Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050608133
Haerle, J.
I. INTRODUCTION
After a jury trial, appellant was convicted of two counts of second-degree robbery (Pen. Code, § 211/212.5, subd. (c)) and sentenced to a total of four (4) years in state prison. He appeals, claiming that the trial court erred in (1) denying his section 1538.5 motion to suppress evidence taken from his person while he was being detained, and (2) denying his motion, made at both the preliminary hearing and trial, to exclude the identification testimony of the two robbery victims and hence dismiss under section 995. We disagree with both contentions and hence affirm.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
The issues noted above derive from an interesting series of interrelated events occurring in and around San Pablo, Contra Costa County, within a little more than two hours during the afternoon of April 23, 2006. We will briefly summarize those events.
The first event, chronologically, was the robbery of two Hispanic men who were sitting in a car belonging to one of the victims, a man named Lopez, listening to “the amps inside of his car.” The robbery was conducted at around 1:30 p.m. on that day by two African-American men who were walking on the sidewalk of River Street in San Pablo, the street on which the residence of the other victim, Zavala, was located.
As Zavala described the incident at the preliminary hearing, a man he later identified as appellant pulled out a black revolver with a wooden handle and, reaching through the open passenger door, stuck the gun in Zavala’s ribs and demanded his wallet. The robber had, according to Zavala, “braids in his hair.” Zavala handed over $500 from his wallet, three rings on his hand, a gold bracelet, a cell phone, and a silver watch with a blue face to appellant. The other African-American robber took a cell phone, a watch, a wallet and the car’s keys from the driver, Lopez. He also told both victims not to look at them until they had gotten to the end of the block. The two robbers then left together, albeit with Lopez watching their direction. Zavala, however, went into his nearby residence and, while there, both called the police to report the robbery and got the key to his pick-up truck (apparently parked nearby) so as to try to follow the robbers.
The entire encounter between Lopez and Zavala and the two robbers lasted no more than a few minutes.
After Zavala talked to the police on his brother’s cell phone, he and Lopez drove in his pick-up truck in the direction Lopez had seen the two robbers headed. As they did so, they saw the robbers apparently dividing up the proceeds of the robbery. The two robbers then arrived at an apartment complex and, after seeing and recognizing Zavala following them in his truck, dashed inside. Zavala then guarded one entrance to the complex and Lopez the other.
Approximately 17 minutes after the robbery, i.e., at 1:47 p.m., San Pablo Police Officer Perino arrived at the apartment complex to which Zavala and Lopez had tracked the two robbers. He took reports from both of them, including a description of the gun used by appellant.
Perino then resumed his duties, but other officers took the two robbery victims to the San Pablo police station, where they provided further statements and descriptions to Spanish-speaking officers. They were also shown, on a police computer, a slide show of suspects matching their descriptions of the robbers. Both of them immediately recognized appellant as one of the two robbers in one of the photographs they were shown as part of the slide show. Both Zavala and Lopez were then allowed to return to their homes.
The second in the series of events started less than two hours later when, at 3:25 p.m., Officer Perino responded to a report of a shooting and a man wounded by it on San Pablo Avenue, about two blocks away from the location where the Zavala-Lopez robbery had occurred. There, Perino located a small, black revolver with a wooden hand grip on the ground under an SUV. He also noted blood on the ground near a store about three feet away from the revolver. No shooting victim was found. However, about ten minutes later, Perino heard that a victim of a shooting had been admitted to Doctors Hospital in San Pablo, and Perino promptly went there. He found appellant and another African-American man dressed in a Dallas Cowboys’ football jersey being detained by El Cerrito police officers in the hospital parking lot. A minute or so later, Officer Perino discovered that a Chevrolet Malibu parked in an apartment complex parking lot across the street from the hospital (a car appellant had told one of the El Cerrito police officers detaining him belonged to him) had dried blood stains inside and was registered to an apartment in the building to which Lopez and Zavala had traced appellant and the other robber less than two hours earlier.
Which brings us to the third in the interrelated series of events, occurring at Doctors Hospital that afternoon. El Cerrito Police Corporal Hartung and trainee Officer Mills were dispatched to that hospital at 3:30 p.m. (i.e., five minutes after Perino’s dispatch to the scene of the reported shooting on San Pablo Avenue in San Pablo) because of the reported admission there of an African-American man who had been shot. Hartung learned that the shooting victim had been brought to the hospital by five young African-American males, who arrived in a late-model Chevrolet Malibu. The driver of that car had distinctive, long “twisties style hair.” Hartung also learned, from a hospital staff member, that another African-American male had come to the emergency room area, asking for the wounded man by name, and apparently knowing that he was a gunshot victim. That individual wore a Dallas Cowboys jersey and kept one of his hands under the jersey the whole time he was in the hospital. However, as soon as the man in the Cowboys jersey spotted the police officers in the emergency room area, he hastily exited the hospital through the waiting room.
Hartung followed by a similar route and, in the parking lot, observed two African-American individuals walking swiftly away from the hospital; one of them was the one wearing the Cowboys jersey. Hartung drew his gun and ordered both men to the ground, holding them in that position until back-up arrived. He testified that he did so because of the combination of (1) the way the man had been holding his hand under the jersey, (2) the fact that the person the man in the jersey was asking for was a gunshot victim, and (3) the fact that there was no way of knowing if he was a friend or foe of that victim, and that made him concerned that one of the men swiftly exiting the hospital might have a gun, to the detriment of both his safety and public safety.
When the back-up officers arrived at the Doctors Hospital parking lot, appellant and his companion (the man in the Cowboys jersey) were handcuffed. Appellant told the officers that he was there to check on the welfare of his wounded friend in the hospital, and had gotten there in a silver Chevrolet Malibu parked across the street in a parking lot. A pat search of the two men did not reveal any weapons.
At this point, Officer Hartung and the back-up officers were joined by San Pablo Officers Perino and Sechler. The former, as noted earlier, discovered the dried blood stains in the Malibu and the fact of its registration to an occupant of the building to which Zavala and Lopez had tracked their robbers. Based on these circumstances, appellant was placed in a police car for transportation to the San Pablo police station. Before embarking on that journey, Officer Sechler informed appellant she would need to search him for anything dangerous or illegal. He consented to the search. Officer Sechler then searched appellant and found, in his pockets, $458 in cash, a silver watch with a blue face, a gold bracelet, and a gold ring with three stones set into it. Asked about this property, appellant told the police he got it all from an unidentified female friend. Officer Sechler never told appellant he was under arrest.
The record supplied us, as well as the parties’ briefs, do not state when or where appellant was formally arrested. Apparently, it was at the San Pablo police station, but exactly when in relation to the arrival there of Lopez and Zavala, their identification of the items stolen from them, and their identification of appellant through a window, is unclear.
The information as to the items recovered from appellant was communicated to Officer Perino, who had also learned that the wounded man in the hospital, Adams, had had on his person money, jewelry and a watch. Those items were discovered by a search of Adams’ clothing conducted in the hospital by San Pablo Police Officer Cauwels. Zavala and Lopez were asked to return to the San Pablo police station. There, they identified the items recovered from appellant as those that had been stolen from them. Both were then asked to look at some photographs arranged in a book, but neither recognized any of those pictures as being of their robbers.
Then, separately, both Zavala and Lopez were asked to look through a door or window into a room in which appellant was sitting. Both immediately recognized him as one of the robbers.
In, apparently, June 2006, a complaint was filed by the Contra Costa County District Attorney’s Office charging appellant with second-degree robbery. At appellant’s preliminary hearing, he moved both to suppress the evidence taken from his person in the hospital parking lot and to dismiss the information on the basis that the identification of him by Zavala and Lopez was conducted in such a manner as to be unduly suggestive. (Pen. Code, §§ 1538.5 & 995.) Both motions were denied at the preliminary hearing.
For some reason, the complaint is not included in the clerk’s transcript provided us.
On July 7, 2006, an information was filed by the district attorney’s office charging appellant with two counts of second degree robbery committed on April 23, 2006, and each enhanced with a personal firearm use allegation. (Pen. Code, §§ 211, 212.5, subd. (c), & 12022.53, subd. (b).) Appellant entered a plea of not guilty and denied the enhancement allegations. He filed motions to dismiss and suppress under sections 995 and 1538.5, both of which were opposed by the prosecution and denied after hearings held on August 18 and 25, 2006.
A two-day jury trial was held, at which appellant testified in his own defense. He admitted robbing Zavala and aiding and abetting the robbery of Lopez, but denied using a gun. He testified that, instead, he had used a BB gun. The jury convicted appellant on both of the charged robbery counts, but found the personal use of a gun allegation to be untrue.
On February 6, 2007, the trial court sentenced appellant to the midterm of three years in state prison on count one of the information, with a consecutive one-third midterm of one year on count two, for a total of four years.
Appellant filed a timely notice of appeal.
III. DISCUSSION
As noted, appellant claims that the court below erred in denying (1) his motion to dismiss under section 995 because of unduly suggestive identification methods used with victims Zavala and Lopez and (2) his motion to suppress under section 1538.5. We reject both contentions.
Appellant’s section 995 motion to dismiss and the appeal from its denial is based on the premise that the personal identification of appellant by victims Zavala and Lopez when they looked through a window in the door of a small room and saw appellant in the room, was “unduly suggestive” and hence “tainted.” Appellant’s counsel argues, in his brief to us, that appellant was identified by Zavala “alone in a small room” after the police had “recovered his property” from appellant.
With regard to that denial, it is instructive to note that neither party put on any witnesses at the section 995 hearing, and appellant’s trial counsel conceded to the court that his section 995 motion was “considerably weaker than the 1538.5.”
This argument is, regrettably, very misleading. Both Zavala and Lopez had been shown, much earlier in the afternoon and before appellant and his companion were detained in the Doctors Hospital parking lot, a series of computerized photographs of persons who matched the descriptions of their robbers. This showing was arranged by Officer Perino after he and Officer Sechler met the two victims at the apartment building to which the two victims had followed the two robbers. At the preliminary hearing, both of the victims testified that one of the computerized photographs they were shown by Perino was that of appellant. At trial, Zavala, the only one of the two victims who testified, confirmed this. There was, therefore, completely adequate and “non-suggestive” identification of appellant well in advance of his being identified while sitting alone in a police station room.
We are very disturbed that, in connection with the identification issue, appellant’s appellate counsel has neglected to cite any of both victims’ preliminary hearing testimony regarding the computerized pictures of appellant they saw well before his detention and arrest, and also misinterprets Zavala’s clearly confirmatory trial testimony on this subject.
The same relatively short work can be made of appellant’s extended argument regarding the post-detention search of appellant. First of all, appellant effectively concedes that the El Cerrito police properly detained appellant and his companion wearing the Cowboys jersey in the hospital parking lot because of the behavior of the companion in keeping his hand under his jersey while, allegedly, seeking out the wounded man in the hospital. Thus, in his opening brief, appellant’s initial comment on this point is that when appellant was searched “the reasonableness of his detention had expired.” Then, backing off a bit from this, his brief then states: “We will assume (without conceding) for purposes of argument that when Corporal Hartung saw an individual in a Dallas Cowboys jersey out in the parking lot, he was justified in making a ‘Terry stop’ [Terry v. Ohio (1960) 392 U.S. 1] to find out what the individual and his companion (appellant) were doing there. We will also assume the police were justified, under the circumstances, in patting them down for weapons. We will also assume that it was reasonable to question the two men about their activities.”
These multiple “assumptions” plus the earlier de facto concession that appellant’s detention was reasonable combine to constitute a clear waiver of any argument against the reasonableness of appellant’s initial detention and what happened immediately afterwards, e.g., the handcuffing of the two men and their “pat-down,” etc. What appellant is left with, as he concedes in his briefing to us, is the contention that, after the pat-down and preliminary questioning, there was no cause justifying the further detention, search, and later arrest of appellant.
But there was such cause; indeed an almost overwhelming amount, specifically: (1) Officer Perino’s discovery, within a few minutes of seeing the Chevrolet Malibu and learning that it was the car in which appellant and his companions had arrived at the hospital, of blood stains in that car; (2) Officer Perino’s check on the address to which the car was registered and the response that it was to an apartment building to which Zavala and Lopez had tracked their robbers; (3) his knowledge that there had been a shooting, resulting in blood on the pavement, a few blocks away from that apartment building and a very few minutes before the arrival at the Doctors Hospital of the Malibu and its five male occupants; (4) appellant and his hairdo directly matched the description of one of the robbers provided to Perino by the two victims; (5) appellant’s companion had swiftly left the emergency room area upon seeing the police there; (6) there was no indication of where the three other African-American males who had arrived in the Malibu were, and simple safety considerations dictated the continued detention of the two men who had been headed toward the Malibu in the parking lot; (7) Officer Cauwels search of the shooting victim’s (Adams’) clothing revealed property matching some of that taken from the robbery victims; (8) appellant expressly consented to the search of his person performed by Officer Sechler before she drove him to the police station.
The law in such circumstances is quite clear and bears little or no relation to the lengthy contentions made by appellant in his briefs to us. As Justice Sims of the Third District summarized the applicable law a few years ago: “An investigatory stop exceeds constitutional bounds when extended beyond what is reasonably necessary under the circumstances that made its initiation permissible. [Citation.] Circumstances which develop during a detention may provide reasonable suspicion to prolong the detention. [Citation.] There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a means of investigation reasonably designed to confirm or dispel their suspicions quickly. [Citations.]” (People v. Russell (2000) 81 Cal.App.4th 96, 101-102; see also, People v. Bowen (1987) 195 Cal.App.3d 269, 273-274.)
Even if the continued detention of appellant before he was transported to the police station and his transportation there amounted to a “de facto arrest,” a search of him before his transportation in a police car, or before being allowed into the police station, was entirely proper. (See People v. Gomez (2004) 117 Cal.App.4th 531, 538-539; cf. also In re Ian C. (2001) 87 Cal.App.4th 856, 859-861, and In re Lennies H. (2005) 126 Cal.App.4th 1232, 1239-1240 [both involving juvenile “de facto arrests”].)
We have no difficulty in concluding that both the magistrate and the trial court were correct in denying appellant’s section 1538.5 motions.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J. Richman, J.