People v. Vallee

Opinion

BRANDLER, J.

*

Statement of the Case

By information defendant and codefendant Shipman were charged in count I with burglary and in count II with receiving stolen property. A motion under Penal Code section 995 was argued and granted as to count I and denied as to count II. The information was amended to charge defendant with two prior felony convictions in Texas. Defendant was arraigned and denied both priors. A motion under Penal Code section 1538.5 was

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argued and denied. A motion to dismiss under Penal Code section 1382 was denied. Trial by jury was waived, and by stipulation the case was submitted on the transcript of the proceedings at the preliminary examination. Defendant was found guilty of receiving stolen property (count II); no disposition was made of the priors; defendant’s motion for a new trial was denied, probation was denied, and defendant was sentenced to state prison. Defendant appeals from the judgment.

Statement of Facts

Mrs. Higgins, an employee of Dr. Emery, who operates a private cancer clinic at 615 South Westlake, identified two photographs as those of a photocopy machine which was taken from the clinic and returned by the police.

Rudolf Williams, a Yellow Cab driver, picked up three passengers, Dennis, a transvestite, defendant, and codefendant Shipman on July 30, 1968, at 2711 Ellendale. The two men carried into the cab what looked like a typewriter wrapped with a towel or blanket. While in the cab Mr. Williams heard defendant and codefendant Shipman say that they had changed the tape or the ribbon of the machine. Mr. Williams was stopped by the police around 25th and Hoover because his taillight was out. The police asked the cab driver if everything was all right and he said, “Yes, as far as I am concerned.” The police asked the cab driver who the passengers were, and when the cab driver could not identify them the police looked inside the cab. Mr. Williams testified that when the police asked if they could look around he told them they could look in the cab at his trip sheet. Officer Bollinger testified that he stopped the cab on July 30 for two reasons, first because the right rear taillight was inoperative and secondly because an inoperative taillight is sometimes a signal that a robbery may be in progress and that the driver is in distress. The cab driver told the officers (after the cab was stopped) that Dennis had said he had picked up his typewriter and would it be all right to bring the typewriter with them in the cab. When the officer walked over to the cab he saw a machine exposed at both ends with a housecoat tied around it, and he formed the opinion that it was not a typewriter. The officer testified also that he had had prior information of numerous burglaries in that area of business-type machines. The officer asked defendant to alight from the vehicle so that he could investigate the possibility of a burglary and to insure that he had no weapons, because he was still not satisfied with the cab driver’s statement that he was not in distress since he had seen Dennis and the two men one hour earlier at Olympic and Alvarado. The officer identified a photograph of the machine as the photocopy machine that he had seen in the cab. Defendant and Shipman were arrested about 2:15 a.m.