People v. Payne

Opinion

An information charged defendant with robbery (Pen. Code, § 211) and alleged that he was armed with a deadly weapon, an automatic gun, at the time of the commission of the offense and with a concealed deadly weapon (automatic gun) at the time of arrest. He was found guilty of first degree robbery and not to be armed at the time of the commission of the offense but armed at the time of arrest. He appeals from the judgment.

Around noon on September 12, 1967, a salesgirl at Hartfield’s store brought defendant to Billy Luck, credit manager, to make a credit application. Luck gave him an application; they stood face to face across the counter from each other. Defendant did not complete the application but asked Luck to take a look at some coats he wanted to purchase at the store’s cash desk located in the center of the floor; they walked out on the floor. Luck noticed defendant’s hand placed inside a brown paper bag resting on the cash desk; the bag made a thud on the counter as defendant said, “I want you to go back there and get the money” and shoved the bag with his hand in it over the counter; he handed a second bag to Luck. At first Luck thought it might be a joke but after defendant said, “Did you hear me?” and repeated his statement, and a cashier said, “Come on, Mr. Luck, get the money. We are going to get robbed.” he complied. Luck walked to the safe about 10 feet away. The cashier saw defendant take a shiny object off the cash desk and place it in his pocket; the object with which defendant had been fiddling flashed when it was taken from the bag. Luck then returned with the money in the paper bag; it consisted of singles, rolls of coins and envelopes containing money and deposit slips bearing the name “Hartfield Store,” totaling $3,000. Defendant turned to the door, warned them not to call police and left.

The store detective, Oscar Dunbar, was next door drinking a coke; Mrs. Jordan, a window trimmer, came in and told him something was happening at Hartfield’s; in front of the store he found Luck who told him that “the man is going around the corner that just robbed the store” and Mrs. Jordan yelled, “He is just going around the corner. He is just going around the

Defendant neither testified nor offered a defense.

Appellant’s sole contention is that the evidence is insufficient to support a finding of probable cause to arrest him thus the automatic pistol and the two paper bags containing the money were illegally seized as incident to an unlawful arrest. He argues that Dunbar did not see him leave or near the store and he was first observed by him a block away on another street, and Dunbar had no particular description of the robber other than “a man carrying two bags” and relied upon what others told him in making the arrest.

At the outset of the trial during the direct examination of Mr. Luck, the prosecutor proceeded to question him concerning what the store employees told Dunbar when he arrived directly after the robbery; defense counsel objected and the prosecutor stated, “There is no issue on probable cause, your Honor. I won’t go into this. You will stipulate there is no issue on probable cause, counsel?” and the defense counsel replied, “No issue on probable cause.” Relying upon the stipulation, the prosecutor abandoned further questions concerning the matter. In light of this stipulation, which eliminated the issue of probable cause from the trial and foreclosed the offering of further proof thereon, appellant is now in no position to urge the issue of probable cause on appeal. To permit appellant to raise it now under circumstances where further examination of witnesses at trial might have produced further proof on the issue is to allow him to gamble on the results of the trial while inviting error. Such tactics are not permitted. (People v. Harris, 274 Cal.App.2d 826 , 831 [ 79 Cal.Rptr. 352 ].) Moreover, no objection was made when Dunbar identified the gun (Exh. 1) as the weapon he removed from defendant’s pocket upon frisking