People v. Stompro

Decision Date26 February 1981
Docket NumberCr. 4282
Citation116 Cal.App.3d 289,171 Cal.Rptr. 903
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Scott O. STOMPRO, Defendant and Appellant.

ZENOVICH, Associate Justice.

An information was filed charging appellant Scott O. Stompro (aka Douglas M. Yessak) with the following counts: (1) attempted robbery (Pen.Code, §§ 664, 211); 1 and (2) robbery (Pen.Code, § 211). 2 The information also charged that appellant used a firearm in the commission of both offenses (Pen.Code, § 12022.5). Following a jury trial, appellant was found guilty of attempted robbery and, as to count II, the lesser included offense of auto theft (Veh.Code, § 10851). The jury further found that appellant had used a firearm in the commission of each offense. Appellant was committed to the custody of the Director of Corrections for a term of five and one-third years. On count I, the court imposed the middle term of two years and added a two-year enhancement for the use of the firearm. On count II, the court added consecutive terms of eight months for the auto theft violation and eight months for the use of a firearm during the commission of that offense. He appeals.

On December 14, 1978, Elisa Kraft was working as a clerk at the Maze Pharmacy in Merced. At the same time, Pharmacist Bob Pittman was working in the office and another employee, Evelyn Crist, was doing paperwork in the pharmacy. Sometime between 10 and 11 a. m. that morning, Mrs. Kraft was helping a customer named David Galan, who was waiting for a prescription to be filled at the rear counter in front of the pharmacy. While Galan was in the store, Mrs. Kraft saw another man come into the store; the man was later identified as being appellant. As appellant walked toward the rear counter, he pulled a scarf over his face. Appellant pulled out a gun and told Mrs. Kraft not to push any buttons as he got closer to the cashier's counter. Appellant then grabbed Galan by the arm and pushed him into the pharmacy area. He pointed the gun at Mrs. Kraft and waved her toward the pharmacy, but she remained behind the counter. Although he attempted to get Mrs. Kraft to leave the counter area, she told him, "I was going to faint, so he just left me alone in front." Appellant commanded her to "open up the cash register"; she refused to do so by keeping her arms folded. Appellant tried to open the register himself, but was unsuccessful in his attempt. Accordingly, he went back into the pharmacy area. Appellant then asked Evelyn Crist for some morphine and percodan. As appellant had his back to Mrs. Kraft, she pushed a warning button. Pharmacist Pittman was alerted to the commotion up front, and Mrs. Kraft ran out of the front door of the drug store to a nearby restaurant known as the Lunch Box. On her way out of the pharmacy, she pulled a burglar alarm located near the door. Mrs. Kraft told people in the Lunch Box about the robbery and proceeded to directly telephone the police department.

Evelyn Crist testified that appellant initially left the pharmacy by the back door, although he apparently backtracked and eventually made an exit via the pharmacy's front door. He had been unsuccessful in obtaining either money or drugs.

While she was telephoning the police from the Lunch Box, Mrs. Kraft saw appellant outside the pharmacy. He had removed the scarf and was walking along 17th Street. Mrs. Kraft observed him walking towards the corner of L Street, where he turned and started walking toward 18th Street.

At about 11:15 a. m. on December 14, Sergeant David Hammond of the Merced County Sheriff's Department was unloading some packages from a United Parcel Service truck near the area of 17th and L Streets. He was working part-time as a delivery man for UPS at the time. As he was loading some packages onto a dolly for delivery, appellant walked behind Hammond and stated, "Hey, pardner." Hammond turned around and viewed appellant, who was pointing a small handgun in his direction. Appellant then instructed Hammond, "Get in the truck; we're going for a ride."

Hammond responded by telling appellant, "I don't have any money in the truck, I don't have any money, I don't carry any money." As Hammond started to get in the truck, he noticed that appellant looked over his shoulder; Hammond then attempted to grab the gun, although he "couldn't hang onto it, " Since appellant still had the gun, Hammond hit him, knocking him backwards. Hammond then fled across the alley to Minetti's Stationery Store.

