People v. Richardson

• Decision Date: 09 February 1972
• Docket Number: Cr. 9863
• Citation: 23 Cal.App.3d 403,100 Cal.Rptr. 251
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Louis RICHARDSON, Defendant and Appellant.

Page 251

100 Cal.Rptr. 251

23 Cal.App.3d 403

PEOPLE of the State of California, Plaintiff and Respondent, v. Louis RICHARDSON, Defendant and Appellant.

Cr. 9863.

Court of Appeal, First District, Division 4, California.

Feb. 9, 1972.

Henry Hill, San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for plaintiff-respondent.

DEVINE, Presiding Justice.

Appellant Louis Richardson, together with one Leslie Henry, was charged with the commission of robbery and assault with means likely to produce great bodily injury. Both crimes were made the subject of separate counts in respect of the victims, so that four felonies in all were charged. In addition, it was charged that appellant had intentionally inflicted great bodily injury upon both of the victims. The charge, if found true, would set the minimum term in the state prison at 15 years, under Penal Code section 213.

The jury found appellant guilty of the four felonies, and found it to be true that appellant did, with the intent to inflict such injury, inflict great bodily injury on each of the victims of the robbery. The charge of prior convictions against appellant was dismissed. It was ordered that execution on the assault charges (Pen.Code, § 245) be stayed pending appeal and service of sentence on the charges of robbery. The jury was unable to reach a verdict as to the codefendant, Henry.

Facts

On September 20, 1970, Mrs. Marguerite Brinegar and Mrs. Rachel Denslow ate dinner together at Kip's Restaurant in Berkeley. Sometime after 7 p.m. (about dusk), the two walked down Durant Street to their car, which was parked at the corner of Durant and Dana Streets. Upon approaching their car, the two ladies heard the sound of running footsteps behind them. Suddenly, Mrs. Brinegar felt a heavy blow on her back in the area of her neck, and she 'crumpled to the ground.' A man attempted to pull her purse from her, but she held on to it; she was pulled into the street, hanging on to the purse. Finally Mrs. Brinegar was forced to give up her purse; she got to her feet, screaming.

At the same time that Mrs. Brinegar was attacked, another man struck Mrs. Denslow on the back. Mrs. Denslow testified that as a result of the blow, she was terribly stunned and she fell across the front of her car. Her purse was taken off her arm.

The attackers had stolen a blue floral print purse from Mrs. Denslow; and a black wicker purse containing a smaller black beaded purse, a black satin coin purse, a black leather credit card holder and a beige coin purse (containing keys) from Mrs. Brinegar.

During the struggle for her purse, Mrs. Brinegar was able to get a good look at her assailant. She testified that he was a young Negro male wearing whitish pants, a blue nylon jacket and a black gaucho hat.

After the attack, the assailants fled westward, then circled back, and disappeared down Dana Street. At this point, a bicyclist stopped and asked the two ladies what had happened; he was told where the assailants had gone and gave pursuit. Several other men approached the ladies and offered assistance. At this point, Officer Eckwall, a University of California policeman, drove up in a police car (with two police employees in the back seat). Upon being informed of what had happened, he proceeded south on Dana Street in search of the assailants. The bicyclist and several other bystanders followed the policemen down Dana Street, then west on Channing Street.

Officer Eckwall testified that he saw two suspects who matched the description given by Mrs. Brinegar. One suspect was wearing a black gaucho hat, and a blue nylon jacket. This man was identified, at trial, as appellant Richardson. Officer Eckwall called to the suspects to stop. They looked in his direction; then Richardson began walking northbound, and the other man began walking rapidly eastbound. After Richardson had walked about 20 feet, he turned and came toward Officer Eckwall. The other man walked 20 to 50 feet away, and then returned, apparently because his path was blocked by the bystanders who had followed the police car. Officer Eckwall informed Richardson that he was suspected of committing a crime and 'patted him down,' searching for weapons. Appellant was not informed of his rights at this time. In the meantime, David Smith, one of the group who had offered assistance to the victims and had remained with them, walked to where Richardson and his codefendant, Henry, were being held; he returned to the ladies and brought them to the scene. At this point, Mrs. Brinegar identified Richardson as the man who had attacked her; at trial, Mrs. Brinegar again identified Richardson as her assailant.

Shortly after Mrs. Brinegar had identified appellant, Officer Phelps of the Berkeley Police Department arrived on the scene. He pat-searched each of the suspects, but found nothing. Officer Phelps delivered Henry to the Berkeley Police Department, where he was searched and advised of his rights. Officer Eckwall transported Richardson to the Berkeley Police Department, where he was searched. The search uncovered a black beaded purse, and a black leather identification holder containing credit cards and checks belonging to Mrs. Brinegar, which had been hidden under appellant's shirt.

