People v. Laursen

CourtCalifornia Court of Appeals
Writing for the CourtGEO. A. BROWN; FRANSON
Citation22 Cal.App.3d 1033,99 Cal.Rptr. 841
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Raymond Ross LAURSEN, Defendant and Appellant. N. 1023.
Decision Date21 January 1972

Page 841

99 Cal.Rptr. 841
22 Cal.App.3d 1033
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Raymond Ross LAURSEN, Defendant and Appellant.
N. 1023.
Court of Appeal, Fifth District, California.
Jan. 21, 1972.
For Opinion on Hearing, see 104 Cal.Rptr. 425, 501 P.2d 1145.

Page 843

Roger S. Hanson, Woodland Hills, for defendant appellant.

Page 844

Evelle J. Younger, Atty. Gen., and Jack R. Winkler and Craig Stalker, Sacramento, by James D. Garbolino, Deputy Atty. Gen., Sacramento, for plaintiff respondent.

GEO. A. BROWN, Associate Justice.

Appellant was charged by information with violation of Penal Code section 211a (armed robbery) and Penal Code section 209 (kidnaping to commit robbery).

The is the second time this cause has been before this court. Upon his first trial he was convicted by a jury of both charges. Upon appeal to this court the judgment was reversed on August 14, 1968, on the ground of prejudicial misconduct by the prosecuting attorney (People v. Laursen (1968) 264 Cal.App.2d 932, 71 Cal.Rptr. 71).

Appellant was retried before and convicted by a jury on one same charges on February 13, 1970. This appeal is from the second judgment of conviction. He makes a number of contentions, which will be dealt with seriatim.

Shortly after 9:00 A.M. on October 14, 1964, one Vincent Roosevelt Lowrie and another person, identified as appellant, robbed at gunpoint Esther Harris, a cashier as Giant Food Market in Fresno, of approximately $2,000. The store manager, a Mr. George Belluomini, was also present. Lowrie and the appellant had arrived at the market in a 1955 four door Mercury, which they parked at the curb. The car was registered to appellant's wife, Ruby Laursen, and carried Alabama license plates. Upon exiting the market, they ran to and entered the Mercury. They were unable to start it, so they ran to the parking lot of a nearby furniture store, where they came upon one Donald Teeter, an employee of the furniture store, whom they commandeered at gunpoint. They forced him to drive them away in his Sprite automobile.

One Ralph Canales was an eyewitness to the panorama of events involving the arrival and departure of the robbers. He hailed a passing motorcycle officer, Maurice Regan, and directed him to the furniture store parking area, where the Sprite was approaching an exit. Appellant was seated in the right front seat, leaning out the window of the car. He pointed a gun at the police officer. Teeter attempted to restrain appellant and wrench the gun away from him. In the process, Teeter was shot in the hand. As the Sprite left, the officer fired five or six shots toward the car in an effort to disable the vehicle but was unsuccessful.

After traveling approximately one to one and one-half miles, appellant ordered Teeter to stop. Appellant exited the Sprite, carrying a brown paper sack with the loot, and walked to a service station, where he asked the operator, one Maurice Bean, to call a cab for him. While he waited about fifteen minutes for the cab, he chatted with Mr. Bean.

Lowrie proceeded with Teeter for a short distance to an orchard, where Lowrie bound Teeter and left him in a ditch. Lowrie drove off in Teeter's Sprite. He was apprehended shortly thereafter and was in the police car with Teeter within 20 to 25 minutes after he had left Teeter in the ditch.

Appellant, under the pseudonym of Eddie Pierce, and Lowrie had been sharing a bedroom at the residence of Otis Graham for several days. At about 10:00 A.M. on October 14, 1968, the day of the robbery, appellant arrived at the Graham residence. He told Graham that he had 'bungled a job' and had to shoot a guy and asked Graham to take him out of town. During the evening of October 14, Graham, accompanied by his girl friend, Elsie Bratton, drove appellant to Bakersfield, where he took a bus out of the state.

Appellant was eventually located in Kansas City, Kansas, and after extradition proceedings was brought back to Fresno in July of 1965.

Appellant testified at the second trial. His defense was that of alibi, in that on October 14, 1964, he contended that he was in Kansas City, Missouri and that he had

Page 845

never been in Fresno, California prior to having been extradited to that city in July of 1965. Four defense Witnesses gave testimony which tended to establish that appellant was in Kansas City, Missouri on the date of the robbery.

