People v. McCarty

• Decision Date: 17 October 1958
• Docket Number: Cr. 6136
• Citation: 164 Cal.App.2d 322,330 P.2d 484
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Otis McCARTY, Defendant and Appellant.

Page 484

330 P.2d 484

164 Cal.App.2d 322

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Otis McCARTY, Defendant and Appellant.

Cr. 6136.

District Court of Appeal, Second District, Division 2, California.

Oct. 17, 1958.

Erich Auerbach, Beverly Hills, for appellant.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., Roy A. Gustafson, Dist. Atty., Ventura County, Andrew J. Marsh, Deputy Dist. Atty., Ventura, for respondent.

HERNDON, Justice.

Convicted by a jury of second degree robbery, defendant seeks a reversal of the judgment on the basis of two contentions: (1) that the trial court erred in admitting evidence tending to prove that he was guilty of three crimes other than that for which he was on trial, and (2) that defendant's arrest in Los Angeles County by an officer from Ventura County without a warrant was invalid and that evidence procured in the incidental search was improperly admitted.

The sufficiency of the evidence to sustain the verdict being clear and unchallenged, the facts may be briefly stated. On May 21, 1957, at about 8:30 p. m. Rena Lively was the sole employee in charge of the Western Union office in Oxnard, California. Miss Lively testified that defendant entered the office just as she had finished dealing with two Mexican Nationals who promptly left the office, leaving her alone with the defendant. Defendant inquired whether she had a money order for one Weber. After checking her files, she informed defendant that she had no such money order. Thereupon, the defendant pulled a gun and in a low voice ordered her to turn over her money to him. He kept the gun partially concealed by his coat so that she was able to see only a portion of it. Miss Lively testified that she was frightened and that she promptly complied by giving defendant the money as demanded. After taking the money, defendant followed her to a restroom and ordered her to remain inside. She stated that the defendant was polite, calm and quiet spoken. He was wearing a light blue suit, a white shirt and no tie. One Richard Martin, a taxi driver, testified that he saw defendant in the Western Union office between 8:20 p. m. and 8:30 p. m. on the night of the robbery. He stated that defendant was in the office at the time the Mexican customers were present.

Detective Sergeant Patton of the Oxnard Police department testified that on the evening of May 27, 1957, he showed a photograph of defendant to Miss Lively who stated that he was the man who had robbed her. A few hours later, at approximately 2:20 a. m., Sgt. Patton and another Ventura police officer observed the defendant in Lynwood, California, driving an automobile. They stopped him near his home, placed him under arrest for robbery and proceeded to search his car. The officers had no search warrant nor arrest warrant at the time. The search of defendant's car produced a dark blue suit, a straw hat and a toy pistol. Defendant told the officers he had found the toy pistol on the lawn that morning and intended to give it to a friend's child. When accused by the officers of robbing the Western Union office in Oxnard, defendant denied it. Defendant was taken briefly to the Lynwood police department and was then transported to the Oxnard police department. Testifying in his own defense, defendant admitted that he had been convicted of armed robbery in Los Angeles County of March 17, 1954, and had been incarcerated for that crime, but had been placed on parole in March of 1957. He testified that between 8 p. m. on May 21, 1957, the night of the Oxnard robbery, and 2 a. m. of the following day he was in a bar at Lynwood, California, during which time he was engaged in negotiating for the purchase of a car from the bartender. He denied that he was ever in the Western Union office at Oxnard at any time. The bartender gave testimony corroborating defendant's alibi.

Over defendant's objection, the trial court admitted evidence tending to prove that defendant was guilty of three robberies in addition to the one with which he was then charged. Miss Margaret Brislane and George Howell, both Western Union employees, testified that on April 15, 1957, at 1:20 a. m. defendant robbed Miss Brislane in the Western Union office located at 741 S. Flower Street in Los Angeles. Defendant denied being in this Western Union office at any time during that day. He testified that at the time of that robbery he was in Hollywood in a bar.

Mrs. Patty Dunagan and Mrs. Willard Jordan, Western Union employees, testified that on May 27, 1957, at 10:40 p. m. defendant attempted to rob Mrs. Dunagan in the Western Union office at Santa Ana, California, but left without taking any money when the victim feigned a faint. The defendant denied that he had been in the Western Union office at Santa Ana at any time of May 27, and testified that at the time in question he was in a bar in Norwalk.

Mrs. Mary Ward and Mrs. Elaine Bonar, both Western Union employees, testified that defendant robbed Mrs. Ward in the Western Union office in Wilmington, California, on May 10, 1957, at 2 p. m. Defendant denied that he had been in that office of Western Union at any time, and testified that at the approximate time of that robbery he was in the Lynwood branch of the Bank of America and that after leaving the bank he had gone to the Clover Room, a bar in the same city where he had stayed 'for a while.'

In urging that the trial court committed prejudicial error in receiving evidence of the other robberies, defendant relies mainly upon People v. Channell, 136 Cal.App.2d 99, 111-113, 288 P.2d 326; People v. Lapin, 138 Cal.App.2d 251, 259, 291 P.2d 575, and People v. McCullough, 158 Cal.App.2d 310, 322 P.2d 289, 290. These cases apply the rule '* * * that evidence of a distinct, substantive offense cannot be received unless there is some clear connection between that offense and the other charged from which it may be logically inferred that if guilty of one he must be guilty of the other.'

Since defendant denied the robbery and offered the defense of an alibi, it is obvious that the sole issue determinative of defendant's guilt or innocence was the question of his identity as the robber. In other words, the essential question was whether the prosecution witnesses were mistaken in their identification of the defendant as the perpetrator of the crime with which he was charged. The test of admissibility of evidence of other crimes for the purpose of identifying the defendant was stated as follows in People v. Grimes, 113 Cal.App.2d 365, 371, 248 P.2d 130, 133: '[W]hether the facts pertaining to the other offenses allowed to be proved, show a general pattern, scheme, or plan, and are sufficiently similar and possess a sufficiently high degree of common features with the act charged to warrant the inference that if the defendant committed the other acts he committed the act charged.' In People v. Peete, 28 Cal.2d 306, 318, 169 P.2d 924, it was held that evidence of another crime showing a similar modus operandi was admissible as tending to identify the defendant as the perpetrator of the crime immediately charged.

The evidence in the case at bar portrayed a series of four robberies, including the one charged, so similar in pattern and involving a modus operandi with so many distinctive and common features that the correctness of the trial court's ruling is not open to serious question. Whether proffered evidence of other crimes satisfies the applicable test is primarily a question for the trial court. People v. Grimes, supra, 113 Cal.App.2d 365, 371, 248 P.2d 130; People v. Roach, 148 Cal.App.2d 364, 368, 306 P.2d 523; cf. People v. Peete, 28 Cal.2d 306, 169 P.2d 924.

All four robberies were perpetrated within a period of six weeks. In addition to the fact that all four robberies involved Western Union offices, the following similarities appear: (1) the approach to all four robberies was similar in that in each case before demanding the money, the perpetrator made a request of his victim that would allow him to survey the premises. In Wilmington, Santa Ana and Oxnard the defendant asked each of the respective victims whether she had a money order for a certain named person. In Los Angeles, he asked the victim for change for a $5 ...