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

The PEOPLE, Plaintiff and Respondent, v. Gilbert VALDEZ, Defendant and Appellant.

Cr. 12156.

Decided: January 22, 1968

John Alan Montag, Los Angeles, for defendant and appellant. Thomas C. Lynch, Atty.Gen., William E. James, Asst. Atty. Gen., and Richard D. Huffman, Deputy Atty, Gen., for plaintiff and respondent.

Defendant was charged in a two count information with violation of Penal Code, section 211 (robbery) and with violation of Penal Code, section 209 (kidnapping for the purpose of robbery). It was further alleged that the defendant was armed with a deadly weapon at the time of the offense. Two prior felony convictions were also alleged. A motion pursuant to Penal Code, section 995 was made and denied, and a plea of ‘not guilty’ entered. The first prior was admitted, and the second was stricken on motion of the People. Following a jury trial, defendant was found guilty on both counts. The jury also found the defendant to have been armed at the time of the kidnapping, and that the robbery was of the first degree. A motion for a new trial and probation were denied, and the defendant was sentenced to the state prison on both counts for the term prescribed by law. Defendant brings this appeal from the judgment of conviction.


Just prior to 6:00 p. m. on July 14, 1965 three men entered the ‘Rax of Slax’ men's clothing store in El Monte, California. The three approached the manager, the only employee on duty at the time, and one asked to see some boots. When the manager went to the rear of the store with the customer to show him some boots, the customer assumed a different character and pulled a gun on him. The manager was then taken to a sewing room in the far rear of the store and told to lie down. He did so and was then bound. Some cash and merchandise were taken from the store, and the three robbers exited by way of a rear door after taking the key from the manager. The manager testified that the defendant was one of the three men who committed the robbery, and that at the time of the robbery, was wearing a hat and a false moustache. The manager also testified that although the defendant was not the one who drew the gun on him, the defendant did handle it during the course of the robbery. After the robbers had left, the manager got to the front door, and fell through it, attracting the attention of a passing police officer.

A detective Trembley from the El Monte Police Department testified as to the circumstances surrounding the arrest of the defendant and the seizure of certain items that were later entered into evidence at the time of the trial. Trembley had been advised by his watch commander that the suspects from the robbery were at a certain address and that they were planning to leave the area shortly. The police had a positive identification of one of the suspects, Sandoval, from a mug shot previously shown the manager of the clothing store. Trembley also had been informed by an officer Martin that the defendant was a friend of Sandoval's and matched the description of one of the robbers. Trembley, the only witness to testify, participated in the arrest, as did officers from the Montebello Police Department. When Trembley and the other officers involved arrived at the address, some of the officers went to the rear of the building and others remained in the front. The address was that of an upstairs apartment. The officers in the front demanded that the occupants come out with their hands up. Trembley observed Sandoval at the rear door, and ordered Sandoval to come down with his hands up. The detective started up the rear stairs and as he progressed, he saw a rolled-up brown paper bag thrown out of one of the windows of the apartment. (Subsequently, the bag was determined to contain marijuana.) Trembley burst into the apartment without further identification or request, and observed the suspects, Sandoval and the defendant. Both suspects had been arrested by the other officers after they had entered with permission through the front door. The suspects were advised of their constitutional rights.

Following the arrest, a search was made of the apartment. A shirt bearing the Rax of Slax label was found in the closet, along with a hanger from the same store. A hat was also found in the apartment. The suspects were taken to a row of garages adjacent to the apartment and asked of a particular one was the one which the defendant had rented along with the apartment. Though admitting the rental, the defendant refused to open it. The officers entered without further permission and searched the garage. The search revealed a cardboard box on the garage shelf which contained a false moustache and a gun. All the items discovered were received in evidence.

A liquor store clerk was called to testify, and he identified the gun that was found in the garage as one stolen from him in a robbery the day before the Rax of Slax robbery. He identified the defendant as one of the men who had robbed him.


The issues raised on this appeal are as follows: (1) that there was no probable cause for the arrest of defendant, and therefore the items seized as incident thereto should have been excluded; (2) that the items found in the garage should not have been admitted because the garage was too remote to be searched incident to an arrest in the apartment; (3) that since defendant was acquitted of the liquor store robbery, the evidence of the clerk should not have been admitted; (4) that the defendant has been subjected to multiple punishment, in violation of Penal Code, section 654.