All of the purses stolen were eventually recovered. Smith found one of the coin purses in some bushes near the place where appellant was apprehended. A search on the following day uncovered another wallet or clasp-type purse, Mrs. Brinegar's keys and Mrs. Denslow's blue purse.

At trial, Mrs. Brinegar testified that, as a result of the attack upon her, she sustained injuries, which are described below.

Mrs. Denslow testified that, as a result of the blow she received from her attacker, she was stunned for an instant or two. She did not know if she was unconscious, but her further testimony makes it fairly clear that she was not.

The Robbery Verdicts

A reading of the statement of facts given above ought to be persuasive to anyone that appellant was guilty of the robberies committed on the two women (in the case of Mrs. Denslow, on the proposition that appellant and the other man, whether it was Henry or someone else, were acting in concert). Appellant argues, however, that the identification of appellant by Mrs. Brinegar was constitutionally infirm, because appellant did not have the services of counsel at the time and because the confrontation was unnecessarily suggestive. But a prompt, in-the-field identification outweighs the need for counsel and is more apt to be reliable than one that is the result of a later confrontation. (People v. Rodriguez, 10 Cal.App.3d 18, 29--30, 88 Cal.Rptr. 789.) There is no constitutional ban upon at-the-scene identifications. (People v. Smith, 13 Cal.App.3d 897, 909, 91 Cal.Rptr. 786; People v. Rodriguez, Supra, 10 Cal.App.3d at pp. 29--30, 88 Cal.Rptr. 789; People v. Scoglio, 3 Cal.App.3d 1, 6, 82 Cal.Rptr. 869; People v. Colgain, 276 Cal.App.2d 118, 125--126, 80 Cal.Rptr. 659; see also Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, 1284.) In this case, Mrs. Brinegar identified appellant not later than 30 minutes after the robbery. There had been an immediate pursuit of the robbers and appellant was stopped not more than three or four blocks from the scene of the robbery. Besides, the confrontation was not arranged by the police but by the spectator Smith.

As for the second point, the alleged suggestiveness, we hold that, considering the totality of the circumstances (People v. Colgain, Supra, 276 Cal.App.2d at p. 125, 80 Cal.Rptr. 659), the point is without merit. Mrs. Brinegar had a good opportunity of viewing her assailant; she struggled with him for one or two minutes; she described the clothes accurately. But besides all of this, the fact that when appellant arrived at the police station and was searched, he had in his possession Mrs. Brinegar's black beaded purse and her identification cards and checks, establishes without doubt that the identification was correct.

It is argued that the prosecution suppressed evidence, that is, that Mrs. Brinegar's black wicker purse was found at a point somewhere beyond that at which appellant was arrested. But there is nothing in the record which establishes just where the purse was found and, anyway, the wicker purse had been merely a container for the smaller beaded one which was in appellant's possession.

The verdicts on the robbery counts are sustained.

The Counts of Violation of Penal Code, Section 245

From a practical standpoint, it is not particularly important whether the violations of Penal Code, section 245 remain because, the robberies having been affirmed, the sentences on the section 245 verdicts are suspended. However, the trial court did fail to instruct on the lesser and included offense of simple assault. Such instruction must be given by the court, Sua sponte, whenever the evidence would admit of conviction of the lesser offense. ¹ (People v. Rupert, 20 Cal.App.3d 961, 968, 98 Cal.Rptr. 203; People v. Cooper, 268 Cal.App.2d 34, 73 Cal.Rptr. 608.) This is not a case in which the defendant, if guilty at all, was guilty of the greater offense, as was the case in the decisions where a deadly weapon was used. (People v. McCoy, 25 Cal.2d 177, 187, 153 P.2d 315 (use of knife); People v. Coleman, 8 Cal.App.3d 722, 733, 87 Cal.Rptr. 554 (armed robbery, gun used); People v. Tiffith, 12 Cal.App.3d 1129, 1134, 91 Cal.Rptr. 176 (robbery, gun used; at trial, defendant claimed blackout); People v. Lovely, 16 Cal.App.3d 196, 204, 93 Cal.Rptr. 805 (assault with knife); People v. Groce, 18 Cal.App.3d 292, 295, 95 Cal.Rptr. 688 (assault with knife; at trial, defendant denied any attack).)

In the case before us, the verdicts as rendered could be sustained if the jury had been instructed properly. But since the jury was not allowed a choice of convicting of...