People v. Parker

• Decision Date: 15 August 1967
• Docket Number: Cr. 13165
• Citation: People v. Parker, 61 Cal.Rptr. 411, 253 Cal.App.2d 567 (Cal. App. 1967)
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William V. PARKER and Harvey H. Yoder, Jr., Defendants and Appellants.

Page 411

61 Cal.Rptr. 411

253 Cal.App.2d 567

The PEOPLE of the State of California, Plaintiff and Respondent, v. William V. PARKER and Harvey H. Yoder, Jr., Defendants and Appellants.

Cr. 13165.

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

Aug. 15, 1967.

As Modified Sept. 5, 1967.

Hearing Denied Nov. 1, 1967.

Byron Y. Appleton, Los Angeles, under appointment by Court of Appeal, for appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Bradley A. Stoutt, Deputy Atty. Gen., for respondent.

FOURT, Associate Justice.

This is an appeal by each of the appellants from a judgment of conviction of first degree robbery, attempted robbery and of assault with a deadly weapon.

In an information filed in Los Angeles County on May 2, 1966, defendants were jointly charged in counts I and II with robbery, in count III with attempted robbery and in count IV with assault with a deadly weapon with intent to commit murder. In counts I, II and III it was also alleged that defendants were armed with a deadly weapon at the time of the commission of the offenses. In all four counts it was alleged, too, that Yoder was armed with a deadly weapon at the time of the arrest. One prior conviction of a felony was alleged against Parker and three prior felony convictions were alleged against Yoder.

Defendants pleaded not guilty and denied the alleged prior convictions. Later in the case the one prior charged against Parker (an Indiana conviction) and the first and second priors charged against Yoder (Nebraska for auto stealing and Nevada for burglary) were stricken. Yoder admitted the third charged prior conviction of robbery in California on September 6, 1961, and that he had served a term therefor in the state prison.

In a jury trial each defendant was found guilty of first degree robbery as charged in counts I and II, and of attempted robbery in the first degree as charged in count III. Parker was found to have been armed at the time of the commission of the offenses in counts I, II and III. Yoder was found not to have been armed at the time of the commission of these offenses. Each defendant was found guilty of assault with a deadly weapon in violation of section 245, Penal Code, a lesser and necessarily included offense within that charged in count IV. Yoder was sentenced to the state prison for the term prescribed by law on each count. Sentence on count II was ordered to run consecutively to count I, count III to run consecutively to count II and the sentence as to count IV to run concurrently with count III.

Parker was sentenced to the state prison for the term prescribed by law on each count. Sentences as to counts II, III and IV were ordered to run concurrently with count I; counts I, II, III and IV were ordered to run consecutively to a sentence imposed in case No. 321--638.

A re sume of some of the facts is as follows:

Count I: On February 16, 1966, about 9 p.m. defendants entered a liquor store at 2424 Fletcher Drive where Andrew Cleeland was employed and working as a clerk. The defendants entered the store, Parker took out a revolver, Yoder pushed Cleeland toward the cash register and told him to 'Open it.' Cleeland complied and then was told by Yoder to lie down on his stomach. Cleeland heard the sounds of the cash register as it was being rifled. Yoder then stated to Cleeland, in effect, that there must be some more money and Yoder removed $13 and a wallet from Cleeland's pockets. Defendants left the place and Cleeland called the police. About $71 was missing from the cash register. Cleeland described defendants to the police and later saw pictures of them at a police station and saw Parker in a police lineup.

Count II: Frank Mazzo was working as a clerk in the Glen-Row Liquor Store on Fletcher Drive about 9:50 p.m. on February 16, 1966. Mazzo saw Parker in the store with a revolver in his hand saying, 'This is a hold-up.' Yoder was with Parker and told Mazzo to open the cash register. After Mazzo complied with the command, Parker directed Mazzo to a back room where Parker commanded Mazzo to lie face down on the floor. Mazzo heard Yoder taking the money from the cash register. After defendants left, Mazzo determined that about $200 was missing from the register. Mazzo, at the police station, saw a picture of Yoder and saw Parker in a lineup.

Counts III and IV: Harry Finkelstein was employed and engaged as a clerk at the M & W Liquor Store, 2801 Fletcher Drive, Los Angeles, at about 8 p.m. on February 21, 1966. Finkelstein looked up and saw Parker with a revolver pointed at him. Parker directed Finkelstein into a back room where Finkelstein was directed to lie down. Some customers entered the store and Parker 'motioned with the gun' for Finkelstein to get up and wait on them. Parker stayed behind a wine shelf. Finkelstein saw Yoder 'standing * * * behind the counter.' Finkelstein twice asked Yoder to move to the front of the counter but Yoder shook his head.

Finkelstein waited on a customer and then grabbed a .45 caliber revolver which was kept close by the cash register, went out the front door, pausing momentarily at the entrance to fire a shot towards Parker behind the wine shelf. Finkelstein positioned himself behind a parked car in front of the store. He saw Parker go behind a display in the store and Finkelstein told Parker he would shoot him if he came out the front door, the store's only doorway. Parker ran towards the door and Finkelstein shot at Parker. Parker stopped at a display, pointed his gun at Finkelstein and apparently then fired his revolver. In seconds Finkelstein heard a plate glass window in the store being 'smashed out.' Finkelstein looked and saw the men running; he ran after them shouting for the men to stop. The men did not stop and Finkelstein fired shots at them. No money was taken from the cash register. Finkelstein saw a picture of Yoder at the police station and saw Parker at the jail.

Jerry Moore drove up to the M & W Liquor Store about 8 p.m. on February 21, 1966, and saw Yoder outside the store, leaning against the building. Moore parked in front of the store and entered. Later he saw Yoder standing behind the counter in the store. Moore heard someone scream 'Hold up' and then someone 'let go with a .45.' Moore hid behind a counter and saw Parker with a gun. Moore heard three or four more shots from the .45 and 'what sounded like a .38 or a .32 go off.' Moore saw someone who appeared to be Parker pushing Yoder through the plate glass window. Moore recognized a picture of Yoder at the police station.

Mrs. Moore stayed in the parked car when her husband entered the store. She saw Yoder standing behind the counter with Finkelstein. After Finkelstein exited from the store he stood behind her car and called for help. She heard shots and saw two people 'come through the window' and Finkelstein chasing them.

Officer Leone testified that on February 21, 1966, he found some .45 steel jacket slugs in the store and also a .38 caliber slug on the floor of the store.

Yoder testified that he did not rob Cleeland or Mazzo on February 16, 1966, that he was not with Parker on that date but he could not remember where he was. He stated that he was not with Parker on February 21, 1966, and did not rob Finkelstein. On cross-examination he admitted his previous conviction for armed robbery.

Parker did not testify in his own behalf and produced no evidence.

During the opening argument of the prosecutor, he stated: 'Now, when you consider whether Mr. Yoder is telling the truth or not, you can bear in mind and take into...