People v. Spencer

• Decision Date: 11 January 1972
• Docket Number: Cr. 20192
• Citation: 22 Cal.App.3d 786,99 Cal.Rptr. 681
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry Bill SPENCER, Defendant and Appellant.

Page 681

99 Cal.Rptr. 681

22 Cal.App.3d 786

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry Bill SPENCER, Defendant and Appellant.

Cr. 20192.

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

Jan. 11, 1972.

Richard J. Stall, Jr., Marina Del Rey, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Daniel W. McGovern, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Statement Of The Case

The information charged appellant with the crime of robbery. During the trial the information was amended by adding allegations that appellant was armed with a deadly weapon, a firearm, at the time of the commission of the charged offense and that he was armed with a concealed deadly weapon, a firearm, at the time of his arrest for said offense.

Appellant's pretrial motion to suppress evidence, consisting of the firearms seized at the time of his arrest, was denied.

After a jury trial, appellant was found guilty of first degree robbery. The allegation that he was armed at the time of the commission of the offense was found to be true. The allegation that he was armed at the time of his arrest was found untrue.

The Assignments Of Error

In support of his appeal from the judgment of conviction appellant contends that: (1) the pretrial identification procedures were so unduly suggestive as to taint his in-court identification by the victim and thus to deny him due process of law; (2) the seizure of the firearms found in his possession at he time of his arrest violated the rule of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685; (3) the trial court erred in admitting the 'dark handled gun' into evidence because the prosecution relied on the 'white, pearl handled gun' as the firearm used by appellant in the robbery; (4) the trial court erred in permitting the filing of the amended information; and (5) the doctrine of People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, and the rule prohibiting double punishment require modification of the judgment to declare that recently enacted Penal Code section 12022.5 is inapplicable.

In his reply brief appellant raises for the first time the additional contention that the seizure of the revolvers found in his possession was unlawful for the reason that the search was incident to an invalid arrest. In support of this contention he argues that the arresting officers did not have reasonable cause to believe that he was in the trailer because the information upon which they acted in going to the trailer to make the arrest had been supplied by an anonymous and untested informant. Quite apart from its tardy presentation, this additional contention deserves only summary rejection. It is based upon a misconception both of the facts and the applicable law.

Summary Of The Evidence

Karen Lawson, the immediate victim of the robbery, testified that at about 4 p.m. on May 11, 1970, appellant, described as dark haired, and a companion, described as blond, entered the office of Seaboard Finance Company in Hacienda Heights. After speaking to the cashier at the front counter, they joined Miss Lawson, who was acting as relief manager, in a 'loan booth.'

Appellant, who identified himself as John Stanford or Stafford, indicated that he wished to apply for a loan in order to purchase a car. After Miss Lawson had been interviewing appellant for about five minutes, appellant said, 'I have a gun on you.' Miss Lawson responded, 'You are kidding,' or something to that effect. Appellant held the gun up just high enough for her to see it, then put it back underneath the desk and told her to 'keep busy, keep talking.' About another five minutes passed while Miss Lawson pretended that nothing was amiss.

Miss Lawson is nearsighted and wears glasses which correct her vision to 20/20. She was seated three feet from appellant during this ten minute period. She was wearing her glasses until he brandished the pistol, at which time she removed them. However, she is able to recognize an individual from a distance of three feet without her glasses.

Appellant then jumped over the counter while his companion left the booth through a swinging door. Each of them had a pistol in his hand. Miss Lawson testified that appellant's weapon had a white pearl handle and was similar in appearance to People's Exhibit No. 8. His companion's weapon was a slightly larger revolver with a dark wooden handle and was similar to People's Exhibit No. 9.

Appellant told Miss Lawson, Miss Seadar and Frank Beltran to go to the back of the office, lie down on the floor and face the wall. The victims did lie down but Miss Lawson and Mr. Beltran continued to observe the robbers' activities.

