People v. Gardner

• Decision Date: 11 January 1957
• Docket Number: Cr. 5678
• Citation: 147 Cal.App.2d 530,305 P.2d 614
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Alton Gordon GARDNER, Defendant and Appellant.

Page 614

305 P.2d 614

147 Cal.App.2d 530

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alton Gordon GARDNER, Defendant and Appellant.

Cr. 5678.

District Court of Appeal, Second District, Division 3, California.

Jan. 11, 1957.

Simon & McKinsey and Harry J. Simon, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen. of the State of California, Clarence A. Linn, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was charged in seven counts with robbery. He was convicted by a jury of the offenses charged in Counts I, III, IV, and V, and acquitted of the other three. He appeals from the judgment and the order denying his motion for a new trial.

Count V

Gilbert Meischke was employed as a clerk in Benson's Liquor Store in Long Beach. About 1 a. m. on October 15, 1955 James Polk robbed him of $155. The first time Meischke saw defendant was in a police line-up.

Count IV

Fred Stager managed the Sands Bar & Cafe in Long Beach. About 12:30 a. m. on October 20, 1955 James Polk and Billy Gardner, brother of defendant, robbed him of $189 and his wallet containing $10 or $12. As they left one of them fired a shot into the ceiling. A Mercury was parked in front of the bar. No one saw defendant in the bar that night. The first time Stager saw defendant was at a police station. Count III

Claude Heater operated Jack's Liquor Store in Long Beach. About 1 a. m. on October 27, 1955 he was getting ready to close. There was a customer in the store. Heater testified defendant entered the store asked for a package of cigarettes; as he reached for the cigarettes defendant pulled a gun on him and told the customer, 'You stay where you are. Don't you make a move'; defendant ordered Heater to open the cash register; he did, and defendant took $44 from it; defendant slowly backed out of the door and across the front of the store; there was a car parked outside with the motor running; defendant was very agile, he walked with a steady gait, nothing unusal struck him about defendant's walk except that he 'moved lawfully slowly.' Heater identified defendant from others in a police line-up. Count I

James Browning operated a grocery store in Long Beach. About 11:30 a. m. on November 28, 1955 one Robertson robbed him of $93 in the store. Robertson left the store, followed by Browning. Before leaving, Browning told his wife to call the police. Robertson got into a new, cream-colored Mercury. Browning followed in his car. The Mercury stopped in front of an apartment house. The police arrived on the scene, entered the apartment house, saw Robertson, searched him and found $93 in his pocket. After the officers had taken the $93 from Robertson, one of them climbed to the roof on a ladder. Defendant was lying on his stomach at the edge of the roof. Glass in the skylight leading to the roof had been broken. The officer took defendant from the roof and had a conversation with him. The officer said, 'Well, it looks like you got yourself in a pretty good mess this time,' to which defendant replied, 'It looks that way.' Defendant told the officers he would tell the truth and said, 'I did not know he was going to hold up that market [Browning's--Count I]. He told me to stop, that he wanted some cigarettes,' that when Robertson returned from the market he (Robertson) said, 'I just held up that market. Let's go.' An officer testified:

'Q. Following that conversation what next occurred? What was said and done within your immediate sight and hearing? A. I recall after that statement he stated that he was trying to get into the apartment, that Robertson had already succeeded in getting into the apartment through the skylight, and that he was entering and that he observed a motor officer approaching and went and hid on the roof.

'Q. Did you ask him why he hid when he saw a motor officer arrive? A. Yes.

'Q. What did he say to that? A. He said, 'I was scared.'

'Q. Did you ask him what he was scared of? A. Yes.

'Q. What did he say to that? A. Being caught.

'Q. Did you ask him why he was, why he was afraid of being caught? A. He stated that the situation probably looked bad and it would be figured that he had been in on the robbery.' In the room occupied by Robertson the officers found a .38 Smith & Wesson revolver loaded with six shells. The officers called Browning into the apartment house. Defendant was sitting on the floor. Browning had not seen him in the grocery store. Defendant was then taken to the police station.

Additional Evidence

At the police station defendant told an officer he had bought the new Mercury--he had traded his green '50 for it; that he drove the car but did not know what was taking place; that Robertson came out 'in a hurry, so I had to take off in a hurry.'

On November 29, 1955 two officers talked to defendant. He told them he would plead guilty if he could get the same deal as the other defendants in the case were getting (plead guilty to one offense), his 'priors' were not charged, and he would get a county jail sentence. One of the officers told him they were not making deals.

Later that day the officers talked to Polk, Billy Gardner, Robertson, and defendant together in the interrogation room of the jail. Defendant refused to answer any questions, saying, 'I have nothing to say.' Billy Gardner said he and Polk held up the Sands bar (Count IV); Polk fired a shot into the ceiling as they left; defendant was waiting outside in his Mercury; after the robbery they went to Polk's apartment and divided the $190 three ways; defendant received one-third. Polk stated that what Billy Gardner had said was 'all true.' Polk said defendant had been living with him; he had held up Jack's Liquor Store (Count III); he took $45 from the cash register; defendant was driving the getaway car and knew he was going to hold up the store; immediately after the robbery they split the money '50-50.' An officer then said to defendant, 'Q. Al Gardner, have you got anything to say about this?' to which defendant replied, 'No.' Polk said he had held up Benson's Liquor Store (Count V); he took $140 from the cash register; defendant knew he was going to hold up the place and waited outside in his Mercury; after the robbery he split the $140 with defendant. The officers then asked defendant if he had anything to say, to which he replied, 'No.'

An officer then removed defendant from the interrogation room. In the elevator going up to the jail the officer asked him 'if these other boys were lying.' Defendant 'sort of grinned' and said he would like 'to have a deal where he could get a County Jail sentence.' The officer told him that was up to the court. After further conversation the officer asked defendant 'if what they said about him was true,' to which defendant replied, 'Yes, it is all true.' Defendant was then returned to the interrogation room and in the presence of the officers, Polk, Billy Gardner, and Robertson the following conversation between one of the officers and defendant occurred: 'Q. Now, all that they said in your presence a while ago, are those statements true? Alton Gardner: True.'

One of the officers had several conversations with defendant about the Mercury. Defendant first told the officer he bought it at a used car lot; the price was $3,200, and he had traded in another Mercury. Later the officer asked him if he had not stolen the Mercury in South Gate near the General Motors plant. Defendant replied that he had and that he had 'doctored' the ownership certificate to fit the Mercury and put it in the window of the car.

Defendant's first assignment of error is that the evidence is insufficient to sustain the verdict as to Count III, robbery of Jack's Liquor Store. The contention is that the testimony of Claude Heater identifying defendant as the robber is so inherently improbable as to be unbelievable. The contention is predicated on the following: Uncontradicted evidence of a physician that defendant sustained a compound fracture of his left tibia on July 1, 1955 and that it was placed in a nonweight-bearing cast; on October 7, 1955 the fracture 'had not healed very much'; it would not have healed very much by October 27, 1955 (date of robbery of Jack's) and defendant would not then have been able, without a cast, to bear the weight of his body unaided by crutches. Testimony of the customer who was in the store at the time of the robbery that defendant was not the robber. Testimony of Heater that at the time of the robbery he thought defendant was very agile, had a steady gait, and there was nothing unusual about his walk, and that he (Heater) was under medical care at the time of the trial.

A reviewing court cannot reject testimony of a witness that has been believed by the trier of fact unless it is a physical impossibility that it be true, or its falsity is apparent without resorting to inferences or deductions. People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758. In order to say that testimony is inherently improbable it must appear that what was related or described could not have occurred. Testimony which is subject to justifiable suspicion is not inherently improbable. People v. Dragoo, 121 Cal.App.2d 322, 324, 263 P.2d 90. A reviewing court will not hold unsupported a jury's finding of guilt merely because it might reasonably draw an inference different from the one the jury reasonably drew or might not be convinced beyond a reasonable doubt of the guilt of defendant. People v. Tollack, 105 Cal.App.2d 169, 172, 233 P.2d 121; People v. Cahan, 141 Cal.App.2d 891, 897, 297 P.2d 715. Our function is to determine whether the evidence, if believed, is of sufficient character to justify a conviction. We cannot say as a matter of law that the identification of defendant by Heater is so inherently improbable as to be unbelievable. Further, the jury may have disregarded the identification of Heater and concluded defendant was the...