People v. Thompson
Citation | 252 Cal.App.2d 76,60 Cal.Rptr. 203 |
Decision Date | 28 June 1967 |
Docket Number | Cr. 5473 |
Court | California Court of Appeals |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Leonard THOMPSON, Defendant and Appellant. |
Philip L. Grauman, San Francisco, for appellant (Under appointment of Court of Appeal).
Thomas C. Lynch, Atty. Gen. of California, John T. Murphy, Gloria F. DeHart, Deputy Atty. Gen., San Francisco, for respondent.
Defendant appeals from the judgment of conviction entered upon a verdict finding him guilty of kidnaping for the purpose of committing robbery (violation of Penal Code, section 209), 1 assault with a deadly weapon on a peace officer (violation of section 245b), possession of a firearm by a convicted felon (violation of section 12021), and two counts of robbery (violation of section 211). Defendant's contentions are as follows: that certain evidence was illegally obtained and therefore should not have been introduced; that the evidence was insufficient to support the verdict as to all counts excepting assault; that the count charging possession of a firearm should have been dismissed prior to trial upon defendant's motion under section 995; that the trial court failed to give certain instructions; that the trial court's comment as to his opinion regarding defendant's guilt was improper; that defendant was denied the effective assistance of counsel; and that the various errors committed by the trial court resulted individually and cumulatively in a miscarriage of justice. 2
On the evening of May 19, 1965 Dr. and Mrs. Alexander Riskin were at their home at 120 Belgrave, San Francisco. At approximately 10:00 p.m. their front doorbell rang and Mrs. Riskin proceeded to the door to open it. As she did so two men pushed their way into the house. One, who was wearing a dark green toggle coat and had a ski mask over his face, carried a gun; the other wore no mask and carried a large knife. As the men entered Mrs. Riskin started screaming. The man with the gun said, 'Shut up; shut up or I will kill you.' However, she continued to scream so that the man with the gun put his hand over her mouth and pushed her to the floor. At the same time he told Dr. Riskin, who had followed his wife to the front door, to sit down on the floor. Dr. Riskin then asked the men not to hurt his wife because she was just home from the hospital. In response to this request one of the men replied, One of the men then went in the Riskin's living room where Marilyn, their daughter-in-law had been conversing by telephone with her husband, who was in Los Angeles. Marilyn was then brought out to the hall and ordered to sit on the floor next to Dr. and Mrs. Riskin. At this time the man with the knife, who had meanwhile put a mask on his face, told the Riskins that his companion was dangerous and in need of 'a fix' and asked them if they had any morphine.
The men then asked where the money and the jewels were, Mrs. Riskin responding that they were upstairs in the bedroom. However, when the man with a gun pointed his gun at Marilyn and asked her to go upstairs and show him the money and jewels, Mrs. Riskin interjected that since it was her house and she knew where everything was she would go. Mrs. Riskin then arose and started up the stairs behind the man with the gun. Part way up the stairs Mrs. Riskin turned around and looked down at her husband and daughter-in-law and the man standing over them with a knife. However, when the man with the gun waived his gun and said 'Come on, come on,' Mrs. Riskin proceeded up the stairs and into the bedroom.
Once in the bedroom the man with the gun took some items from Dr. Riskin's trousers, including a small pocket knife, a watch, keys, and some bills from a wallet. The man then put these items in his pockets and he and Mrs. Riskin went downstairs to the dinette, where the man took some change from Mrs. Riskin's purse. The two then proceeded to the living room where the man continued his search for valuables. He then took Mrs. Riskin back to the entry hall and ordered her to sit on the floor with her husband and daughter-in-law.
At this time Officers Frank Kerlin and Burt Olson of the San Francisco Police Department, who had received a call in their radio car that there was a burglary in progress at 120 Belgrave, 3 arrived at the Riskin residence and demanded entrance. When Marilyn opened the front door after being admonished by one of the men not to do so, the officers entered the hallway of the Riskin house. Upon entering, Kerlin saw Dr. and Mrs. Riskin lying on the floor. In addition Kerlin saw a man standing in a doorway on the side of the hall. This man was wearing a blackish-green jacket with wooden buttons and had a hood over his head. As he saw the officers he dropped the knife he was carrying and ran through the door. At this point Mrs. Riskin shouted Kerlin, however, followed the man through the doorway which led to the outside of the house. As Kerlin rounded the doorway he saw the man at the foot of the stairs. At this time the man had pulled the hood off his head and looked back at Kerlin, who observed that the man was a Negro with a thick growth or shadow beneath his nostrils. Kerlin shouted to the man to halt. However, the man ran through the trees. Kerlin then pursued the man in his police car, but although he observed the suspect running, he lost the man in the vicinity of Shrader and Alma Streets.
At this point Kerlin was joined in his search by Officers Clark and Gerrans, who had heard Kerlin's report to communications that he was in pursuit of a robbery suspect. Shortly thereafter Gerrans discovered defendant hiding in the bushes in the yard at 1241 Shrader. Although defendant emerged from the bushes upon Gerrans' command, as he did so he lunged at Gerrans with a knife, thereby cutting Gerrans' hand. A scuffle between Gerrans and defendant then ensued. However, when Clark arrived on the scene, the two officers were able to subdue defendant. Defendant was then taken to the police car where, based upon the fact that he was a Negro, had a thick mustache underneath his nostrils, and was wearing a greenish-black jacket with toggle buttons, Kerlin identified defendant as the man whom Kerlin had observed on the stairway at the Riskin home.
Various items of jewelry which were identified at the trial as belonging to the Riskins were found by the police on defendant's person at the time of the arrest and in the back seat of the police car in which defendant was transported after his arrest. These items were introduced into evidence as was a loaded gun which was found by Bradley Thomas in his yard at 1241 Shrader Street on the day after the robbery. Also introduced into evidence was a .38 caliber Colt bullet casing which was found in an attache case in defendant's hotel room on May 20, 1965 by Inspector Emile Dutil of the San Francisco Police Department. Charles Fontan, a criminologist in the San Francisco crime laboratory, testified that in his opinion the bullet casing had been fired by the gun found in the yard at 1241 Shrader Street.
Defendant was the only witness for the defense. He testified that he had never been in the Riskin home; that he was in the vicinity of their home because he was supposed to meet a man named James Benson in a bar on Carl Street; that as he was looking for Benson, a man ran past him and threw a coat on the ground; that because this coat was better than defendant's, defendant picked it up; that he then went into the yard at Shrader Street where he took off his own jacket and tried on the coat he had found; that he felt a gun in the coat pocket, took it out and threw it in the bushes; that when he heard cars approaching he became scared and hid in the bushes that when a flashlight was pointed at him he came out of the bushes; that the officers who apprehended him made him kneel down and pushed his face in the mud; and that they also struck him in the mouth, causing the wire in his false teeth to break and to cut his mouth and the hand of one of the officers. Finally defendant testified that the officers hit him several times both in the yard and at the police station. 4
Defendant contends that the bullet casing which was found in his hotel room by Inspector Dutil was obtained as a result of an illegal search and seizure and was therefore improperly admitted into evidence. The evidence which was elicited at the hearing on defendant's motion for new trial 5 concerning the propriety of this search was as follows: Patrick Smythe testified that as a parole agent employed by the California Department of Corrections he was assigned to the Special Service Unit of the Department, which provided special parole agents for parolees who have a high potential for violence; that on May 20, 1965 defendant, who was on parole and had a personal parole officer other than Smythe, was classified as a Departmental Interest Case and thus came within the jurisdiction of the Special Service Unit and of Smythe; that on May 20, 1965 Smythe was in the burglary detail of the San Francisco Police Department on a matter unrelated to the instant case and while there received information that defendant had been taken into custody; that based upon the police report which Smythe received, he notified the office of the Director of Corrections and defendant's personal parole officer that defendant had been arrested; that since the police report indicated that two persons had been involved in the offense, it became Smythe's duty to conduct a special investigation to determine if other men under the Department's jurisdiction had been involved in the offense; that in addition Smythe was...
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