Opinion
For Opinion on Hearing, see 33 Cal.Rptr. 497, 384 P.2d 1001.
Paul Robbins, Oakland (under appointment of the District Court of Appeal), for appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, Eric Collins, Deputy Attys. Gen., San Francisco, for respondent.
SULLIVAN, Justice.
Defendant Alvin Maurice Parham was charged in an information with three counts of robbery (Pen.Code, § 211) and two counts of theft of an automobile (Pen.Code, § 487). A jury found him guilty on the first three counts of robbery in the first degree (Pen.Code, § 211a) and on the last two counts of taking an automobile for temporary use without the owner's permission (Pen.Code, § 499b) an offense included within the offense charged in said counts. The court denied his motion for a new trial but thereafter on the motion of the district attorney set aside the verdicts of the jury returned on the fourth and fifth counts finding the defendant guilty of violations of section 499b and ordered said counts dismissed. Defendant appeals from the judgment of conviction and from the order denying his motion for a new trial.
Defendant's notice of appeal was filed on January 9, 1962, and thus after the effective date of the 1961 amendments to section 1237 of the Penal Code (Stats.1961, ch. 850, § 5 in effect September 15, 1961) which, except in circumstances not here applicable, abolished an appeal from an order denying a motion for a new trial in criminal cases. The attempted appeal from the order denying a new trial must therefore be dismissed. (People v. Justice (1963) 211 A.C.A. 763, 765, 27 Cal.Rptr. 465.)
Defendant does not question the sufficiency of the evidence to support the judgment. We therefore propose to set forth the facts only to the extent that we deem necessary for a proper consideration of the issues before us.
The three counts of the information here under review relate to three separate bank robberies. On April 7, 1961, Dawn Capri, a teller employed at the Crocker-Anglo National Bank in Berkeley was robbed of $2,173. The robber, later identified as the defendant, came to the teller's window and presented her with a pink piece of paper having the appearance of a check. At the bottom were the typewritten words: 'Hand over $4500 in cash. Don't say a word or I will shoot.' When Mrs. Capri looked up at the defendant he opened his coat and she saw protruding from an inside pocket what appeared to be the handle of a gun. At the defendant's direction, she obtained a bank bag and put money in it. The defendant, taking the bag and the above-mentioned pink piece of paper, thereupon made his get-a-way. He was also identified later by Mrs. Green, another employee, and by Mr. Willbanks, an assistant manager.
On June 23, 1961, at approximately 2:00 p. m., Elinor Miller, a teller employed at the Bank of America office located on Webster Street in Alameda, was robbed of $35. This robbery is the subject of count three of the information. The robber, whom she later identified as being 'possibly' the defendant, came up to her window and displaying a red savings passbook, indicated that he was going to make a withdrawal. He then 'threw' a blank check in front of her upon which were the typewritten words: 'I am an armed man. I have a gun. Act natural, act as you always do.' On the figure side of the check were the typewritten numerals '35.' The check was white. She put $35 in currency on the counter. The man in front of her then demanded thirty-five hundred dollars. At this point, he threw open his coat and she saw a 'little gun' in the palm of his hand. She dropped to the floor in fright. One Yasmineh, her co-worker, saw her kneeling on the floor and crying. Learning that there had been a holdup, he went to the window, saw a man running toward a parked car with a bank bag in his hand, and saw him get in and drive away. This witness noted the license number of the car, as did Miss Hale, another employee. Yasmineh identified the defendant at the trial. Mrs. Miller, the teller, testified that the gun she had seen at the time of the robbery was similar to the one taken from the defendant when he was arrested. On the same day, June 23, 1961, approximately two hours after the robbery last mentioned, Irene Wainwright, a teller employed at the West Berkeley office of the Wells Fargo American Trust Company, was robbed of $790. The defendant is charged with this robbery in count two. Mrs. Wainwright saw a Bank of America check laid in front of her at her teller's window. On it were typewritten words stating in substance: 'This is a holdup. I want $3,500. Don't make a sound or I will shoot.' She looked up and saw the defendant who said 'I mean it.' She gave him about $800 in currency which he put in a cloth bag. As the teller turned away to get more currency, the robber left the window.
