People v. Hays

• Decision Date: 28 September 1983
• Docket Number: Cr. 15021
• Citation: 147 Cal.App.3d 534,195 Cal.Rptr. 252
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Lee HAYS, Sr., Defendant and Appellant.

Page 252

195 Cal.Rptr. 252

147 Cal.App.3d 534

The PEOPLE, Plaintiff and Respondent, v. Charles Lee HAYS, Sr., Defendant and Appellant.

Cr. 15021.

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

Sept. 28, 1983.

Hearing Denied Dec. 22, 1983.

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, and Lewis Wenzell, Panel Atty., San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, Jay M. Bloom and Richard D. Hendlin, Deputy Attys. Gen., for plaintiff and respondent.

STANIFORTH, Acting Presiding Justice.

Upon a second trial (the first ended in mistrial) the jury convicted defendant Charles Lee Hays, Sr., of robbery (Pen.Code, § 211) ¹ and assault with a deadly weapon (§ 245(a)). The jury also found Hays used a firearm (§ 12022.5) in the commission of these offenses. The jury convicted Hays of possession of a sawed off rifle (§ 12020(a)) but found him not guilty of removing the serial numbers from the firearm. Hays was sentenced to the upper term (five years) for robbery, plus two years for firearm use plus a subordinate consecutive sentence of one year for assault, plus eight months for unlawful possession of the sawed off rifle. Hays was also sentenced to three additional one-year terms because of three prior felony convictions. (§ 667.5, subd. (b).) His total sentence was 11 years, 8 months.

FACTS

At about 8 a.m. Marsha Pederson, bookkeeper of the Sav-On drug store in Escondido, was in her office on the second story of a commercial building. Her office contained two safes which were set by a time clock to open shortly after 8 a.m. Her manager, Virgil Naveau, had just left when Pederson heard the ceiling above her giving way. She saw a person come crashing through the acoustical ceiling of her office. Before the man dropped out of the ceiling Tanksley looked into Pederson's office from about 14 feet distance. She saw a man standing in the office wearing a green shirt or sweater covering from neck to hips. The man was taking something off Pederson's desk. Tanksley could see two or three inches of the barrel and part of the stock of a rifle the man had strapped over his shoulders. The rifle (or portion) she saw looked very similar to that later recovered shortly thereafter by police at the Builders Emporium. She did not see any red tape on the gun. She saw the man for about five seconds. She did not see anyone else in the office. Tanksley went to the back of the store where she heard one set of footsteps running across the roof of the building in a northerly direction--towards the Builders Emporium located in the same shopping complex as the Sav-On drug store.

she heard no sounds on the roof. A rifle was slung across the man's chest. Pederson described the invader as a male with his face covered with mask or facial hair. He was wearing a green sweater-like garment with cream colored pants and dark stocking knit cap. This sweater was similar shade of green to the sweatshirt later found in the Builder's Emporium (next door) where Hays was captured. Pederson testified the rifle on the man's chest was similar to a sawed-off M1 carbine wrapped inside the green sweatshirt. The man did not point a gun at her, yet Pederson felt she was threatened and was afraid. She screamed and ran out of her office and quickly down the stairs. She thought a robbery was taking place and did not want to participate. She saw the man for about five to ten seconds. Pederson was fleeing down the stairs leading to the main floor when she heard a sound she thought to be that of a person landing in her office. She reported this to Mary Tanksley and advised her not to go upstairs as someone had a gun. Pederson did not see any footprints on her desk when she returned to her office that day.

Manager Naveau climbed up the ladder to the roof and unlocked the padlocked hatch when he heard steps. As the better part of caution, Naveau decided to call the police and report the crime. He climbed down, asked a Von's employee to call the police. When returning to Sav-On Naveau saw truck driver Art Smart with his hands raised in the air looking up at the 40-foot high roof. On top the roof about 100 feet away Naveau saw a man. He held a rifle to his shoulder pointed at Smart. The man ordered Smart to move. Smart said he had a bad leg and couldn't go any faster. Naveau was of the opinion the rifle held by the man was similar to the rifle the police found near Hays. Naveau could not identify the man on the roof by either race or clothes. Naveau observed this armed confrontation with Smart for about five seconds.

Naveau then saw a second man wearing a heavy dark green jacket run out from the cul-de-sac on the ground level at the rear of the Sav-On store. He was carrying a blue dufflebag. The man jumped over the low wall, ran across the divided center of the city parkway, stripped off his jacket and ran into a parking lot. The running man was wearing a bright yellow shirt beneath the green jacket.

Barry White also witnessed Art Smart's encounter with the roof rifleman. White could not recall the person's race but said the man was of slight build, similar to that of defendant Hays. White also said the rifle he saw was approximately the same size as the rifle recovered. White saw a green jacketed man running from the back of the Sav-On building carrying a blue dufflebag. He saw him abandon the bright green jacket, saw the brilliant yellow shirt underneath. White directed the police in pursuit of the man. They captured him. He was Mark Hays, son of defendant Charles Hays, Sr. The son was of muscular build, larger than his father. The dufflebag contained the money taken from Sav-On.

The Builders Emporium manager heard sounds of someone walking or running on the roof and called the police. Aided by dog teams, they immediately searched the building and after an eight-minute search found Hays in the stockroom crouched upon Hays was a black man with no beard. He was wearing a white T-shirt and blue Levis. The Builders Emporium stockroom was closeby, readily accessible from a hole in Sav-On's roof. Near Hays' hiding place, obscured by pallets, was a sawed-off M1 carbine rifle with red tape on the top half. The rifle was wrapped in a green sweatshirt. The red tape on the rifle appeared to be from the same roll of red tape found near the hole on the Sav-On's roof. Officer Best could jog in a northerly direction from the hole on the roof of Sav-On to the open ceiling above the garden shop of Builders Emporium in 85 seconds. Access to Builders Emporium was available from the roof with about a 15-foot drop from the roof to a stack of pallets of peat moss in the garden area. On top of one of the bags of peat moss a red ski cap was found.

boxes approximately 12 feet off the ground. There was a screwdriver and a comb on top of a box near him. Hays had a white powdery substance in his hair as well as on his face. This powder was similar to the white powdery substance on top of the desk in Pederson's office which fell from the ceiling when the robber(s) descended through the hole in the ceiling. There was no powder in the area around Hays where he was captured.

Two footprints were found on the top of Pederson's desk. Expert witness Bass testified the footprint in the powder on the desk had a tennis shoe "Z" pattern similar to the pattern on Hays' tennis shoes. He said Hays' shoes could have left the impression. They were the same width as the footprint. The patterns left by the shoes were not inconsistent with those of Hays' shoes. The son's--Mark Hays'--shoes, however, did not have a "Z" pattern but was a round type in the form of a "W." Hays' own witness--forensic scientist Wahley--testified to the same conclusions about the tennis shoes. Hays' witness also testified there was a black substance on the heel of Hays shoes which was similar to the tar, consistent with the tar paper, exposed in the cut in the roof over Sav-On's office.

DISCUSSION

I

Hays contends his robbery conviction should be reversed upon the ground of insufficiency of the evidence a larceny was accompanied by an assault. Hays misunderstands the legal prerequisites to the crime of robbery. Section 211 defines robbery as the felonious taking of personal property in the possession of another from his or her person or immediate presence and against his or her will accomplished by means of force or fear. There is no need to prove both force and fear. The Supreme Court recently said in People v. Green, 27 Cal.3d 1, 54, 164 Cal.Rptr. 1, 609 P.2d 468, robbery is but larceny aggravated by the use of force or fear to accomplish the taking of the property from the person or presence of the possessor. Evidence of the victim's fear for her own safety or that of her company's is sufficient to sustain a conviction. (People v. DeGeorgio, 185 Cal.App.2d 413, 423, 8 Cal.Rptr. 295; § 212; People v. Renteria, 61 Cal.2d 497, 499, 39 Cal.Rptr. 213, 393 P.2d 413.)

Hays next argues his conviction for robbery of Pederson must be reversed because he did not take property "from [her] person or immediate presence." The violent appearance of the armed robber forced Pederson to flee in fear for her safety, abandoning immediate bodily presence and control over her employer's personal property. She remained near enough to hear a second body arrive via the ceiling hole in the office. Thus, Hays' argument rests on the happenstance of a fear induced flight.

The term "immediate presence" is to be liberally construed. Any and all the sensory perceptions are included in determining "presence." (See People v. Lavender, 137 Cal.App. 582, 585, 589-590, 31 P.2d 439; In re Alonzo C., 87 Cal.App.3d 707, 712, 151 Cal.Rptr. 192; People v. Wiley, 57 Cal.App.3d 149, 160-161, 129 Cal.Rptr. 13; People v. Hornes, 168 Cal.App.2d 314, 320, 335 P.2d 756; People v. Miramon, 140...