People v. Falconer

Opinion

CHANNELL, J.

A jury convicted appellant Patrick George Falconer of robbery enhanced by use of a firearm and of discharging a firearm into an inhabited dwelling. (Pen. Code, §§ 211, 246, 12022.5.)

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He was sentenced to eight years in prison. On appeal, we find that the accomplice testimony linking Falconer to the crime was not sufficiently corroborated to support

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his conviction. Because the trial court erroneously denied his motion for judgment of acquittal, Falconer is entitled to a judgment of acquittal.

I. Facts

On September 30, 1984, four or five intruders attempted to steal marijuana plants from the Redwood Valley property of Frank Buschbaker. The intruders were armed and shots landed inside the Buschbaker residence. Their faces were covered with stockings, masks, and bandanas; Buschbaker could not identify any of them. One of the intruders, Patrick Falconer, Jr., was wounded and later arrested at a Ukiah hospital. Another of them, Matthew Mitchell, told police about the incident. He explained that the wounded man’s father, appellant Patrick George Falconer, had planned the raid. He also thought that the senior Falconer was one of the men who participated in it. Mitchell was arrested and ultimately convicted of a felony arising from this incident.

Falconer, Sr., was charged with robbery enhanced by personal use of a firearm, and with discharging a firearm at an inhabited dwelling. (§§ 211, 246, 12022.5.) Testifying for the prosecution, Mitchell stated that Falconer, Sr., had planned the raid, had purchased nylon stockings ahead of time, went with the others to view the site early in the morning, and went back later in the morning with the other four men. He testified that when they split up, Falconer, Sr., had a stocking mask and a Halloween mask, although Mitchell did not see him put either on. Mitchell thought Falconer, Sr., was at the Buschbaker house hiding in the bushes, but he could not see him. He testified that someone wearing a Halloween mask came around the corner of the house, almost ran into Buschbaker, and exchanged shots with the owner of the house. Mitchell was not certain who was the man in the Halloween mask, but he assumed it was Falconer, Sr. He couldn’t be certain of this, because he never saw the elder Falconer put on or remove the mask. Other witnesses testified that Falconer, Sr., had purchased marijuana from Buschbaker eight or nine months earlier.