People v. West, Cr. 15760

• Decision Date: 31 December 1969
• Docket Number: Cr. 15760
• Citation: 83 Cal.Rptr. 223,3 Cal.App.3d 253
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth WEST, Defendant and Appellant.

Page 223

83 Cal.Rptr. 223

3 Cal.App.3d 253

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth WEST, Defendant and Appellant.

Cr. 15760.

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

Dec. 31, 1969.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Robert F. Katz, Deputy Attys. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

Defendant was charged by information with a violation of section 211 of the Penal Code (robbery). After motions to suppress evidence were denied, and proper waivers were obtained, defendant was tried before the court without a jury. He was found guilty of second degree robbery and was committed to the Youth Authority for the term prescribed by law. The appeal is from the judgment. A purported appeal from an order denying a motion for new trial is dismissed.

On March 28, 1968, the defendant robbed L's Taco Stand at 10203 South Central Avenue in Los Angeles at about 8:30 p.m. By intimidating conduct, including the threat of the use of a gun, defendant put a woman attendant at the taco stand window in fear and caused her to place all of the money in the cash register in a paper bag. He went to a waiting automobile with two confederates in it but ran off when he was shot at by another woman employee who had been alerted. The victim got a good look at defendant and gave a description of him to the police.

On March 29, 1968, defendant was arrested at his home on a tip from an arrestee in an unrelated robbery occurrence. In a search incident to the arrest a paper bag containing coins and an inoperable revolver were found in an overcoat hanging in defendant's bedroom closet. The victim identified defendant in a lineup conducted on March 30th. It was the physical evidence and the lineup identification which defendant moved to suppress. The ground of the motions was that the police lacked probable cause to arrest defendant because the informer was not reliable and there was insufficient corroboration and therefore the securing of both items of evidence was a product of the illegal arrest. In the trial the physical evidence and the fact of the lineup identification were received by the court. The victim also made an incourt identification which defendant asserts is an exploitation of the lineup identification.

Defendant contends that the evidence should have been suppressed and that its receipt was error of such a magnitude that it could not be classified as not prejudicial beyond a reasonable doubt.

We have examined the record with respect to the nature of the tip-off by the nonreliable ¹ informer and of the corroboration, and we have determined that the evidence as to each, in combination, was not insufficient. Therefore, it is unnecessary to make a determination as to what effect the nonavailability of the physical evidence and the lineup identification should have had on the mind of the trial court. We summarize the facts concerning the tip-off and its sequel and explain our position.

On the morning of March 29, Officer Helvin, a robbery investigator of the Los Angeles Police Department, was interviewing an individual under arrest for two attempted robberies the previous evening. The arrestee admitted the attempts and then was asked if there were any other robberies that he knew about. The arrestee stated that he knew of two individuals by name who had been robbing small businesses, particularly taco, barbecue, and hot dog stands. He gave Kenneth West as the name of one of them. He described West 'as a male Negro, around twenty-two, fairly tall and thin, and with a slight mustache.' He described the second party as 'a male Negro approximately twenty-five, around five ten, and somewhat heavier and stockier than * * * (West and with a) quo vadis type haircut.' ² He stated that West and the other man had committed a robbery of a taco stand the previous evening at 103rd and Central Avenue and that they had recently committed a robbery of a barbecue stand on West Jefferson Boulevard and of a hot dog stand on Adams in the Crenshaw area. The last two locations were in Officer Helvin's district, and he was acquainted with the fact that within the last week there had been two such robberies at those locations. To check on the first-mentioned robbery, he called the '77th detectives.' He learned that a robbery had occurred at 'L's Taco Stand' at approximately 8:55 p.m. the previous evening at 10203 South Central Avenue. The detectives gave Helvin the victim's description of the person said to have been the active participant. He was described as a 'male negro, twenty-five, five eleven, 160, black hair, brown...