People v. Cerda

The defendant, John M. Cerda, was convicted by a jury of two counts of forgery (Pen. Code, §470), and a third count of possession of a fictitious check with intent to pass it. (Pen. Code, § 475a.) The record shows that he and a eodefendant, Robert Richard Lopez, concocted what they apparently thought was a well-organized plan to issue numerous forged cheeks in the Bakersfield area. Unhappily for the defendants, they did not reckon on the efficient working of the Bakersfield Police Department and the faith in local law enforcement agents of the owners of business establishments who were damaged.

Several felonies preceded those for which convictions were secured. The Star Automatic Transmission Company in Bakersfield was burglarized over a weekend and among the articles stolen was a Paymaster cheek protector. The burglary was discovered by the owner, Mr. Edward F. Wolf, when he opened his place of business on Monday, May 2. This check writer, serial number 3702809, later turned up in the posses

Another burglary in the Bakersfield area followed on May 4. When Bobert Hiebert of Hiebert’s Wheel and Brake Shop opened his store on the morning of May 5, 1966, he noticed that the desk drawers in the office desk were open, the window in the waiting room had been broken and glass was scattered throughout the room. The burglar, or burglars, had stolen his check book; it was a loose-leaf type of book, the inserted checks, being three to a page consecutively numbered, were drawn on the main branch of the Community National Bank in Bakersfield. All printed checks contained both the business name and business address of the shop, and were numbered consecutively from 1001 to 1300. Approximately three hundred checks were stolen. Among the significant checks introduced at the trial were checks numbered 1032, 1030, 1024, and 1019. The check book was ultimately found, after Cerda’s arrest, in his room; several numbered checks were missing, including the foregoing.

The owner of The Pood Spot Market in Bakersfield, John Bindley, testified that on May 5, 1966, he was working at the check stand of the grocery store when two men of Mexican descent approached after picking up $8 or $10 worth of groceries from the shelves; they put the groceries on the cash register stand, -and presented one of the Hiebert checks, later identified by Officer Munoz as the Hiebert check numbered 1032. The payee was Joe M. Melendez and the signature of the owner was pretended to be that of Bobert Hiebert. Mr. Bindley asked the purported purchasers for identification. He was shown a health club card, bearing the name of Joe M. Melendez, the specified payee. Mr.' Bindley requested a driver’s license, but as the party said he did not have one with him, Bindley went into the back room and made a telephone call to Hiebert’s Wheel and Brake Shop. Mr. Hiebert told him that he had not signed the check and that his shop had been burglarized. When the grocery man returned to the check stand, he found that the two purported purchasers had left. Mr. Bindley then called the Bakersfield Police Department, and Officer Munoz came to the store within a few minutes.

Mr. Munoz, a little later, brought some photographs to the store and out of the group of seven or eight Mr. Bindley

Later, on May 5, 1966, a person of Spanish or Mexican descent came up to the counter where Mary Sinichko was working in Bruce’s Discount House and asked her to cash a Hiebert check for $186.42 dated May 4; the payee’s name was Joe M. Melendez; it was apparently signed by Robert Hiebert; when she asked for identification, he showed a gun permit, a Selective Service card, and a temporary driver’s license, all in the name of Joe Melendez. Mrs. Sinichko noticed that the man who presented the check had a tattoo of a bug or spider on his right arm above the wrist; that he was about 5 feet 9 inches in height and of Mexican descent. Mrs. Abraham, wife of the owner of the store, who was in the office with Mrs. Sinichko, directed her to cash the check for the full amount; $186.42 was paid to the person who purported to be Joe M. Melendez; he indorsed the check in the Melendez name in the presence of the two women.

Claud Yeargan, an officer with 10 years experience in the Bakersfield Police Department, had, in the course of his duty, visited The Pood Spot Market and The Miracle Market, where an attempt had also been made to cash a check, and also Bruce’s Discount House, from which he had pieced together an account of duplicate Mexican males and the automobile which they had used. In his police car, he passed the 1000 Block on East Third Street at about 8 :30 p.m. He observed a pink or salmon-colored 1957 Pontiac parked in front of the house at 1019 Bast Third Street; one person sat on the passenger side of the car, which was facing east, while the police car was passing in a westerly direction. As Officer Yeargan went by the house, he noticed that another man got into the driver’s side of the car. and it then started to leave the area. The officer made a “U” turn and followed the vehicle as it moved north onto AugUsta Street. Officer Yeargan stopped the Pontiac on Virginia Street; he saw that there was no license

Lopez had liis wallet in his hand; he took money but of it, as well as some papers, and he was making waving motions with the wallet and its contents, causing the officer to think he might be attempting to toss some money or the wallet out of the open window; however, Lopez only threw one paper out of the window.

