PEOPLE v. RADFORD (1979)

After dismissal of his motion to suppress evidence, appellant was tried by a jury.   The jury found appellant guilty of two counts of robbery (Pen.Code § 211) and two counts of false imprisonment (Pen.Code § 236).   The jury also found to be true the allegations that appellant was armed with a shortgun during commission of the offenses and had used violence and menace in committing the crimes of false imprisonment.   Appellant was sentenced to state prison.   He appeals from the judgment of conviction.

Appellant claims (1) the magistrate erred in denying his motion for a lineup at the preliminary hearing, (2) the trial court erred in denying his motions under Penal Code sections 995 and 1538.5, (3) the trial court should have instructed the jury that false imprisonment is a specific-intent crime, and (4) he was denied effective representation by counsel.   Examining these contentions in light of the record before us and applicable principles of law, we find no reversible error and affirm the judgment.

FACTS :

Shortly after coming to work at 5:30 a. m. on October 2, 1978, Donald Shaffer was held up at gunpoint by appellant and another man at a Mobil gas station located next to the Simi Valley Freeway in Simi Valley.   Shaffer described appellant as wearing a green shirt, dark pants, and an “England style” sports hat.   After emptying the contents of the station's cash box, which had $70, into a purple or blue-colored sock, appellant cut the telephone cord and held a gun on Shaffer while the other man, the heavier of the two, tied Shaffer up.   Appellant then removed $40 from Shaffer's person.

When Robert Sparkman, another station employee, subsequently arrived at the station, he was ordered to lie on the floor in the office.   He was then tied up with surgical tape, and $58 was removed from him.   In the meantime, a customer, Daniel Stegner, had pulled into the station for gas.   He saw appellant serve the customers.   Stegner filled up his car and then handed appellant his credit card.   Appellant went inside the office with the card, reappeared, looked at Stegner, motioned with his thumb towards the office, and left with his companion in a blue Pinto automobile.   With appellant behind the wheel, the Pinto got on the Simi Valley Freeway and headed towards the San Fernando Valley.

Shaffer called the police on a telephone whose wires had not been cut.   Minutes later, appellant and his companion were apprehended in the blue Pinto by Officer William Krulac of the Los Angeles Police Department.

DISCUSSION :

1. Magistrate's Denial of Appellant's Request for Line-up at Preliminary Hearing.

At the commencement of the preliminary hearing, defense counsel stated to the magistrate that the two suspects were present in court but were behind a screen.   Witnesses Shaffer and Stegner then testified as to their observations of the two suspects at the time of the robbery.   One day after the robbery, Shaffer was shown two sets of photographs.   Each set consisted of six photographs.   Shaffer selected a photograph in each set.   At the time he was not positive of his identification, saying the men depicted in the photographs all looked alike.   Shaffer testified that, based on his observation of the tall man for about half an hour and the short man for about five minutes, he would be able to identify them in a face-to-face confrontation.   When the magistrate asked defense counsel if there were any reasons why the suspects should not be brought in the presence of the witnesses, defense counsel made a motion for a line-up.   The motion was denied.   The magistrate then stated to Shaffer that he was going to have the two individuals behind the screen brought out, adding that they “may or may not be the individuals that participated in this robbery.  ․ ․ ․ ”   At defense counsel's request, the magistrate ordered that the individuals be brought out separately.   When appellant was brought in, Shaffer identified him as the tall man who had robbed him at gunpoint.   The second individual, who was subsequently brought in, was identified by Shaffer as the tall man's companion during the robbery.

Three days after the robbery, Stegner selected one photograph out of the two sets shown him.   Stegner testified that his photographic identification was based upon his face-to-face confrontation with the man to whom he had handed his gasoline credit card during the incident.   When one of the two individuals behind the screen was brought out, Stegner said he did not recognize him.   He did, however, recognize the second individual, appellant, as the man who had taken his credit card at the gas station and who subsequently drove away from the scene in a blue Pinto automobile.

At the preliminary hearing no evidence was presented as to whether Shaffer and Stegner had in fact selected appellant's photograph.

Following his testimony about the apprehension of appellant and his companion in the blue Pinto automobile, Officer Krulac was confronted with two men who were ordered brought out from behind a screen.   The officer identified appellant as the driver of the Pinto and the other man as appellant's passenger.

