People v. Glover

DAVID, J. pro tem.

*

After a jury trial, appellants were each found guilty of attempted robbery in the first degree. (Pen. Code, §§ 664, 211.) Glover, who admitted three prior convictions, was found to have been armed during the attempt. On March 13, 1967, each was sentenced for the term prescribed by law, and thereupon appealed.

The direct evidence of Glover’s attempted holdup of the Regal Gas Station at Seventh and Geary in San Francisco was unimpeached. He was arrested in fresh pursuit by passing motorcycle Officer Neville, after the gas station attendant, Krushinsky, directed him toward the fleeing Glover.

With Officer Neville in pursuit, Glover ran north on Eighth Avenue, and suddenly angled toward the curb where a 1960 Ford Thunderbird was parked. Its driver, appellant Roberson, was looking back at Officer Neville, and attempting to start the vehicle.

Officer Neville, gun in hand, directed Glover to stop; and directed Roberson to “place his hands, keep his hands where I could see them and get out of the car.” Roberson complied, asked why he was stopped, said “that he hadn’t done anything.” “Mr. Glover had stated something to the effect that I was stopping the wrong man, that he hadn’t done anything. I asked Mr. Roberson at this time why he was parked at this location. He stated he was just waiting for his friend who had gone around the corner to use the restroom. At this point, Mr. Glover asked Mr. Roberson for the sweater. He said, ‘Can I ask him’ for his sweater, that he was cold. To which Mr. Roberson complied . . . The sweater was in the back seat of the car. He reached in and got it ... he put the sweater on.”

The admission into evidence of these actions and conversations of the two appellants does not, as claimed, violate the rules of

Miranda

v.

Arizona,

384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].

Roberson was not in custody, but only in temporary detention for interrogation as to the reason for his presence there. No probable cause as to him had arisen, when he gave his exculpatory statement.

(Terry

v.

Ohio,

392 U.S. 1, 22 [20 L.Ed.2d 889, 906, 88 S.Ct. 1868].) In this period of tempo