Opinion
For Opinion on Rehearing see, 75 Cal.Rptr. 297.
Raymond H. Miller, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.
FOURT, Associate Justice.
This is an appeal from a judgment of conviction of robbery.
In an information filed in Los Angeles on August 23, 1967, defendant was charged with having robbed Luis Macaya and Nancy Edwards on July 28, 1967, of certain personal property. It was further charged that at the time of the commission of the offense defendant was armed with a .38 caliber revolver and further that he previously had been convicted of burglary (§ 459, Pen.Code) in March 1960 and had served a term in prison therefor and that A resume of some of the facts is as follows: shortly before noontime of July 28, 1967, defendant entered the office of Aetna Finance Company at 540 Long Beach Boulevard in Long Beach. Defendant pointed a pistol at Nancy Edwards the cashier, handed a bag to her and said 'Fill it up,' and told her to stay where she was and not to move. The cashier said, 'Everything?' and defendant replied, 'Yes, everything.' and she then took the money from the cash drawer, placed it in the bag and gave the bag to defendant. Defendant inquired of the cashier as to the location of the safe and she indicated that the safe was in the rear of the office. Defendant went to the safe which was open but contained no money. Defendant ordered the employees, Luis Macaya, Claude Hoehn, Isaac Misrahi and Mr. Peterson to take out their wallets and to put them into the bag held by defendant. They all complied. At about this time two women employees were returning from lunch, pushed open the door, saw what was taking place and turned and ran out of the establishment. Defendant said, 'Looks like I'm going to have to get somebody now.' He then placed the revolver it his trousers, the money in the bag and fled the office. There was about $500 taken from the cash drawer and the employees. Macaya, Hoehn, Misrahi and the cashier identified defendant as the robber. Macaya and Misrahi were shown a picture of defendant on the day of the robbery and made an identification. They did not attend a lineup.
Richard Williams, a postman, was in the vicinity of the northeast corner of 6th and Long Beach Boulevard at about 12:20 p. m. July 28, 1967, and saw a male Negro running across the street and being chased by four or five persons. The Negro yelled the name, 'Jo Ann. Jo Ann.' Williams noticed that there was only one other person in the whole block, namely, a colored woman seated in a parked car. The Negro man turned and ran up the alleyway.
Officer Williamson, a traffic patrolman, was proceeding in the area on a three-wheel motorcycle at about the time and place mentioned and when someone pointed toward the alleyway the officer gave chase but ultimately lost sight of the person who was running. The person appeared to the officer to be a male Negro, medium weight and wearing a khaki shirt.
Officer Chastain received a call directing him to the scene of the robbery. He had been given a description of the robber, and a two-tone 1959 Chevrolet license number QFC 223 was mentioned as a suspect vehicle. Officer Chastain proceeded to the area and saw a female Negro pacing back and forth on the south side of Sixth Street. Officer Chastain crossed the street to talk with her but was delayed by a citizen who called him over near a furniture store to talk with him. That person told the officer that he believed the woman was involved in the robbery, that she had gotten out of a two-tone 1959 Chevrolet parked nearby and that while she was walking along Long Beach Boulevard a male Negro came running around the corner and yelled at her, 'Wait a minute, Jo Ann.' The male Negro then ran past her into the alleyway. Chastain approached the female and asked her name. She produced a driver's license score sheet with the name Jo Ann Manassa upon it and when asked what she was doing there she related that she had come to pick up her 14-year-old brother. She stated that she owned the 1959 two-tone Chevrolet with license number QFC 223 which was parked Officer Fisher was assigned to watch the 1959 two-tone white and brown Chevrolet car on July 28 and at about 10 p. m. he decided to impound it. There was no registration visible in the car and the glove compartment door was hanging open. Officer Fisher looked in the compartment and found a wallet containing various papers, including a temporary receipt and two photographs, each of which depicted a male Negro with a female Negro.
Daniel Robinson, an employee of a used-car agency, about six months previously had sold a 1959 Chevrolet, license number QFC 223 to a person who looked like defendant and who was with a woman at the time of the purchase. The man used the name of John Manassa and the Woman the name of Jo Ann Manassa. Each signed his name to the contract in the presence of Robinson and said that they were married. Handwriting exemplars of defendant and Jo Ann were executed and an expert examiner stated that the person who signed the contract Jo Ann Manassa also made out the Jo Ann exemplar, that the signature 'John J. Sesser' on the vehicle purchase order and security agreement were written by defendant.
The business records of a motel showed a registration for two people at 11 p. m. July 26, 1967, in the name of John Sesser of 2135 Piru Street, with automobile licensed number QFC 223. The torn match book which Jo Ann left in the police car was a match book given out by the motel.
On August 3, 1967, some of the employees of Aetna Finance Company, Roger Peterson, Dennis Hoehn and Nancy Edwards, were asked to come to the police station and view certain men in the lineup and after being told by an officer to be certain of their choice and not to be influenced by the decision of anyone else, each of the employees present, out of the presence of the others, identified defendant as the robber in question. A deputy public defender representing the defendant's interests was present with the employees in the jail.
Defendant testified that he and Jo Ann were not married but occasionally spent the night together, that they had purchased the car together because it was against his parole conditions to own a car, that he had suffered two previous felony convictions, that he had not told his parole officer about the car, that he could not marry Jo Ann because she was under age, that on the night of July 27, 1967, they stayed together in the heretofore mentioned motel and that he was not the robber.
Appellant now asserts that the evidence is insufficient to support the judgment of conviction, that the search of his automobile was unlawful and that his representation by counsel at the lineup was violative of due process.
The appellant was positively identified by four of the persons robbed at gun point at the Aetna Finance Company and he was shown to have been an owner of the get-away car parked nearby the scene of the robbery. The evidence of guilt was overwhelming. (See People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Rosoto, 58 Cal.2d 304, 321, 23 Cal.Rptr. 779, 373 P.2d 867; People v. Saterfield, 65 Cal.2d 752, 759, 56 Cal.Rptr. 338, 423 P.2d 266; People v. Hillery, 62 Cal.2d 692, 702, 44 Cal.Rptr. 30, 401 P.2d 382; People v. Cooper, 221 Cal.App.2d 448, 452, 34 Cal.Rptr. 519; People v. Sinshiemer, 182 Cal.App.2d 103, 108, 5 Cal.Rptr. 740.)
With reference to the search of the car it is clear that there was probable cause to make the search under the circum stances People v. Griffin,
People v. Lewis, Cooper v. State of California, People v. Webb,Appellant was represented by counsel at the lineup and such counsel, so far as the record indicates, conducted himself properly and fully represented the interests of appellant.
The attempted appeal from the order denying the motion for return of property is dismissed.
The judgment is affirmed.
WOOD, P. J., and LILLIE, J., concur.