Officers Netherton and Henkle soon arrived. When Henkle got into the police car with Lopez, and Officer Yeargan looked outside the car and found an insurance company card in the street below the window, he asked Lopez why he dropped it; the latter specifically denied that he had done so.

Officer Yeargan had prior information, by official briefing, that an attempt had been made at The Food Spot Market to pass a check which had been taken in a burglary from Hiebert’s Wheel and Brake Shop; that a suspect, Robert Lopez, had been named as a participant, that a description of his automobile had been given as a pinkish-colored Oldsmobile which had a temporary license number, and that the Lopez home address was 1019 East Third Street. When the officer had gone to Bruce’s Discount House with this information, he was also given supplemental information including a partial description of the man who cashed one of the checks there.

At the trial there was an objection to the introduction of evidence secured by Officer Netherton on the ground of lack of probable cause. Outside the presence of the jury the judge determined, after lengthy testimony, that the evidence should be admitted and so ruled.

Netherton testified that when he arrived at the scene, he asked Yeargan what he wanted him to do, and he said. “Watch the fellow in the front. Watch Mr. Cerda.” Nether-ton then asked Cerda for some identification; Cerda gave him a draft card and a Social Security card with the name John Cerda on them. Netherton asked if he had further identification. As Cerda was looking through his wallet, the officer had the flashlight shining into it and among the contents was what appeared to be a folded check. The officer then asked Cerda to

Incidentally, Joe Melendez testified at the trial of the case that his wallet had been stolen and that he did not know the people connected with Hiebert’s Wheel and Brake Shop.

Detective Langfield arrived on the scene at about 9 p.m.; when he got out of his ear, he went to Cerda and cheeked his right arm near the wrist for the tattoo, the description of which had been given to him by Mrs. Abraham and Mrs. Siniehko of Bruce’s Diseoimt House; the tattoo was there. Langfield then informed Cerda that he was under arrest for burglary and for passing a forged check. He carried on an investigation of the contents of the car, searching the driver’s compartment, the passenger area and the trunk of the vehicle; when the trunk was opened, a Paymaster check protector with a green cover was discovered; it was the machine which had been stolen from The Star Automatic Transmission Company. After Langfield left the scene of the arrest, he obtained a valid search warrant entitling him to search the residences of Lopez and Cerda. In Cerda’s bedroom was found the stolen check book from Hiebert’s Wheel and Brake Shop.

It is not claimed by appellant that the evidence is insuffi

A law enforcement officer is justified in stopping a pedestrian, or the driver of an automobile, for questioning under circumstances short of probable cause for arrest. If the investigation then reveals probable cause, the officer may arrest the suspect and conduct a reasonable search of his person and the vehicle which he is using. (See People v. Mickelson, 59 Cal.2d 448 , 450 [ 30 Cal.Rptr. 18 , 380 P.2d 658 ] ; People v. Machel, 234 Cal.App.2d 37 , 42-43 [ 44 Cal.Rptr. 126 ] ; People v. Rogers, 241 Cal.App.2d 384 , 387 [ 50 Cal.Rptr. 559 ] ; Kolbrek and Porter, Law of Arrest, Search and Seizure, ch. XXXIII, pp. 257-280.)

