People v. Dugas

• Citation: 51 Cal.Rptr. 478,242 Cal.App.2d 244
• Decision Date: 13 May 1966
• Docket Number: Cr. 4901
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Sidney DUGAS, Defendant and Appellant.

Page 478

51 Cal.Rptr. 478

242 Cal.App.2d 244

PEOPLE of the State of California, Plaintiff and Respondent, v. Sidney DUGAS, Defendant and Appellant.

Cr. 4901.

District Court of Appeal, First District,

Division 2, California.

May 13, 1966.

Hearing Denied July 6, 1966.

R. Eugene Vernon, San Francisco, for appellant (Under appointment of District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

SHOEMAKER, Presiding Justice.

Defendants Sidney Dugas and John Baker were jointly charged by indictment with robbery and burglary. After a trial by jury, defendant Dugas was convicted of both offenses charged, and defendant Baker was convicted of burglary. Defendant Dugas alone has appealed from the judgment of conviction, and from the order denying his motion for new trial. The latter order is nonappealable.

At approximately 3:00 a.m. on July 22, 1964, San Francisco Police Officers Forni and Clark received an all-points broadcast that two Negro males had committed a burglary at 1925 Pierce Street and were fleeing from the scene with stolen property consisting of hi-fi equipment and records. They were told that one of the men was wearing a red sweater and that they had driven west on Pine Street in a red two-door hardtop automobile which was possibly a Buick and which had a license number beginning with 'C', three holes in each fender and two cracked or broken rear windows. As the officers were proceeding to the scene, they observed a car which matched the description, forced it to a stop and ordered the occupants, defendants Dugas and Baker, to get out of the car. Dugas was wearing a red sweater, and there were numerous phonograph records on the back seat of the car. Both men initially attempted to flee but were apprehended, placed under arrest and searched. A wallet which bore the name Peter Schuler and which contained cards and a check also bearing that name was found in Dugas' right rear pocket.

Defendant Dugas was subsequently identified by Peter Schuler, the victim of the burglary and robbery. John Feniger, the man who reported the crime to the police, was shown the two defendants and the car, and stated, 'That is the car * * * that's the man.' He subsequently identified a photograph of defendant Baker.

Schuler testified that he had returned to his Pierce Street apartment around mid-night on July 21, 1964, having been absent for approximately two hours. As he entered the apartment, he was struck by defendant Dugas and rendered unconscious. When Schuler awoke, he was lying on the floor and was bound hand and foot with electrical cord which he had left in the apartment. Dugas began repeatedly kicking him about the face and head, and Schuler ultimately feigned unconsciousness in order to avoid further abuse. Before doing so, however, he had an opportunity to observe Dugas and saw that he was wearing a red sweater and that he was a well-built Negro with regular features and a mustache. After Dugas left, Schuler managed to free himself. Missing from the apartment were the wallet found on Dugas, a suitcase, numerous records, a phonograph, a typewriter, an electric shaver, a pair of cufflinks, bongo drums, and sundry canned goods. A watch and an undetermined amount of cash had been taken from his person.

Feniger testified that shortly after 2:00 a.m. on July 22, 1964, he saw two Negro men putting a suitcase and a box into a red car parked in the driveway of the Pierce Street apartment house. Feniger subsequently observed light shining into the hallway from Schuler's apartment, and he then saw the two men coming down the hall carrying hi-fi equipment. They put the equipment into the car and drove away. Feniger then entered Schuler's apartment and found that he was incoherent and appeared to have been badly beaten. He immediately returned to his own apartment, telephoned the police, and furnished them with the information which was subsequently relayed to Officers Forni and Clark.

Defendant Baker testified that on the evening of July 21, 1964, Dugas had asked him to help move some clothes. When Baker agreed, the two men got into Baker's car and drove to the Pierce Street apartment building. Dugas instructed Baker to park in the driveway and then got out of the car, entered the apartment building, and was gone for approximately 15 minutes. Baker then entered the apartment building and encountered Dugas standing in the upstairs hallway with a stack of records. Baker carried the records to the car, while Dugas carried a phonograph. Dugas subsequently left the car again and returned with a suitcase. He then instructed Baker to drive to a second apartment building, at an unspecified location, where the two men unloaded the car, with the exception of the records, and carried the various items into the building.

Defendant Dugas flatly denied all participation in the crimes charged and stated that he had spent the hours preceding his arrest at various bars and coffee shops.

Defendant first contends that the phonograph records found in the car ought to have been excluded from evidence on the ground that they were the product of an illegal search and seizure. He tacitly concedes that his arrest was lawful but asserts that since the records were not actually removed from the car until after it had been towed away and impounded, the records were the product of a search which was too remote from the time and place of the arrest to be deemed incidental thereto. This argument is ridiculous.

Officer Forni testified that he observed the records in the back seat of the car at the time of the arrest, but intentionally left them where they were in order to preserve any fingerprints which might be found on the records or in the back seat. The car and its contents were immediately taken into police custody, with the vehicle being towed to the Hall of Justice and locked in the impound room.

Under such circumstances, it may well be doubted that the records, which were in plain view in the back seat, were the product of a search at all. Assuming that they were, such search was clearly incidental to the arrest. Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, upon which defendant relies, is clearly distinguishable, since in that case the incriminating items which were held to be the product of an illegal search were not in plain view but were concealed in the glove compartment and trunk of the automobile. The police made no search of the vehicle at the time defendant and his companions were arrested and did so only after the car had been driven to the police station and towed to a garage.

Defendant next contends that the court deprived him of due process by ordering him to disclose the name and address of a potential witness before said witness testified. This contention is wholly without merit.

In Jones v. Superior Court (1962) 58 Cal.2d 56, 61--62, 22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213, the court held that an order requiring the defendant in a criminal case to disclose the names and addresses of witnesses whom he intends to call in connection with a particular defense does not violate either the privilege against self-incrimination or the attorney-client privilege. Defendant attempts to distinguish the Jones case by asserting that in the instant case, the discovery order was made at a time when he had not yet indicated that he would attempt to establish any affirmative defense. However, the record reveals that the prosecutor specifically requested the names of any witnesses defense counsel intended to produce 'in any affirmative defense.' The court similarly limited its ruling and informed defense counsel that he was only required to produce the names and addresses of witnesses whom he intended to call in connection with an affirmative defense, such as alibi. Defense counsel ultimately revealed that he intended to call one Marguerite Allen, whose exact address was unknown to him. As it ultimately developed, the witness did not testify for defendant, but for his codefendant, Baker. Under such circumstances, it is apparent that the court's ruling was entirely proper and that, in any event, it resulted in no prejudice to defendant.

Defendant next asserts that the court committed reversible error in failing to instruct the jury that robbery requires a specific intent to steal. The record shows that the court defined robbery as 'the felonious taking of personal property of any value in the possession of another from his person or his immediate presence against his will, accomplished by means of force or fear.' The court failed to inform the jury that the crime of robbery also requires a specific intent to steal--to permanently deprive the owner of his property. However, the court did discuss specific intent in connection with the burglary charge, stating that 'the crime of burglary in this case presupposes a necessary element in the existence in the mind of the perpetrator of the specific intent to steal, and unless such intent so exists the crime of burglary cannot be committed.'

Even in the absence of a request therefor, the court's failure to instruct that the crime of...