Pertinent also are certain circumstances surrounding the taking of two automobiles of which the defendant was found guilty under the counts four and five of the information. A Ford Thunderbird which was the subject of count four was taken from the parking lot at Golden Gate Fields at approximately the time of the first robbery on April 7, 1961. Although no direct evidence established its use by the defendant in connection with the robbery, the owner of the car surprised the defendant in the act of returning it to the parking lot. The defendant attempted to explain that he thought the car was his, got out of it with a money bag in his hand, and finally ran away. It developed that the motor had been started with a 'jump' wire.
The automobile used by the defendant at the time of the Bank of America robbery on June 23, 1961, was identified as a Ford Galaxie belonging to one Nell Clark who had parked it near her place of employment in Emeryville. It was taken at some time between 11:00 a. m. and 2:30 p. m. and subsequently discovered at about 4:15 p. m. at the foot of Powell Street in Emeryville.
As we shall discuss later in more detail, the defendant was arrested by Sergeant Donovan of the Emeryville Police Department at 1:30 p. m. on July 21, 1961, at the foot of Powell Street. He was then in possession of various incriminating articles: a red bank-passbook, a pink piece of paper, a bank bag, a pistol and two clectric wires. He was taken to the Emeryville police station where he was photographed and fingerprinted. Later that day he was brought to the Berkeley police station where he was placed in a police lineup attended by witnesses to the robberies.
Defendant's contentions on appeal may be summarized as follows: (1) That as a result of being denied the right to inspect the signed statements of identifying witnesses, he was deprived of a fair trial; (2) that as a result of an improperly conducted police lineup, the identification of the defendant by various witnesses was unreliable and prejudicial as a matter of law; (3) that the defendant's arrest was without probable cause and the search following the arrest neither reasonable nor legal; and (4) that the police methods used in obtaining a check from the defendant's mouth violated his constitutional rights. We discuss these contentions in order.
Discovery and production of witnesses' statements.
At the trial most of the witnesses identifying the defendant testified that they had given signed statements to agents of the Federal Bureau of Investigation. It also appeared that, with one exception, no signed statements were taken from such witnesses by the Berkeley police. This exception was Mrs. Capri, the teller at the Crocker-Anglo National Bank, whose statement was turned over to defense counsel by the prosecutor toward the close of the People's case in chief. It also appeared that Inspector Young of the Berkeley Police Department had been present during the interviewing of witnesses by the F.B.I. and had taken notes of the interviews. A transcript of these notes was delivered to counsel for the defendant at some time before trial.
During the prosecution's case in chief, counsel for the defendant made a demand upon the district attorney for the signed statements taken from the witnesses. The Counsel for the defendant thereupon caused to be issued and served a subpoena duces tecum directed to special agent Buchanan of the F.B.I. directing his appearance with the investigative file on the bank robberies. Agent Buchanan responded to the subpoena during the People's case in chief, accompanied by an assistant United States district attorney. The latter advised the court outside of the presence of the jury that agent Buchanan had no authority to produce the documents required by the subpoena because of order No. 3229 of the Attorney General of the United States, generally prohibiting the disclosure of confidential records and information of the Department of Justice. Agent Buchanan, thereupon being sworn, stated that he had turned over the records in question to the assistant United States district attorney and that he was not prepared to testify concerning them because of the above executive order. Defendant's motion to hold the agent in contempt was denied during the case in defense. Promptly upon such denial, the defendant moved that all testimony of witnesses whose signed statements had not been furnished the defendant be stricken from the record. This motion was denied. Defendant's motions for a mistrial and for a new trial predicated on these grounds were also denied.
Order No. 3229, revised, dated January 13, 1953 (18 Fed.Reg. 1368) provides that whenever an officer or employee of the Department of Justice is served with a subpoena or order for the production of materials or information in the files of the department, the United States Attorney or other designated person shall appear with the person upon whom the demand is made and inform the court or other issuing authority that such person is not authorized to produce or disclose such information or materials. Time must then be requested to refer the matter to the Attorney General and the matter must be then so referred. If the court declines to defer the matter or rules adversely on the claim of privilege asserted, the witness must 'pursuant to this order, respectfully decline to produce the material or information sought.' The above procedure was followed in the instant case.