 Appellant's argument is predicated on the theory that the one-to-one confrontation in the courtroom was inherently suggestive.   In appropriate circumstances, and upon timely request, an accused should be afforded a pretrial line-up to resolve identification problems.  (Evans v. Superior Court, 11 Cal.3d 617, 625, 114 Cal.Rptr. 121, 522 P.2d 681.)   After noting that a magistrate or a trial judge has broad discretion in ruling upon such a motion, the court in Evans stated:  “Such motion should normally be made as soon after arrest or arraignment as practicable.   We note that motions which are not made until shortly before trial should, unless good cause is clearly demonstrated, be denied in most instances by reason of such delay.”  (Evans v. Superior Court, supra, at p. 626, 114 Cal.Rptr. at p. 127, 522 P.2d at p. 687.)   Nothing in the record at bench indicates why appellant chose to wait until the preliminary hearing before requesting a line-up.   Under the circumstances his motion was not timely.  (Evans v. Superior Court, supra, at p. 626, 114 Cal.Rptr. 121, 522 P.2d 681;  People v. Vallez, 80 Cal.App.3d 46, 56, 143 Cal.Rptr. 914.)   Additionally, denial of the motion was proper because strong circumstantial evidence of appellant's guilt established that there was no “reasonable likelihood of a mistaken identification which a lineup would tend to resolve.”  (Evans v. Superior Court, supra, 11 Cal.3d, at p. 625, 114 Cal.Rptr. at p. 126, 522 P.2d at p. 686;  People v. Breckenridge, 52 Cal.App.3d 913, 935–936, 125 Cal.Rptr. 425.)   Witnesses had given a physical description of the two suspects, had described the get-away car as a blue Pinto, and had described the clothing worn by one of the suspects as a green shirt and dark pants.   When, minutes after the robbery, appellant was apprehended, he was driving a blue Pinto, he was dressed in a green shirt and dark pants, and he generally met the physical description given by the witnesses.   Found in the car was a double-barreled, sawed-off shotgun.   Such a gun was used in the robbery.   Also, appellant was arrested in the general area towards which the get-away car was heading when last seen by one of the witnesses.

In People v. London, 274 Cal.App.2d 241, 242–243, 78 Cal.Rptr. 848, 849, the court, in rejecting the defendant's contention that a pretrial line-up is required as a prerequisite to an in-court identification, observed:  “In the case of in-court identifications not preceded by a lineup, however, the weaknesses, if any, are directly apparent at the trial itself and can be argued to the court and jury without the necessity of depending on an attempt to picture a past lineup by words alone.”  London was overruled in Evans v. Superior Court, supra, 11 Cal.3d 617, 625, 114 Cal.Rptr. 121, 522 P.2d 681, but not on this principle.   See People v. Breckenridge, supra, 52 Cal.App.3d 913, 936, 125 Cal.Rptr. 425.

Here, at trial, it was brought out to the jury that both Shaffer and Sparkman, the two robbery victims, had been unable to identify appellant from a photographic display shown them shortly after the robbery.   Since the photographs used at the pretrial identification were available at trial, the photographic identification process could be substantially duplicated in the courtroom.  (People v. Mack, 66 Cal.App.3d 839, 860, 136 Cal.Rptr. 283;  People v. London, 274 Cal.App.2d 241, 243, fn. 4, 78 Cal.Rptr. 848.)   Although Shaffer made an in-court identification of appellant, Sparkman was unable to do so.   Thus, the weaknesses in the identification were directly apparent at the trial itself and could be weighed by the jury.  (People v. Breckenridge, supra, 52 Cal.App.3d 913, 936, 125 Cal.Rptr. 425.)

Moreover, it is apparent from the testimony in this case that neither Stegner nor Shaffer, the two witnesses at the preliminary hearing, were unduly influenced by seeing appellant in court.   The witnesses' testimony indicates that their identification of appellant was based on their observations of appellant at the time of the robbery.   No error appears.  (People v. Remiro, 89 Cal.App.3d 809, 836–837, 153 Cal.Rptr. 89;  People v. Breckenridge, supra, 52 Cal.App.3d 913, 936, 125 Cal.Rptr. 425.)   In view of our conclusion, we do not reach appellant's contention that because of the one-to-one confrontation at the preliminary hearing he was illegally held to answer and therefore the trial court should have granted his motion to dismiss the information pursuant to Penal Code section 995.