Probable Cause for the Arrest

Officer Trembley was the sole witness produced to establish probable cause for the arrest of the defendant, Valdez. The only knowledge had by Trembley involving Valdez with the Rax of Slax robbery was from statements of two of his fellow officers. The source of information related by these other officers to Trembley is not shown in the record. We find no distinction between the case here and that of People v. Pease, 242 Cal.App.2d 442, 51 Cal.Rptr. 448. There being no established outstanding warrant for Valdez' arrest, the prosecution was required to show that the officer who initiated the request for arrest had reasonable cause himself to believe Valdez had committed a felony. (People v. Lara, 67 Cal.2d 365, ——,* 62 Cal.Rptr. 586, 432 P.2d 202.) Mere association with a known criminal is not sufficient to establish probable cause for arrest. (People v. Privett, 55 Cal.2d 698, 12 Cal.Rptr. 874, 361 P.2d 602; People v. Haven, 59 Cal.2d 713; People v. Shelton, 60 Cal.2d 740, 745, 36 Cal.Rptr. 433, 388 P.2d 665.)

There having been established no probable cause for the arrest of defendant Valdez, the product of the unlawful search is inadmissible in evidence.

Search of the Garage

Since a reversal is required for the reason stated, we may anticipate the question as to the legality of the search of the garage to arise on a retrial, assuming testimony effectuating probable cause for arrest is produced. The search of the garage, rented along with and being in close proximity to, the apartment, is certainly within the reasonable radius of authorized search. (People v. Smith, 166 Cal.App.2d 302, 333 P.2d 208; People v. Woods, 239 Cal.App.2d 697, 704, 49 Cal.Rptr. 266.)

Evidence As to the Liquor Store Robbery

Evidence of another crime is admissible to prove any fact in question in a prosecution. It cannot be admitted if its only purpose is to show a criminal propensity which enhances the likelihood that the defendant might commit the crime with which he has been charged (Evid.Code, § 1101(b) and the comment thereto). In the instant case the testimony was offered to prove that defendant had possession of the gun at the time of the robbery in question. Testimony was also offered to the effect that the gun found in defendant's garage was similar to the one used in the Rax of Slax robbery. Defendant claims that the evidence should not have been admitted because he later was acquitted of the liquor store robbery. The fact of subsequent acquittal does not affect the admissibility or inadmissibility of the evidence, The rule in California admits the evidence, for the prosecution need not prove the other crime beyond a reasonable doubt to establish a material fact, as is the degree of proof required in the prosecution for the crime involved. The doctrine of res judicata is inapplicable. (People v. Griffin, 66 Cal.2d 459, 464, 58 Cal.Rptr. 107, 426 P.2d 507.)

If defendant's commission of a different crime proves a fact material to the prosecution at bar—other than by proving criminal disposition (Evid.Code § 1101)—it is admissible, except where the court excludes it, in its discretion, because of the creation of ‘substantial danger of undue prejudice.’ (Evid.Code, § 352.) As the Supreme Court said in People v. Griffin, supra, evidence of other crimes always involves the risk of serious prejudice. People v. Raleigh, 83 Cal.App.2d 435, 440, 189 P.2d 70 would indicate that the People are, as a matter of law, entitled to unfold the full story of the liquor store robbery. Raleigh was written before the Evidence Code and cases such as People v. Ford, 60 Cal.2d 772, 801, 36 Cal.Rptr. 620, 388 P.2d 892 clarified the extent of the trial court's discretion.

In the case before us the only materiality of the liquor store robbery is that it connects defendant to the gun. At the retrial it certainly would not be error for the trial court to restrict the liquor store clerk's testimony to the bare fact of possession by the defendant, but to permit him to explain all of the circumstances if his credibility is in any way attacked.

The defendant's complaint of being improperly sentenced contrary to the rule against multiple punishment contained in Penal Code, section 654 is conceded on appeal. Since the case is reversed on other grounds, what may occur on retrial is on speculative that no discussion on this subject is here required.

The judgment is reversed.


FOOTNOTE.  FN* 67 A.C. 367, 376.

STEPHENS, Associate Justice.

KAUS, P. J., and HUFSTEDLER, J., concur.