Defendant claims that the above circumstances compel 'the conclusion that there was a working arrangement between local and Federal law enforcement authorities' and that 'through this chicanery defendant was denied a fair trial.' These claims are entirely without merit. There is simply nothing in the record to support defendant's theory of a conscious and calculated effort on the part of both groups of law enforcement officers to deny him discovery or production of the documents in question. Indeed the court noted that the district attorney had cooperated with the defendant in the preparation of forms to secure production of the statements and had complied fully with the order issued by the committing magistrate with respect to handing over to the defendant any statements of witnesses in the possession of the prosecution. It is further urged that the defendant had a right of access to the statements which was based on his fundamental right to a fair trial and that he could not be denied such rights merely because the statements were in the possession of the federal government and not the state.
It is settled that the defendant in a criminal case can on a proper showing compel the production during trial of written statements of prosecution witnesses in the possession of the People relating to the matters covered in their testimony. (People v. Riser (1956) 47 Cal.2d 566, 585-590, 305 P.2d 1; People v. Chapman (1959) 52 Cal.2d 95, 98, 338 P.2d 428; Funk v. Superior Court (1959) 52 Cal.2d 423, 424, 340 P.2d 593; People v. Estrada (1960) 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641.) It is also settled that production can be compelled prior to trial of such statements relating to the matters covered in the testimony of the witnesses at the preliminary hearing. (Tupper v. Superior Court (1958) 51 Cal.2d 263, 265, 331 P.2d 997; Funk v. Superior Court, supra; People v. Estrada, supra; cf. Powell v. Superior Court (1957) 48 Cal.2d 704, 707-708, 312 P.2d 698; Cash v. Superior Court (1959) 53 Cal.2d 72, 75, 346 P.2d 407.)
If this defendant had been prosecuted in the federal court, he could have invoked the Jencks Act (18 U.S.C.A. § 3500). Such statute permits defendant's demand for discovery or production only after the government witness has testified on direct examination. If the government elects not to comply with an order of production in respect to a statement or report from a government witness, the testimony of such witness shall be stricken from the record and the trial shall proceed unless the court in its discretion declares a mistrial. See e. g., Ogden v. United States (9 Cir. 1962) 303 F.2d 724.
It is obvious that the trial court could not compel production by the People of the witnesses' statements demanded by the defendant for the simple reason that they were not in the possession of the People. Nor had they ever been in the possession of the People. We do not have before us, and therefore need not consider, the situation where documents once in the possession of the People have been deliberately or otherwise removed or disposed of. It is also clear that the court was powerless to enforce obedience of the subpoena served upon agent Buchanan. The latter's refusal to comply with it was based on executive order No. 3229 (revised) of the Attorney General of the United States, which had been promulgated under the authority of Title 5 U.S.C.A. § 22. The United States Supreme Court has established the validity of such an executive order and has expressly held that an employee of the Department of Justice refusing to produce records of the department upon the basis of executive order No. 3229 cannot be held in contempt of court. (United States ex rel. Touhy v. Ragen (1951) 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417; see also Boske v. Comingore (1900) 177 U.S. 459, 20 S.Ct. 701, 44 L.Ed. 846; cf. Ex parte Sackett (9 Cir. 1935) 74 F.2d 922; see generally 8 Wigmore on Evidence (McNaughton Rev.1961), § 2378, subd. (b), pp. 800 et seq.)
United States ex rel. Touhy v. Ragen, supra, specifically upheld the validity of order No. 3229 of the Attorney General as filed May 2, 1946, pursuant to 5 U.S.C.A. § 22 and prior to its revision in 1953 as noted supra. The Supreme Court held that the Ragen case was ruled by Boske v. Comingore, supra, where the refusal of a deputy collector of internal revenue was based on an executive order of the same general character as order No. 3229. Not at issue and not decided in Ragen was the duty of the Attorney General himself to disclose information. Mr. Justice Frankfurter in a concurring opinion assumed that the Attorney General could be reached by legal process although 'what disclosures he may be compelled to make is another matter.' (340 U.S. 473, 71 S.Ct. 421.)
The trial court therefore committed no error in refusing to strike the testimony of the various identifying witnesses as defendant demanded. No legal reason supported such demand. Defendant cannot claim that he was entitled to the witnesses' statements as a matter of right merely because Conduct of police lineup.
After his arrest, the defendant was taken to the Berkeley Police Department where he was placed in a lineup and observed by the various witnesses later identifying him at the trial. There were six men in the lineup, including the defendant. All were Negroes. During the lineup, all of the men were required to turn to put on defendant's hat and coat, articles which were later referred to in descriptions given by the witnesses at the trial and introduced in evidence. Defendant complains that the foregoing procedure placed undue emphasis on the articles mentioned and that the witnesses necessarily identified the defendant as the only one whom the clothes fit. He claims that '[t]his method of influencing identification should, as a matter of law, be found prejudicial.' No authority of any kind is offered in support of the claim.
Defendant's argument is in reality one directed to the weight of the testimony given at the trial. Several witnesses gave unequivocal identifications of the defendant during the course of the trial. Mrs. Miller, the Bank of America teller, testified that the defendant was 'possibly' the man she saw at the bank. As said in People v. Harris (1948) 87 Cal.App.2d 818, 823-824, 198 P.2d 60, 63: 'It is not required that one accused of crime be identified to an absolute certainty or positively or in a manner free from inconsistencies. If the testimony of the identifying witnesses is worthy of credence and convinces the jury, the latter's finding is final unless the trial judge should with his intimate knowledge of the witness' behavior upset the verdict. [Citations.] It is not essential that the witness be free from doubt as to one's identity. He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime. The want of positiveness goes only to the weight of the testimony. [Citations.]' (See also People v. Cahan (1956) 141 Cal.App.2d 891, 897, 297 P.2d 715; cert. denied, 352 U.S. 918, 77 S.Ct. 214, 1 L.Ed.2d 124; People v. Abner (1962) 209 A.C.A. 542, 549, 25 Cal.Rptr. 882.) It was within the exclusive province of the jury to weigh the testimony given on the identity of the defendant and the robber and in so doing to consider each witness' manner of identifying the defendant at the lineup as an element bearing upon his positiveness of identification at trial. All of this was resolved by the jury and its finding of identity supported by substantial evidence is final. (People v. Harris, supra.)
Reasonable cause for arrest and search.
On July 21, 1961, at about 1:00 p. m., Sergeant Donovan of the Emeryville Police Department, while on patrol in a police vehicle, saw the defendant standing near some parked vehicles at the foot of Powell Street in Emeryville. Donovan had with him at the time a special bulletin of the Berkeley Police Department issued on April 26, 1961, introduced in evidence at the trial, giving an account of the robbery at the Crocker-Anglo National Bank on April 7, 1961, and a description and large composite sketch of the robber. He had also looked, that morning, at another copy of the bulletin which was posted on the police department's bulletin board. He testified that at the time of the patrol he was aware of both bulletins and of the description of the bank robber therein. He also testified that at the time he was aware of the fact that there had been a bank robbery on a previous
After driving by the defendant, Donovan made a U-turn, drove up to the defendant and asked the latter 'if he had some trouble.' The defendant replied that he had walked to the area on his lunch hour. Donovan asked the defendant for some identification and the defendant took out a money clip and handed Donovan a temporary operator's license. Donovan saw in the money clip a 'red or maroon' passbook and a 'pink piece of paper folded, like appeared to be a check.' He then wrote the name, address and description from the operator's license on his field interrogation card. He testified that at such time he connected the description in his own mind with the Berkeley police bulletin which he had seen 'on numerous occasions.'
At this point, the defendant told the officer that he had additional information in his car which was parked up the street. Parham then voluntarily entered the patrol car and the two men rode to Parham's car about a block and a half away. As Donovan drove out of the parking area, he radioed headquarters for assistance. The patrol car was brought to a stop behind the defendant's car. Both men got out and went up to Parham's car.
The defendant opened the front door on the passenger's side because the door on the driver's side was wired shut. He entered and sat on the seat, Donovan standing alongside. After various manipulations with a wallet which had been on the front seat, the defendant took out his money clip again and removing the pink piece of paper which the officer had previously seen put the paper in his pocket. Donovan asked him about the paper, and the defendant said it was a check. He made two requests to see the check whereupon the defendant took it out of his pocket and put it in his mouth. Parham then rolled over on the seat of the car, face down.
By this time, Officer Spongberg had arrived in answer to the radio call. Donovan and Spongberg wrestled with the defendant on the seat trying to get him to spit the paper out. According to Donovan, Spongberg 'held his mouth by pressing his fingers in on the cheeks.' Eventually the defendant spit out the paper. He was then removed from the car and searched, brought to the patrol car and taken to police headquarters. Donovan testified that when the defendant put the pink piece of paper in his mouth, it came to his mind that the defendant and the man described in the Berkeley police bulletin were one and the same. Shortly afterward and during the wrestling, Donovan placed the defendant under arrest. At the end of the cross-examination he was asked by the court: 'What was the reason you placed him under arrest?' Donovan replied: 'Seeing it was a check, I was naturally thinking of forgery or connected with a check offense.' At the conclusion of the proceedings the court made a comparison between the composite sketch of the robber in the police bulletin and a picture of the defendant taken on the day of his arrest and noted 'a remarkable resemblance' between them. The court then ruled that the arrest and search were legal.
Spongberg later testified before the jury as to the circumstances of the arrest. When he arrived at the scene in response to the radio call, he stood for awhile towards the rear of the car while the defendant and Donovan were talking. When he saw Donovan as well as the defendant inside the car, he moved up alongside the left hand door. He then saw that Donovan was wrestling with the defendant and was laying on top of the latter who was face down on the seat. He heard something mentioned about a check and heard Donovan In People v. Ingle (1960) 53 Cal.2d 407, 412-413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580 (cert. denied 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65), it is stated: 'Reasonable or probable cause for an arrest has been the subject of much judicial scrutiny and decision. There is no exact formula for the determination of reasonableness. Each case must be decided on its own facts and circumstances [citations]--and on the total atmosphere of the case. [Citations.] Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. [Citations.] Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt. [Citations.] It is not limited to evidence that would be admissible at the trial on the issue of guilt. [Citation.] The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. [Citation.]'
The evidence in the record amply supports the conclusion of the trial court that Sergeant Donovan had reasonable cause to make the arrest. As we have pointed out, Donovan had been informed of the bank robbery, had seen and carried with him a copy of the police bulletin, was aware of the composite sketch and description of the wanted robber, and knew that a car used in another robbery had been left in the general area. It cannot be denied that a 'man of ordinary care and prudence' possessing the information possessed by Donovan would have reasonably believed and entertained a strong suspicion that the defendant in front of him, furtively secreting something in his mouth, and answering the description of the wanted robber, was in fact the same person.
Defendant argues that certain evidence in the record shows that Donovan's testimony was 'incredible,' that it 'verged on perjury' and that it was inconsistent and implausible. Such arguments must fail here. An appellate court must accept all evidence and all reasonable inferences therefrom which support the trial court's determination of probable cause. (People v. Fisher (1960) 184 Cal.App.2d 308, 312, 7 Cal.Rptr. 461; People v. Rayson (1961) 197 Cal.App.2d 33, 39, 17 Cal.Rptr. 243.) The existence of probable cause for arrest was a matter for the determination of the trial court (People v. Fischer (1957) 49 Cal.2d 442, 446, 317 P.2d 967; People v. Boyles (1955) 45 Cal.2d 652, 656, 290 P.2d 535; People v. Walker (1962) 203 Cal.App.2d 552, 557, 21 Cal.Rptr. 692) based on the facts and circumstances presented to the officer at the time he is required to act (People v. Ingle, supra, 53 Cal.2d 407, 414, 2 Cal.Rptr. 14, 348 P.2d 577, cert. denied, 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65; People v. Walker, supra). The weight to be accorded the information in the possession of the officer and upon which he acts in making the arrest is to be determined by the trial court in the exercise of a sound discretion. (People v. Boyles, supra; Lorenzen v. Superior Court (1957) 150 Cal.App.2d 506, 510, 310 P.2d 180; People v. Fisher, supra; People v. Walker, supra.)