2. Denial of the motion to suppress evidence.

 Appellant charges error in the trial court's denial of his motion to suppress evidence.   On appeal, the trial court's ruling will be upheld if supported by substantial evidence.   In setting forth the facts supporting the trial court's ruling, we view the record in the light most favorable to the prevailing party.  (People v. Rios, 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.)   The relevant facts, as contained in the preliminary-hearing transcript, which was considered by the trial court in ruling upon the suppression motion, are as follows:

Only minutes after receiving a police broadcast that two black males in a blue Pinto automobile were suspects in a robbery which had just occurred in the surrounding area, Officer Krulac of the Los Angeles Police Department, who was in a marked police vehicle with a partner, spotted a blue Pinto containing two black men.   Officer Krulac activated the red lights on his police vehicle and pulled the blue Pinto over.   Appellant, the driver of the car, got out.   Officer Krulac, who was still inside the police vehicle with his partner, shouted to appellant to “get on the ground.”   The two officers then exited the police vehicle with their guns drawn.   While Officer Krulac covered his partner, the latter walked towards appellant and handcuffed him.   Officer Krulac then approached the Pinto's passenger as he was getting out of the car, and handcuffed him.   Leaving his partner with the two men, Officer Krulac walked up to the driver's side of the car, and while standing approximately a foot away from the car, looked in.   Between the bucket seats, the butt of a gun was protruding from a shirt which was wrapped around it.   Officer Krulac retrieved the gun.

The trial court ruled that although the immediate arrest of the two suspects was unlawful, the officers had the right to temporarily detain them and in the course of such detention could properly seize the gun which was in plain view in the Pinto automobile.   Denial of appellant's suppression motion was proper.

 There can be no question that a temporary detention was justified.   A temporary detention may be justified by circumstances falling short of probable cause to arrest.  (In re Tony C., 21 Cal.3d 888, 892, 148 Cal.Rptr. 366, 582 P.2d 957.)   When there is a rational belief of criminal activity with which a suspect is connected, a detention for reasonable investigative purposes infringes no constitutional restraint.  (People v. Bower, 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115;  In re Tony C., supra, 21 Cal.3d, at p. 893, 148 Cal.Rptr. 366, 582 P.2d 951.)

 Here, the officers obviously knew that criminal activity had occurred.   They had just received a radio report of a robbery committed by two black men who left the scene in a blue Pinto automobile.   The presence of appellant and his companion, both black men, in a blue Pinto, within minutes after the commission of the robbery, in an area in which witnesses observed the get-away car to be heading for, and in an area where it was unusual to see blacks, were sufficient to indicate to a reasonable man in the position of the officers that investigation of the automobile and its occupants was necessary to the proper discharge of their duties in connection with the robbery.  (People v. Natale, 77 Cal.App.3d 568, 573, 143 Cal.Rptr. 629;  People v. Anthony, 7 Cal.App.3d 751, 761, 86 Cal.Rptr. 767;  People v. Watson, 12 Cal.App.3d 130, 134–135, 90 Cal.Rptr. 483;  People v. Smith, 4 Cal.App.3d 41, 48–49, 84 Cal.Rptr. 229.)   Experienced officers develop an ability to perceive what is unusual and suspicious, which is of value in performing their task of protecting the rights and safety of law abiding citizens.  (People v. Peterson, 85 Cal.App.3d 163, 169, 149 Cal.Rptr. 198.)   Indeed, to have neglected to effect a temporary detention here would have constituted a failure on the part of Officer Krulac to properly discharge his duties as an officer of the law.  (People v. Flores, 12 Cal.3d 85, 91–92, 115 Cal.Rptr. 225, 524 P.2d 353;  People v. Peterson, supra, 85 Cal.App.3d, at 169, 149 Cal.Rptr. 198.)

