People v. Windham

• Decision Date: 25 September 1987
• Docket Number: No. A031334,A031334
• Citation: 194 Cal.App.3d 1580,240 Cal.Rptr. 378
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey WINDHAM et al., Defendants and Appellants.

Page 378

240 Cal.Rptr. 378

194 Cal.App.3d 1580

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jeffrey WINDHAM et al., Defendants and Appellants.

No. A031334.

Court of Appeal, First District, Division 3, California.

Sept. 25, 1987.

Certified for Partial Publication ^*

Review Denied Jan. 7, 1988.

James A. Sibley, San Francisco, for Jeffrey Windham.

Charles Gretsch, San Francisco, for Carl L. Wilson.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Dane R. Gillette, Supervising Deputy Atty. Gen., Christopher W. Grove, Deputy Atty. Gen., San Francisco, for the People.

MERRILL, Associate Justice.

An amended information was filed charging appellants Jeffrey Windham and Carl Wilson with robbery (PEN.CODE, § 211)¹ in count one and with receiving, concealing and withholding stolen property (§ 496, subd. 1) in count two. In addition, Wilson was charged with possession of a sawed-off shotgun (§ 12020) in count three and Windham was charged with vehicle theft (Veh.Code, § 10851) in count four. The amended information also contained the following enhancement allegations: that Wilson used a rifle in the commission of the robbery (§ 12022.5) and that Windham was armed with a rifle in the commission of the robbery (§ 12022, subd. (a)). Appellants entered not guilty pleas and denied the arming and use allegations.

A motion to sever was granted as to the possession of a sawed-off shotgun charge in count three and Wilson was found guilty in a subsequent court trial on this bifurcated count.

The jury found Wilson and Windham guilty of the robbery charge in count one, and that the use allegation as to Wilson and the arming allegation as to Windham were true. Windham was also found guilty of the vehicle theft charge in count four. Both appellants were found not guilty of the receiving, concealing and withholding stolen property charge in count two. The jury had been instructed by the trial court that the crimes charged in counts one and two were in the alternative, and, accordingly if a defendant was guilty of one of these offenses he must be found not guilty of the other.

Wilson was sentenced to state prison for the midterm of three years on the robbery count, for a concurrent midterm of two years on the possession of a sawed-off shotgun count and for a consecutive two-year term on the firearm-use enhancement. He was ordered housed in the California Youth Authority (CYA) pursuant to Welfare and Institutions Code section 1731.5, subdivision (c). ² However, the CYA declined to accept him. The trial court then committed him to state prison for the five-year term.

Windham was sentenced to the midterm of three years on the robbery count, to a consecutive term of eight months on the vehicle theft count and to a consecutive one-year term on the arming enhancement. Windham was committed to the CYA for a total of four years and eight months. Both Windham and Wilson appeal.

I

On December 17, 1984, at approximately 7 a.m., William Lee was standing at the bus stop at the corner of Baker and Turk Streets in San Francisco, waiting for a bus. He was alone. The sun had not completely risen and the street lights were still on. Lee noticed a man, later identified as Windham, walking toward him from the corner. Windham then motioned to a second man, later identified as Wilson, to approach. Both appellants confronted Lee. Wilson, standing directly in front of Lee, held a sawed-off rifle one foot away from him and pointed it directly at his face. Windham, also facing Lee, commanded: "Let me have it." Lee, in shock, did not respond immediately. Windham then said: "You want me to wait all day?" Wilson cocked the rifle and aimed it directly at Lee's temple as Lee handed his wallet to Windham. Appellants then crossed in front of Lee and walked away quickly. Lee testified that although he was frightened, he tried to remain calm and to "take a good look" at the perpetrators. His reddish-brown eelskin wallet contained his social security card, driver's license and credit cards and $50 in cash.

Lee went home, telephoned the police and provided an account of the crime to the officer who responded to his home. He then boarded a bus to go to work. Four or five stops after his Baker Street stop, Lee observed Windham and Wilson board the same bus. Wilson stood next to Windham who was seated. They were three seats in front of Lee. They remained on the bus seven or eight minutes until they got off at the Emporium department store on Market Street. Lee reported this second observation to a police officer at the Hall of Justice juvenile section.