The instant case is distinguishable from People v. Macias (1960) 180 Cal.App.2d 193, 4 Cal.Rptr. 256, relied on by defendant, where it was held that the arresting officers 'did not have sufficient description of the Defendant also claims that the evidence obtained from the search of his person and his car was illegally obtained and should have been excluded. However, since, as we have pointed out, the defendant's arrest was lawful, a search of his person made as an incident to such lawful arrest was permissible. (People v. Ingle, supra, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 348 P.2d 577, cert. denied, 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65; People v. Simon (1955) 45 Cal.2d 645, 648, 290 P.2d 531; People v. Hammond (1960) 54 Cal.2d 846, 853, 9 Cal.Rptr. 233, 357 P.2d 289.) The contemporaneous search of the defendant's automobile in which he was at the time of the arrest was within the proper scope of the search and was also lawful as reasonably incident to the arrest. (People v. Miller (1959) 176 Cal.App.2d 571, 576, 1 Cal.Rptr. 656; People v. Daily (1958) 157 Cal.App.2d 649, 653, 321 P.2d 469.) Excepting the pink piece of paper or check which the defendant attempted to swallow and then spit out, we find no merit in defendant's claim that the remaining evidence produced by the search should have been excluded by the trial court. We proceed to discuss separately, as does defendant in his brief, the problem presented by the check.
Violation of due process.
Defendant claims that the methods used by the police in obtaining the check from his mouth were so offensive to a sense of justice and shocking to the conscience as to constitute a violation of his rights under the Fourteenth Amendment of the United States Constitution. Defendant relies upon Rochin v. California (1952) 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; and People v. Sevilla (1961) 192 Cal.App.2d 570, 13 Cal.Rptr. 714.
The incident here in controversy has already been alluded to in our account of the defendant's arrest. We deem it necessary to add certain pertinent facts: The record shows that in an effort to assist Donovan in getting the check from the respondent, Spongberg pressed his fingers against the defendant's cheeks. This was the testimony of both officers. Contrary to the contention now made by the defendant, Spongberg did not force his fingers into the defendant's mouth. This relevant testimony is as follows: 'Q. He was chewing? What did you do? A. Put my hands in his mouth. Q. Would you show us how you did it? A. On the side of the jaw. Q. Do it again. A. Putting my fingers in between his teeth, but using his cheeks. Q. Pressing the fingers of each hand against his cheeks? A. Between his teeth.'
Despite some uncertainty arising from the initial answer, we think that a fair construction of the foregoing testimony is that Spongberg applied pressure to the outside of the defendant's cheeks thus pushing them into the mouth area and between the teeth. Indeed the record shows that the defendant himself generally so testified although maintaining that it was done with great force.
The defendant also testified during proceedings heard out of the jury's presence on the entire issue of the arrest and search, that he put the check and two marijuana cigarettes in his mouth at the same time. He was able to swallow the cigarettes but finally spit out the paper. In the course of the struggle between the defendant and the officers, the defendant in some way managed to take a gun from his pocket and hide it by pushing it down into the seat of the car. As already mentioned, this gun and other objects were obtained in the search.
After he spit out the paper, the defendant came out of the car. Donovan stated that the defendant did this with 'very minor assistance,' that he was not unconscious and that he was able to talk clearly. The paper, variously described in the record as a 'glob' and 'pretty well wadded up or chewed' was found on the seat of the car. It had blood on it. Apparently the only evidence on the duration of the struggle is At the conclusion of the proceedings held out of the presence of the jury, the trial court found that the arrest and search were lawful. During these proceedings the court considered the defendant's claim that the check was obtained from him by undue force. By necessary implication, if not express statement, the court's ruling on the search contained a determination that the seizure of the check did not offend due process. The check or piece of paper in its chewed condition was received in evidence along with the other products of the search. Such exhibit has been brought before us. It consists of a number of fragments and blotches of paper, of a variety of sizes, some of which are detached, affixed to an exhibit card, with some apparent attempt to arrange them in their proper position. Visible are most of the printed letters of what purports to be 'Wells Fargo Bank American Trust Company,' 'Oakland,' 'Office' and other disconnected letters and numerals.
In the Rochin case upon which defendant relies, the Supreme Court of the United States denounced as offensive to the Due Process Clause, methods used by enforcement officers in obtaining evidence from a defendant as constituting 'conduct that shocks the conscience.' (342 U.S. 172, 72 S.Ct. 209). Rochin held that the method of obtaining evidence is a relevant consideration in determining its admissibility without any distinction as to whether the evidence is real or verbal. Thus the method of procuring real evidence from a defendant may be as constitutionally obnoxious as that which procures verbal evidence in the form of a coerced confession. The particular evidence in Rochin was a narcotic. Having failed to forcibly remove it from the defendant's mouth before he swallowed it, the officers subsequently obtained it by pumping the defendant's stomach. The Supreme Court said: 'This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents--this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.' (Rochin v. California, supra, 342 U.S. at p. 172, 72 S.Ct. at 209.)
Rochin condemns the use of brutal and shocking force in acquiring evidence used to convict the defendant. The principle which it announces is of course applicable to other circumstances less unusual or bizarre. Whether in any given situation the amount of force used was more than was reasonably necessary is a question of fact. (People v. Martinez (1954) 130 Cal.App.2d 54, 56, 278 P.2d 26; People v. Dixon (1956) 46 Cal.2d 456, 458, 296 P.2d 557; People v. Smith (1958) 50 Cal.2d 149, 151, 323 P.2d 435; People v. Sevilla, supra, 192 Cal.App.2d 570, 574, 13 Cal.Rptr. 714; People v. Dickenson (1962) 210 A.C.A. 137, 146, 26 Cal.Rptr. 601.)
In People v. Martinez, supra, 130 Cal.App.2d 54, 278 P.2d 26, the defendant when approached by police officers put a package of narcotics in his mouth and began chewing it. One of the officers 'placed a choke hold' on the defendant and ordered him to spit out the narcotics. A struggle ensued between the officers and the defendant in course of which they fell to the ground with him and he spit out the package. During this time the first officer kept the choke hold on him for a minute or two 'maybe less.' The court concluded that all of the above was done solely to retrieve the package, that it was choked out of the defendant and that the force used violated the defendant's rights to due process of law. His conviction was reversed.
In People v. Sevilla, supra, 192 Cal.App.2d 570, 13 Cal.Rptr. 714, the defendant also put narcotics in his mouth on the approach of the police. One officer placed his right arm around the defendant's neck. The two men then engaged in a whirling, rolling In People v. Erickson (1962) 210 A.C.A. 187, 26 Cal.Rptr. 546, the defendant, seated in his car, appeared to have put narcotics in his mouth on the approach of a police officer. The officer ordered him to spit it out and placed his hand on the defendant's throat, applying pressure to his throat or Adam's apple. The defendant gagged and coughed and an object appeared to come from his mouth. The court noted that the force used was less than that employed in People v. Martionez, supra, and that the cases were also different in that it was somewhat uncertain in Erickson whether the narcotic capsule later found on the seat of the car had come from the defendant's mouth. Nevertheless, following Martinez, the court reversed the defendant's conviction holding that 'the officer acted illegally in attempting to choke evidence out of defendant * * *.' (210 A.C.A. at p. 192, 26 Cal.Rptr. at p. 549.)
In the case before us there was an extended struggle between the defendant and the officers lasting from five to seven minutes. The testimony shows that the sole purpose of the activities of the officers was to get the paper out of the defendant's mouth. The evidence is without conflict that the defendant was neither resisting arrest nor attempting to flee. We may reasonably infer that he was, and appeared to the police to be, attempting to destroy evidence. However, there was no choking of the defendant in the sense that it occurred in Martinez, Sevilla and Erickson. Nor is there evidence that the pressure applied by Spongberg to the defendant's cheeks was of such force as to be the equivalent of the choking there condemned.
Nevertheless the evicence is uncontradicted that after an extended struggle, during which one officer was on top of the defendant and the other was at least part of the time applying pressure to his face, the latter officer, Spongberg, struck the defendant twice on the back of the neck with a police club. The officer's testimony is that he did not hit the defendant 'too hard.' This is but a vague and relative expression. It is clear from the testimony that the officer hit the defendant twice on the neck with the club and that after he did so, the defendant spit out the check. We think that, considered in the totality of its circumstances, this conduct of the officers resulted in a forcible extraction of evidence from the defendant in violation of his constitutional rights. In Martinez the court said: 'The question, however, is not how hard an officer may choke a suspect to obtain evidence People v. Martinez,
Distinguishable from the situation at hand are those situations where a key to the evidence is taken from the defendant's hand without unnecessary force (People v. Dixon, supra, 46 Cal.2d 456, 296 P.2d 557); where the defendant gives up the evidence practically on demand and after a short, slight struggle (People v. Dawson (1954) 127 Cal.App.2d 375, 273 P.2d 938); where, although the officer's hand was placed on the defendant's throat to prevent swallowing, there was no struggle, choking or injury to the defendant (People v. Sanchez (1961) 189 Cal.App.2d 720, 11 Cal.Rptr. 407); or where the officer tried to prevent the defendant from swallowing the evidence but did not choke him, the defendant having choked because of his own conduct in trying to swallow a large container of contraband (People v. Dickensen, supra, 210 A.C.A. 137, 26 Cal.Rptr. 601). Also distinguishable are cases like People v. Smith, supra, 50 Cal.2d 149, 323 P.2d 435, relied upon by respondent here, where on conflicting evidence the trial court found that the defendant had not been choked or subjected to other constitutionally obnoxious conduct. In the case before us, the evidence is not in conflict, but consists of the testimony of the officers themselves.
However, we fail to see how its admission in evidence, even though erroneous, was prejudicial to the defendant. It is not clear from the record why the prosecution offered the paper in evidence. It would appear to be relevant on the issue of identity, since the robber used a pink piece of paper to demand money at the Crocker-Anglo National Bank, a blank (but white) check for a such a note at the Bank of America, and a Bank of America check at the Wells Fargo Bank American Trust Company. The check admitted in evidence was a Wells Fargo Bank American Trust Company check but pink in color. This might have some connection at least with the Crocker-Anglo National Bank robbery but we fail to find anything in the record indicating an attempt to establish it. The check in evidence thus seems to have only some vague, general relevancy on the basis that the robber presented his demands on a check or pink piece of paper. The exhibit itself in its masticated condition seems to be ineffectual real evidence in the case.
On the other hand, there is overwhelming evidence of the defendant's guilt, the sufficiency of which he does not challenge here. A number of eyewitnesses identified the defendant as the robber and other exhibits in evidence supported the jury's finding that he was guilty. Thus the admission of the check in evidence could not have been prejudicial. As this court said in People v. Herman (1958) 163 Cal.App.2d 821, 827, 329 P.2d 989, 992: 'The introduction of illegally secured evidence does not per se require a reversal--it depends upon whether such evidence was prejudicial. People v. Valenti, 49 Cal.2d 199, 316 P.2d 633; People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505; People v. Felli, 156 Cal.App.2d 123, 318 P.2d 840.' After an examination of the entire cause, including the evidence, it does not appear to us to be reasonably probable that a result more favorable to the defendant would have been reached in the absence of the above error. We cannot say that there has been a miscarriage of justice. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)
People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641, disapproves of certain statements and implications made in People v. Valenti, supra. However, it should be noted that such statements relate to matters not pertinent to the instant case.
The attempted appeal from the order denying defendant's motion for a new trial is dismissed. The judgment is affirmed.
BRAY, P.J., and MOLINARI, J., concur.