PEOPLE v. HOGAN

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

The PEOPLE, Plaintiff and Respondent v. Lodell HOGAN, Defendant and Appellant.

Cr. 14677.

Decided: February 26, 1969

David M. Rothman, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty.Gen., William E. James, Asst.Atty.Gen., Edward M. Belasco, Deputy Atty.Gen., for plaintiff and respondent.

For opinion on Hearing, see 80 Cal.Rptr. 28, 457 P.2d 868

 Defendant in a non-jury trial was found guilty of first degree robbery (Pen.Code, § 211).   Motion for new trial was denied;  probation was denied;  defendant was sentenced to the state prison for the term prescribed by law;  pursuant to section 1168, Penal Code, a diagnostic study was ordered and jurisdiction was retained, pursuant to section 5079, Penal Code.   Defendant appeals from the judgment and the order denying the motion for new trial.   The appeal from the order denying the motion for new trial will be dismissed, since such order is nonappealable.  (Pen.Code, § 1237;  People v. Ing. 65 Cal.2d 603, 614, 55 Cal.Rptr. 902, 422 P.2d 590.)

James H. Brown, the victim of the robbery, and Willie Cason, an eyewitness, testified that defendant robbed Brown at gunpoint in the driveway of premises at 719 East 40th Place, Los Angeles, at about 1:00 p.m., on April 9, 1967.   Their testimony indicated that following a dice game in an apartment, defendant went to his automobile, obtained a pistol, and by threats forced Brown to take approximately $500, which he had in his pocket, and throw it on the ground.   The wind blew the money around.   Several persons, including one Willie Cason, picked up the money.   Cason recovered about $400 and the others about $100.   The $100 was returned to the victim, but defendant with the gun still in his hand ordered Cason to hand him the $400.   Upon receiving the money, defendant drove away accompanied by James Perry, Jr.   Brown reported the incident to the police, and apparently gave them a description of defendant, the car, and license number.

Defendant testified he and Brown got into an argument during a dice game, and Brown stated to defendant, “I'm going to kill you.   I'm going to burn you.”   He then ran out the front door of the apartment.   Defendant stood in the open door of the apartment until someone pushed him out.   He and Brown entered into a discussion, Brown walking toward him, with his hand in his pocket.   Defendant backed up to his car and opened the car door.   Brown continued to come toward him.   Defendant then pulled out a pistol which he had in his back pocket.   Brown then stated, “Oh, Man, I wasn't going to hurt you.   I was just kidding.   I don't even have a gun.”   Brown took his hand out of his pocket and the money he had fell to the ground.   Defendant testified he never mentioned any robbery, did not take any of the money and drove away with Perry.   Defendant's witness testified to essentially the same facts except he stated that one of the persons who picked up some of the money came over to defendant's car and gave it to him.

Officers apprehended defendant some four or five days after the robbery, while driving the same car in which he left the scene of the robbery.   A revolver identified as the one used in the robbery was removed from the glove compartment.

 There is no contention of insufficiency of the evidence and the trial judge had the right to accept the testimony of Brown and his witness and reject that of defendant and his witness.   It is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.  (People v. Perez, 65 Cal.2d 709, 713, 56 Cal.Rptr. 312, 423 P.2d 240;  People v. Lyons, 47 Cal.2d 311, 320, 303 P.2d 329.)

 Defendant contends that the portion of the judgment which recites:  “and that defendant was armed at the time of the commission of the offense as alleged ․” should be stricken.   Under Penal Code, section 12022 the finding subjects defendant to a mandatory consecutive sentence of not less than five years nor more than ten years.   The case of In re Shull, 23 Cal.2d 745, 146 P.2d 417, discusses the basic principle involved, though in relation to another crime.   The court said at page 751, 146 P.2d at page 419:  “Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed.   In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed by section 3 of the Deadly Weapons Act, because of the additional factor of a deadly weapon being involved.”   Since in the instant case, the use of the gun was the very basis for conviction of first degree robbery, language relating to defendant as having been armed must be stricken.  (People v. Flores,a 262 Cal.App.2d –––, ––––, 68 Cal.Rptr. 669;  People v. Sparks, 257 Cal.App.2d 306, 311–312, 64 Cal.Rptr. 682;  People v. Thomsen, 239 Cal.App.2d 84, 97–98, 48 Cal.Rptr. 455.)

We are aware of the recent decision in People v. Tarpley,b 267 Cal.App.2d –––, ––––, 73 Cal.rptr. 643 (decided Dec.1968), wherein the court in a first degree robbery case refused to strike from the judgment the recital that the defendant was armed at the time of the commission of the offense.   In doing so, the court asserted that the recital, although inoperative for purposes of section 12022, might still be relevant to the minimum term of sentence and imprisonment required by section 3024 of the Penal Code and may become relevant in future criminal proceedings to matters involving probation and sentence.   No hearing by the Supreme Court was sought in Tarpley and the judgment is now final.

