People v. McDowell

• Decision Date: 30 June 1976
• Docket Number: Cr. 28015
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell McDOWELL, Defendant and Appellant.

Page 839

130 Cal.Rptr. 839

59 Cal.App.3d 807

The PEOPLE of the State of California, Plaintiff and Respondent, v. Wendell McDOWELL, Defendant and Appellant.

Cr. 28015.

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

June 30, 1976.

As Modified July 9, 1976.

Arthur J. Lewis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

Defendant (appellant) appeals from a conviction of violation of Penal Code section 487, subdivision 2, grand theft from a person.

In an information filed April 23, 1975, appellant was charged with two violations of the law. Count I charged a violation of Penal Code section 487, subdivision 2, and count II alleged violation of Penal Code section 496, receiving stolen property. The matter was tried by the court on September 23, 1975. Appellant's motion for acquittal pursuant to Penal Code section 1118 made at the conclusion of the People's case was denied. Appellant was found guilty as charged in count I and acquitted on count II. Appellant was sentenced to three years' probation with various terms and conditions, including that he serve nine months in county jail.

Viewing the evidence as we must on appeal in the light most favorable to the prevailing party below (People v. Mosher, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649), the facts are as follows: At approximately 8:05 p.m. on February 20, 1975, Mrs. Dorothy Mogstad was returning home and while she was in the process of opening her mailbox her purse was jerked from her left arm. She heard no footsteps prior to the seizure of her purse and was not alerted to anyone approaching her. She turned and saw someone with dark hair wearing a dark jacket running away with her purse. Approximately 10 minutes later, at 8:15 p.m., Officer Gregory Stevens who was proceeding northbound on Kingsley in the City of Los Angeles observed a vehicle parked next to a fire hydrant, in violation Vehicle Code section 22514. ¹ The police unit passed the parked car, turned and proceeded back to its location. As Officer Stevens and his partner, Officer Sewell, approached the car, appellant got out and said he was waiting for a friend. Officer Stevens said that his car was illegally parked. The door was open and the interior light was on. Officer Sewell looked in the car and saw an open purse with its contents strewn on the floor of the vehicle. Officer Sewell told Officer Stevens to place handcuffs on appellant as a suspect in a possible purse snatch. Appellant turned and ran. The officers pursued him on foot, but lost him.

The officers returned to the vehicle to report in. At that time they received information that a purse snatch robbery had occurred approximately one-half block from their location. They also learned the name of the vectim and received a description of the purse. On examining the purse in the car, they found that it contained identification showing that it belonged to Mrs. Mogstad. In the glove compartment of the vehicle, they found a wallet with identification showing that it belonged to appellant. The vehicle registration showed that it was owned by appellant. There were also three traffic citations.

About an hour to an hour and a half later, after appellant's vehicle was impounded and the officers had interviewed Mrs. Mogstad, they were proceeding westbound on Venice Boulevard from Western Avenue when they saw appellant standing at a bus stop still wearing a leather cap and the brown flowered shirt he was wearing when first observed at the vehicle. Appellant wore his hair combed straight down so that his hair protruded from under the cap. At the time of the trial he was still wearing his hair in that style. Officer Sewell got out of the police unit to apprehend appellant, but again he ran and got away.

About 15 or 20 minutes later, Sewell and Stevens received a call concerning a possible suspect at Crenshaw and Venice, which was about a mile and a half from Western and Venice. The suspect had been stopped by other officers while on a bus. Stevens and Sewell arrived and questioned the suspect. He had no identification and told the officers his name was John Williams. He was wearing the same type of clothing, and was the same stature as the suspect the officers had pursued, but he was not wearing a leather cap, and the bus driver and other passengers said that he had boarded the bus at Venice and Western which would have made it impossible for him to be the suspect they were pursuing. Officer Stevens testified that he was 'positive in his own mind' that the suspect on the bus was the same person he had attempted to arrest on Kingsley and the same one who had run from the officers at Venice and Western, but because of the statements of the bus driver and passengers he was released at that time. A short time later, however, Officer Stevens received information that a woman had called to say that she had been a passenger on the bus and the suspect questioned by the police had actually boarded the bus at Crenshaw and Venice and not at Western and Venice as the bus driver and passengers had said.

Appellant was then picked up at his home and brought to the police station. Both Officers Stevens and Sewell identified him as the man on the bus who had said his name was John Williams.

DISCUSSION

Appellant's first contention is that the trial court erred in denying the Penal Code section 1118 motion. In support of this contention, appellant argues that '(t)he testimony by the witnesses for the prosecution firmly established the fact that the appellant is not the perpetrator of the crime he was convicted of . . ..'

There is absolutely no merit to this contention. In effect, appellant is asking this court to reweigh the evidence, which we cannot do. (People v. Mosher, supra, 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.) Our review of the record shows the evidence to be substantial and clearly in support of the judgment. The basic evidence against appellant was overwhelming. His car was parked within one block of the location of the crime. The victim's purse was found in his car. Appellant fled from the police in order to avoid arrest. When he was questioned on the bus, he gave a false story and a false name. When he was brought to the police station later that night, he was wearing different clothes than the ones he had worn earlier. When asked by the police why he had given a false story when questioned on the bus, he answered, 'Man, I was trying to get home. I didn't want to get caught.' The brown flowered shirt and leather cap, which fit the description of the purse snatch suspect, were found in appellant's home.

Appellant's last...