People v. Stephenson

• Decision Date: 16 January 1974
• Docket Number: Cr. 16819
• Citation: 517 P.2d 820,10 Cal.3d 652,111 Cal.Rptr. 556
• Court: California Supreme Court
• Parties: , 517 P.2d 820 The PEOPLE, Plaintiff and Respondent, v. Fred James STEPHENSON, Defendant and Appellant.

Page 556

111 Cal.Rptr. 556

10 Cal.3d 652, 517 P.2d 820

The PEOPLE, Plaintiff and Respondent, v. Fred James STEPHENSON, Defendant and Appellant.

Cr. 16819.

Supreme Court of California,

In Bank.

Jan. 16, 1974.

Fred James Stephenson, in pro. per., and R. William Shpall, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Howard J. Schwab and Donald J. Oeser, Deputy Attys. Gen., for plaintiff and respondent.

McCOMB, Justice.

Defendant Fred James Stephenson was charged by information in Counts I and III with robbery in violation of Penal Code section 211 (victims Virgil del Bucchia and Walter E. Anderson); in Counts II, IV, and VI with kidnaping for the purpose of robbery, in violation of Penal Code section 209 (victims del Bucchia, Walter E. Anderson and Evelyn Anderson); and in Count V with rape in violation of Penal Code section 261, subdivision 3 (victim Evelyn Anderson). ¹ He pleaded not guilty, and, together with all counsel, waived trial by jury. The court found him guilty on all charges, denied probation and ordered that he be punished in the state prison for the term prescribed by law on each count. Execution of sentence as to Count I was ordered stayed, such stay to become permanent and final on completion of service of sentence on Count II; execution of sentence as to Count III was ordered stayed, to become permanent and final on completion of service of sentence on Count IV; execution of sentence as to Count IV was ordered stayed to become permanent and final on completion of service of sentence on Count IV; sentence on Count V was ordered to run concurrently with Counts II and IV; and sentences on Counts II and IV were ordered to run consecutively.

The principal issues raised on this appeal are the sufficiency of the evidence to support convictions of two counts of First degree robbery; the sufficiency of the evidence to support convictions for Three counts of kidnaping for the purpose of robbery; the sufficiency of the evidence to identify defendant as the perpetrator of the crimes committed against del Bucchia; and whether defendant was denied effective or adequate representation by counsel at the trial and on the appeal.

A discrepancy in the record is noted with regard to the count's fixing of the degree in Counts I and III (Robbery). The clerk's transcript shows that the degree was fixed in the First Degree on these counts. The reporter's supplemental transcript shows that at the sentence hearing (February 14, 1972) the trial court determined that the degree was 'first degree' on these counts and sentences were pronounced thereon. Following an off-the-record colloquy the court stated 'We will have to vacate and start over. I just made an error. Thank you for bringing it to the Court's attention. We will start over. The Court will proceed with Count II . . ..' After considering Count II the court proceeded to consider Count I and then the other counts, but it failed to fix the degree as to either Count I or III. The matter must be resolved in favor of the court's statement as reflected in the reporter's supplemental transcript rather than the clerk's version thereof as reflected in the clerk's transcript (see People v. Blackburn (1968), 261 Cal.App.2d 554, 559--560, 67 Cal.Rptr. 918). Upon failure of the trial court to determine the degree it is deemed to be of the lesser degree (§ 1192). There is no merit in defendant's contention that the convictions on Counts I and III are void because the court failed to determine the degree. (See In re Harris (1967), 67 Cal.2d 876, 64 Cal.Rptr 319, 434 P.2d 615.) The sentences on those two counts are deemed to be of the second degree. (§ 461.)

Our review of the record indicates that the evidence is sufficient to support all convictions except Counts II and IV and as to those counts only the judgment is reversed. We find no deprivation of effective assistance of counsel.

Facts. All counts stem from incidents occurring on October 2 and 7, 1971, commencing at the Los Angeles International Airport, and incriminate defendant as the person who offered to give rides to the victims herein, and who thereafter committed the crimes charged.

