered a plea of guilty to the charge. After a jury trial Pridgen was found guilty as charged and a mistrial was declared as to Rucker. Following a second jury trial Rucker was found guilty as charged. Each appeals from the judgment imposed.

FACTS

On August 11, 1979, at about 11:00 p. m., Joseph Wasley was in his store, Mac's Market, in the City of Burbank when Pridgen and Jardine walked in. Jardine pointed a sawed-off shotgun at Wasley, and Pridgen ordered him to fill up a paper bag. Wasley emptied his cash register and put about $39 in the bag. After the two were convinced that Wasley had no floor safe, they left.

Wasley then picked up his gun and ran out the door "to see where they went to." When he found he could not see anyone, he returned to the store and told his wife to call the police.

THE DENIAL OF THE MOTIONS TO SUPPRESS
A. The initial traffic stop, the search of the van and the search of Pridgen

A few minutes after the robbery the police radio broadcast a report that Mac's Market had been robbed by two male caucasians in their 20's, one short with a reddish goatee and a watch cap or a ski cap, dark color, and the second taller, thin, with black stringy hair and a green t-shirt. The weapon was described as a sawed-off shotgun.

Officer Armstrong, who was on patrol about a mile away heard the broadcast and proceeded towards the scene. About one block from the market he saw a van, driven by a male caucasian in his 20's with stringy hair. He followed the van for a few blocks and observed it driving to the left of center after making a turn. He also saw an object, "approximately six by six," being thrown from the van. He stopped the van for the traffic violations and ordered the occupants out. They were Rucker, the driver, and Jardine and Pridgen. Armstrong noted that Jardine and Pridgen met the broadcast description of the two robbers.

A few minutes later a second police car arrived with Sergeant Valento and Officer Wilson. Valento looked into the van and found live [116 Cal.App.3d 913] shotgun shells scattered on the floor, a dark colored ski cap and a grocery bag.

After arresting the passengers for robbery Sergeant Valento entered the van but was unable to see any shotgun. He then lifted up one of the plywood seats which had been built over the rear wheel wells of the van, and there found the sawed-off shotgun. In Pridgen's pocket Valento found $39.

Pridgen and Jardine contend there was no probable cause either to stop the van or to search the van once it was stopped. Pridgen additionally objects to the search of his pockets after his arrest.

After Officer Armstrong had observed two traffic violations, it was not improper to stop the van to issue the appropriate citations. (People v. McGaughran

Page 411

(1979) 25 Cal.3d 577, 582, 159 Cal.Rptr. 191, 601 P.2d 207.) Once he became aware there was more than one person in the van and they fit the broadcast description of the armed robbers, he was justified in asking everyone to alight from the van. (People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658; People v. Remiro (1979) 89 Cal.App.3d 809, 829, 153 Cal.Rptr. 89.) The law did not require Officer Armstrong to make the choice of giving the driver immunity in violating the traffic laws or stopping the car and possibly walking into the firing path of a sawed-off shotgun. (People v. Beal (1974) 44 Cal.App.3d 216, 221, 118 Cal.Rptr. 272.)

Once the passengers were out of the van, the officers were able to see the live shotgun shells and ski mask which were in plain view from outside of the van. These observations added to the reasonableness of the belief that the sawed-off shotgun was still in the van. At this point the officers were no longer concerned with a traffic violation. This was a robbery investigation. Since the sawed-off shotgun was both contraband (Pen.Code, § 12029) and evidence of a crime, the officers had the right to search for it. (See Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Wimberly v. Superior Court (1976) 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417.)

Since the shotgun was not found in the open portion of the van, the officers had reasonable cause to look for it in one of the closed compartments. (See Wimberly v. Superior Court, supra, 16 Cal.3d 557, 573, 128 Cal.Rptr. 641, 547 P.2d 417; People v. Minjares (1979) 24 Cal.3d 410, 423, 153 Cal.Rptr. 224, 591 P.2d 514; People v. Odom (1980) 108 Cal.App.3d 100, 106, 166 [116 Cal.App.3d 914] Cal.Rptr. 283.) The investigation was being conducted on a public street in the middle of the night circumstances which made it impractical to await the issuance of a search warrant. Under the circumstances it was not unreasonable to lift the unlatched wheel-well seat to locate and seize the shotgun.

Once the officers had arrested all three appellants the officers had the right to search Pridgen as an incident to his arrest. (People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201, 101 Cal.Rptr. 837, 496 P.2d 1205.)

B. The taped conversations in the police car and in the jail

At the scene of the arrests Valento placed the three suspects in a police car which was equipped with a tape recorder, then left them alone for about 15 to 25 minutes. The recorded conversations were received in evidence at the trial.

These conversations were admissible. Appellants were not in a private place, and they could not have had any reasonable expectations of privacy as they sat, under arrest, in the police vehicle. (People v. Newton (1974) 42 Cal.App.3d 292, 296, 116 Cal.Rptr. 690.)

When Rucker's wife came to the jail to visit him, they were separated by a glass partition and conversed by telephone. The police tape recorded this conversation, as well as one that Jardine had under similar circumstances with a woman who came to visit him. The trial court denied motions to suppress these conversations.

The California decisions have established that intercepted jail house communications are also admissible because they cannot be said to have been made in confidence unless the police deliberately create an expectation of privacy. 1 (See People v. Hill (1974) 12 Cal.3d 731, 764, 117 Cal.Rptr. 393, 528 P.2d 1; North v. Superior Court (1972) 8 Cal.3d 301, 308-312, 104 Cal.Rptr. 833, 502 P.2d 1305.) Here there was no such showing. The trial court was correct in admitting this evidence.

[116 CAL.APP.3D 915]

THE IDENTIFICATION PROCEDURE

Pridgen contends that the in-court identification was tainted by the identification procedure which occurred at the arrest scene shortly after the robbery.

About ten minutes after the crime, the victim, Wasley, was brought to the scene of the arrest. Before they started, the officers told him "we have a couple of guys down here we want you to look at." As soon as they arrived at the place of arrest, Wasley looked out of the police vehicle and said "That's the two guys right there." He did not recognize the third man.

This was a conventional field identification which courts recognize as not unduly suggestive or otherwise unfair. The special benefit of such a procedure is that the prompt viewing is more likely to produce an accurate response than a later confrontation. The identification evidence was properly received. (In re Richard W. (1979) 91 Cal.App.3d 960, 969, 155 Cal.Rptr. 11; People v. Anthony (1970) 7 Cal.App.3d 751, 764, 86 Cal.Rptr. 767.)

THE BEAGLE RULING

Prior to trial Rucker made a motion to exclude reference to his prior convictions should he elect to take the stand. (See People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.) In making the motion Rucker conceded he had suffered two second degree burglary convictions, one in 1971, one in 1974 and an attempted grand theft conviction in 1976, all in the State of Washington. Rucker's counsel informed the court that appellant would not testify if the prior convictions were allowed to be used for impeachment. The court responded: "The motion will be denied. He seems to periodically get in trouble; '71, and he goes to '74, and then he goes to '76. And now it's '79 like a wheel turning."

In People v. Rollo (1977) 20 Cal.3d 109, 116, 141 Cal.Rptr. 177, 569 P.2d 771, the court admonished trial courts as follows:

"By now it should be clear to all that when a defendant makes a timely objection to the introduction of evidence of a prior felony conviction for the purpose of impeaching his testimony, the trial court is under a duty (1) to determine the probative value of that evidence on the issue of the defendant's credibility as a witness, (2)...

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