 We now turn to the propriety of handcuffing appellant when he, upon his own initiative, alighted from the Pinto.   At the time, Officer Krulac and his partner were outside the police vehicle, each standing behind the door on either side of the vehicle.   Seeing appellant, a suspect in a violent felony, approach the police vehicle and not knowing whether he was armed or not, while the second suspect was still in the Pinto, the officers, in view of the possibility of a surprise attack, were justified to order appellant to the ground and to handcuff him as a precautionary measure.  (See People v. Natale, supra, 77 Cal.App.3d 568, 572, 143 Cal.Rptr. 629 (proper for police to place suspect in police vehicle during on-the-scene investigation).) ¹  In Terry v. Ohio (1968) 392 U.S. 1, 23–24, 88 S.Ct. 1868, 20 L.Ed.2d 889, and People v. Superior Court, 3 Cal.3d 807, 829, 91 Cal.Rptr. 729, 478 P.2d 449, the courts recognized the dangers faced daily by the men who bear the burden of policing our streets and highways, where even a minor traffic citation incident can occasionally erupt into violence.   Bearing in mind that American criminals have a long tradition of armed violence and that every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded (Terry v. Ohio, supra, 392 U.S., at p. 23, 88 S.Ct. 1868), it would be unreasonable to require that police officers take unnecessary risks in performing their duties.

 We conclude that Officer Krulac's subsequent plain view observation of the butt of a gun protruding from the Pinto's front seat entitled him to seize the gun.   Objects falling in the plain view of an officer from a place where he has a right to be are subject to seizure and may be introduced in evidence.  (North v. Superior Court, 8 Cal.3d 301, 306, 104 Cal.Rptr. 833, 502 P.2d 1305;  People v. Siegenthaler, 7 Cal.3d 465, 470, 103 Cal.Rptr. 243, 499, P.2d 499.)  People v. Mickelson, 59 Cal.2d 448, 30 Cal.Rptr. 18, 380 P.2d 658, and People v. Huff, 83 Cal.App.3d 549, 147 Cal.Rptr. 316, relied on by appellant, are distinguishable from the instant case.   In both Mickelson and Huff, the detention was followed by an exploratory search of the baggage in the car.   Here, the evidence was in plain sight.

 We further believe that under the circumstances the immediate arrest of the two suspects upon the initial stop by the police would have been justified.   Probable cause for an arrest exists when the facts presented to the officer would lead a man of ordinary care and prudence to believe or strongly suspect that the person arrested is guilty of the offense.  (People v. Schader, 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665;  People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577.)   The record shows that at the time the suspects were stopped, Officer Krulac knew that a serious felony, robbery, had been committed.   He also knew where and when the robbery had been committed, knew that the suspects were two black men, knew that they had fled in a blue Pinto automobile, and further knew that when last seen by witnesses, the Pinto was eastbound on the Simi Valley Freeway, traveling away from the robbery scene towards the San Fernando Valley.   Officer Krulac stopped the blue Pinto and its two black occupants at the end of the eastbound Simi Valley Freeway within five minutes or so after the robbery broadcast.   We believe that all of these facts, coupled with the fact that it was unusual to see any blacks in the predominantly white area, were sufficient to lead a man of ordinary care and prudence to believe or strongly suspect that the blue Pinto's occupants were involved in the robbery.  (People v. Chandler, 262 Cal.App.2d 350, 354, 68 Cal.Rptr. 645.)   As stated in People v. Superior Court (Holquin ), 72 Cal.App.3d 591, 594, 140 Cal.Rptr. 234, 235, “It is not necessary that a suspect be proven guilty before his is arrested.”

3. Whether False Imprisonment is a Specific Intent Crime.

Appellant argues that the crime of false imprisonment is a specific intent crime and therefore the trial court erred in not instructing the jury accordingly.   Appellant cites no authority in support of his contention.   We note parenthetically that false imprisonment is not included in the specific intent crimes listed in California Jury Instructions—Criminal, volume 2, fourth edition (1979) at pages 351–362.

In People v. Hood, 1 Cal.3d 444, 456–457, 82 Cal.Rptr. 618, 626, 462 P.2d 370, 378, Chief Justice Traynor gave this lucid definition on intent:

“ ․ ․ ․ ․  When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”

 An example of a specific intent crime is forgery.  Penal Code section 470 defines forgery in part as follows:  “Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, or falsely makes, alters, forges, or counterfeits, any charter, letters patent, deed, lease  ․ ․ ․  is guilty of forgery.”   Under this definition, the mere fact of an alteration clearly is insufficient.   Additionally, it is expressly required that the alteration be done with the intent of achieving a future consequence, namely, the defrauding of another.   In contrast, false imprisonment is complete upon the unlawful confinement of the victim.  Penal Code section 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.”   The offense described in section 236 does not expressly require an intent “to do a further act or achieve a future consequence.”  (People v. Hood, supra, at p. 457, 82 Cal.Rptr. at p. 626, 462 P.2d at p. 378.)   Thus we ask “whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.”  (Ibid. at p. 457, 82 Cal.Rptr. at p. 626, 462 P.2d at p. 378;  People v. McDaniel, 24 Cal.3d 661, 669, 156 Cal.Rptr. 865, 597 P.2d 124.)

