People v. Bosby

Citation256 Cal.App.2d 209,64 Cal.Rptr. 159
Decision Date21 November 1967
Docket NumberCr. 11579
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse BOSBY, Gilbert Cooper, Glen Martin Harrington and George Rhone, Jr., Defendants and Appellants.

Patrick J. Sampson, Claremont, under appointment by the Court of Appeal, for appellants Jesse Bosby, Gilbert Cooper and George Rhone, Jr.

William V. Shannon, Jr., Pomona, under appointment by the Court of Appeal, for appellant Glen Martin Harrington.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for respondent.

HERNDON, Associate Justice.

Each of the defendants Bosby, Cooper, Harrington and Rhone has appealed from the judgment entered upon the verdict of a jury finding him guilty of murder in the first degree. 1 The jury fixed each appellant's sentence at life imprisonment.

Appellants contend (1) that their extrajudicial statements were obtained without compliance with the rules enunciated in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; (2) that their extrajudicial statements were not edited to prevent 'cross-incrimination' as required by the retroactively applicable standards established in People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265; and (3) that the court erred in instructing on premeditated murder when, absent the application of the felony-murder doctrine, the evidence was insufficient to sustain a verdict of first degree murder. We find no merit in these contentions.

The evidence is without material conflict. Defendants Bosby, Cooper and Harrington offered no defense, neither testifying themselves nor calling any witnesses to testify in their behalf. Defendant Rhone did take the stand but his version of the events in issue did not differ in any substantial way from that presented by the prosecution.

In summary, the evidence in support of the judgment establishes that appellants were seen to transfer from one car to another a short distance from the combination liquor and grocery store owned and operated by Mrs. Robbins and her brother, Darrell Ashcraft. The time was approximately 2 p.m. on Friday, December 11, 1964, when Mrs. Robbins would have a large amount of cash on hand to enable her to cash the pay checks of the employees of the several businesses located near her store.

Appellants Cooper and Bosby entered the store at or about the same time. Cooper asked Mrs. Robbins if she would cash a pay roll check. She indicated that she would but would have to examine it first. Cooper, after reaching into his pocket, stated that he must have left his check in his car and went outside to get it. In the interim, Bosby engaged Mr. Ashcraft in conversation regarding a particular size bottle of wine. When Cooper returned he was accompanied by Harrington and Rhone who took positions within the front of the store. Mrs. Robbins remembered seeing them a few moments earlier outside her store recalling in particular Harrington's bright red hair. 2

Although Mrs. Robbins testified that the check presented to her by Cooper and the accompanying identification appeared to be in order, she intuitively felt something was amiss. As she expressed it: 'Yes, he (Cooper) handed it to me and I looked at it and I knew it was a good check. I had cashed this company's checks before, but, I don't know, there was something about the way Mr. Rhone looked or something, I knew I wasn't going to open that box.' By 'box' she referred to a 'check cashing register' in which the large sums of money were kept in addition to the regular amounts within the 'main cash register.'

At this point Mrs. Robbins heard and observed what appeared to her to be a 'collision' between Bosby, who was in the rear of the store, and an elderly employee, Ben Serna. She testified that both men fell and when they arose she saw Mr. Serna moving towards her in a jerking fashion as if being prodded by Bosby whom she heard say, 'Man, I told you not to give me any trouble.'

While Mrs. Robbins' attention was diverted in the direction of Bosby and Mr. Serna, her brother, who could not see them from his position nearer the front of the store, observed, Cooper and Harrington each draw a gun. Harrington told him to 'Hold it.' Mrs. Robbins testified that she continued to watch Bosby and Mr. Serna as they approached her, and observed that Bosby had a gun pressed against Mr. Serna's body. Mrs. Robbins then reached for her own gun which was kept in a drawer beneath the cash register but as she drew it out Rhone moved forward and seized her wrist and either he or Cooper removed the gun from her hand.

Mr. Ashcraft also saw his sister disarmed, and when he was told to move to the rear of the store, he complied and tried to push his sister on ahead of him. At this point a shot was heard and while Mr. Ashcraft could not see who fired the shot, Mrs. Robbins testified that she saw Bosby shoot Mr. Serna at point-blank range. Serna took a few steps forward with blood running from his mouth and shirt front and then fell dead upon the floor. Both Mrs. Robbins and Mr. Ashcraft complied with the orders to move to the rear of the store but in the confusion of their exit the electric cord that supplied power to the register was pulled from its socket which prevented it from being opened. They existed through the rear of the store and when they returned appellants had departed.

Other witnesses saw appellants run to the car in which they had arrived and drive rapidly away, running a red light in the process. They were next seen moments thereafter when they again switched cars at the spot nearby where their second car waited with another man behind the wheel and the motor running.