At 6:15 p.m. on December 19, 1984, Beverly Ayatch parked and locked her 1976 Datsun automobile on the 1200 block of Broderick Street in San Francisco. She visited her mother-in-law until sometime around 10 p.m. that evening and returned to the location where the car was parked only to find that it was gone. She noticed shattered glass on the ground directly below where the left rear window of her car had been.

At 11:30 p.m. the same evening, Sergeant Joseph Allegro of the San Francisco Police Department noticed a Datsun automobile stopped in front of the Kentucky Fried Chicken driveway at 681 Eddy Street; the car lights were on, the motor was running, there was no one in the driver's seat, and there was one passenger, Wilson, in the right front seat. There were no other automobiles or pedestrians in the immediate area. The only person nearby was Windham who was in a telephone booth just across the sidewalk from the Datsun. Sergeant Allegro checked the "hot sheet" which lists the license numbers of stolen vehicles and the Datsun's license number was on the list.

Sergeant Allegro radioed for assistance and additional officers responded to the scene within 30 seconds. They approached the vehicle and told Wilson to place his hands in the air. At the same time, they observed Dennis W. in the back seat of the Datsun. Windham, Wilson and Dennis W. ³ were all placed under arrest. The officers noticed that the left rear window was broken and a piece of metal rather than a key was in the ignition. A backpack found in the Datsun contained, among other things, a flashlight and pliers which are items commonly used in vehicle theft. Beverly Ayatch subsequently identified the Datsun as her vehicle.

The three were taken to the police station, booked and searched. Lee's social security card was found in Wilson's wallet. Lee's eelskin wallet was found in Windham's possession. It was discovered that both appellants were wearing two layers of clothing, i.e., two pairs of pants, and two jackets. The officer who conducted the booking search testified that perpetrators of crimes often attempt to conceal their identity by removing an outer layer of clothing.

Lee was shown two photographic lineups on December 20, 1984, each containing six photographs. From one of these spreads he identified Wilson as the robber who held the rifle to his head. He also picked out Windham's photograph from the second photographic lineup as the other robber. However, he did not place his signature on it as he was only 98 percent certain of his identification of Windham.

At a subsequent corporeal lineup, Lee positively identified Wilson from one group of six men. Again, he placed a question mark on his identification with reference to Windham as he was only 98 percent certain. Lee identified both appellants at trial as the robbers.

Testifying in his own defense, Windham denied committing the robbery or stealing the automobile. He stated that on the evening of December 19, 1984, after watching television at the home of his girlfriend, some time around 11 p.m., he took the bus to the Kentucky Fried Chicken store at the corner of Polk and Eddy Streets, to buy dinner. When he realized the store was closed, he used the nearby public telephone to ask her whether she wanted something else to eat. At this point he was arrested.

Windham stated that he was acquainted with Wilson but only as the two had played football together. He testified that he had seen Wilson 10 times in the 2 months prior to his arrest but he did not know his name. During the 10 minutes he was talking to his girlfriend, Windham did not notice that Wilson was sitting in the nearby car. Windham also testified that he did not know the juvenile, Dennis W. In addition, Windham denied that Lee's eelskin wallet was found in his possession.

Wilson also denied involvement in the robbery. As to the evening of December 19, 1984, Wilson admitted being in the Datsun but denied any knowledge that it was stolen. Wilson stated that he and Dennis W. were passengers and that another individual named Frank was the driver. They had stopped on Eddy Street for Frank to purchase chicken. However, discovering that the Kentucky Fried Chicken store was closed, Frank then went to visit "his woman" at the motel across the street. Wilson testified that Frank must have inadvertently left the lights on and the motor running when he got out of the car. Wilson did not know Frank's last name or address. Wilson also denied that Windham had been in the car that evening and claimed not to have seen him until after they were arrested. Wilson denied ever seeing Lee's social security card and stated that at the time of the booking search, the officers mixed up his property with that of other persons.

II

Windham's appeal

Prior to the filing of the amended information in this case, Windham, pursuant to section 1538.5, moved unsuccessfully to suppress all evidence obtained as a result of his allegedly illegal arrest. The motion was submitted on the basis of the preliminary hearing transcript. In his motion and on appeal he argues that probable cause for his arrest did not exist. We disagree.

" 'Cause for arrest exists when the facts known to the arresting officer "would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong...