People v. De Arkland

• Decision Date: 10 June 1968
• Docket Number: Cr. 13704
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Daniel De ARKLAND and Edward John Kenney, Jr., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 144

69 Cal.Rptr. 144

262 Cal.App.2d 802

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Daniel De ARKLAND and Edward John Kenney, Jr., Defendants and Appellants.

Cr. 13704.

Court of Appeal, Second District, Division 1, California.

June 10, 1968.

Edward B. Stanton, Van Nuys and William O'Neil Carlisle, Venice, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from judgments of robbery.

In an information filed in Los Angeles on October 28, 1966, in court I each of the defendants was charged with robbing Douglas Parker on September 29, 1966, of certain personal property. It was also charged that defendants were armed with deadly weapons at the time of the commission of the offense. In count II each of defendants was charged with kidnaping for the purpose of robbery in that they did kidnap and carry Douglas Parker in order to commit robbery on September 29, 1966. It was also charged that defendants were armed with deadly weapons at the time of the commission of the offense and that De Arkland was armed with a concealed deadly weapon at the time of his arrest. Each defendant pleaded not guilty to each count. In a jury trial it was found that each defendant was guilty of robbery as charged in count I of the information; that each defendant was armed at the time of the commission of the robbery. Each defendant was found not guilty of the kidnaping charge. Each defendant was sentenced to the state prison. A timely notice of appeal from the judgment with reference to each defendant was filed. A purported notice of appeal from an order denying a motion for a new trial was also filed.

A re sume of some of the facts is as follows: At around noon on September 29, 1966, Douglas Parker, owner of the Continental Coin Company, was seated at his desk in the front of his North Hollywood store when appellants De Arkland and Kenney entered. Neither of the men was masked; De Arkland, who remained near the front door, had a small black moustache. Kenney, attired in continental trousers and low boots and wearing a glove on one hand, approached Parker who looked up and inquired, 'May I help you?' In response Kenney pointed a gun at Parker, who was then only about four feet away, said 'Don't move; stay right where you are. I've done this four times before,' and ordered him to open the safe. When Parker answered that the safe was unlocked, De Arkland walked around behind the counter to the entrance to the store's back room and Kenney, still on the other side of the desk with his gun pointed at Parker, ordered him into the back room. Parker passed close to De Arkland, also armed, who ordered him to lie down on the floor and not move, then tied him up. Parker told the robbers that he didn't carry a gun, but he expected his partner to return to the store at any minute. Shortly thereafter Don Clark entered the store to deliver some stamp catalogues; Kenney waited on him and agreed to see that Tim Frein would receive the catalogues as requested. Parker, who was lying near the back door, then heard coins clinking together and felt a heavy object, probably a bag, being dragged over his legs. Finally, the robbers departed through the back door and he heard a car start and drive away. Before long a customer found and untied Parker who immediately reported the robbery of $326 in cash and rare coins of $8,000 retail value to the police. Parker described De Arkland to the police as 40 years of age, medium complexioned, about five feet seven with black hair and wearing a moustache, cap and black gloves. He described Kenney as about 30, male, medium complexioned, having dark brown hair and wearing olive pants and high black boots. He identified both from a selection of police photographs shown to him shortly after the crime.

At 5:45 p.m. on October 1, 1966, Officer Lester Clark, pursuant to a police teletype message received that day from the Los Angeles Police Department, arrived at De Arkland's apartment with several other officers to apprehend De Arkland, who had been described as extremely dangerous. While Officers Kearns, Mulderrig, and Zine went up to the second floor apartment, Officer Clark guarded the stairs below. Upon the signal that De Arkland had been found, Clark went up to the apartment where he found the door open and De Arkland standing in the doorway in front of a woman. Lieutenant Mulderrig advised De Arkland that he and his companions were police officers and that De Arkland was under arrest for armed robbery and kidnaping. Then Officer Clark and two other officers entered and searched the apartment in which they found a collection of coins, an unloaded .22 Ruger revolver, and a black attache case containing a loaded .32 caliber Brescia automatic pistol and a .25 caliber Browning automatic.

