Majority
These are appeals from two judgments of conviction of the appellants of the felonies of attempted robbery (Pen. Code, §§ 664, 211), assault with intent to commit murder (Pen. Code, §217), and robbery of the first degree, (Pen. Code, § 211a), with specified admitted prior convictions as charged in a three-count information.
The judgments appealed from differ only in their specification of the prior convictions involved and in the circumstance that the jury did not find that appellant Patillo was personally armed at the time of the commission of the crimes, while it found that appellant Fritz was so armed. In addition it did find that both appellants were personally armed with concealed loaded hand guns at the time of their arrest. Both appellants were sentenced in these judgments to imprisonment in the state prison for the term prescribed by law on the three counts.
Shortly before 3 :30 a.m. on the night of January 1, 1965, John Ortiz, the operator of the Stardust cocktail lounge, located in the City of Downey, in Los Angeles County, California, in the company of his friend Boy Berry, was stopped by three masked men while crossing the parking area toward his parked car. He had just locked up this establishment. The first of these masked men pointed a .45 automatic at Ms stomach and ordered Ortiz and Berry to go back in the cocktail lounge and open the safe. Two of these three masked men were appellants, and two, at least, of them were armed with drawn hand guns.
When the group reached the front door of the establishment, Berry stuck his hand in one of his pockets, which prompted one of the masked men to start searching him. While the attention of the three masked men was so distracted Ortiz unlocked the front door, jumped through it and then tried to close and bolt it from the inside, by dropping down on one knee and pushing it shut with his body. Two of the three masked men prevented this by pushing against the door from the outside and the one armed with a revolver fired
Meantime, one of the masked men had taken Berry’s wallet from him and two of them had then slugged him. Appellant Fritz had lifted his mask from his face in Berry’s view, to talk to his two confederates. Immediately following Ortiz ’ escape. Berry saw the three masked men flee in an automobile. In their haste to get away they ran their car directly over the curb alongside the street in front and banged the rear portion of its underside quite loudly. The ear went on down the street, without lights, but with sparks flying from the underside of its rear end.
At approximately 7 :25 a.m. the same morning, the Downey police recovered an automobile gas tank a mile or less from the scene of the armed robbery, and about 3 o’clock that afternoon found the getaway car, without its gas tank, abandoned in a church parking lot. In this car they found, among other things, a dealer’s certificate of sale showing that the purchaser of the car was one Christopher Crain, whose address was a specified one in Compton, California. Thereafter, the Downey police went to this address, ascertained it was an apartment house, then checked with the manager and from him learned that apartment 25 of this apartment house was then rented to a Christopher Crain and one Carter. They also learned that these two tenants corresponded in physical appearance to the general description of two of the three armed robbers which they had obtained from the aforementioned victims.
On Sunday, January 3, 1965, the Downey police thereupon established a stake-out in a vacant apartment next to apartment 25, but after extended surveillance by rotating teams of officers, they decided to abandon this surveillance and await word from the apartment • house manager when and if the occupants of apartment 25 returned to that apartment. About 9 p.m. on the following evening, such word came. Two Downey police officers responded. These officers ran up to the apart
The two policemen then searched the persons of the arrestees and the apartment and found one loaded gun, a .32 automatic, in the refrigerator. This was close by the spot they had found appellant Patillo upon their unannounced entry. They took appellant Fritz downstairs into their car parked in front of the apartment house. There he told them that Christopher Crain was really his brother Don, who had been arrested in the apartment with him and in response to an inquiry as to how the four of them had gotten to the apartment, said they had come in two pickup trucks—a 1963 CMC and a 1961 Ford Falcon Ranchero. The police then went to the parking area of the apartment house and there found these two pickup trucks, which they then searched for some 40 minutes. They found nothing in the one truck but in the Ranchero they found, concealed under the right front seat, two more loaded guns, a .45 automatic and a .38 Enfield revolver.
The three loaded hand guns found by the police at the scene of the arrest were all introduced into evidence and identified by the victims as having been used in the commission of various of the crimes charged. In addition, the aforementioned victims identified appellants as their assailants.
Appellants attack their convictions on two fundamental grounds—that their arrest was unlawful, and that the search and seizure of the two loaded hand guns, introduced in evidence and obtained from the Ranchero, were unconstitutional. Appellants also question the sufficiency of the evidence generally to support their convictions, but the summarization of that evidence, which has just been made, shows this challenge to be without merit. Furthermore, for reasons which will now be set forth, neither of the appellants’ two fundamental grounds for reversal are valid.
With respect to the lawfulness of their arrest, appellants first contend that they were arrested without warrant and without probable cause. It is true that they were arrested without warrant, but it is not true that they were arrested without probable cause.[1] Penal Code, section 836, sub
1 This first contention could be disposed of on the ground that appellants waived it at the trial. The appellants ’ counsel said ‘' I don’t ques *12 tion there was probable cause to make an arrest'. . : However, Ms subsequent arguments to the trial court indicate that he did not then intend to waive this contention, ■
Probable or reasonable cause for an arrest for a felony under the aforementioned Penal Code, section 836, subdivision 3, is such knowledge by the arresting officer at the time of the arrest of facts which would lead an ordinarily reasonable and prudent man then to believe and conscientiously entertain an honest and strong suspicion that the person he was arresting had committed a felony. (People v. Ingle, 53 Cal.2d 407 , 412 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ].) Here, the name of the owner of the getaway car which the police had, was not his true name and the description they had of the armed robbers was most general in nature. However, the arresting officers were entitled to rely upon all the information their fellow officers had obtained for them about the suspects (People v. Melchor, 237 Cal.App.2d 685 , 690 [ 47 Cal.Rptr. 235 ]; People v. Schellin, 227 Cal.App.2d 245 , 251 [ 38 Cal.Rptr. 593 ] hear, den., cert. den. 379 U.S. 1003 [ 13 L.Ed.2d 704 , 85 S.Ct. 726 ]), and .whether they had probable cause to make the arrests under review, .is to be determined, not by the independent sufficiency of each single item of information in their possession at that time, but by the overall
Appellants next challenge the legality of their arrest on the basis that, admittedly, the statutory requirements of Penal Code, section 844 were not complied with in the manner of their arrest in that before kicking the door of apartment 25 in, the arresting officers did not demand admittance and explain the purpose for which they desired admittance. This statute permitting forcible entry in order to make an arrest is a codification of the common law rule to that effect and it has long been recognized in California that its statutory form carries with it, by implication, the same exemptions from compliance with these requirements, prior demand and explanation, that were developed in the common law with respect to the rule itself, namely, that these prior requirements need not be observed by the arresting officers, where, in good faith, they believe that to do so would either endanger their personal safety or increase substantially the suspects’ chances for escape. (People v. Maddox, 46 Cal.2d 301 , 306 [ 294 P.2d 6 ], cert. den. 352 U.S. 858 [ 1 L.Ed.2d 65 , 77 S.Ct. 81 ]; People v. Smith, 63 Cal.2d 779 , 797 [ 48 Cal.Rptr. 382 , 409 P.2d 222 ].)
The record shows that both of these conditions for exemption from the two requirements distinctly apply in this ease. The arresting officers presumably knew at the time they arrived to arrest appellants that appellants had committed armed robbery and that one of them had used his hand gun in that robbery and wounded one of the victims by firing through a door. They thought, therefore, that in all probability the suspects would be armed and would be likely to use those arms. Furthermore, they knew that there were both front and rear exits to the apartment house and with only two officers immediately available to make the arrest they could not separate to cover both exits simultaneously. Under these circumstances, as one of the officers testified, they had to rely
We now turn to appellants’ second basic contention that the search, which produced the loaded hand guns from the Ranchero which were introduced in evidence and identified to the jury as the weapons used in the commission of various of the crimes charged, was an unconstitutional one. In support of this contention appellants first argue that the arresting Downey police officers had no power, incident to the arrest, to search anything except appellants’ persons for the weapons (Pen. Code, § 846) because they made both the arrest and the search of the vehicle in question in county area, just outside of Compton and admittedly outside of Downey. Consequently, at this location, they had only the arrest and search powers of private persons and not of peace officers.
Clearly, this was the law at the time of the arrest and search before us. (People v. Martin, 225 Cal.App.2d 91 , 93-95 [ 36 Cal.Rptr. 924 ], hear. den.)[2] However, at the trial appellants did not object to the arrest and search on this specific ground and we will therefore not consider this argument on this appeal. (People v. Talley, 65 Cal.2d 830 , 836-837 [ 56 Cal.Rptr. 492 , 423 P.2d 564 ].)
This brings us to the final question to be answered in this opinion, was the search by the police of the Ranchero a constitutional search as incident to appellants’ arrest?[3] If the place of arrest had been the Ranchero and the place searched
2 It is no longer the law. Since September 1965, Penal Code, section 817 has contained the following language: “The authority of a peace officer extends to any place in the state (a) as to a public offense committed or which there is probable cause to believe has been committed within the political subdivision that employs him or (b) if he has the prior consent of the chief of police or person authorized by him to give such consent if the place is within a city or the sheriff or person authorized by him to give such consent if the place is within a county.”
3 Before the trial court the People contended that consent was given to make this search and attempted to concede that it was not made incident to the arrest. The trial court ruled against this contention of the People and held instead that the search was a lawful one as incident to an arrest. We are bound by the trial court’s ruling on the consent issue on this appeal, particularly as the Attorney General has not challenged it. But we note that in any event the consent relied on by the People at the trial level was at best ambiguously given while appellant Pritz was handcuffed, and according to Pritz, did not extend to the Ranchero. In fact the police officer involved testified that he spoke to appellant Pritz ‘ ‘ to advise him we were going to shake the trucks down. ’ ’
The basic reason for the greater latitude in meaning accorded the phrase “place of arrest” when that place is a car, as opposed to its being a fixed piece of property, is the great mobility of cars. (Cooper v. California, 386 U.S. 58 [ 17 L.Ed.2d 730 , 732, 87 S.Ct. 788 ].) The wisdom of this view can readily be seen from the facts of the case before us. Here the police, immediately upon the arrest involved, searched the persons of the arrestees and the apartment in which they found them and uncovered but one gun. The police presumably believed that two or three guns had been used in the armed robbery occasioning the arrest; therefore they natur
4 Apparently the arrestees owned the ear involved in each of the eases cited. This is not true in the instant case. However, the real ownership of the car searched is irrelevant to the point under consideration so long as the arrestee had, as here, the use and control of the vehicle searched immediately prior to his arrest. Otherwise a premium would he placed on suspects traveling in cars other than their own, such as stolen ears.
For the foregoing reasons the judgments of conviction are affirmed.
Ford, P. J., and Moss, J., concurred.
Appellants’ petitions for a hearing by the Supreme Court were denied September 27, 1967. Peters, J., was of the opinion that the petition should be granted.
Cases cited
- People v. Privett 55 Cal.2d 698 at 701 p. 12
- People v. Ingle 53 Cal.2d 407 at 412 p. 12
- People v. Melchor 237 Cal.App.2d 685 at 690 p. 12
- People v. Schellin 227 Cal.App.2d 245 at 251 p. 12
- People v. Gamboa 235 Cal.App.2d 444 at 448 p. 13
- People v. Brice 234 Cal.App.2d 258 at 266-267 p. 13
- People v. Valles 197 Cal.App.2d 362 at 368 p. 13
- People v. Cartier 170 Cal.App.2d 613 at 617-618 p. 13
- People v. Allen 196 Cal.App.2d 655 at 659-660 p. 13
- People v. Maddox 46 Cal.2d 301 at 306 p. 13
- Mills v. Levine 352 U.S. 858 p. 13
- People v. Smith 63 Cal.2d 779 at 797 p. 13
- People v. Martin 225 Cal.App.2d 91 at 93-95 p. 14
- People v. Talley 65 Cal.2d 830 at 836-837 p. 14
- People v. Henry 65 Cal.2d 842 at 845 p. 15
- People v. Webb 66 Cal.2d 107 at 114 p. 15
- People v. Green 235 Cal.App.2d 506 at 507-508, 513-514 p. 15
- People v. Carrigan 213 Cal.App.2d 607 at 608-609 p. 15
- People v. Daily 157 Cal.App.2d 649 at 653 p. 15
- People v. Burke 208 Cal.App.2d 149 at 154,158 p. 15
- People v. Burke 61 Cal.2d 575 at 577, 580 p. 15
- People v. Loomis 231 Cal.App.2d 594 at 598-599 p. 15
- Cooper v. California 386 U.S. 58 p. 15