The license number of the car used to leave the store was obtained by witnesses who had observed appellants' flight. Although appellant Cooper later asserted that the car 'belonged' to him, it was registered to a third person in another part of Los Angeles. Subsequently, each of the appellants was arrested and each gave statements after being fully advised of their constitutional rights in accordance with the rules enunciated in People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

The statements of Cooper, Bosby and Rhone were tantamount to confessions that they were attempting to rob the store when the shooting occurred but each denied committing the murder itself. Each statement involved all four defendants. Harrington admitted only that he had driven to the market with three negroes but originally had remained in the car until he decided to follow them in order to purchase cigarettes. He admitted fleeing with 'Jesse and Rhone' and spending the night with them in a motel in Pasadena where he died his hair from red to black and shaved off his moustache.

Appellants' initial assignment of error, of course, was based upon the hope that California would choose to apply the additional requirements of Miranda v. State of Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, retroactively as People v. Dorado, supra, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, had applied the ruling in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Unfortunately for appellants, but fortunately for society, our Supreme Court declined the option permitted by Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, and restricted the application of Miranda to cases tried after June 13, 1966. (People v. Rollins, 65 Cal.2d 681, 683, 56 Cal.Rptr. 293, 423 P.2d 221.)

Nevertheless, although the statements of each appellant were properly admissible in evidence against such appellant, they are correct in their contention that the trial court did not anticipate and conform to the new rules regulating the use of extrajudicial statements subsequently promulgated in People v. Aranda, supra, 63 Cal.2d 518, 530--531, 47 Cal.Rptr. 353, 407 P.2d 265. The partial retroactivity of these rules was established in People v. Charles, 66 A.C. 325, 330--332, 57 Cal.Rptr. 745, 425 P.2d 545. This error, however, does not require automatic reversal. In People v. Lara, 67 A.C. 367, 395--396, 62 Cal.Rptr. 586, 605--606, 432 P.2d 202, 221--222, the Supreme Court most recently expressed itself in the following manner:

'The confession of each defendant implicated the other. On its face, this record shows a violation of the rules of practice declared in People v. Aranda (1965) supra, 63 Cal.2d 518, 528--531, 47 Cal.Rptr. 353, 407 P.2d 265, which require the trial court to determine whether those parts of a confession implicating a codefendant can be effectively deleted without prejudice to the declarant, and if they cannot, to sever the trials or exclude the confession. It must be acknowledged that the present trial took place before Aranda was decided, and fully complied with the requirement of limiting instructions under the prior law. However, since the Aranda rules govern in all cases still pending on direct review (People v. Charles (1967) 66 A.C. 325 (57 Cal.Rptr. 745, 425 P.2d 545)), the admission into evidence of certain of defendants' unedited confessions constituted error. But Aranda makes it clear (63 Cal.2d at p. 527, 47 Cal.Rptr. 353, 407 P.2d 265) that the error is reversible only if it causes prejudice. Here, as in Charles, each defendant's case was shattered in any event by the impact of his own detailed confession, and the fact that each was also implicated by his codefendant's confession cannot realistically have contributed to either conviction. In these circumstances, we are of the opinion that it is not reasonably probable that a result more favorable to defendants would have been reached had the Aranda rules been followed. (Cal.Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (299 P.2d 243).)

'We...

To continue reading

Request your trial
5 cases
  • People v. Epps
    • United States
    • California Court of Appeals Court of Appeals
    • September 5, 1973
    ...(1969) 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, the court reviewed a conviction which had been affirmed in People v. Bosby (1967) 256 Cal.App.2d 209, 64 Cal.Rptr. 159, where the court, as to three defendants, had applied the rule that when the detailed confession of each shattered his o......
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court
    • October 11, 2005
    ...87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, in Harrington the constitutional error had been raised below. See People v. Bosby, 256 Cal.App.2d 209, 64 Cal.Rptr. 159 (1967). And Chapman does not say whether the error was preserved in the lower court. Fourth, application of plain error revie......
  • Blansett v. State
    • United States
    • Texas Court of Criminal Appeals
    • September 14, 1977
    ...578, 91 Cal. Rptr. 275, 477 P.2d 131 (In Bank 1970); People v. Reed, 270 Cal.App.2d 37, 75 Cal.Rptr. 430 (1969); People v. Bosby, 256 Cal.App.2d 209, 64 Cal.Rptr. 159 (1967); People v. Podolski, 332 Mich. 508, 52 N.W.2d 201 (1952). Under former Penal Codes the same result in similar circums......
  • Harrington v. California
    • United States
    • U.S. Supreme Court
    • June 2, 1969
    ...400, 85 S.Ct. 1065, 13 L.Ed.2d 923), the rule of Bruton applies here. The California Court of Appeal affirmed the convictions, 256 Cal.App.2d 209, 64 Cal.Rptr. 159, and the Supreme Court denied a petition for a hearing. We granted the petition for certiorari to consider whether the violatio......
  • Request a trial to view additional results

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