People v. Young

• Decision Date: 26 September 1978
• Docket Number: Cr. 16684
• Citation: 85 Cal.App.3d 594,149 Cal.Rptr. 524
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Edward YOUNG et al., Defendants and Appellants.

Page 524

149 Cal.Rptr. 524

85 Cal.App.3d 594

PEOPLE of the State of California, Plaintiff and Respondent, v. Kenneth Edward YOUNG et al., Defendants and Appellants.

Cr. 16684.

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

Sept. 26, 1978.

Frank Offen, San Rafael, Court appointed, for defendant and appellant young.

Ira S. Blatt, Arcata, for defendant and appellant Pickens.

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Kristofer Jorstad, Deputy Attys. Gen., San Francisco, for plaintiffs and respondents.

WHITE, Presiding Justice.

On November 3, 1976, in the City of Seaside, Dennis Volk was robbed at gunpoint while clerking at Mal's Market. By information in count one, appellants Kenneth Edward Young, Gregory Ray Pickens and one Brainard Dennis Canty were jointly charged with the robbery of Mr. Volk.

On November 7, 1976, Delmar Bear was robbed at gunpoint while he was clerking at Broadway Liquors, also located in the City of Seaside. Count two of the aforestated information charged appellant Pickens, along with Canty, with the robbery of Mr. Bear. Both robberies were the daylight variety; and in each count Mr. Canty was designated as the gunman by appropriate "use" clauses. (Pen.Code, §§ 12022.5 and 1203.06.)

Five or six hours after Mr. Volk was robbed, appellant Young was arrested in nearby Sand City Beach. At the beach, he was arrested as he conversed with a female companion while occupying the driver's seat of a "black and white" automobile. While the vehicle only generally matched the eyewitness description furnished the police, it did bear the identical license number of the sought after "getaway car." No incriminating evidence was found on the person of Mr. Young.

However, the black and white automobile was impounded and stored by the police as evidence. The day following the arrest the police in the course of scientific criminal investigation (dusting for prints) lifted the latent fingerprints of Mr. Pickens (outside) and Mr. Canty (inside).

Appellants' pretrial motion to suppress pursuant to Penal Code section 1538.5 was denied; the fingerprints were received in evidence. Appellants herein complain reversible error: "unreasonable search and seizure." Reasoning erroneously that dusting for fingerprints was a warrantless search, they urge this court to view the lifting of the latents as an illegal seizure. However, we will briefly explain that there was neither search nor seizure in the constitutional sense. Appellants' contention fails to appreciate that the "getaway car" was itself evidence.

When jury selection commenced in Judge Harkjoon Paik's courtroom, there were not two but three defendants. During the noon recess of the second day of the prosecution's proof, codefendant Brainard Canty effectively removed himself from the courtroom and the jury's consideration by pleading "guilty as charged" to both counts of robbery. Over the remonstrations and objections of defense counsel, the trial judge greeted the jurors on their return with what is best described as a full disclosure statement. ¹ We shall explain that in our view this was error but not reversible error.

Mr. Canty made oral and written statements to the police. Mr. Young filed a pretrial motion to sever his cause from Mr. Canty's trial. The trial court denied the motion, edited the statement, and ruled the statements admissible. We shall reject Mr. Young's contention that this was error.

Neither Mr. Young nor Mr. Pickens testified. The prosecution requested jury instructions CALJIC No. 2.60 (1973 Rev.) and CALJIC No. 2.61 (1971 Rev.) concerning defendants' right to decline to testify, which the court gave. We find that this was not error. Even if we were to find error, we are convinced the error would not necessitate reversal.

Mr. Young and Mr. Pickens were convicted of first degree robbery as charged. We will affirm the judgments.

Dennis Volk was the only grocery clerk in Mal's Market in Seaside at about 8:15 a. m. on November 3, 1976, when appellant Kenneth Young walked in and asked if the store still bought silver coins. Volk remembered that Young had sold him some coins about a week earlier and Volk told him that he would buy them. Young sold Volk between $6 and $7 worth of coins at twice the face value. Young then left and Volk went back to his work filling the candy shelves.

Two or three minutes later appellant Gregory Pickens, who was wearing a diamond earring, walked up to Volk and asked him if he sold Champale. Volk answered that he did not and Pickens left. Within a minute or two Brainard Canty appeared. Canty pointed a handgun at Volk and forced him to fill up a brown paper bag with money from the cash register. Volk put about $50 in the bag, and after Canty left, Volk called the police.

