People v. Anderson

• Decision Date: 24 May 1966
• Docket Number: Cr. 9317
• Court: California Supreme Court
• Parties: , 414 P.2d 366 The PEOPLE, Plaintiff and Respondent, v. Robert Page ANDERSON, Defendant and Appellant. In Bank

Page 238

51 Cal.Rptr. 238

64 Cal.2d 633, 414 P.2d 366

The PEOPLE, Plaintiff and Respondent, v. Robert Page ANDERSON, Defendant and Appellant.

Cr. 9317.

Supreme Court of California,

In Bank.

May 24, 1966.

Rehearing Denied July 20, 1966.

Rufus W. Johnson, San Bernardino, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James and Albert W. Harris, Jr., Asst. Attys. Gen., S. Clark Moore, Edward P. O'Brien and Michael R. Marron, Deputy Attys. Gen., for plaintiff and respondent.

McCOMB, Justice.

This is an automatic appel (Pen.Code, § 1239, subd. (b)) from a judgment, after trial before a jury, on verdicts finding defendant guilty of (a) murder of the first degree, (b) attempted murder of three men, and (c) robbery of the first degree, and imposing the death penalty.

Facts: About 10 a.m. on April 18, 1965, defendant entered a pawnshop in San Diego attended by two employees, Theodore Swienty and Louis Richards. He had less than $2 in cash and a diamond ring on which he still owed approximately $60 on a conditional sales contract and for which he realized he could obtain only about $10 cash.

Defendant first asked for .30--.30 ammunition, and when Swienty informed him that he had none, defendant inquired about some rifles on display. At defendant's request, Swienty removed from its case a Remington .30--.06 with a telescopic sight attached and handed it to defendant for inspection. After examining the gun, defendant asked its price and was told it was $105. Defendant remarked that the price was quite steep, but declared, 'I'll take it.' He then asked for a box of shells, which Swienty procured and placed on the counter with the gun.

While Swienty was totalling the price of the two items, defendant reached over and seized the gun and ammunition. When Swienty protested, defendant said he wanted to see if the shells fit and started loading the gun as he backed away from the counter. Swienty moved toward defendant, but halted when he heard the rifle bolt slam shut and found himself staring into the barrel of the gun. Pointing the loaded rifle at Swienty from point blank range, defendant said, 'I'm going to blow your brains out, you son of a bitch.'

The other salesman, Richards, said to defendant: 'If you want it, you can have it. Take it and go.' As defendant swung the gun away, Swienty ducked for cover below the counter and heard Richards exclaim, 'Don't shoot,' followed almost immediately by a rifle blast.

A passer-by, Antonio Cidot, witnessed the murder. He heard the rifle blast and saw Richards fall to the floor, face down, near the open doorway of the pawnshop.

After the fatal shot was fired, Swienty came from behind the counter where he had taken refuge and ran up some stairs to another portion of the shop. As he reached the top of the stairs, he heard another shot fired in the room behind him. He then ran through the upstairs storage rooms to the front of the building, opened a window, and shouted for the police.

Hearing footsteps on the stairs, Swienty fled to the rear of the building and hid under a bed in a small, darkened room. He heard someone walking stealthily within a few yards of his hiding place and heard him mutter, in a voice which he recognized as that of defendant, 'He ain't here. Son of a bitch.'

The footsteps retreated, and for the next four hours, as he lay beneath the bed, Swienty heard shots fired from within and without the building, and heard several calls from the street advising defendant to come out of the shop with his hands up. He also heard both the explosion of grenades and shotgun blasts within the shop, and suffered from the tear gas used by the police.

Officer McClennon, of the San Diego Police Department's burglary detail, arrived on the scene and, hearing that defendant had a gun, immediately took cover nearby. From his vantage point, he observed Officer Duncan edging toward the door of the pawnship with handgun drawn. He could also see the victim on the floor, and saw defendant inside carrying a rifle with a telescopic sight and moving toward the doorway.

Officer McClennon saw defendant stop as Officer Duncan moved to the entrance of the pawnship. When the two men confronted each other, defendant raised his rifle and fired at Duncan. Duncan fired back; both men then retreated, neither apparently having been hit.

