People v. Clark

• Decision Date: 11 July 1967
• Docket Number: Cr. 12105
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred M. CLARK, Defendant and Appellant.

Page 569

60 Cal.Rptr. 569

252 Cal.App.2d 479

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred M. CLARK, Defendant and Appellant.

Cr. 12105.

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

July 11, 1967.

Hearing Denied Oct. 5, 1967.

Caton J. Machamer, San Diego, for appellant by appointment of Court of appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was indicted with two codefendants for the murder of Roberto Jordan (§ 187, Pen.Code) and the armed robbery of Robert Crosley (§ 211, Pen.Code); he was convicted of both crimes and the death penalty was imposed. Following an automatic appeal, the judgment as to defendant was reversed by the Supreme Court and the cause remanded for a new trial (People v. Clark, 62 Cal.2d 870, 44 Cal.Rptr. 784, 402 P.2d 856). Tried to a jury, it again found defendant guilty of first degree murder and first degree robbery and that he had been armed at the time of the commission of both crimes. Following the penalty trial, the jury fixed the penalty at life imprisonment; the trial court sentenced defendant to life imprisonment on the first count and for the term prescribed by law on the second, the sentence to run concurrently with that imposed on the first count. Defendant appeals from the judgment.

Inasmuch as appellant raises no question relative to the penalty phase of the trial, we set up only the evidence offered on the issue of guilt. Around 10 a.m. on November 29, 1962, defendant went into a Safeway store, approached an employee named Cecil Houghton and stuck a gun in his stomach announcing that it was 'a stick-up' and ordering him to 'go to the safe.' When he told defendant he was not the manager, defendant took him around the store until they found Robert Crosley. During this time he heard a click, the gun being cocked. With Crosley was the manager of the meat department, Thomas Geneway. As Crosley identified himself, defendant lifted the side of his trench coat (Exh. 3) and showed them his gun in a holster strapped to a gun belt (.22 caliber pistol (Exh. 2)). Told by defendant 'This is a holdup. Let's go to the safe,' Crosley turned to Geneway and said, 'Let's go.' Defendant marched the two men to the outside the store where the safe was located against the wall. Crosley was very nervous but finally was able to open it. Defendant took a paper bag from the produce counter and ordered Crosley to put in it the money, consisting of bills and rolled coins. He then marched the men through a rear entrance back into the store; as they went through the swinging doors leading to the storage area, defendant pulled the gun out of his holster; Geneway heard a click, the hammer going back. Inside the store Roberto Jordan, a store employee, who took care of the dairy products, was standing in the front of the refrigerator; he was unloading frozen food from the freezer to a dolly. With gun in hand, defendant motioned to him with it and ordered, 'You come with us too,' then shot him. Continuing their march, defendant ordered Crosley to open a locked door to a rear exit. Crosley was very nervous and couldn't find the right key; defendant ordered, 'Hurry up and get this door open or I'll let you have it.' Finally, Crosley found the key, opened the door and defendant left. Geneway and Crosley returned to Jordan who was lying on the floor wounded on the left side of the forehead; Jordan died from the gunshot wound which caused a tearing of brain matter.

Defendant fled the state. In December 1962 Kenneth Hill, a cab driver in St. Louis, Missouri, met defendant who was introduced to him as 'Marcel' by a friend. Subsequent to January 21, 1963, defendant came to Hill's apartment; he was hurt. Defendant handed over to Hill a .22 pistol in a holster (Exh. 2) and told him he was wanted 'out here,' (meaning the west coast) and had killed a man 'out here' and that was the gun he had used. An hour later defendant left. Later Hill, who was in no way connected with the police, turned the gun over to the St. Louis Police Department.

On the matter of guilt, defendant did not testify, and no defense was offered on his behalf.

On the theory that the killing of Jordan occurred during the commission and in the furtherance of the robbery of Crosley, appellant argues that the trial court could not impose sentence on the robbery conviction in addition to the sentence for murder. (§ 654, Pen.Code; Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Logan, 41 Cal.2d 279, 260 P.2d 20.) Appellant is in error. Section 654, Penal Code, which in pertinent part provides, 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one * * *,' does not here control. It is not applicable where one act has two results, each of which is an act of violence against the person of a separate individual. (Neal v. State of California, 55 Cal.2d 11, 20--21, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Ridley, 63 Cal.2d 671, 678, 47 Cal.Rptr. 796, 408 P.2d 124.)

In Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, relied upon by appellant, defendant threw gasoline into the bedroom occupied by Mr. and Mrs. Raymond and ignited it; both were severely burned. He was convicted of arson and two counts of attempted murder; sentences were imposed on all three counts, to run consecutively. The court stated, 'The conviction for both arson and attempted murder violated Penal Code section 654, since the arson was merely incidental to the primary objective of killing Mr. and Mrs. Raymond. Petitioner, therefore can only be punished for the more serious offense, which is attempted murder.

'The two attempted murder convictions, however, present a different problem. The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not '* * * applicable where * * * one act has two results each of which is an act of violence against the person of a separate individual.' People v. Brannon, 70 Cal.App. 225, 235--236, 233 P. 88, 91; see also People v. Majors, 65 Cal. 138, 146, 3 P. 597 (52 Am.Rep. 295); People v. Gaither, 173 Cal.App.2d 662, 668, 343 P.2d 799; People v. Holman, 72 Cal.App.2d 75, 100, 164 P.2d 297. Thus, in People v. Knowles, supra, 35 Cal.2d 175, 187, 217 P.2d 1, the defendants kidnapped two persons for the purpose of robbing them. The robbery convictions were reversed by reason of Penal Code section 654 but both kidnapping convictions were affirmed.

'The two consecutive attempted murder convictions were therefore properly imposed.' (Neal v. State of California, 55 Cal.2d 11, 20--21, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 944.)

Neal is relied upon by the court in People v. Ridley, 63 Cal.2d 671, 678, 48 Cal.Rptr. 796, 408 P.2d 124; there it held that the assault on one Bennett with a deadly weapon with intent to commit murder (Count III) was the means of perpetrating the robbery of Bennett (Count I), thus both offenses were incident to the same objective, robbery, and defendant could be sentenced only for the robbery of Bennett, but that sentence imposed for assault with a deadly weapon with intent to commit murder on one Watley was proper. The cause was reversed on other grounds but the court said, relative to the count charging the assault upon Watley, 'Section 654 is not 'applicable where * * * one act has two results each of which is an act of violence against the person of a separate individual.' (Neal v. State of California, supra, 55 Cal.2d 11, 20--21, 9 Cal.Rptr. 607, 612, 357 P.2d 839, 844; People v. Zurica, 225 Cal.App.2d 25, 32, 37 Cal.Rptr. 118.) As stated in Neal, the purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability and a defendant who commits an act of violence with the intent to harm more than one person or by means likely to cause harm to several persons is more culpable than a defendant who harms only one person. Here the robbers in perpetrating the offenses in the pawnshop used deadly weapons and thus employed a means which was likely to, and which in fact did, harm more than one person. Sentence may therefore be imposed for the assault upon Watley as well as for the first degree robbery of Bennett if upon retrial Ridley is convicted of both of these offenses.' (P. 678, 47 Cal.Rptr. p. 800, 408 P.2d p. 128.)

In the instant case there were two victims--Roberto Jordan, who was murdered (Count I), and Robert Crosley, who was robbed at the point of a gun (Count II); also, there were two acts. The act of murder and the act of robbery constituted separate acts of violence against separate persons and constituted separate crimes, for each of which sentence was properly imposed.

In support of his claim that he was denied a fair trial, appellant briefly points to two instances of 'laxity of counsel * * * indicative of inadequate representation,' neither of which is subject to legitimate criticism.

First, he complains that his counsel, appointed by the trial...