People v. Ortega

• Decision Date: 19 December 1969
• Docket Number: Cr. 16294,16552
• Citation: 2 Cal.App.3d 884,83 Cal.Rptr. 260
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jake Orlando ORTEGA and Floyd Dan Rodriguez, Defendants and Appellants.

Page 260

83 Cal.Rptr. 260

2 Cal.App.3d 884

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jake Orlando ORTEGA and Floyd Dan Rodriguez, Defendants and Appellants.

Cr. 16294, 16552.

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

Dec. 19, 1969.

[2 Cal.App.3d 888] Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for appellant Ortega.

Leon S. Paule, Beverly Hills, under appointment by the Court of Appeal, for appellant Rodriguez.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Russell Iungerich and Arthur B. Rosenfeld, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Associate Justice.

Appellants, Jake Orlando Ortega and Floyd Dan Rodriguez, were jointly charged with a violation of section 211 of the Penal Code (robbery). The information alleged that both appellants were armed with deadly weapons, to wit, guns, at the time of the commission of the offense. Both men entered pleas of not guilty and each made a motion for severance of trial which motions were denied. At a trial by jury appellants were found guilty as charged and the robbery was fixed as in the first degree. The jury further found that each appellant was armed with a deadly weapon at the time of the commission of the offense. Motions for new trial were made and the motion was denied as to appellant Ortega and was withdrawn as to appellant Rodriguez. Applications for probation were denied and appellants were sentenced to the state prison for the terms prescribed by law. This appeal is from the judgments of conviction.

STATEMENT OF FACTS

On June 7, 1968, at approximately 9:15 p.m., two men entered the L & B Delicatessen, owned and operated by Robert G. Long, and walked to the rear of the store to the refrigerator where beer was stored. One of the men asked the price of Pabst beer and Long became suspicious of the men as prices of beer were conspicuously posted. Because of the behavior of the two men, Long paid particular attention to their faces. There was a mirror over the refrigerator which permitted Long to observe the men in the well-lighted store. Neither man wore any covering over his face. One man identified by Long as Rodriguez took a six pack of beer and with his confederate later identified by Long as Ortega approached Long who was at the counter. As Long rang up the amount of the purported purchase on the cash register Rodriguez asked for a pack of cigarettes. Long turned to secure the cigarettes at which time he heard a revolver being cocked. When he turned toward the two men he saw that both were holding revolvers and pointing the same at him. One of the men then ordered Long to move to the rear of the room and after complying Long was forced to lie on the floor at which time one man took Long's wallet and also kicked him. Thereafter, the two men left the store.

Long discovered that $230.50 had been taken from the cash register and in addition a cigar box containing rolled coins was missing. Certain of the rolled coins bore a stamp, 'L & B Delicatessen, 2545 East Broadway, Long Beach.'

On the following evening June 8, 1968, at about 8:00 p.m. a call came over the sheriff's radio to the effect that a robbery was in progress at 111th and Freeman. Jesse Simpson, a deputy sheriff, and his partner Deputy Fauria responded to the call and upon arriving at the specified location observed a 1967 Chevrolet with Rodriguez seated in the driver's seat and Ortega in the right rear seat. A third individual, C. DeBaca, was also in the vehicle while a fourth person, Richard Edward Aiken, was in a nearby telephone booth making a call. Shortly thereafter other officers arrived at the scene. One officer, Deputy Sheriff Robert J. Begey, ordered the three men from the car and a patdown Long attended a police lineup on the Monday following the Friday robbery at which time he was able to make positive identification of Rodriguez and 'tentative' identification of Ortega. Long positively identified Ortega at both the preliminary hearing and at trial where he had an opportunity to observe the said appellant at close range. Also at trial Long was able to identify certain rolled coins bearing the stamp of his delicatessen, a 1928 G series $2.00 bill, a bag of value balloons of the type sold at his store and his wallet and its contents. Long, having had considerable experience with firearms while in military service, was able to identify two weapons introduced by the People and taken from Ortega and Rodriguez at the time of their arrest as similar to those carried by the two men during the robbery.

for weapons took place. No weapons were found. The doors of the vehicle were left open and Begey observed a wallet on the floor and inquired of the three suspects as to the ownership of the same. Each denied that he was the owner of the wallet. The officer bent over to scrutinize the operator's license which was protruding from the wallet and he observed that the picture on the license was of a different person from any of the suspects. The name 'Long' appeared thereon. Begey then picked up the wallet which contained business cards, a Masonic card and an armed services identification card, all the property of Long. As Begey was stooping down to pick up the wallet he observed the grip of a .38 caliber pistol under the seat. A search of the car followed and the officers further recovered a .22 caliber pistol and rolled coins bearing the stamp of L & B Delicatessen. The three suspects in the car and the fourth man in the telephone booth were all placed under arrest.

Ortega's defense was alibi and in connection therewith several witnesses were called who testified that said appellant was at the home of Richard Edward Aiken on the evening that the robbery of the delicatessen took place. Ortega took the stand and testified on his own behalf. In addition to giving testimony which if believed by the jury would have established an alibi, said appellant testified that while he and Rodriguez were together in the Long Beach City Jail, Rodriguez stated that he would tell the police the truth which was that he (Rodriguez) and his cousin Junior Solano were in fact the perpetrators of the robbery of Long and that Ortega was not involved in the commission of the crime.

Rodriguez also took the stand in his own behalf, denied any participation in the robbery, denied that he had told Ortega that he (Rodriguez) and Solano had committed the robberies. He further testified that Ortega on several occasions had asked him to take the blame for the robbery as the police had the stronger case against Rodriguez. He admitted ownership of the vehicle in which he was seated at the time of his arrest. He denied any knowledge of the presence of the weapons in his car. He testified also that he had secured the rolls of coins found in the glove compartment from a bank so that he would have the small change available for gambling and the purchase of cokes and such. He could not name or furnish the location of the bank where he had secured the rolls. He also testified that he had a $2.00 bill which he had retained as a good luck token.

Aiken, the individual who was making the telephone call at the time of the arrest of appellants, appeared as an alibi witness for Ortega and on cross-examination denied that he had ever been addicted to 'hard' narcotics such as morphine, opium or heroin. On rebuttal, Deputy Sheriff E. Adrian LaGrave who qualified as a narcotics expert, testified that he had talked with Aiken on June 10, 1968 and had examined him physically. LaGrave found several marks on Aiken's arms and based upon his examination and conversation with Aiken, LaGrave formed the opinion that Aiken was addicted to the use of heroin.

THE RODRIGUEZ APPEAL

Appellant Rodriguez contends as follows:

1. That there was no probable cause for his arrest;

2. That there was no corroboration to support testimony that a police code call of '211 now' was actually made or validly issued;

3. That the court committed prejudicial error in permitting witness Ann Long to testify;

4. That the court committed prejudicial error in admitting testimony regarding a telephone call by witness Aiken concerning narcotics;

5. That the court improperly influenced the jury in reaching a verdict; and

6. That appellant was given multiple punishment proscribed by section 654 of the Penal Code.

1. Probable Cause for the Arrest Issue.

Appellant contends that his arrest was illegal because it was effected without probable cause. It should be noted that appellate failed to move under section 995 ¹ of the Penal Code to set aside the information on the ground of lack of probable cause. As stated by the court in People v. Harris, 67 Cal.2d 866, 870, 64 Cal.Rptr. 313, 315, 434 P.2d 609, 611, 'We hold that the failure to move to set aside the information (Pen.Code, § 995) bars the defense from questioning on appeal any irregularity in the preliminary examination (Pen.Code, § 996). We thereby follow a long line of decisions in both this court and the Courts of Appeal, uniformly holding that section 996 forecloses an attack on the preliminary examination in the absence of a motion under section 995. (Citations.)' Thus, since appellant failed to move to set aside the information, he is precluded from raising the issue on appeal.

Appellant's brief, however, couples the issue of admissibility into evidence of several items recovered from his car with the issue of probable cause. For that reason we deem it necessary to determine whether there was probable cause for his arrest.

The sheriff's deputies, Simpson and Begey, were each responding to an official police call to investigate a robbery then in progress. When the officers arrived at the designated location the only automobile present at the scene which matched in any way the description given in the radio call was the one in which the two appellants and a third party were seated. Under the...