People v. Superior Court of L.A. Cty.

Opinion

KAUS, P. J. Torres and Magallon were charged as codefendants with two counts of robbery. (Pen. Code, § 211.) In case No. 28699 the People have appealed (Pen. Code, § 1238, subd. (a)) from the order granting Magallon’s motion to dismiss (Pen. Code, § 995); in case No. 49080 they have petitioned for a writ of mandate (Pen. Code, § 1538.5, subd. (o)) to overturn the order granting Torres’ motion to suppress evidence. The motion to suppress was submitted on the preliminary hearing transcript, thus the facts in both of the matters before us are identical, although the standards for reviewing the trial court’s actions differ. (People v. Superior Court, 3 Cal.App.3d 476, 488 [83 Cal.Rptr. 771]; People v. Reynolds, 276 Cal.App.2d 825 [84 Cal.Rptr. 331].)

Audrey Sheedy and Glenda Foster testified that they were walking together on 6th Street in Los Angeles about 10:20 p.m., February 11, 1976, when their purses were snatched by two males of Latin descent. Both witnesses identified Torres as one of their assailants. They had previously identified him in a lineup the day after they were robbed. Neither could identify Magallon at the lineup or at the preliminaiy hearing. Sheedy identified People’s exhibit No. 1 as a photograph of the wallet she had had in her purse at the time of the robbery and People’s exhibit No. 2 as some rosary beads which were also in her purse when it was taken. Foster testified that the purse taken from her was depicted in People’s exhibit No. 3. She identified People’s exhibit No. 4 as a wallet which was in the purse at the time of the robbery.

[623]Torres and Magallon were passengers in the rear seat of an automobile which was stopped by Beverly Hills police officers because it lacked rear license illumination.1 Upon approaching the car, which contained a total of four male occupants, Officer Van Ausdelf observed a child’s small wooden baseball bat on the front seat between two of the car’s occupants. He saw a bicycle chain with a taped handle and a wire loop on the rear floorboard. The officer knew that such chains were used as weapons, the wire loop fitting over the user’s wrist and the tape being affixed to prevent cutting the user’s hand. There was also an iron bar about a foot long on the rear floorboard. When the driver was asked for his license he opened the car door. A regulation size baseball bat fell out of the car. Because of the variety of potential weapons available in the car, Van Ausdelf and his partner requested all of the occupants to get out, conducted a pat-down search and asked them all for identification. The only one who had identification was the driver.