PENAL CODE SECTION 209 OFFENSE--KIDNAPING TO COMMIT ROBBERY 1

Appellant contends that he cannot be guilty of kidnaping to commit robbery under Penal Code section 209, quoted in the margin, inasmuch as the kidnaping of Teeter followed the actual robbery, Teeter was not the victim of the robbery, the asportation of Teeter occurred after some time and some distance from the actual robbery, and, under the facts, the intent 2 to kidnap did not occur until after the actual robbery was completed and during the course of the escape. He argues that under these facts robbery and the kidnaping were separate offenses, punishable under Penal Code section 211a, robbery, and Penal Code section 207, simple kidnaping, 3 but not under Penal Code section 209, which in the language of the section punishes one 'who kidnaps or carries away any individual to commit robbery.'

With respect to this contention, the facts are not in dispute. Appellant's car was parked at the curb prior to entering the market. After completing the actual robbery of the market, he entered his car but could not escape therein because it wouldn't start. He went to the parking area of a nearby furniture store looking for a means of escape. By coincidence Teeter happened to be at his car, and the kidnaping then took place. There was no evidence of an intent to rob Teeter, nor was this the theory of the case at the trial.

It is clear under these facts that the intent to kidnap did not arise until some time had elapsed after the actual robbery was completed; that the kidnaping was of a person totally unrelated to the robbery, and that it took place off the premises of the robbery. Aside from the decision in this case on the former appeal this combination or circumstances is unique and creates a problem of first impression.

This court on the former appeal stated in its decision, 264 Cal.App.2d at page 945, 71 Cal.Rptr. at page 79:

'Defendant contends the trial judge committed error by instructing the jury that a kidnaping in the course of a robbery or with intent to commit robbery can occur after the actual taking of the property; that is, the kidnaping can take place during escape or while evading

Page 846

pursuit or apprehension. Defendant appears to argue that in the light of the 1951 amendments to section 209 of the Penal Code, the kidnaping must precede the robbery. This is a misconstruction of the code section. People v. Martin, 250 Cal.App.2d 263, at pages 268-269, 58 Cal.Rptr. 481, at page 485, considers this proposition: 'Where, as here, kidnaping occurs after the actual perpetration of a robbery 'such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the victim was to effect the escape of the robber or to remove the victim to another place where he might less easily sound an alarm. [Citations.]'' (See also People v. Monk, 56 Cal.2d 288, 295 [14 Cal.Rptr. 633, 363 P.2d 865]; People v. Kristy, 4 Cal.2d 504, 507-508 [50 P.2d 798]; People v. Randazzo, 132 Cal.App.2d 20, 23-24 [281 P.2d 289].)'

In obedience to the above holding on the first appeal (People v. Laursen, supra, 264 Cal.App.2d at p. 945, 71 Cal.Rptr. 71), the jury at the second trial was instructed:

'You are instructed that where, as here, it is alleged that the kidnaping occurred after the actual perpetration of a robbery such kidnaping may be kidnaping for the purpose of robbery if it may reasonably be inferred that the transportation of the kidnaped victim was to effect the escape of the robber.'

The question immediately arises as to whether the doctrine of the law of the case prevents this court from reconsidering the principles stated on the former appeal in view of the later pronouncements of our Supreme Court delineating and restricting the scope of the operation of Penal Code section 209, as typified in the cases of People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, and People v. Tribble, supra, 4 Cal.3d 826, 94 Cal.Rptr. 613, 484 P.2d 589.

For the reasons hereinafter stated, we believe the Supreme Court's interpretation respecting the intent and purpose behind Penal Code section 209, as reflected in Daniels and Tribble, supra, has sufficiently altered and clarified the rules of law applicable to the interpretation of that section as to justify re-examination of our former holding, inasmuch as a refusal to do so would lead to a harsh result (People v. Terry (1964) 61 Cal.2d 137, 151, 37 Cal.Rptr. 605, 390 P.2d 381; Subsequent Injuries Fund v. Industrial Acc. Comm. (1960) 53 Cal.2d 392, 395, 1 Cal.Rptr. 833, 348 P.2d 193).

As the court stated in People v. Daniels, supra, 71 Cal.2d 1119, at p. 1139, 80 Cal.Rptr. 897, at p. 910, 459 P.2d 225, at p. 237, in interpreting the legislative purpose of Penal Code section 209, and in the process of overruling a number of their own holdings to the contrary:

'This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act.' [Citation.]'

In that case, the court concluded that it was the legislative intent in amending Penal Code section 209 in 1951 to circumscribe that scope of the section by preventing a person from...

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