People v. George

• Decision Date: 26 February 1968
• Docket Number: Cr. 5380
• Citation: 259 Cal.App.2d 424,66 Cal.Rptr. 442
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John GEORGE, Defendant and Appellant.

Page 442

66 Cal.Rptr. 442

259 Cal.App.2d 424

PEOPLE of the State of California, Plaintiff and Respondent, v. John GEORGE, Defendant and Appellant.

Cr. 5380.

Court of Appeal, First District, Division 2, California.

Feb. 26, 1968.

Rehearing Denied March 27, 1968.

Hearing Denied April 24, 1968.

Harold D. Messner, San Francisco, for appellant

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Timothy A. Reardon, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant, John George, appeals from a judgment rendered on a jury verdict finding him and his codefendant Forester guilty of first degree robbery (Pen.Code, § 211) and the lesser-included offense of assault with a deadly weapon (Pen.Code, § 245, subd. (a)). ¹ He contends that: the evidence is insufficient to support the judgment; the court erroneously directed a verdict of guilty; the conflict of interest between him and his codefendant prevented the public defender from providing him with effective representation; and he was not informed of his right to separate counsel.

Viewing the record most strongly in favor of the judgment, as we must in assessing the sufficiency of the evidence, the facts are as follows: about 3:45 p.m. on May 20, 1965, Mr. Kerwin, who lived at 615 Second Avenue, three doors south of the intersection of Second Avenue and Balboa Streets, ² in San Francisco, looked out his front window and observed the activities of two men on the south side of Second Avenue. While conversing, the men walked toward the grocery store on the southeast corner of the intersection. Just before they reached the store, they stopped and one man (subsequently identified as defendant) proceeded toward the grocery store owned by Kerwin's friend, George Pappas, who wore a hearing aid. Meanwhile, the second man (subsequently identified as Forester) remained on Second Avenue until defendant returned, made a tapping gesture at his right ear, and then ran diagonally across the intersection and into a house at 580 Second Avenue. Forester then began to walk in the direction of the store. He entered and at gunpoint forced Pappas to turn over the contents of the cash register, about $65 in bills and change.

Kerwin immediately left his home and proceeded to the store. When he arrived, he saw Forester standing by the cash register with Pappas, and proceeded towards them but retreated as Forester turned around. Kerwin tried to kick the door shut from the outside, but Forester opened it, knocked Kerwin down, shot at him and ran into the house at 580 Second Avenue. Kerwin saw Forester's revolver and the flash as it fired. The coat he wore on the day of the robbery had a hole made by a revolver bullet without powder burns.

A few minutes later, Officers Olson and Dachauer of the San Francisco Police Department arrived at the grocery store and immediately proceeded to the house at 580 Second Avenue. Officer Olson observed two men in the back yard. As Olson approached, Forester jumped over the back fence onto the property at 26 Balboa Street and defendant ran up the back stairs through the house, where he was apprehended by Officer Dachauer. Meanwhile, another officer arrived on the scene and arrested Forester, who crouched in the corner of the porch of 26 Balboa Street. A small passageway led from the back fence of 580 Second Avenue to the front of 26 Balboa Street. Forester was identified as the robber by both Pappas and Kerwin and by Officer Olson as the man who had jumped over the back fence. Under the back porch of 580 Second Avenue, the officers found a green coat and black cap that were identified by Pappas and Kerwin as the clothes worn by Forester at the time of the robbery. At the time of his arrest, Forrester carried six .38 caliber cartridges and about $35 in currency and change; an additional $8.70 was found on the back porch of the house on Second Avenue.

While in custody and after being advised of his constitutional rights, Forester stated that since 2:30 p.m., he had been playing dice with defendant and others at the home on Second Avenue. He had about $25 with him and had won $10--$15 in two hours. An argument ensued and he became fearful of an attack on his person and fled. He was chased but made his escape over the back fence and did not know why he was arrested. He denied any knowledge of the robbery. His testimony at the trial was substantially the same, except that he denied knowing or seeing defendant at any time on the day of the robbery before his arrest. He had picked up the cartridges found in his pocket after the arrest while cleaning the storeroom of the restaurant where he worked. He could not describe the location of the place where he was playing dice nor could he give the name of the owner of the house or any of the other players. He was not familiar with the Balboa and Second Avenue neighborhood or the grocery store and its owner. On cross-examination, Forester's testimony was impeached by a showing that he had been previously convicted of two prior felonies.

