People v. Hutchinson

• Decision Date: 31 August 1967
• Docket Number: Cr. 12422
• Citation: 61 Cal.Rptr. 868,254 Cal.App.2d 32
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Leroy HUTCHINSON, Defendant and Appellant.

Page 868

61 Cal.Rptr. 868

254 Cal.App.2d 32

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leroy HUTCHINSON, Defendant and Appellant.

Cr. 12422.

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

Aug. 31, 1967.

John P. Bruno, Alhambra, under appointment by Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for respondent.

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of murder in the first degree and of robbery in the first degree.

In an information filed in Los Angeles on November 30, 1965, defendants Hutchinson and a George Eugene Young were charged in count I with murdering Haw Dai Yee on October 23, 1965, and in count II with robbing May Fong Yee on October 23, 1965, of about $35. It was first alleged that, at the commission of the robbery, the defendants were armed with a deadly weapon, a revolver. Defendants pleaded not guilty and in a jury trial each was found guilty of murder in the first degree. In the penalty trial the jury found for life imprisonment; each of the defendants also was found guilty of robbery in the first degree and it was found further that Young was armed at the time of the commission of the offense and that Hutchinson was not armed at the time of the commission of the offense. Hutchinson was sentenced to the state prison, the sentences as to counts I and II to run concurrently with each other. A notice of appeal was filed by Hutchinson.

A re sume of some of the facts is as follows: Fong Mee Yuk Yee and her husband, Haw Dai Yee, operated a small grocery store at the corner of Santa Barbara Avenue and McKinley Street in Los Angeles. About 6:50 p.m. on October 23, 1965, mrs. Yee was working at the counter in the store waiting on customers. At about that time, Young and Hutchinson came into the store together. Hutchinson went to the bread shelves and Young went to the candy counter where Mrs. Yee was working. While Young talked with Mr. Yee about buying some gum, Mrs. Yee went to the kitchen in the rear of the store to prepare an evening meal. While Mrs. Yee was in the kitchen, Young came into that room, pointed a gun at Mrs. Yee's back, and motioned her into the store. She went to the meat counter. Neither Hutchinson nor Mr. Yee was in sight in the store at this time. Young, noticing that Mr. Yee had gone outside of the store, moved forward toward the front door of the store, went outside and fired two shots from a revolver. Mrs. Yee saw Young as he fired the shots but from her location she could not see her husband.

Mrs. Yee went back into the kitchen area and saw Young return to the store, take $35 from the cash register, put it in his pocket and then leave. Mrs. Yee noticed that Young was wearing a gray checkered suit. After Young left, Mrs. Yee went to the front of the store to look for Mr. Yee. She saw Hutchinson driving a cream, milky-colored automobile away from the curb, after having seen Young get into the vehicle. Mrs. Yee went outside and saw Mr Yee on the sidewalk. He said, 'I'm very painful. They shot me for two fire. * * * I got two fire of gun.'

In a few minutes the police and an ambulance arrived. Wiley Conley was visiting friends at a house one block from the grocery store. He was sitting on the front porch and heard the two shots coming from the area of the grocery store. He went to the store area and saw a crowd gather and mingle around the body of Mr. Yee. Conley started back to the house to seek assistance and noticed two persons walking from the store to a car parked nearby. He was standing about six feet from the car and made a mental note of the license number of the rear plate. He thought the car was a yellow and black 1949 to 1954 Chevrolet and that the license number was OEX 682. The car was driven away in a northerly direction on McKinley Street. The car Conley saw resembled a picture of Young's car. Conley went inside the house and wrote down what he thought was the license number on a piece of paper. Conley returned to the scene of the shooting and told an officer of his taking down the license number of a car. The officer went to the house where Conley was visiting and took the paper with the supposed license number thereon. The police broadcast a description of the car and the license number. The police first, however, checked out the license number with the Department of Motor Vehicles and ascertained that the letters and numbers Conley furnished were not registered to a Chevrolet.

At about 11 a.m. in an area about a mile from the robbery and murder, Sergeant Stone, of the Los Angeles Police Department, who earlier had heard a broadcast describing the color and license number of the automobile in connection with the murder and robbery, saw a 1951 Chevrolet, black over yellow with license number QEX 862, pulling into the curb preparatory to stopping. Stone radioed for police assistance, put on the police car lights and as Young started to get out of the car said, 'Stop. I want to talk to you.' Young got out from the passenger side. Other officers drove up immediately and they took over. Hutchinson and Young were separated to the end that they could not converse with each other. The officers saw in plain sight on the back seat of the car a shoulder holster for a firearm and on the front seat a black jacket. The officers had, through the broadcast and otherwise, a description of the suspects involved in the murder-robbery (but apparently not a description of their wearing apparel). The car had been described and the information was that male Negroes had been seen leaving the store and getting into that particular type of car. Furthermore, one of the officers at the arrest scene had talked with the victim's surviving wife, Mrs. Yee, through her son. The defendants Hutchinson and Young were arrested for robbery. A search of the car was conducted. In the pocket of the jacket on the front seat there were ten .32 caliber bullets. Another .32 shell was found under the back seat. There was no significant conversation with Hutchinson at the arrest and search scene. Hutchinson was taken to Newton Station where he was fully advised of his constitutional rights and where Hutchinson stated that he understood his rights. At about 1:30 p.m. on October 25, 1965, Sergeant Weld, with Officer Burlson, talked with Hutchinson at the central jail. Hutchinson again was advised of his constitutional rights as delineated by the Dorado and Escobedo cases and Hutchinson again stated that he understood his rights. Hutchinson talked freely and voluntarily about the robbery and killing at the grocery store. Sergeant Weld made notes of the conversation and the statements by Hutchinson. Hutchinson read the writing of Sergeant Weld and told the officer that it contained the gist of what had been said. Hutchinson signed the statement ¹ as did Sergeant Weld and Officer Burlson. One of the officers spoke to Hutchinson about a discrepancy, that the previous day Hutchinson had stated to Sergeant Weld that there was only one gun and that he (Hutchinson) did not have a gun during the robbery. Sergeant Weld asked Hutchinson which was correct and Hutchinson said, 'You put it down like I told you.'

The officers under similar circumstances took a statement from Young. ²

The statement of Hutchinson was introduced into evidence without objection. The Young statement was received into evidence over objection and the jury was thoroughly admonished that Young's statement was to be used against Young only and not against Hutchinson. The defendants were asked how much was taken in the robbery and Hutchinson indicated it was in the amount of about $52 to $55.

No gun was ever recovered. Both Hutchinson and Young stated that they had thrown a gun out of the car on 33rd Street west of San Pedro Street.

The fatal bullet which struck Mr. Yee was a .32 caliber and was recovered from just under the skin on his right side. In an autopsy it was concluded that Mr. Yee died from a gunshot wound in the abdomen perforating the diaphragm and liver with massive hemorrhage. On Mr. Yee's right arm there were imbedded grains of gunpowder indicating that the gun had been fired at a range of less than three feet.

Neither Hutchinson nor Young saw fit to testify on the guilt pleas of the case.

Appellant now asserts that the evidence is insufficient to support the judgment of conviction of murder in the first degree in the commission of a robbery, that statements of appellant were improperly admitted into evidence and that evidence obtained from an unreasonable search and seizure was improperly admitted. There is no merit to any of appellant's contentions.

We view the evidence as an appellate court. (See People v. Mangiameli, 149 Cal.App.2d 642, 644--645, 308 P.2d 762; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

The murder was premeditated and deliberately committed. Young left the store and fired at Mr. Yee who apparently was attempting to secure assistance.

Further, the judgment of first degree murder is supported by the felony murder rule. Mr. Yee was senselessly killed during a robbery which was the culmination of a conspiracy to commit robbery which occurred as Hutchinson and Young drove around in the car planning the robbery of the store. The acts of both Hutchinson and Young were sufficient to constitute the crimes charged. (See People v. Watson, 132 Cal.App.2d 70, 71--73, 281 P.2d 564.)

People v. Ray, 210 Cal.App.2d 697, 699--701, 26 Cal.Rptr. 825, 826 appropriately states:

'The rules governing a case such as this are stated in People v. Buono, 191 Cal.App.2d 203, 12 Cal.Rptr. 604, which was also a murder committed in an attempt to rob the victim. "Common design is the essence of a conspiracy and the crime can be committed whether the parties comprehend its entire scope, whether they act in separate groups or together, by the same or...