 In the case at bench, the jury was instructed pursuant to CALJIC No. 9.60, which in pertinent part provides that false imprisonment is “the unlawful violation of the personal liberty of another,” meaning “there must be an intentional and unlawful restraint, confinement or detention which compels a person to stay or go somewhere against his will,” but not requiring confinement in a jail or prison.   The requirement of an “intentional” restraint, confinement or detention, does not mean that the offense requires a specific intent, as appellant suggests.   As used here, the term “intentional” is synonymous with “knowingly.”   Thus, when so used, an act is “intentional” if the actor is aware of what he is doing and realizes the probable consequences of his act.  (People v. McCree, 128 Cal.App.2d 196, 202, 275 P.2d 95.)

In People v. Haney, 75 Cal.App.3d 308, 313, 142 Cal.Rptr. 186, 189, the court deemed the following instructions essential on a charge of false imprisonment:

“The crime of false imprisonment, whether misdemeanor or felony, requires for its commission some intended confinement or restraint of the person.   It is not necessary there be confinement in jail or prison.   Any exercise of force or express or implied threat of force by which in fact the person is restrained from his liberty, compelled to remain where he does not wish to remain, or to go where he does not which to go, is such imprisonment.   The imprisonment may be committed by acts or words merely operating on the will of the individual and/or by personal violence.   The acts must be done, the words must be said, with the intent of causing the confinement.”

Those facets of the crime of false imprisonment were encompassed in CALJIC No. 9.60 ² given to the jury here.   Appellant's contention that the jury should have been instructed on specific intent as it relates to false imprisonment must be rejected, as must his contention that CALJIC No. 9.60 is overbroad.

4. Effectiveness of Counsel.

Appellant claims that his counsel's failure at the preliminary hearing to have the photographs used in the pretrial identification admitted into evidence “resulted in the withdrawal of a crucial defense.”

 Recently, the California Supreme Court in People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, announced a new standard for determining the effectiveness of counsel, thereby replacing the former “farce or sham” test articulated by the court in People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487.   Under the new test, an accused must show that his counsel “failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.”   The accused must also “establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.”  (People v. Pope, supra, 23 Cal.3d, at p. 425, 152 Cal.Rptr. at p. 739, 590 P.2d at p. 866.)   The issue of the identification of appellant was explored thoroughly by defense counsel in his voir-dire examination of the witnesses at the preliminary hearing.   Moreover, in light of the strong circumstantial evidence of appellant's guilt, as we discussed earlier in dealing with appellant's first contention, we conclude that counsel's failure at the preliminary hearing to introduce the photographic display into evidence did not result in the withdrawal of a potentially meritorious defense.  (People v. Pope, supra, at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859;  see People v. Floyd, 1 Cal.3d 694, 709–715, 83 Cal.Rptr. 608, 464 P.2d 64;  and People v. James, 56 Cal.App.3d 876, 886, 128 Cal.Rptr. 733 holding that failure to make timely and appropriate motion concerning a possibly “tainted” pretrial identification did not constitute ineffective representation.)

The judgment is affirmed.

FOOTNOTES

1.   In Natale, the court rejected the defendant's contention that his being placed in the police vehicle established unambiguously that an arrest had taken place.   In the present case, the trial court ruled that the arrest was improper for lack of probable cause.   We note, however, that other than the fact of appellant's handcuffing there was no testimony whether an arrest had in fact been effected at the time appellant was handcuffed.

2.   The full text of the instruction reads:“Every person who falsely imprisons another by violence or menace, is guilty of a crime.  [¶] False imprisonment is the unlawful violation of the personal liberty of another.   False imprisonment means there must be an intentional and unlawful restraint, confinement or detention which compels a person to stay or go somewhere against his will.  [¶] Violence means the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint.  [¶] Menace means a threat of harm express or implied by word or act.  [¶] [False imprisonment does not require that there be confinement in a jail or prison.]”

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.