When he stopped the 1957 Pontiac, Sergeant Yeargan knew that the check book from Hiebert’s Wheel and Brake Shop had been stolen; that there had been an attempt to pass a Hiebert check at The Food Spot Market; that Robert Lopez was suspected by the detective division of the police department of The Food Spot Market attempt, and that his home was at 1019 East Third Street. Lopez was identified by a photograph as one of the two Mexican males who brought in the Hiebert check. A police broadcast had been made giving a description of Lopez and also a partially correct description of his automobile said to be a pinkish-colored car with a temporary license plate. Sergeant Yeargan had also gone to Bruce’s Discount House where he secured a description of the man who cashed the Hiebert check there. The officer then went to Lopez’s home address at 1019 East Third Street and found a salmon-colored, 1957 Pontiac parked in -front. One Mexican male was sitting on the passenger side of the car and another Mexican-type man got in the driver’s side of the pink automobile as he passed. When Yeargan stopped the car no license plates were visible, and the driver identified himself as Robert Lopez. While waiting .help, from-other officers, Yeargan saw Lopez.furtively-drop an insurance card, bearing the name of Richard Vela, out of the car window. Certainly, there was

When Yeargan stopped the car and found that Lopez was the driver, knowing that Lopez was a prime suspect, knowing that the defendants had used a car similar in description in their activities, it was certainly reasonable that he also detain Cerda for questioning. He knew that felonies had been committed by persons who had very probably used this particular Pontiac; he knew that more than one male was involved in the crimes. How could he have failed to detain Cerda at this stage when properly investigating the crimes as a law enforcement officer? (People v. McVey, 243 Cal.App.2d 215 , 218-219 [ 52 Cal.Rptr. 259 ].)

Officer Nether ton, upon his arrival at the scene, had knowledge of the burglary of Hiebert’s Wheel and Brake Shop and the asportation of the 300 business checks. He had learned on the radio that two people who appeared to be of Mexican descent were cashing Hiebert checks at Bruce’s and at The Miracle Market, using the false identification of Joe M. Melendez. He knew that these latter documents consisted of a temporary driver’s license, a gun permit, and membership and business cards. He also had a description of a pink or salmon-colored Pontiac or Oldsmobile vehicle used by the suspects. His knowledge that there were two Mexican-appearing persons attempting to cash Hiebert checks, that one of them was Lopez, and that they were driving about in an automobile matching, at least to a significant degree, the broadcast description of the vehicle, gave him reasonable and probable cause to continue the investigation, detaining Cerda in the meantime. Ultimately, these, with additional factors, gave the police reasonable and probable cause to arrest Cerda for passing worthless cheeks. When Nether ton asked if he had further identification, the appellant opened wide a wallet and, aided by the flashlight of the officers, looked through the . papers in it. Use of the flashlight, of course, did not make this a search. (People v. Gibson, 220 Cal.App.2d 15 , 23 [ 33 Cal. Rptr. 775 ].)

There was no force used, and no demand made,

When it was apparent to the officer that this man, companion of a known participant in several felonies, had in his poeketbook papers which had been used in connection with the felonious attempt to cash one of the cheeks, the net was closed, and there was confirmation of a reasonable ground to arrest Cerda. (People v. Talley, 65 Cal.2d 830 , 835 [ 56 Cal. Rptr. 492 , 423 P.2d 564 ].)

The arrest of Cerda was doubly justified when Detective Langfield arrived and noted that there was the tattoo of the bug or spider on his right wrist, which had been observed at the time he cashed the forged check at Bruce’s Discount House. By that time, there had been two arrests for reasonable cause, that of Lopez, who was the owner and driver of the automobile, and that of his passenger Cerda. The officers were authorized to search the car as an incident of the arrests; and that search developed the fact that the check protector which had been stolen from Star Automatic Transmission was in the trunk. A search warrant to permit a search of the homes of the two defendants was secured, and the check book of Hiebert checks was found in the home of Cerda.

When Mrs. Hazel Abraham, one of the prosecution’s witnesses and wife of the owner of Bruce’s Discount House, finished her testimony, the court said to her: “All right, Mrs. Abraham, you may be excused. Say ‘Hello’ to Mr. Abraham.” This was an impropriety, not consistent with a trial judge’s expected demeanor in the presence of a jury, but we cannot deduce reversible error from this contretemps. An examination of Mrs. Abraham’s testimony does not indicate the expression of any strong personal feeling by her or her husband against the defendants; as a witness she stated uncontradicted facts calmly and with no show of animosity. A judge’s acquaintanceship with the husband of a witness, though irrelevant, could scarcely influence a jury in carrying out its sworn duty to appraise the facts and determine the guilt or innocence of the persons being tried.

The judgment is affirmed.

Gargano, J., being disqualified, did not participate.

Appellant’s petition for a hearing by the Supreme Court was denied October 25, 1967.