Curtin v. Superior Court

BRAY, J.

Petitioner was charged jointly with one Howard Durham with the crime of robbery (violation of Pen. Code, § 211). At the preliminary examination both defendants were held to answer. The sole question presented here is whether the evidence showed probable cause of the guilt of the petitioner.

The sole witness was one George Caulfield. He testified that on Sunday night, October 12, 1947, he was in a certain bar in San Mateo County, and occupied a bar seat next to petitioner. She started a conversation with him by asking where he lived. After some conversation on other matters she mentioned that she had lived on a farm and was interested in horses. She suggested that he drive her to a place to which she had that day seen a car drive, with horses in back of it. She stated that she wanted to talk to the rancher and look over the place in general. "While in the bar, he noticed the defendant Durham sitting about 10 feet to his left where the bar made a right angle turn, so that Durham was facing him. Durham was staring at him, or at the person alongside of him. Petitioner mentioned the fact that she knew one individual in the barroom, but did not indicate who he was, nor did she indicate Durham. Caulfield and petitioner entered the former’s ear, and he drove up the highway and then up a dirt road for about 50 yards. It was very dark. Petitioner suggested that they walk from there over to a hill. Both got out of the car. Petitioner suggested leaving her purse and coat in the car, which she did. They walked about 200 yards from the car to the top of a knoll and stood there five to seven minutes looking at the lights in the distance. The road upon which they stopped the ear continued on, and two or three blocks up there was a ranch house. There were no lights in it, but lights from the distant airport reflected in its windows. They saw no horses. They turned back towards the car, and when about 50 yards from it, Caulfield saw someone approaching in the dark. It was too dark for him to identify who was approaching. The man flashed a light in Caulfield’s eyes, and he then saw a gun next to the flashlight. The man said, “Stand where you are. ’ ’ Both petitioner and Caulfield raised their hands. The man ordered petitioner to take Caulfield’s wallet. Caulfield said that it was in his left rear pocket. Petitioner took the wallet out of his pocket. He asked the man to leave the wallet and take the money, and the man ordered petitioner to take the money out of the wallet. This she did, throwing the money on the ground and returning the wallet to Caulfield. (Later he found that there was still $20 remaining in the wallet.) Apparently the amount taken was $30. The man told him to lower his hands a bit and told petitioner to take the watch off his left hand. The sleeve of his jacket covered the watch, and petitioner stated, “He has no watch.” Then petitioner found the watch, and either threw it on the ground or gave it to the man. He could not say whether or not the man ordered petitioner to make a further search for the watch before she found it. The man then asked petitioner where her purse was. When she told him, the man ordered her to go back to the car and get it. She walked back to the car, the man and Caulfield remaining where they were. After the first few steps, because of the darkness Caulfield could not see petitioner until he saw her leave the car with her purse and coat in her hand. This he saw because the car was silhouetted against the distant lights. On leaving the car she ran for about two or three steps and disappeared in the darkness. The man then ordered him to walk back to the car, the man following him. The man ordered him to get into the car and wait five minutes, and then started walking towards the highway. After waiting a minute and a half or so, he turned the car around, drove to the highway and then to the San Bruno police station. Three or four mornings later he identified defendant Durham as the man he saw in the bar, and, by his voice, as the man who held him up.

Section 872 of the Penal Code provides: “If, however, it appears from the examination that a public offense has been committed, and there is sufficient cause to believe the defendant guilty thereof” the magistrate must hold the defendant to answer. (Emphasis added.)

“ ‘Probable cause’ is a state of facts which inclines a man of ordinary prudence conscientiously to entertain a strong suspicion that a prisoner is guilty. (People v. Novell, 54 Cal.App.2d 621 [129 P.2d 453]; In re McCarty, 140 Cal.App. 473 [35 P.2d 568].)” (People v. Wisecarver, 67 Cal.App.2d 203 [153 P.2d 778].)

“It is said in Greenberg v. Superior Court, 19 Cal.2d 319, 322 [121 P.2d 713]:

“ ‘It has long been settled in most jurisdictions that an indictment is invalid if it is unsupported by any evidence before the grand jury. (See cases collected in 59 A.L.R. 567.) If there .is some evidence to support the indictment the courts will not inquire into its sufficiency (see cases collected in 59 A.L.R. 573)

“It has long been settled that in the analogous ease of an information the evidence before the committing magistrate is not subject to the same test as that before a trial jury in a criminal case and probable cause may be found for the holding to answer although the evidence does not establish the defendant’s guilt beyond a reasonable doubt. All that is required is a reasonable probability of the defendant’s guilt. (People v. Mitchell, 27 Cal.2d 678, 681 [166 P.2d 10]; People v. Wisecarver, 67 Cal.App.2d 2Ó3, 209 [153 P.2d 778]; 7 Cal.Jur. 982.)

“The Supreme Court in Greenberg v. Superior Court, supra, did not explain whether it thought that the same rule should apply in the case of an indictment as in the case of an information. It at least indicated that no severer rule should be applied when it used the language above quoted.

“We are satisfied that the evidence against petitioner Stock if given before a committing magistrate would support an information. We must hold (quoting the language of the Greenberg case) that ‘there is some evidence to support the indictment.’ ” (Davis v. Superior Court, 78 Cal.App.2d 25 [177 P.2d 314].)

7 California Jurisprudence, page 982, section 120, states: “The term ‘sufficient cause’ used in section 872 of the Penal Code, means about the same as the term ‘reasonable and probable cause’ in the habeas corpus act. The term ‘probable’ has been defined to mean ‘having more evidence for than against; supported by evidence which inclines the mind to believe, yet leaves room for doubt.’ And the term ‘reasonable or probable cause’ has been defined to mean such a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion that the person accused is guilty.”

Does the evidence in this case meet the test of inclining “a man of ordinary prudence conscientiously to entertain a strong suspicion” (People v. Wisecarver, supra, p. 209) that petitioner is guilty? I think it does.

The suggestion of going to the place where the holdup took place came from petitioner. Ostensibly she was going there to talk to the rancher about horses, and to look over the place; and it is a reasonable inference from the evidence that she directed the victim as to the location of the ranch to which she wanted to go. Instead of driving up the road to the ranch house, when the car stopped petitioner suggested that they walk from where they were. When they reached the top of the knoll she no longer evinced any interest in horses, the rancher or the ranch. It is true that the ranch house appeared dark from the distance, but, if her interest, as expressed, was not a mere ruse to get the victim to that particular place, she would have at least suggested that they approach a bit nearer than two or three blocks to see if there might not be a light in the rear of the house. It was then only shortly after 9 o’clock in the evening. When they left the car, they were presumably (in view of her statements at the bar) going to walk to the ranch house where she could talk to the rancher and look the place over; yet she left her purse in the car. In a few moments the holdup man appeared. After obtaining petitioner’s assistance in robbing Caulfield, the robber permitted her to leave their immediate presence and go to the car to get her purse. The car was 50 yards away. It was so dark that she could not be seen during the time she traversed that distance. A holdup man who was particularly concerned about her and her purse would have accompanied her back to the car and taken Caulfield with him. As a matter of fact, as soon as petitioner made her getaway the man did return to the car with the victim. When petitioner disappeared, the robber said nothing, and apparently showed no concern whatever over that fact. Any one of these circumstances, taken alone, might not be sufficient to justify a belief that petitioner was acting as the robber’s confederate, but, taken together, they raise a very strong suspicion in that respect. Taking all of petitioner’s actions with the fact that the holdup was accomplished by the man who sat opposite her and the victim in the bar, and at a place selected by her for reasons which she entirely disregarded on arrival there—they are not the actions of a woman innocent of knowledge that a holdup is to be accomplished. While it is possible that in spite of the whole situation she might be innocent, nevertheless the circumstances justify a reasonable person in drawing a strong suspicion of her guilt. Nor is a reasonable person’s suspicion of petitioner’s actions lessened by the fact that in fyg-an-n'ning the victim’s wallet, she overlooked a $20 bill (whether purposely or accidentally does not appear), nor by the fact that, at first, she reported that the victim did not have a watch. As pointed out by Caulfield, the elastic band of his jacket sleeve concealed it, and, in his opinion, made it hard to find.

Petitioner relies upon the decision in Greenberg v. Superior Court, 19 Cal.2d 319 [121 P.2d 713]. However, in that case there was no evidence concerning the defendant Greenberg introduced at the grand jury hearing. ‘1 The transcript of the testimony upon which the indictment was based contains no evidence even remotely supporting the charges made against petitioner.” (P. 321; emphasis added.) But the rule of law established by that case applies here. “If there is some evidence to support the indictment, the courts will not inquire into its sufficiency. ...” (P. 322; emphasis added.) Likewise in the case of Dong Haw v. Superior Court, 81 Cal.App.2d 153 [183 P.2d 724], where the court held that the “transcript fails to disclose any legal evidence to support the indictment” (p. 155) the court endorsed the rule of the Green-berg case and said, “. . . the courts will not inquire into its sufficiency if there is some evidence to support the indictment . . .” (p. 158; emphasis added.) While the evidence in our case would not be strong enough to support a verdict of guilty (such evidence is not required at a preliminary examination (Davis v. Superior Court, supra [78 Cal.App.2d 25] ; People v. McRae, 31 Cal.2d 184 [187 P.2d 741])) it is strong enough to constitute “some evidence” to support the charge, and hence its sufficiency will not be inquired into.

It cannot be said as matter of law that it would be unreasonable for a man of ordinary caution to believe that the combination of suspicious circumstances here would not occur unless the petitioner were in on the crime. At least, such a combination is so unlikely to occur, if petitioner were innocent, that even if it might be consistent with innocence, it nevertheless would cause a reasonable person to entertain a strong suspicion that this was not the exceptional situation of innocence, but the more usual and likely one of guilt.

The alternative writ is discharged and the petition for a writ of prohibition is denied.

Ward, J., concurred.