People v. Smith

• Decision Date: 05 August 1968
• Docket Number: Cr. 467
• Citation: 264 Cal.App.2d 718,70 Cal.Rptr. 591
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry E. R. SMITH, Defendant and Appellant.

Page 591

70 Cal.Rptr. 591

264 Cal.App.2d 718

The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry E. R. SMITH, Defendant and Appellant.

Cr. 467.

Court of Appeal, Fifth District, California.

Aug. 5, 1968.

Robert T. Matsui, Sacramento, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

STONE, Associate Justice.

Defendant was indicted by a grand jury of the crimes of robbery, murder of the first degree, and attempted robbery. He waived a jury, and the court, after finding him guilty on all three charges, sentenced defendant to life imprisonment on the murder conviction under count one. Sentence on the robbery count was suspended as the crime was committed as part of the same offense charged in count one. Sentence on the third count for the crime of attempted robbery was ordered to run concurrent with the murder sentence.

Defendant presents two points on his appeal, first, that a loaded gun taken from him at the time he was apprehended was obtained as the result of an illegal search and seizure and, second, the trial judge, sitting without a jury, erred in conducting a voir dire hearing and determining the inadmissibility of defendant's alleged confession.

Taking up, first, the search and seizure question, defendant contends the loaded gun taken from him during a 'pat down' by an officer who stopped him for questioning, was illegally seized and erroneously received in evidence.

In an opinion filed this day, People v. Britton, Cal.App., 70 Cal.Rptr. 586, concerned with a similar question, we treat of the discussion by the United States Supreme Court in its vanguard stop and frisk cases, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. Without repeating our discussion of the conflicting principles the United States Supreme Court accommodated in formulating the stop and frisk rule, we go directly to the basic guidelines laid down in Terry:

'Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Citations.) And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' (p. 1883.)

In light of the foregoing principles, to state the facts of our case is to refute defendant's contention that the 'frisk' was improper.

Defendant and Lyle Shugars, also known as Jerry King, murdered Milton Sternberg, a pawnbroker, during the course of a robbery at the victim's place of business on November 5, 1966. Several guns were taken from a case in the store.

On November 11, 1966, Joe Aurello was the victim of an armed robbery attempt. Fred Garbarino, an eyewitness, called the police and when they arrived defendant was at the scene under circumstances from which it appeared that he was a witness but not a participant. Both defendant and Garbarino gave Sergeant Benton descriptions of a suspect, which matched the appearance of Shugars.

The following day Sergeant Burt, who was investigating the attempted robbery, received information from other officers that a person who fitted Shugar's description could be located at a certain house. He and Sergeant Dohm went to the address given them, arriving about 6 p.m. The officers observed defendant and Shugars leave the house and walk down the sidewalk. They followed the two men a distance, then Dohm dropped back to cover Burt, who stopped the men, saying, 'Police officer, may I talk to you a minute,' as he illuminated his badge with a flashlight. Sergeant Dohm then joined Burt in questioning the two men.

They identified themselves verbally, Shugars stating his name was Jerry King. Defendant produced documents that purported to disclose his identity. Shugars said he had no means of identification with him and asked why he had been stopped. He was told that his appearance matched the description of an armed robbery suspect. Burt asked if he had a gun and Shugars replied, 'Yes,' pointing to his waistband. Sergeant Burt said, 'Don't touch it, I'll get it,' and reaching under Shugar's shirt, pulled out a long-barrelled revolver. Burt turned to defendant and asked if he had a gun; receiving no reply, he proceeded to pat down defendant. Burt testified, 'The first place I placed my hand on the outside of his coat, I felt a hard object.' The hard object turned out to be a .22 long-barreled rifle automatic, which Burt removed from defendant's waistband. It is this gun that is alleged to be the product of an illegal search.

The foregoing facts place the 'pat down' of defendant well within the permissible guidelines enunciated in Terry. The officers were investigating a felony that had been committed the day before; they knew the man who attempted the robbery was armed; they had information that Shugars, who matched the description of the robber, was at the address where they located him; defendant was with the suspect, Shugars, from whom the officers removed a loaded gun. In these circumstances it was entirely reasonable for Sergeant Burt to ask defendant if he had a gun and, upon receiving no reply, to run his hands over defendant's outer clothing in a search for weapons. The search was reasonably limited to the goal that justified its inception--the protection of the officer while questioning defendant.

The second point concerns the conduct of a voir dire examination to determine the admissibility of a defendant's confession or admission in a nonjury trial. Defendant reminds us that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, holds that in a jury trial the foundational evidence from which the voluntariness of a confession is determined, must be heard by the court out of the presence of a jury. It is only in the event the trial judge concludes ...