At about 8:15 that morning Patricia Alexander, who lived near Mal's Market, looked out her window and noticed appellant Young sitting in a large white car with a black top. The car was parked on the wrong side of the street and was moving backward and forward. Another woman, Silvia Caffall, was on her way to Mal's when she saw two men, one holding a gun, dash across the street and jump into a white car with black stripes and a black top. One got into the back and the other into the passenger side of the front and the car immediately took off. She jotted down the license number and took it in to Volk, who passed it on to the police.

Four days later, on November 7, 1976, Delmar Bear was working at Broadway Liquors in Seaside at about 4:40 p. m. when Pickens and Canty entered together. Pickens asked for Champale. When Bear came back from the cooler with a four-pack, Canty had an automatic pistol trained on him and said, "Get over here and give us all your money." Appellant Pickens had a knife tucked into his belt. Pickens took a paper bag and stuffed $50 or $60 into it. They forced Bear into the bathroom at the back of the store and demanded more money. They tied his hands with a piece of wire, took his car keys, and asked where his car was. Canty held the pistol to Bear's head and asked "Shall we kill him?" Pickens answered "No" and they left. Bear loosed his restraints and called the police within a minute after they left.

A gas station attendant saw the two emerge from Broadway Liquors, and a neighbor saw them run down the street and try to hide behind some bushes in a vacant lot. A police car arrived almost at once, and the officer chased the two over an eight-foot fence and through several backyards before capturing them. The neighbor found a sack of money where they had been hiding in the vacant lot.

Appellants contend that the fingerprints of Canty and Pickens were improperly admitted into evidence. Their argument is premised on the misconception that when the police acquired the fingerprints there was a Search requiring a warrant issued upon probable cause. Their premise is false. We are not concerned here with a search incident to lawful arrest, Exigent circumstances Or even Inventory search.

The principle that governs is stated in People v. Teale (1969) 70 Cal.2d 497, 511, 75 Cal.Rptr. 172, 180, 450 P.2d 564, 572, cited with approval in North v. Superior Court (1972) 8 Cal.3d 301, 305-308, 104 Cal.Rptr. 833, 502 P.2d 1305. Justice Sullivan states: "When officers, incidental to a lawful arrest, seize an automobile or other object in the reasonable belief that such object Is itself evidence (fn. omitted) of the commission of the crime for which such arrest is made, any subsequent examination of said object undertaken for the purpose of determining its evidentiary value does not constitute a 'search' within the meaning of the Fourth Amendment. . . ." The Teale principle arose in the context of the automobile being used to transport the victim. However, it is not factually limited but applies with equal force to the "getaway" vehicle. (See People v. Moore (1975) 51 Cal.App.3d 610, 124 Cal.Rptr. 290 and People v. Lundy (1969) 2 Cal.App.3d 939, 947, 82 Cal.Rptr. 815.)

Indeed, the vehicle need not be a "getaway" car. The rule in Teale was reaffirmed, followed and extended to include a crucial incriminating letter seized from a suspect van without the requirement of a search warrant by Justice Clark, speaking for a unanimous Supreme Court. (See People v. Rogers (1978) 21 Cal.3d 542, 146 Cal.Rptr. 732, 579 P.2d 1048.) ²

Herein, there is no contention that appellant Young's arrest was anything but lawful. Seizing the black and white automobile as evidence incident to the arrest was certainly reasonable in light of the fact that the license number matched identically that reported by the eyewitness Silvia Caffall. It was reasonable to hold the automobile as evidence. No unwarranted or unconstitutional invasion of privacy was involved. It is to be expected of modern law enforcement that as an object of evidence, the vehicle would be scientifically examined, and the results made available to all parties. The trial court properly denied appellants' Penal Code section 1538.5 motion to suppress the fingerprint evidence.

Error was committed when the trial court informed the jury that Canty had pled guilty. In our view, to hold otherwise would be intellectually dishonest. Canty's plea of guilty made him a nonparty. However, whether Canty was the gunman was a remaining question of fact to be decided by the jury in determining the guilt of each appellant. Where, as here, the trial is of multiple defendants and counts, the jury must decide separately whether each of the defendants is guilty or not guilty. The record reveals that the trial judge opted to disclose the fact of the plea to the jury because he did not want the jury to speculate as to the reason for Canty's sudden disappearance from the courtroom. Clearly, the fact of Canty's absence, as well as the reason, was irrelevant to the jury's determination of...