People v. Propp

• Decision Date: 08 July 1965
• Docket Number: Cr. 4341
• Citation: 235 Cal.App.2d 619,45 Cal.Rptr. 690
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Fred PROPP, Jr. and Roland Wayne Wright, Defendants and Appellants.

Page 690

45 Cal.Rptr. 690

235 Cal.App.2d 619

PEOPLE of the State of California, Plaintiff and Respondent, v. Fred PROPP, Jr. and Roland Wayne Wright, Defendants and Appellants.

Cr. 4341.

District Court of Appeal, First District, Division 1, California.

July 8, 1965.

As Modified on Denial of Rehearing July 28, 1965.

Hearing Denied Sept. 2, 1965.

[235 Cal.App.2d 624] Douglas G. Cowan (under appointment of the District Court of Appeal), Walnut Creek, for appellant Propp.

Willard E. Stone (under appointment of the District Court of Appeal), Walnut Creek, for appellant Wright.

Thomas C. Lynch, Atty. Gen. of California, Edward P. O'Brien, Barry L. Bunshoft, Deputy Attys. Gen., for respondent.

BRAY, Justice. ^*

After jury trial, defendant Propp was convicted of the crimes of armed robbery in the first degree, conspiracy to commit robbery, possession of a sawed-off shotgun, and possession of concealed weapons. Defendant Wright was convicted of armed robbery in the first degree, conspiracy to commit robbery, and possession of certain firearms by felon. Both defendants were adjudged habitual criminals. ¹ Both defendants appeal. Although Propp was convicted of four crimes and defendant Wright of three, the court, feeling that all of the acts constituting the crimes were connected with the purpose and intent of the robbery charge, sentenced each defendant on the robbery charge only.

QUESTIONS PRESENTED

A. Appeal of both defendants.

B. Appeal of defendant Wright.

1. Sufficiency of the evidence.

2. Alleged error in other instructions.

C. Application of the Dorado rule.

1. Wright's statements to the police.

2. Propp's statements.

D. Comment and instruction on failure to testify. (Griffin v. State of California, infra.)

RECORD

Defendants were jointly charged in an information of violating sections 211 (robbery); 182 (conspiracy to commit robbery); 12021 (possession of concealed weapons by ex-convict) of the Penal Code. ² A jury convicted both defendants of all charges.

About 10:00 p. m., September 16, 1962, Darrell Spicer, employed as a janitor at the LoRay Market, was about to enter the market by the front door. He observed Ray Anderson, another employee, walking down an aisle toward the front of the store, with his hands raised, followed by defendant Propp holding a gun at his back. Spicer left the front of the store and took up a position a short distance away. From there, he saw Propp force Lester Bryan, the assistant store manager, to open the safe. Spicer immediately ran to a nearby tavern and phoned the Richmond Police Department, informing them that there was a robbery in progress at the market. He described Propp as dark complected, slight of build, beady eyed and wearing a mask.

Officer Harold Hamil while on patrol received radio information of the robbery. He proceeded toward the market. As he approached the market he saw Propp running, carrying a sawed-off shotgun in one hand and a bag in the other. Hamil stopped his patrol car, got out, drew his revolver and ordered Propp to halt. This Propp did and was immediately arrested. A later examination of Propp revealed that he was wearing two pairs of pants, had a kerchief around his neck, and that the bag he was carrying contained about $5,000 in currency (taken from the market). Two other officers who received radio information of the robbery stopped a Rambler station wagon leaving the scene of the crime, and, after an investigation, arrested its occupants, defendant Wright and one Poulter. The details will be discussed later under the title 'Alleged Illegal Search and Seizure.'

1. Due Process.

Under a separate heading 'Due Process of Law' defendants refer to United States Constitution, Amendment 14, California Constitution, Article I, Section 13; and People v. Hamilton (1963) 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412 without designating in what way it is contended that defendants were deprived of due process. Perhaps they refer to all of the contentions thereafter raised by them. In any event, as will hereinafter appear, defendants were not deprived of due process.

2. Lack of Separate Trials.

Section 1098, Penal Code, provides, 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. * * *'

Both defendants contend that the court erred in denying defendant Wright's motion for a separate trial. The trial court has a broad discretion in determining whether to order joint or separate trials. (People v. Lamb (1962) 204 Cal.App.2d 255, 264, 22 Cal.Rptr. 284, hearing denied by Supreme Court.) Defendant Wright contends that the evidence supporting his connection with defendant Propp is indirect and that being joined with Propp in the trial created the appearance of their being associated. Propp, who did not take the stand, contends that he was entitled to a separate trial because his codefendant Wright testified. The claims of both defendants that they were entitled to a separation of the trials is well answered in Lamb, supra, quoting from People v. King (1938) 30 Cal.App.2d 185, 206, 85 P.2d 928: "It is not an abuse of discretion to refuse to grant a motion for a severance because damaging testimony or the admission or confessions of a codefendant might be admitted in evidence against such codefendant, and not be admissible against the moving defendant. [Citing cases.]" (204 Cal.App.2d p. 264, 22 Cal.Rptr. p. 289.)

The court in exercising its discretion to refuse separate trials is not depriving defendants of due process of law. (See People v. Hidalgo (1961) 195 Cal.App.2d 843, 846-847, 16 Cal.Rptr. 312.) The interests of justice did not require that in this case two separate trials be had, involving the same evidence arising out of identical facts and circumstances.

3. Alleged Illegal Search and Seizure.

Defendants contend that the search of the automobile in which Wright and Poulter were riding was illegal and that Wright's arrest was likewise illegal. ³

The first question to be determined is whether the circumstances justified the officers in stopping the automobile and interrogating the men in it. If they did, then the matters discovered in that investigation justified the arrest of Wright and Poulter and the subsequent search of the automobile. As said in People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 20, 380 P.2d 658, 660: '* * * circumstances short of probable cause to make an arrest may still justify an officer's stopping pedestrians or motorists on the streets for questioning. If the circumstances warrant it, he may in self-protection request a suspect to alight from an automobile or to submit to a superficial search for concealed weapons. Should the investigation then reveal probable cause to make an arrest, the officer may arrest the suspect and conduct a reasonable incidental search. [Citations.]' (See also People v. Cowman (1963) 223 Cal.App.2d 109, 35 Cal.Rptr. 528.)

The circumstances justified the officers making the investigation they did. While on patrol several blocks away from the LoRay Market, Officers Farnsworth and Malone received a radio call informing them that a robbery was being committed by a man with a sawed-off shotgun. While proceeding toward the scene of the crime they received a further radio report informing them that there were three suspects, one described as Filipino in appearance. As the officers drove into the parking lot, they observed an unidentified man who was pointing in the general direction of both Propp, who was running away from the market, and a green 1962 Rambler station wagon proceeding away from the market at slow speed. ⁴ The officers observed that one of the two occupants of the automobile appeared to be a Filipino (Poulter). The fact that Poulter was not a Filipino did not affect the right of the officers to assume that he might be the person described on the radio as one of the suspects.

The officers pulled in behind the Rambler and flashed a red light and spotlight. The Rambler did not stop immediately but drove through the next intersection and stopped in the middle of the street. The passenger in the car looked around at the patrol car. The Rambler then pulled away and proceeded further. After the siren was activated and the officers continued to flash the spotlight in the Rambler's rear window, the car stopped, having proceeded about one-half block further. The officers ordered the occupants of the car to get out so that they could be searched for weapons. It is clear that there was ample justification for stopping the car. (See People v. Evans (1959) 175 Cal.App.2d 274, 276, 345 P.2d 947.)

The circumstances up to this point, plus what was disclosed in the investigation prior to the arrest, amply justified the arrest and further search which followed. The officers observed that Poulter had a folded up paper sack under his shirt and was wearing two sets of clothing. Officer Farnsworth, while investigating the area of the right side of the automobile looked inside and observed a pistol on the floorboard next to the right front seat. Officer Malone then asked Poulter what he did with his gun. Poulter said "My toy gun is under the seat. All of the stuff is under the seat." The officer looked under the seat and found a toy gun. In the glove compartment of the car were some shotgun cartridges. ⁵ Justifying the arrest of Wright were the facts that the Rambler did not stop immediately when the patrol car flashed its light; that one of the occupants of the car resembled a Filipino; that although Wright bore no weapons, his companion was wearing two sets of clothing and was carrying a paper bag in his shirt; that a pistol was observed lying on the floor of the car. These circumstances provided probable cause for arresting both Wright and Poulter and searching the car. (See People v. Lewis (1960) 186 Cal.App.2d 585, 601-602, 9 Cal.Rptr. 263; People v....