We note, however, that in first degree robbery cases in which judgments recited that at the time of the commission of the offense of the defendant was armed with a deadly weapon, the Supreme Court has recently directed the Court of Appeal to modify its opinions by striking therefrom such finding.  (See minute orders, People v. Bonville, Cal.App., 73 Cal.rptr. 741, dated Nov. 20, 1968;1  People v. Sesser, 2d Crim. No. 14863, 75 Cal.Rptr. 297, dated Dec. 24, 1968;  People v. King, 2d Crim. No. 13894, 75 Cal.Rptr. 478, dated Jan. 29, 1969;  and People v. Marsh, Cal.App., 73 Cal.rptr. 458, dated Jan. 29, 1969.)   In view of these directives it appears that the Supreme Court has not relaxed and does not intend to modify the rule laid down in In re Shull, supra, 23 Cal.2d 745, 751, 146 P.2d 417;  People v. flores, supra,c 262 Cal.App.2d –––, ––––, 68 Cal.rptr. 669;  People v. Sparks, supra, 257 Cal.App.2d 306, 311–312, 64 cal.Rptr. 682, and People v. Thomsen, supra, 239 Cal.App.2d 84, 97–98, 48 Cal.Rptr. 455.   We are obligated to follow this rule and to modify the judgment herein by striking the finding.

 Defendant next contends that the trial judge misinterpreted Penal Code, section 1203 2 in denying probation.   In doing so the court stated that defendant was ineligible for probation since he had been found guilty of first degree robbery.   He then remarked:  “I have no alternative at this point since I don't feel at this point it is an unusual case and I will not so find.   I would need the concurrence of the District Attorney, but I am not even going to ask it at this point.”

Defendant argues that the fifth unnumbered paragraph of Penal Code, section 1203 requires concurrence of the district attorney only as to those crimes set forth in the fourth unnumbered paragraph of the section, and not those listed in the third unnumbered paragraph;  e.g., first degree robbery.   He suggests the trial judge apparently determined this was not an unusual case because he was under the impression he would need the concurrence of the district attorney to grant probation.   We see no merit in such an argument.   We need not decide whether the trial judge would in fact have required the concurrence of the district attorney to grant probation, since the judge stated unequivocally he did not think this was an unusual case, and so found.   Before there can be any participation by the district attorney, the court must find that the case is an unusual one and merits probation.  (People v. McGill, 257 Cal.App.2d 759, 764, 65 Cal.rptr. 482.)

 The granting of probation rests within the discretion of the trial court and his order denying probation will not be disturbed on appeal unless there has been an abuse of discretion.  (People v. Henderson, 226 Cal.App.2d 160, 163, 37 Cal.Rptr. 883;  People v. Herd, 220 Cal.App.2d 847, 850, 34 Cal.Rptr. 141;  People v. Privitier, 200 Cal.App.2d 725, 730, 19 Cal.Rptr. 640.)   We find not abuse here, and probation was properly denied.

 Finally, defendant contends the officers had no probable cause to stop and arrest him, and the gun removed from the car was taken as the result of an illegal search.   In this connection Officer Sims testified that some four or five days prior to the arrest he had heard an all-units broadcast of two robbery suspects, male Negroes, who had left the scene of a robbery in a 1964 Thunderbird, black over green, with California license SSD 198.   While on patrol he observed the car and followed it onto the northbound Harbor Freeway.   He called police communications who informed him to hold the occupant for robbery, that the car was stolen.   He proceeded to stop the vehicle.   Officer Sims drew his service revolver and approached the driver's side of the vehicle.   His partner approached from the passenger's side, armed with a shotgun.   As Officer Sims neared the rear window of the vehicle, he observed defendant take a chrome revolver from the glove compartment.   He told defendant three times to drop it.   After defendant dropped it, he was placed under arrest.   Later, it was learned the car was no stolen.

In the absence of a warrant a peace officer may arrest a person whenever he has reasonable cause to believe that the person arrested has committed a felony.  (Pen.Code, § 836;  People v. Schader, 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665;  People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823;  People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)   The question of what is reasonable or probable cause must be tested by the facts which the record shows were known to the officer at the time of arrest.  (People v. Lara, 67 Cal.2d 365, 373, 62 Cal.Rptr. 586, 432 P.2d 202;  People v. Talley, 65 Cal.2d 830, 835, 56 Cal.Rptr. 492, 423 P.2d 564.)   It is well settled that police officers may rely on information coming to them from official sources, and such information must be presumed reliable unless it is manifestly shown to be otherwise.  (People v. Schellin, 227 Cal.App.2d 245, 251, 38 Cal.Rptr. 593, and cases cited therein.)   The fact the car was not stolen does not render unreliable the information that there had been a robbery and the suspects had left the scene in the car defendant was driving at the time of his arrest.   There was sufficient probable cause to stop the car, arrest the occupant, and conduct a search.

The judgment is modified by striking therefrom the words:  “and that defendant was armed at the time of the commission of the offense as alleged.”   In all other respects the judgment is affirmed.   The appeal from the order denying the motion for new trial is dismissed.

FOOTNOTES

FOOTNOTE.  FNa. Advance Report Citation:  262 A.C.A. 317, 326.

FOOTNOTE.  FNb. Advance Report Citation:  267 A.C.A. 959, 962–966.

1.   See modified opinion, 268 A.C.A. 112, 122 (filed DEc. 12, 1968.)

FOOTNOTE.  FNc. Advance Report Citation:  262 A.C.A. 317, 326.

2.   The third unnumbered paragraph of section 1203 read in part:  “* * * except in unusual cases * * * no judge shall grant probation to any person who shall have been convicted of robbery * * * and who at the time of the perpetration of said crime * * * was himself armed with a deadly weapon * * *.”  (Italics added.)The fourth unnumbered paragraph recites numerous crimes other than first degree robbery for the commission of which no probation shall be granted, with some exceptions.The fifth unnumbered paragraph states:  “In unusual cases, otherwise subject to the preceding paragraph, in which the interests of justice would best be served thereby, the judge may, with the concurrence of the district attorney, grant probation.”