57 Cal.2d 711, 6999, People v. Imbler

Docket Nº:6999
Citation:57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304
Opinion Judge:[10] Traynor
Party Name:People v. Imbler
Attorney:[7] Gregory S. Stout, under appointment by the Supreme Court, for Defendant and Appellant. [8] Stanley Mosk, Attorney General, William E. James and Gilbert F. Nelson, Assistant Attorneys General, for Plaintiff and Respondent.
Case Date:May 17, 1962
Court:Supreme Court of California

Page 711

57 Cal.2d 711

21 Cal.Rptr. 568, 371 P.2d 304

The PEOPLE, Plaintiff and Respondent,

v.

Paul Kern IMBLER, Defendant and Appellant.

Cr. 6999.

Supreme Court of California

May 17, 1962.

In Bank

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[Copyrighted Material Omitted]

Page 713

Gregory S. Stout, San Francisco, under appointment by Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James and Gilbert F. Nelson, Asst. Attys. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

Defendant was convicted of first degree murder and of assault with a deadly weapon with intent to commit murder. The jury fixed the penalty at death, and the trial court denied defendant's motion for a new trial. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

On the evening of January 4, 1961, two men entered a Los Angeles grocery store owned by Morris Hassen. They walked to the check stand where Mr. Hassen was leaning down dusting liquor bottles. Mrs. Hassen, who was standing nearby, testified that she moved to the check stand to wait on the men, that as she did so she noticed her husband getting up from behind the stand and that 'by the look of his face' she could see that something was wrong. When she bent down to ask what the trouble was, she saw a gun protruding from the coat of the man subsequently identified by other witnesses as defendant. A moment later the gun discharged, fatally wounding Mr. Hassen. The men turned, walked from the store, and departed in different directions.

At the trial defendant denied participating in the crime. His defense consisted primarily of an alibi and impeachment of the identification witnesses. The evidence, however, was more than sufficient to establish that he did the shooting. Although Mrs. Hassen was unable to see his face because his hat was tilted, she was able to identify the hat and coat he was wearing. She identified the second man from police photographs as Leonard Lingo, who was killed ten days after the shooting when he accompained defendant on an armed robbery in Pomona.

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Alfred Costello, an identification witness, was walking on the opposite side of the street when his attention was attracted to the store by two men standing at the cash register. When he heard a shot he crossed the street to investigate, and in a lighted area in front of the store and at a distance between 8 and 12 feet, he viewed defendant who was still wearing the hat and coat and still carrying a gun. According to Costello, defendant turned into an alley, dropped his hat, and began to run. Costello gave chase. Defendant paused in the alley under a light as if 'trying to make up his mind whether to go right or left,' and Costello was able to see him without the hat at a distance between 15 and 20 feet. Defendant then fired a shot that hit a wall behind Costello, discarded his coat, and fled through a parking lot. Costello retrieved the coat and discovered a gun in it identified by a ballistics expert as the murder weapon. Costello positively identified defendant as the man he had pursued.

Alonzo Dunlap, an attendant at the parking lot through which defendant escaped, testified that he got a side and front view of defendant as he walked through the illuminated lot. Although Dunlap did not hear any shots his testimony otherwise corroborated Costello's testimony.

Billy Hillen, a third witness, was leaving the market when defendant and Lingo entered. He testified that he got a good look at both men, and he identified defendant's hat and coat. When Hillen had walked only a few steps from the store, he heard a shot and turned around. He again looked closely at the two men as they left the store, and observed defendant holding a gun. Hillen had no difficulty in picking defendant out of a lineup at police headquarters, and he also identified defendant at the trial.

Defendant testified that he spent the evening of the shooting in various bars with Jerry Mayes, Robert Mahon, and two men whose names he could not recall, and that he was also accompained by a girl named Ann at the bar where he claimed to be at the time of the killing. Only Mayes could be located to testify in defendant's behalf, although an investigator attached to the public defender's office attempted to trace the others. Mayes, who was in custody for accompanying defendant and Lingo on the Pomona robbery, corroborated defendant's testimony on all but minor points. On cross-examination, however, he admitted that 'It's hard to be certain' that the evening he recalled was the night of the murder. Dewitt Lightner, a police officer, testified that he

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had asked defendant if he had any alibi that could be checked out, and that defendant replied in effect that he could not account for his time, but that he was probably drinking at the Four Aces Bar, and that he also said there was no one...

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