Appellant got into the UPS delivery truck and started to drive away. Meanwhile, in response to an armed robbery report, Merced Police Officer David Schroeder stopped in the area of 17th and L Streets and was advised by bystanders that a suspect "had just jumped in the UPS truck that was parked in the alley." Schroeder then observed the truck proceeding in an eastbound direction down the alleyway. 3 In response to this observation, Schroeder pulled his police car behind the truck with emergency lights flashing. Although the truck did not initially respond to the flashing lights, it was eventually stopped when a car blockaded it in the alleyway. Schroeder ran to the side of the truck with a shotgun and ordered the suspect out of the truck. He found appellant to be the driver of the UPS truck. Schroeder was then assisted by several back-up units and officers for purposes of detaining appellant.


Count II of the information charged appellant with having committed a robbery (Pen.Code, § 211). Appellant's trial counsel requested the court to instruct jurors that joyriding (Pen.Code, § 499b) was a lesser included offense for which appellant could be convicted. Although it denied this request, the court decided to admonish the jury that auto theft (Veh.Code, § 10851) was a lesser included offense of robbery. Appellant contends that it was erroneous to proffer the auto theft instruction, since auto theft is not statutorily an included offense of robbery and since the information did not notify appellant that he could be convicted of auto theft. Contradistinguished, respondent contends that appellant was sufficiently notified about the lesser included offense by virtue of evidence contained in the preliminary hearing transcript. For the following reasons, we conclude that appellant was effectively notified of the lesser included offense and that the variance between auto theft and robbery did not prejudice the defense at trial.

Before addressing the merits, we must resolve a preliminary issue. Respondent alludes to the fact that appellant lacks standing to allege error here because he did not object to the auto theft instruction. We disagree, since we may review any instruction not objected to below if substantial rights of the appellant are affected. (Pen.Code, §§ 1259, 1469; People v. Arredondo (1975) 52 Cal.App.3d 973, 978, 125 Cal.Rptr. 419.) Since the jury convicted appellant of the lesser included offense, this is a case falling within the broad exception to the no-objection rule. We now turn to the merits of appellant's argument.

At the outset, it should be noted that the auto theft instruction was erroneously given under either the "elements of the crime" or the "accusatory pleading" test.

Under the "elements of the crime" test, a crime is always and necessarily a lesser included offense within another, greater crime when, as a matter of legal definition, the greater offense cannot have been committed without concomitantly having satisfied all the elements of the lesser one. (People v. Cannady (1972) 8 Cal.3d 379, 390, 105 Cal.Rptr. 129, 503 P.2d 585; People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390.) We are of the opinion that, under this standard, it is clearly established that auto theft is not a lesser offense necessarily included in robbery. (People v. Marshall (1957) 48 Cal.2d 394, 399, 309 P.2d 456; People v. Pater (1968) 267 Cal.App.2d 921, 925, 73 Cal.Rptr. 823, questioned on another point in People v. Malamut (1971) 16 Cal.App.3d 237, 242, 93 Cal.Rptr. 782.)

The second test of lesser included offense recognized in California is the "accusatory pleading" test. Under this analysis, a lesser offense is necessarily included if it is within the offense specifically charged in the information. (People v. Cannady, supra, 8 Cal.3d at p. 390, 105 Cal.Rptr. 129, 503 P.2d 585.) The facts alleged in the charging papers must sufficiently notify a defendant of any potential lesser included offenses he must be prepared to defend against. (People v. Marshall, supra, 48 Cal.2d at pp. 405-406, 309 P.2d 456.) Nonetheless, where the accusatory pleading is couched in terms of the statutory definition of the greater crime and no additional factual allegations are included therein, the courts necessarily must rely upon the statutory definition. (People v. Anderson (1975) 15 Cal.3d 806, 809, 126 Cal.Rptr. 235, 543 P.2d 603.) We find the limitation noted in Anderson makes the "accusatory pleading" test inapplicable to appellant's situation. The information merely alleged that appellant "did wilfully and unlawfully, and by means of force and fear take away personal property from the person, possession, and immediate presence of David Hammond, a person who was then and there performing his duties as operator of United Parcel Service." Since the information did not even inform appellant that the personal property involved was an automobile, it was deficient in...

To continue reading

Request your trial
1 cases
  • People v. Edwards
    • United States
    • California Court of Appeals Court of Appeals
    • March 27, 1981 information No. 236188-9. (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396; accord, People v. Stompro, 116 Cal.App.3d 289, 171 Cal.Rptr. 903. Harvey held that a Penal Code section 12022.5 use enhancement of a consecutive offense may only be imposed on those offense......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT