People v. Nelson
| Decision Date | 22 January 1964 |
| Docket Number | Cr. 4299 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel Albert NELSON, Defendant and Appellant. |
David E. Nelson, San Francisco, for appellant (Under appointment of the District Court of Appeal).
Stanley Mosk, Atty. Gen., of the State of Cal., Albert W. Harris, Jr., Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.
On July 20, 1962, defendants Samuel Albert Nelson and Elton Green were charged in an information with the robbery of one Fred Wellman on or about June 17, 1962. (Penal Code, § 211.) It was also charged therein that at the time of the commission of the offense Nelson was armed with a deadly weapon, to-wit, a pistol. On August 3, 1962, defendant Nelson entered a plea of not guilty to the offense charged.
On August 17, 1962, an amended information was filed against defendants charging them with two counts of robbery. Count one, repeating the allegations of the original information, charged defendants with the robbery of Wellman and in addition alleged one prior felony conviction against Nelson and two such convictions against Green. Count two charged defendants with the robbery of one Regis Foss at the Regent Service Station on or about May 31, 1962. It was also charged that at the time of the commission of the offense each defendant was armed with a deadly weapon, to-wit, a pistol. The same prior convictions as in count one were realleged.
Defendants were convicted by a jury of robbery of the first degree on both counts, the jury finding that defendant Nelson was armed with a deadly weapon at the time of the commission of each of the offenses. Defendant Nelson alone appeals from the judgment.
Since defendant 1 does not question the sufficiency of the evidence to support the verdict, our recital of the facts will be limited to those necessary for a proper consideration of the issues before us. As will appear, some of the facts will be set forth infra in connection with our discussion of the respective issues to which they relate. We will also discuss the robberies in chronological order.
On May 31, 1962, at about 1 a. m. two men, later identified as defendant and Green, walked into the Regent Service Station in San Jose. They went up to Regis Foss, the attendant on duty, who was in a small shack and alone in the station. Defendant bought a pack of cigarettes; he and Green then went to the restroom; they then returned to Foss for matches. Defendant thereupon pulled a gun and demanded money. Foss gave him about $75 from the cash register. The men then shut Foss in the restroom. A few minutes later, Foss came out and called the police. Afterwards he noticed that $50 to $60 worth of cigarettes which were kept in cartons near the cash register were missing.
Foss identified defendant as one of the robbers in a police lineup at Santa Rita Prison Farm in Alameda County, where Nelson was being held after an arrest in Oakland as we will later explain. Foss also identified both defendant and Green at the preliminary hearing and at the trial.
On June 17, 1962, at 12:30 a. m., two men later identified as defendant and Green entered the Speedee Mart market in San Jose, selected some items for purchase and stood in line at the check stand. One Fred Wellman, a grocery clerk, was the sole person on duty at the check stand. Wellman rang up the items on the cash register, received two one-dollar bills from defendant and proceeded to return the change. He dropped some of the charge on the floor. After he picked it up, defendant gripped his hand hard so as to make him drop more coins. When Wellman reached down, defendant produced a gun and held it under the counter, pointed at Wellman's face. He said: 'This is a holdup.' At defendant's order, Wellman waited on another customer who remained unaware of what was transpiring. He then emptied the contents of two tills into a paper bag which he placed on the counter next to the bag of groceries. Defendant picked up both bags whereupon he and Green left the market. Wellman called the police. He estimated that the robbers took about $250.
showed Wellman about twelve photographs from which he identified defendant and Green. On July 9 the officers took Wellman to the Santa Rita Prison Farm where he again identified defendant. Wellman also made a positive identification of defendant and Green at the trial.
At this point, we pick up an intervening event in our narrative. On June 27, 1962, at about 1:30 a. m. defendant and Green were apprehended in a Standard Service Station in Oakland. Officers Borges and Trestler of the Oakland Police Department saw the pair walking into the station and followed them in the patrol car. 2 As the officers drove in, the two men went into the restroom. When they came out, the officers checked their identifications and also checked the restroom where they found a revolver in a waste can lying on top of the waste paper. This was later identified as a .38 caliber revolver with four bullets in the gun, one of which was under the hammer. A search of the restroom, made a short time afterward, uncovered a 7.65 millimeter automatic pistol with one shell in the chamber and six in the clip. Defendant later admitted to Borges that both weapons were his, that he carried them for protection and that he had cached them in the restroom because he did not want to be caught by the police with a gun, presumably because he was a convicted felon.
At the trial photographs of portions of the restroom showing the two guns as they were found therein were admitted in evidence without objection. However the two guns themselves together with their shells were received in evidence over defendant's objection.
In addition to Wellman, Foss, Oakland police officers Borges and Trestler, and several technicians, the prosecution called Sergeant Petersen of the San Jose Police Department. Petersen testified that on July 10, 1962, at the Santa Rita Prison Farm, after he and Sergeant McKay had confronted defendant with the fact that he had been identified in the police lineup on the previous day, defendant confessed first to the Speedee Mart robbery and finally to the Regent Service Station robbery. Prior to this testimony, the court conducted a preliminary hearing out of the presence of the jury and in chambers during which the trial judge heard testimony from both police officers and from defendant on the issue on the voluntariness of defendant's statements, as we discuss in detail infra. Suffice it to say at this point that, at the conclusion of such hearing, the court overruled defendant's objection to the introduction of his statement made at the Santa Rita Prison Farm and, as we have said, such statement was testified to before the jury by Sergeant Petersen and thus received in evidence.
Neither defendant nor Green took the stand in his own behalf. The defense called three witnesses who had been in or near the Speedee Mart at the time of the robbery but were unable to identify either defendant or Green.
Defendant contends here that: (1) the court committed prejudicial error in admitting his confession into evidence because the confession was induced by promises of leniency; (2) the prosecutor was guilty of prejudicial misconduct; and (3) the court committed prejudicial error in admitting in evidence the two guns and ammunition.
At the hearing conducted in chambers the People called Sergeant McKay who testified that he and Sergeant Petersen had first talked to defendant briefly on July 9, 1962, at the time of the lineup at Santa Rita. Both officers then returned on July 10, 1962, when they spoke to him about the two San Jose robberies. According to McKay no threats or promises were made to defendant prior to talking to him about the robberies.
McKay on voir dire examination by defense counsel thereupon testified that in the course of the above conversation at Santa Rita, defendant admitted to McKay and Petersen committing the two San Jose robberies at the Regent Service Station and the Speedee Mart market and also committing two robberies outside of San Jose. Defendant made such confessions after the officers had been talking to him for possibly an hour 'getting his background, the story about this his arrest.' McKay denied that he indicated to defendant prior to the confession that if the latter 'would confess to this one or these two or clean them all up,' McKay would see that 'it was easier on him.' McKay then testified: (Italics added.)
McKay denied that a complaint was issued for only one of the San Jose robberies him in what...
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