People v. McCloud

California Court of Appeal Aug 18, 1983 No. Crim. No. 21235Published

Before: Elkington

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Holding. The court held that a mug shot does not constitute a "record or information obtained from a record" under Penal Code sections 13301 and 13302, and therefore its dissemination does not invalidate an arrest.

Issues

Whether the dissemination of mug shots by police constitutes a violation of Penal Code section 13302 regarding the unauthorized release of criminal history records.
Whether an arrest based on identification from a disseminated mug shot is invalid due to a lack of probable cause.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We accordingly hold that a mug shot is not a “record or information obtained from a record” within the meaning of the statutes here relied upon.”

“Defendants’ arrests and their fruits were accordingly not tainted by unlawful police conduct.”

Opinion

ELKINGTON, Acting P. J. Defendants Cornell McCloud and Byron McCloud were each convicted, upon a jury’s verdicts, of seven counts of jointly committed robberies (Pen. Code, § 211). The jury further found that in the perpetration of each of the robberies, Byron McCloud used a firearm (Pen. Code, § 12022.5), and that Cornell McCloud was armed with a firearm (Pen. Code, § 12022, subd. (a)). And each was found to have suffered a prior conviction of felony, within the meaning of Penal Code section 667.5, subdivision (b).

Each of the defendants has appealed from the judgment which was thereupon entered against him.

We have found no merit in either appeal and accordingly affirm the judgments. Our several reasons follow.

Evidence at defendants’ joint trial established that they had, on July 26, 1979, robbed the proprietor and an employee of a San Francisco beauty shop, and five of its customers. In the ensuing months defendants were [182]arrested on an unrelated felony charge, during the investigation of which they were believed by the police to be linked to many reported burglaries, and murder and other crimes. A San Francisco daily newspaper published a story, November 7, 1979, about defendants’ criminal activities and ran booking photographs (mug shots) of each of them with the story. Victims of the earlier beauty shop robberies independently recognized the photographs as those of the robbers, and so reported to the police. Defendants were thereupon charged with the beauty shop robberies also.

The jury’s verdicts, we opine, were adequately supported by substantial evidence upon the whole record. (See People v. Johnson (1980) 26 Cal.3d 557, 576-577 [162 Cal.Rptr. 431, 606 P.2d 738].)

We first consider the appellate contentions made by both defendants.

I. Both defendants assert that their arrest, being brought about by dissemination of confidential information, was without probable cause.

As previously noted, defendants’ arrests were brought about through the publication, in a daily newspaper, of their mug shots taken after some earlier arrest.

The instant contention is founded upon Penal Code section 13302, which states:

People v. McCloud

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