Defendant did not take the stand. The evidence, however, established that he lived in the area of 582 Second Avenue and had been frequently seen in the neighborhood by Kerwin. He was a frequent customer of Pappas and often went to 580 Second Avenue to see the daughter of the owner of the building. In a statement made after his arrest, after being duly advised of his rights, defendant indicated that he met Forester while walking up Second Avenue and proceeded toward the house. Before he went inside the house, he saw Forester come out and fire a shot.

Defendant first contends that, as a matter of law, the evidence is insufficient to support his convictions for first degree robbery and assault with a deadly weapon. In view of the evidence detailed above and the eyewitness account of the offenses and identification of defendant and Forester, the only question remaining concerns defendant's participation in the offenses. Section 31 of the Penal Code provides that any person who aids or abets, directly or indirectly, by words or gestures, in the commission of a crime, is a principal equally guilty with the perpetrator (People v. Ellhamer, 199 Cal.App.2d 777, 18 Cal.Rptr. 905; People v. Fleming, 191 Cal.App.2d 163, 12 Cal.Rptr. 530). His presence at the actual commission is not necessary (Pen.Code, § 31; People v. Pearl, 211 Cal.App.2d 783, 789, 27 Cal.Rptr. 664). Whether one has aided and abetted in the commission of a crime is a question of fact for the jury to determine from the totality of the circumstances proved (People v. Silva, 143 Cal.App.2d 162, 169, 300 P.2d 25). Factors that the jury may consider in making such determination include companionship and the conduct of the accused before and after the offense (People v. Fleming, supra, 191 Cal.App.2d p. 168, 12 Cal.Rptr. 530; People v. Perryman, 250 A.C.A. 926, 933, 58 Cal.Rptr. 921).

As to the robbery, defendant contends that his presence in the neighborhood and alleged unplanned meeting with Forester is consistent only with his innocence since he lived in the area and frequently visited the house at 580 Second Avenue. But defendant was a regular customer of the grocery store and must have known that Pappas wore a hearing aid. Kerwin's uncontroverted testimony indicated that on the afternoon of the robbery, defendant and Forester walked down Second Avenue in the direction of the grovery store, stopped short of the corner and talked together. After this conversation, defendant proceeded to the corner and returned a few minutes later to meet Forester and tapped his forefinger at his right ear. This could reasonably be construed to be a signal that Pappas was on duty. Thereafter, defendant ran across the street into the house at 580 Second Avenue while Forester proceeded to enter the store, robbed Pappas and shot at Kerwin. After the robbery, Forester ran from the store and entered the same house on Second Avenue that defendant had entered a few minutes earlier. Shortly thereafter, both were apprehended in the immediate vicinity after having attempted to elude the police. Thus, the jury could reasonably conclude that defendant aided and abetted Forester's robbery of the grocery store and shared the criminal intent.

The identical reasoning applies to the lesser-included offense of assault with a deadly weapon. Defendant argues that there is no indication that he knew that Forester was armed. However, defendant's participation and knowledge of the robbery prior thereto would lead to a reasonable inference that he knew Forester was armed. Furthermore, the assault by Forester on Kerwin while attempting to escape was the natural and probable consequence of the robbery. An aider and abettor is liable for the natural or probable consequences of any act that he knowingly aided and encouraged (People v. Belenger, 222 Cal.App.2d 159, 34 Cal.Rptr. 918).

Defendant next argues that the trial court's comments to the jury amounted to a directed verdict of guilty, and were recently held to be error in People v. Brock, 66 A.C. 672, 58 Cal.Rptr. 321, 426 P.2d 889. ³ We agree. Preliminarily, we note that the instant case was tried two years before Brock. In view of certain language used by the Supreme Court in People v. Friend, 50 Cal.2d 570, 578, 327 P.2d 97, it is understandable that the trial judge would feel justified in commenting as he did. However, Friend was clarified in Brock where the type of statement here given was disapproved.

In Brock, the court told the jury that in its opinion, the defendant's guilt had been proven beyond a reasonable doubt. The Supreme Court held that the statement was not a proper exercise of the trial court's privilege to comment on the evidence as conferred by section 10 of article VI of the state Constitution and was prejudicially erroneous as it prevented the jury from properly considering the case. The court held that it provided 'for the jury a means...