Although the officers had no arrest warrant, they based De Arkland's arrest upon teletype information from Los Angeles identifying De Arkland. In the police lineup Parker immediately identified De Arkland on the day he was apprehended. He also identified De Arkland and Kenney in court at the trial, and he identified the .32 caliber automatic from nicks or scratches on the barrel which he had noticed at the time of the robbery. Parker's customer, Donald Clark, also identified Kenney at the trial as the individual to whom he had handed the catalogues on the day of the crime.

William A. Clark, who was the manager of the Sacramento apartment house where De Arkland had been residing prior to the robbery, testified that on September 27 or 28, 1966, De Arkland said he would be in Los Angeles over the next few days. De Arkland's apartment was above and adjacent to Clark's apartment. Although Clark was at home all evening September 28 and all but a few hours on the evening of September 29, he did not see De Arkland on either evening.

Numerous defense witnesses testified in an attempt by defendants to establish the alibi that they were in Sacramento during the period when they allegedly were in Los Angeles committing the charged crime. The accuracy of the defense witness' time-recollections was frequently uncertain and their credibility stood against the clear and positive identifications made by the victim, Parker, and his chance customer, Donald Clark.

Patrick Kenney, appellant Kenney's 18-year old brother, lived with Kenney and his wife. He testified that Kenney was at home all day on September 28, except for about an hour when he visited De Arkland's apartment, and that Kenney also spent that night at home. De Arkland testified that on the morning of September 28 he arose, checked his mail and went shopping. When Kenney came over later they drove to Auburn in an unsuccessful attempt to find David Loux, then returned promptly. That evening De Arkland thawed a large chunk of liver at his apartment and, keeping a few slices for himself, gave it to a friend, Jeanette De Hart, manager of an adjoining apartment building, who recalled the incident. Later De Arkland visited Kenney's home and upon his return De Arkland went out on his second floor apartment balcony and talked to Robert Winger and Rick Clark, who were beside the pool below. Winger, who was a neighbor of De Arkland's recalled seeing and speaking to De Arkland at about 8 p.m. on September 28.

On September 29, the day of the crime charged, Kenney went to De Arkland's apartment immediately after breakfast. On the way there, he noticed a new apartment building nearby and talked to the manager, Feren Branum, and even attempted to place a deposit on one of the apartments, although the building was incomplete. Mrs. Branum testified that she recalled his visit. She claimed that she refused his proffered deposit because it was too soon and she had no rent schedules, but Kenney mentioned seeing a diagram containing such schedules in the lobby.

In any event, Kenney proceeded on to De Arkland's apartment where he met his codefendant and they drove out to the Sierra Pre-Casting Company plant near Auburn, California, to leave there some plans for a proposed marina real estate development. When they arrived at the plant, De Arkland discovered that he had forgotten some pictures, so the men returned to De Arkland's apartment to obtain those photographs. Before they left his apartment again, at about 1:30 p.m., De Arkland, who was an operating engineer, received a call from Herman Eppler, dispatcher for the union local, that he had a job for a bulldozer operator, which De Arkland declined. Eppler's 'work order sheet' for September 29, 1966, showed that he received a call from a contractor about 1:30 p.m. ordering a member who could operate a bulldozer, and because De Arkland was the first man on the list in this specialty, he was called first. The 'out of work list' showed a call to De Arkland on September 29 and before the date the symbol 'R' appeared while after the date was marked the symbol 'NA.' Eppler attempted to explain the ambiguity, testifying he had already written 'NA' for 'no answer' before De Arkland answered the call and refused the job, so he then wrote 'R' for 'refused' before the date.

Kenney and De Arkland claimed that they then returned to leave the pictures at the Sierra Pre-Cast plant. Siegfried Goepner, an employee of the company, said he saw De Arkland in the yard about 2 or 3 p.m. that day asking for the owner, Mr. Santoni, and he recognized Kenney who had been seated on the passenger side of De Arkland's automobile when he drove up. De Arkland introduced himself and was told Santoni was away, so he left the plans and pictures in Santoni's office. Goepner gave the matter small attention because he had just discovered that a load of concrete had been ruined by the addition of too much water. Fred Santoni testified that he saw De Arkland and another man in De...