People v. Harders

• Citation: 20 Cal.Rptr. 595,201 Cal.App.2d 795
• Decision Date: 27 March 1962
• Docket Number: Cr. 4052
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George Joseph HARDERS, Defendant and Appellant.

Page 595

20 Cal.Rptr. 595

201 Cal.App.2d 795

PEOPLE of the State of California, Plaintiff and Respondent, v. George Joseph HARDERS, Defendant and Appellant.

Cr. 4052.

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

March 27, 1962.

Rehearing Denied April 11, 1962.

Hearing Denied May 23, 1962.

George J. Harders, appellant, in pro. per.

Stanley Mosk, Atty. Gen., John S. McInerny, Derald E. Granberg, Deputy Attys., Gen., for respondent.

SALSMAN, Justice.

The defendant was convicted of robbery (Penal Code, § 211) and conspiracy to commit robbery (Penal Code, § 182). Three prior felony convictions were charged and admitted. The defendant appeals from the judgment.

At the trial the defendant was represented by court appointed counsel, but trial counsel refused representation of defendant on appeal; this court thereupon appointed counsel to represent defendant, and counsel so appointed made an examination of the record, communicated with defendant, and later advised both the defendant and this court there was no merit in defendant's appeal. Counsel thereupon requested permission to withdraw and permission was granted. This court then reviewed the record and declined to appoint other counsel for defendant. (See People v. Brown, 55 Cal.2d 64, 73-74, 9 Cal.Rptr. 816, 357 P.2d 1072.) The defendant's briefs are presented in propria persona.

We have examined the record and find no error requiring a reversal of the judgment.

A summary of the evidence shows that on Christmas Eve, December 24, 1960, shortly before closing time at 7:00 p. m., the Purity Store in the Linda Mar Shopping Center, San Mateo County, was held up. The holdup was perpetrated by two men, a younger man identified by several witnesses as Kenneth Lawrence Simon, and an older man identified by several witnesses as the appellant George Joseph Harders.

After entering the store, the two holdup men separated and the younger asked one of the clerks where the cranberry sauce was located. He took two cans and walked to the front of the store, placed the cans on a check stand and walked to the entrance of the store. Shortly thereafter, he produced a revolver and announced, 'This is a stickup'.

About the same time, the older man, the appellant, herded the rest of the help toward the front of the store. The appellant was also armed. The younger man, Simon, then ordered the receipts placed in a bag and took possession of it after this had been done. In all, the receipts consisted of about $1,800 of which some $1,300 was in cash.

The appellant also attempted to get someone to open the safe but accepted the explanation that the manager was absent and that he was the only person who could open the safe. Following this, the victims were ordered to go the back of the store and to face a frozen food cabinet which ran along the back of the store. While they waited there, the bandits made their escape.

As a part of the robbery investigation, Chief of Police Neil H. Tremaine, of the Pacifica Police Department, made a search of the appellant's room in a hotel located in San Francisco on Fillmore Street. The appellant had refused them permission to make the search so a warrant was procured. In the course of the search, the police found a gun, a shirt, a hat and a jacket.

The gun was identified as similar to the one carried by the appellant during the robbery. The shirt and the hat were identified Ed. 1903; 27 Cal.2d 478, 165 P.2d 3.) worn by Simon on the night of the robbery. The jacket was identified as being similar to the one worn by the appellant on the night of the robbery.

On the night of January 8, 1961, a police officer for the City of San Bruno, and an agent of the F.B.I. were staked out in San Bruno watching a house rented by the other holdup man, Simon. During the course of the evening, at about 8:15 p. m., the appellant drove a car by the home, parked some jury. There is no justification whatsoever parking spaces in front of the house, and walked back to the house. He entered the house which was dark and unoccupied, turned on a light and walked back out.

When questioned at his car a few minutes later, he said he had come to visit some friends; however, he could produce no names or addresses. He was then placed under arrest. At the time of his arrest, the appellant gave a false name.

At the time of trial, the appellant did not take the stand in his own defense. He produced one alibi witness who had shared a cell with him in the county jail during the month of February after his arrest.

The defendant first contends there was an error in the verdict. The jury returned a verdict finding defendant guilty of robbery 'as charged in Count I' of the indictment, and a second verdice finding defendant guilty of conspiracy 'as charged in Count II' of the indictment. The original indictment was in four counst; the first count charged defendant and his accomplice, Simon, with the robbery here in question. Counts II and III charged other persons with other robberies, and Count IV charged defendant, Simon and those persons named in Counts II and III with conspiracy to commit robbery. Prior to trial defendant's motion for a separate trial was granted. At trial, and out of the presence of the jury, and by consent of defendant and his counsel, the indictment was amended so as to delete the names of the persons charged in Counts II and III, and as so amended the defendant stood charged in Count I with robbery and in Count IV with conspiracy. The jury found defendant guilty, by separate verdicts, of both robbery and conspiracy. The fact that the...