Virgil del Bucchia, aged 73, arrived from Italy at the airport about 9 p.m. on October 2. A man approached him calling 'Taxi, Taxi.' Del Bucchia asked if he would take him to Glendale, the man answered 'yes' and del Bucchia got into the man's car. After riding for a while del Bucchia commented 'You are going too far. I think this is not the way to Glendale.' The man replied 'Well, I take you to Glendale' and they kept on going without further protest. However, the man stopped the car on the 8900 block of Figueroa Street, took del Bucchia's wristwatch from his arm and his money ($2,000 cash plus some foreign money), made him take off his shoes, and struck him in the face many times. The man then pulled the victim from the car and drove off, also taking his leather box and suitcase. The victim hollered for help, someone called the police, and he was taken to the hospital.

Walter Anderson and his wife Evelyn arrived from Hawaii at this airport on October 7 about 10:30 p.m. They missed their bus to Pasadena, would have had to wait another hour for another bus, and decided to accept the offer of a bystander who introduced himself as 'Henry Miller.' The man said he had to go to Pasadena to pick up a 'Mr. Carter' and bring him back to the airport, and that he would be glad to take the Andersons to Pasadena for a few dollars. They accepted and he carried their heavier luggage and put it in a car parked in the brightly lit luggage area by the curb. Anderson got in back and his wife in front. The Andersons were surprised when the man drove past the entrance to the Harbor Freeway but the man reassured them that he was taking a shortcut, that he had driven the route for years and that he knew what he was doing. The Andersons became suspicious when he began making right turns and left turns about ten minutes later but instead of protesting they held hands and silently indicated to each other that they would 'kind of wait until we got wherever we were going.' The car was proceeding at a reasonable rate of speed. A shop was made at a dead-end street but the man said 'Oh, I made a mistake, I should have turned on Carson.' He drove back along Century to 114th Street and then stopped a second time,--this time at a 'T dead-end intersection.' Anderson saw the man pull something from the console and put it under his shirt but did not see what it was. Mrs. Anderson heard a 'clatter of metal against metal' and also saw the man put his hand under his shirt. Neither saw a gun or weapon. Each was frightened.

The man told Anderson 'You son-of-a-bitch. I'm right off San Quentin. I have nothing to lose. Give me your wallet.' Anderson did as he was told. The man made them both get out of the car and remove the luggage. He came around and stood by them, then told Anderson to run fast and not turn around or 'I will kill your wife.' Walter ran slowly about 25 paces, then turned and saw the man forcing Mrs. Anderson back into the car. A householder witnessed the car pulling up to the curb and Anderson removing the suitcases. She called the police for him.

Mrs. Anderson was frightened when made to get back into the car. She began talking to the man as they drove away and said 'Look, we don't have very much. You can have anything we have, but please don't hurt me.' He said he would not hurt her if she did not lie to him. After five or six blocks he stopped the car in the alley, took the money out of Anderson's billfold, handed the empty billfold to her, and Asked for her money. She had only one dollar and she handed it to him, but he handed it back. He then made her get into the back seat, take off her clothes, and lie down. He committed an act of sexual intercourse of her. When it was over he said 'Get out. Hurry' and drove off while she was attempting to put her clothes on and decide what to do.

The defendant was arrested under the following circumstances. There had been six robbery-kidnap incidents at the airport prior to October 13 and on the 13th there were several Los Angeles Police Department officers there on special investigation. Officer Mattison saw a man who appeared to him to answer the description of the suspect. He first observed the man walking on the sidewalk in front of the United Air Lines baggage terminal, saw him stop briefly and appear to talk to two persons standing on the sidewalk, and then saw him walk east and stop in front of a pedestrian standing on the curb in front of the terminal. Mattison was some 20 feet away from this last encounter, did not hear any words, did not know if any words were spoken by either, but he did see the pedestrian shake his head from side to side as if saying 'No.' He then watched defendant walk to an employees' parking lot, get into a 1967 Pontiac with a black vinyl top and green body and drive away. The license number proved to be that of defendant. Mattison later identified the man as the defendant.

A picture of defendant was obtained and shown to the victims. Prior thereto each of the Andersons had been separately shown photographs on three occasions but neither had selected any of them as depicting the man who committed these crimes. On October 15 she identified defendant's picture from a group of seven photographs shown to her. Her husband identified two out of a group of seven, stating that one of them was the man; and one of these was a picture of defendant. Del Bucchia picked defendant's picture out of a group of seven.

On the evening of October 15, 1971, the officers staked out parts of the airport and also watched defendant's home. Officer Malone observed defendant's car parked in front of a liquor store and arrested him as he...