People v. Harris

FOURT, J. This is an appeal from a judgment of conviction of attempted robbery and of simple assault (a misdemeanor).

In an information filed in Los Angeles on November 16, 1967, defendant was charged in count 1 with assault with intent to commit murder (§217, Pen. Code) and in count 2 with attempting to rob York Wallace. Defendant pleaded not guilty and in a jury trial defendant was found guilty of simple assault, a lesser included offense, as to count 1 (§ 240, Pen. Code) and guilty as charged as to count 2 (§ 664, Pen. Code). Probation was denied and defendant was sentenced to the state prison for the term prescribed by law as to count 2 and to the county jail for 180 days as to count 1; the sentence as to count 1 was stayed pending any appeal as to the count 2 charge and further stayed if the judgment as to count 2 be affirmed. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: at about 2 a.m. on October 26, 1967, York Wallace parked his automobile under a street light in front of his house at 2032 East 120th Street in Los Angeles. He started to take from his car some groceries which he had just purchased and as he did so he felt [835]an object in Ms back and turned around to see what was taking place. The defendant with a revolver in his hand and pointed at Wallace’s head announced to Wallace, “This is a holdup. Be quiet.” In a loud voice Wallace responded, “Oh, Lord.” Defendant said to Wallace, “I told you to be quiet” —hesitated momentarily and then with the gun only inches away from Wallace's head fired the gun and shot Wallace in the face. Wallace fell to the pavement face down, then started to get up on his knees when defendant struck him on the side of his head and shoulder with the gun. Wallace attempted to get up and defendant struck him again. Wallace called out and his daughter (Mrs. McClendon) who lived in the house came outside and saw the situation with reference to her father. She shouted to the defendant to get away from her father. Defendant then ran to his 1957 black and white DeSoto automobile which was parked a short distance from the Wallace car. Defendant tried to start his car and had some difficulty at first in making it go.

Mrs. McClendon saw that defendant was about to get away and she ran inside the house just momentarily and shouted to her mother, “Dad has been shot.” Mrs. McClendon ran out, got into her car and accompanied by a neighbor, John Caraway, gave chase to defendant. The defendant’s car was within sight (about a half block away) at the time Mrs. McClendon started to follow him. Defendant drove to a Shell service station about a mile from the scene of the crime. The defendant was driving the De Soto ear and it was in sight during all of the chase. At the Shell station defendant got out of his car and went to the lube rack area where he stood. Mrs. McClendon got out of her car, walked up to the window of the station and took a good look at defendant. Defendant at that time appeared to be shocked and he stared at Mrs. McClendon. She wrote down on a piece of paper the license number of the De Soto car, returned to the home and called the police giving them the license number and location of the De Soto ear and a description of defendant. The officers arrived shortly and arrested defendant. A search was made for the gun which defendant had used, but none was found.