Sergeant Allen Brown, of the San Diego Police Department, made several appeals over a loudspeaker encouraging defendant to surrender. No response was made to any of these appeals, and the intermittent firing from within the building gave no indication of any intention on defendant's part to surrender.

When both tear gas and concussion grenades failed to flush defendant from the building, Sergeant Brown, in company with other officers, finally entered the shop while sporadic gunfire was coming from within and proceeded toward the rear staircase. As Brown started up the stairs, a shot rang out from the vicinity of the top of the stairs, travelling in his direction. He retreated and shouted to defendant that another concussion grenade would be thrown and advised him to surrender to save his life.

After the grenade was thrown, the sergeant began to work his way up the stairs. Once again a shot rang out, this time quite close to him. He retreated, and then started back up the stairs. As he reached the top, he heard a metallic click, which sounded like a trigger, and, looking in the direction of the sound, saw defendant crouched with a pistol in his hand in a nearby darkened room. He pursued defendant to a rear storage area, where he felled him with a shot and apprehended him.

Defendant was wearing an empty gun belt, and on the floor beneath him were two handguns. Several rifles, a shotgun, and other handguns were found strewn about both the main part of the shop and the upper floor. These weapons had previously been in their proper storage cases; defendant had smashed the top of a glass storage case to obtain the handguns. The murder weapon was recovered on the second floor, and various types of live and expended ammunition were found on both floors.

Several large denomination keys had been depressed on the cash register. Before the murder the last cash register transaction had been $3, and the large denomination keys had not been depressed that day prior to the shooting.

Defendant admitted he saw Swienty run up the rear staircase of the shop and admitted following him; he admitted punching the cash register keys in an attempt to break in and obtain money; he admitted shooting the box of ammunition taken with the murder weapon, taking rifles from the racks on the second floor, and breaking into the glass pistol case; and he admitted firing at Officer Duncan, but said he did not attempt to hit him but was, rather, trying to keep him from entering the pawnshop.

Questions: First. Was the evidence sufficient to support the robbery conviction?

Yes. From the evidence, the jury could reasonably have found that when defendant entered the pawnshop, he had no intention of purchasing a rifle and ammunition; that once the salesman had produced the desired weapon and ammunition, he took both items without ever having made an offer to pay for them; that when the salesman sought the return of the rifle and the ammunition, he loaded and aimed the weapon at the clerk and threatened him; that in fear of his life, the salesman stopped his attempt to retrieve the merchandise, ducked behind the counter when defendant swung the rifle away from him, and fled up the back steps after the fatal shot at Richards; and that when Richards told defendant he could have the rifle without payment and then pleaded with him not to shoot, he was murdered by a bullet from that same rifle.

Defendant contends that since he obtained possession of the rifle without the use of force or fear, there can be no robbery as a matter of law.

In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that the crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. (People v. Ketchel, 59 Cal.2d 503, 523(10), 30 Cal.Rptr. 538, 381 P.2d 394; People v. Kendrick, 56 Cal.2d 71, 90(18), 14 Cal.Rptr. 13, 363 P.2d 13; People v. Phillips, 201 Cal.App.2d 383, 385--386, 19 Cal.Rptr. 839; People v. Reade, 197 Cal.App.2d 509, 512(3), 17 Cal.Rptr. 328.)

Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner's immediate presence, as defendant did here, the crime of robbery has been committed.

In People v. Phillips, supra, 201 Cal.App.2d 383, 19 Cal.Rptr. 839, the defendants drove into a gasoline station with the intention of committing a robbery. The plan was for one of them to order gasoline and detain the attendant at the car, while the other was to pretend to go to the men's room but actually enter the service station and seal the contents of the cash box.

After the attendant had pumped gasoline into the tank, the defendant in the car confronted him with a rifle, saying, 'Move and your dead.' The attendant, in spite of the threats, upon seeing the other defendant rummaging in the office, ran around the back of the car into the office, where a struggle took place. The robber broke loose, and he and his companion drove away, with the attendant calling out to them that they owed $2.98 for the gasoline. They were subsequently charged with robbery for the taking of the gasoline.

Admittedly, no force or fear had been used by the robbers in obtaining possession of the gasoline; the threats, the display of the rifle, and the struggle with the attendant all took place after the transfer of the gasoline to the car. The contention was made that...