Appellant, the dark-haired robber, took about $50 out of Mr. Beltran's cash drawer. His companion, the blond-haired robber, also opened a cash drawer and took money out of it. Appellant took Mr. Beltran's wallet, which contained money. He also went through Miss Lawson's purse, but there was no money in it. Appellant then told Mr. Beltran to open the combination lock on the safe. Mr. Beltran complied but the safe was empty. In all, a total of five or six hundred dollars was taken. The robbers pulled the phones off the walls and left.

Miss Lawson described appellant to the police as being about five feet nine or ten inches in height, having dark hair, dark eyes and a tan complexion. She said that he might have been of 'Mexican' descent, although he did not have an accent. She was 'absolutely certain' that she could identify appellant.

Two days after the robbery, Sergeant Max R. Chance of the Los Angeles County Sheriff's Department displayed two sets of photographs to Miss Lawson. Sergeant Chance simply told her that he had some photographs to show her, to see if she could identify anoyone. The first group contained 20 to 25 photographs; appellant's photograph was not included in this group. Miss Lawson did not identify anyone in the first group. The second group contained about ten photographs, including appellant's. Miss Lawson identified appellant's photograph saying, 'This would be the man, if he was older.' Sergeant Chance said, 'Are you sure?' Miss Lawson replied, 'I am sure that would be the man.'

About one week later Miss Lawson attended two lineups. She was no told that anyone in either lineup was a suspect in the case. Miss Lawson did not identify anyone in the first lineup. In the second lineup she identified appellant and so indicated by writing the number '3' on a small card. The second lineup is depicted in a photograph which was received in evidence as People's Exhibit No. 3.

There were six persons including appellant in the second lineup. Except for appellant Miss Lawson had never seen any of the persons in the lineup or their photographs before. So far as the observed, they did not have any unusual characteristics or physical defects. They all appeared to be of 'Mexican' origin in that they had dark hair and dark skin. Miss Lawson did not hear anyone in the lineup speak. Prior to this lineup Miss Lawson had seen appellant's picture on one occasion. Frank Beltran also observed the same two lineups, but he was not able to identify anyone in either lineup. Nor was Mr. Beltranable to identify anyone on te two occasions when he was shown photographs by the police.

John C. Armstrong, a deputy sheriff, testified that on May 15, 1970, at about 1:30 a.m., he and four other officers went to a trailer court with reliable information that appellant was living there in a certain described trailer. As they approached this trailer, the officers observed that the lights were on and as they passed beside the trailer 'a male face looked out the window, and then disappeared from our view.' When the officer knocked on the front door, a girl answered. He related his ensuing conversation with her as follows:

'We identified ourselves as sheriff deputies, and told her who we were looking for, Mr. Spencer; that he was wanted for armed robbery, and showed her a picture, a mug shot, and said, 'This is the man we are looking for. We have information to believe he is in this trailer at this time, right now,' and she said that he was not in the trailer, that the only persons in the trailer were herself and her girl friend, and we told her we saw a male looking out the window, and she said something, 'You don't have a search warrant. You can't come in,' or something, and we said we were going in anyway; that we had reason to believe he was in the trailer, and we entered the trailer.'

Upon entering the trailer the officers found therein another girl and appellant who was 'lying in the bed, about the middle of the trailer, on the side away from the door, a little bed. (He was) half under the covers and half out.' The lights were out in that section of the trailer and the officers were using their flashlights. Officer Armstrong described the arrest and ensuing search as follows:

'Upon observing him there, what if anything did you or whoever was with you do? A. We identified ourselves as sheriff deputies to Mr. Spencer, and that he was under arrest for robbery, and he indicated he was not Spencer, and said something about, 'You don't have a warrant. You can't be in here,' or, 'You don't have an arrest or search warrant. Get out.' We had already told him he was under arrest, and a little struggle ensued when we were trying to place handcuffs on him. I began feeling under the covers for a gun or weapon where he was lying, and--Q. Did you fin d weapon? A. Yes, I found two guns. Q. And where were they found? A. In a box at the foot of this bed, a cardboard box with some ammunition and some other articles. I don't recall exactly what was in the box. Q. Will you describe the weapons you found at that time. A. There were two guns in a box, one was a Charter Arms blue steel, three-inch...