People v. Kizzee

• Decision Date: 12 July 1979
• Docket Number: Cr. 32212
• Citation: 156 Cal.Rptr. 784,94 Cal. App. 3d 927
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James Jarvis KIZZEE, Defendant and Appellant.

Page 784

156 Cal.Rptr. 784

94 Cal.App.3d 927

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Jarvis KIZZEE, Defendant and Appellant.

Cr. 32212.

Court of Appeal, Second District, Division 5, California.

July 12, 1979.

Hearing Denied Sept. 6, 1979.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, and Quin Denvir, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, Therene Powell, Deputy State Public Defender, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen. Criminal Division, S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

After defendant's unsuccessful motion to suppress evidence, a jury found him guilty of one count of first degree robbery (Pen.Code § 211) and one count of kidnapping for the purpose of robbery (Pen.Code § 209). The jury also found that defendant had been armed with a firearm during the commission of the robbery within the meaning of Penal Code sections 12022.5 and 1203.06(a)(1). Defendant admitted two prior felony convictions, a robbery and a burglary. ¹ On November 2, 1977, he was sentenced to state prison for the terms prescribed by law, the terms on the two counts to run concurrently. The sentence on the kidnapping count was stayed pending appeal, the stay to become permanent upon completion of the terms on the robbery count. Defendant appeals from the judgment.

FACTS

1. Motion to Suppress Evidence.

On January 28, 1977, at about 8:45 a. m., Los Angeles Police Officer Jack Reidy received a radio call that burglars were loading or unloading a vehicle at a residence at 840-842 West 79th Street. Reidy arrived at the location within five minutes of the broadcast, but no vehicle was present. He did, however, see dual tire tread marks on a nearby curb. A witness told him that she had seen a large blue or green truck parked in the driveway. Reidy put out a "no further assistance needed" broadcast and left.

At about 10:05 a. m. that same day, Officer Charles Buckland received a radio broadcast to the effect that a Royal Wholesale Cigar Company truck had been hijacked. Buckland had heard the earlier broadcast and the "all clear" sent out by Reidy. Buckland interviewed the driver of the truck, a Mr. Williams, who told him that the truck's cargo had consisted of cases of cigarettes, candy, and sundries. Williams said that a man had accosted him with a gun, had ordered him onto the floorboard and had driven the truck to a location unknown to Williams. At the location, he felt the truck bump and rub along the curb when it was being backed up. A woman who was apparently armed with a gun then entered the truck and threatened to kill Williams. Meanwhile, two people were apparently unloading the truck. Williams described his truck as a blue Chevrolet with dual wheels.

Remembering the earlier broadcast, Buckland consulted with Reidy to ask what he had found at the 840-842 79th Street location. The two met there at about 11:30 or 11:45 a. m. and compared notes. Also present were an Officer Hoar and a young police cadet named McGuire.

The officers set up a surveillance of the 79th Street residence. At about 1:00 or 1:15 p. m., they were joined by Officer Maurice Nordenstrom, who had been advised of the information gathered by Reidy and Buckland. Nordenstrom stationed himself in an apartment building across the street from 840-842 and the other officers took positions nearby. The officers maintained radio contact with each other.

Defendant arrived at the location at about 1:30 p. m., entered through the rear door, and left a few minutes later. He returned, entered and left after a short period of time at about 3:00 p. m. At about 3:30, another man, later identified as a Mr. Quiller, arrived, entered, and left. Defendant returned at 4:00 and a third man, later identified as Leonard Pentalion, arrived at 4:05 and was beckoned by defendant to enter through the rear door. A short time later, defendant and Pentalion left in Pentalion's Volkswagen.

By 7:00 p. m., defendant, Quiller and Pentalion had all returned. Defendant and Pentalion began to carry half cases of cigarettes out of the apartment. Both men appeared cautious, Pentalion looking up and down the street and defendant ducking into the shadows when he saw a vehicle drive by. Pentalion loaded the half cases into his Volkswagen and defendant put the ones he was carrying into his Thunderbird. As each man got into his car and began to drive away, Officer Nordenstrom broadcast to his fellow officers to close in.

Nordenstrom and Buckland stopped defendant's car, placed him under arrest and searched him. No weapon was found. Meanwhile, Reidy stopped Pentalion's car and placed him under arrest. A pat-down search of Pentalion revealed no weapon. Nordenstrom and Reidy conferred about the fact that neither had discovered the gun that had reportedly been used in the hijacking.

Nordenstrom and Reidy then approached the apartment, Nordenstrom going to the rear door and Reidy to the front door. Nordenstrom knocked on the rear door and said, "Police officers." When he received no response, he walked around to the front. Reidy encountered Quiller leaving through the front door and arrested him. A pat-down revealed no weapon. Reidy asked Quiller whether anyone else was inside and Quiller stated that there was a woman in the bedroom. Reidy told Nordenstrom that he had found no weapon on Quiller and what Quiller had told him.

Nordenstrom then went to the front door, which was standing wide open. He knocked and stated loudly, "Police officers you are under arrest." After waiting 15 or 20 seconds and receiving no response, Nordenstrom decided that he was faced with an emergency; the woman in the house was a suspect in the kidnap robbery, she probably possessed the gun she had used during the offense and, since the other occupants of the apartment had been placed under arrest, she might well try to escape. Nordenstrom entered the apartment and found a woman Esther Ceja apparently asleep on the bed. He told her that she was under arrest for robbery and led her through the hallway toward the front door. In the hall, he saw through the open door of another bedroom a number of half cases of cigarettes.

In the living room, they met Officer Buckland, who had entered to assist Nordenstrom. The woman asked Buckland if she could put on her shoes which were in the bedroom. Back in the bedroom, the woman began to get her shoes, which were beside the bed. Buckland stopped her and looked under the pillow or mattress at the head of the bed and found a loaded .357 magnum revolver.

2. The Trial.

Much of the testimony at trial was a repetition of that at the suppression motion. In addition, testimony was taken from Robert Williams, the victim of the robbery-kidnap. Williams gave this version of the incident:

On January 28, 1977, Williams was employed as a truck driver for the Royal Wholesale Cigar Company. At about 8:05 a. m., he had just completed a delivery of merchandise at a liquor store when he was accosted by a man with a gun ² who ordered him to lie down on the floor in the cab of the truck. After Williams complied, the gunman tried to start the truck but could not do so. Williams told the gunman that there was a safety switch under the ignition which had to be activated. Eventually, the gunman got the truck started and drove it away.

After the truck had traveled what seemed to Williams to be a few miles, it came to a stop. A woman entered the truck and suggested that Williams be tied up, which was done. While two men unloaded the truck, the woman stayed with Williams. At one point she stated that if the police came he would be dead.

The gunman then re-entered the cab and drove for about four or five miles. He stopped the truck, told Williams not to get out for fifteen minutes and left. Williams untied himself and went to a nearby home, from which he called the police.

Leonard Pentalion also testified as a witness for the People. He had known defendant for about twenty years. After spending the early morning hours of January 28, 1977, as a witness in a trial, Pentalion went to a bar and then arrived at his home at about 3:30 p. m. At that time, Pentalion spoke by telephone to defendant, who told him that he had 55 half cases of cigarettes that he wanted to "get rid of." Pentalion went to the address provided by defendant and there met defendant and a woman named Esther Ceja.

Defendant and Pentalion left to go to a liquor store where they thought they could sell the cigarettes. As they drove, Pentalion asked where the cigarettes had come from. Defendant told Pentalion about the robbery-kidnap, identifying himself as the gunman and the other man involved as one Quiller. He specifically told Pentalion about the trouble he had had starting the truck and how he "had to find a button" to start it.

Eventually defendant and Pentalion returned to the 79th Street residence and, after making further arrangements, began to load the cigarettes into their cars. They were placed under arrest at about 7:00 p. m. and taken to jail along with Quiller and Esther Ceja. At the jail, Pentalion repeatedly asked defendant to "cut (him) loose" to which defendant replied, "Well, go for yourself, you got a 'receiving,' we all got a receiving."

Defendant was advised of his constitutional rights and interviewed by Sergeant James R. Barrett. He denied that he had taken the cigarettes and stated that "all the people involved in the robbery were not in custody."

Testifying in his own defense, defendant denied participation in the robbery-kidnap. He stated that the gunman was a man named "Cue." Cue had called defendant in the afternoon on January 28, 1977, and had asked if he could sell some cigarettes. When defendant arrived at...