70 Cal.2d 770, 11860, People v. McGautha

Docket Nº:11860
Citation:70 Cal.2d 770, 76 Cal.Rptr. 434, 452 P.2d 650
Opinion Judge:[9] Tobriner
Party Name:People v. McGautha
Attorney:[7] Herman F. Selvin and Alfred Bornstein, under appointments by the Supreme Court, for Defendants and Appellants. [8] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Thomas S. Kerrigan, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:April 14, 1969
Court:Supreme Court of California

Page 770

70 Cal.2d 770

76 Cal.Rptr. 434, 452 P.2d 650

The PEOPLE, Plaintiff and Respondent,


Dennis Councle McGAUTHA and William Rodney Wilkinson, Defendants and Appellants.

Cr. 11860.

Supreme Court of California

April 14, 1969.

In Bank

Rehearing Denied May 14, 1969.

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[Copyrighted Material Omitted]

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Herman F. Selvin, Beverly Hills, and Alfred Bornstein, Los Angeles, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas S. Kerrigan, Deputy Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

The District Attorney of Los Angeles County charged Dennis Councle McGautha, William Rodney Wilkinson, and Fannie Lue Smith by information with two counts of armed robbery (Pen.Code, § 211) and one count of murder in the first degree (Pen.Code, § 187). Defendant McGautha was also charged with four prior felony convictions, all of which he admitted. The trial court granted a severance as to Fannie Lue Smith.

Defendants McGautha and Wilkinson were convicted by a jury of two counts of armed robbery, one committed against Pon Lock and one against Benjamin Smetana. Both defendants were also convicted of first degree murder in the death of

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Mr. Smetana. The jury fixed McGautha's penalty on the murder count at death, and Wilkinson's penalty on that count at life imprisonment. The trial court merged the murder count against defendant Wilkinson with the second robbery count for sentencing purposes, and ordered that defendant Wilkinson's sentences on the murder count and the first robbery count be served concurrently. Defendant McGautha's penalty having been fixed at death, his appeal to this court is automatic (Pen.Code, § 1239, subd. (b)). On January 18, 1968, we ordered Wilkinson's appeal, then pending before the Court of Appeal, transferred to this court so that it could be heard together with McGautha's automatic appeal.

We point out why we have concluded that the judgments against both defendants should be affirmed.

1. The Facts.

(a) The Pon Lock Robbery: On February 14, 1967, at about 2:30 p.m., two men entered a market at 3772 Market Street in Los Angeles. One of the men asked the owner, Mrs. Pon Lock, for a point of wine, which she gave him. He then pointed a gun at her and demanded money. At the same time the other man pointed a gun at a customer, Mrs. Jean Lim. After obtaining almost $300 the robbers left. Mrs. Lock chased them but they escaped.

Both defendants were postitively identified by Mrs. Lock and Mrs. Lim as the robbers. Mrs. Lock indicated that it was McGautha who confronted her and took the money, while Mrs. Lim testified that Wilkinson had kept her at bay with a gun. Sell Morgan, who lived near the Wall Street market, testified that Wilkinson was one of two men who parked in front of his house in a 1960 white Pontiac. Morgan indicated that a woman had remained in the car while the two men were gone, and that the men returned to the car and drove away immediately before Mrs. Lock emerged from her market shouting that she had been robbed. Byron Shelton, a second-grade student, testified that he had seen Wilkinson in the store with another man on the afternoon of the robbery. Byron stated that after he left he saw the two men run from the store. Although he was unable to identify the second man, Byron did indicate that this person was carrying a bottle of wine when he left the store with Wilkinson.

(b) The Smetana Robbery: Mrs. Lola Smetana testified that at 5:30 in the afternoon of February 14, 1967, she was in her store at 2151 Venice Boulevard in Los Angeles with her

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husband Benjamin and a customer. A woman entered the store, followed shortly by two men who asked for a bottle of wine. One of the men, whom Mrs. Smetana identified as Wilkinson, then pulled a gun and told her not to move. Mrs. Smetana identified McGautha as the other man, and stated that he also had a gun and was holding the arms of the customer across the store from where she and her husband were standing. Wilkinson then struck her on the side of her head and she fell to the floor. She heard a shot and her husband collapsed. She saw neither smoke nor a flash, and was unable to say which of the two men had shot her husband. Mrs. Smetana was also unable to remember whether the woman who entered immediately prior to the robbery had left before or after the beginning of the offense. Mrs. Smetana indicated some uncertainty as to which defendant had struck her and which defendant had stood further away with the customer. As a result of the shooting, Mr. Smetana died a few hours after the robbery.

Miss Erma Dupree stated that McGautha, Wilkinson, Fannie Lue Smith, and she were good friends. On February 14 all four of them drove Fannie Lue's 1960 white Pontiac to the store on Venice Boulevard. Fannie Lue went into the store, followed by the defendants; Miss Dupree remained in the car. After an unstated period of time Fannie Lue returned to the car, followed hurriedly by the defendants. Miss Dupree did not hear a shot fired inside the market. Upon returning to Fannie Lue's house McGautha stated that he had robbed the market and shot a man. In order to convince Fannie Lue that he had done so he showed her an empty cartridge in the chamber of his gun. According to Miss Dupree, McGautha later explained that Wilkinson had hit a woman and that he, McGautha, had shot the man in question. A few days later, Miss Dupree testified, McGautha discovered a newspaper article about the robbery and killing. He stated that the two men being sought were Wilkinson and himself, but contended that the story exaggerated the amount of money they had obtained from the robbery. On cross-examination by defendant McGautha's counsel, Miss Dupree admitted that she had been promised immunity from prosecution and that at the time of the robbery Wilkinson was her boyfriend.

John Watkins testified that he had driven the defendants from Los Angeles to Bakersfield about one week after the robbery. He indicated that during the trip McGautha stated

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that a man had been killed in order to save Wilkinson's life. Watkins gave inconsistent testimony as to whether McGautha admitted the shooting, but he was certain that one of the defendants had made such an admission.

Kaye Druley, a police ballistics expert, testified that the bullet that killed Mr. Smetana had been fired from the .38 revolver introduced as People's exhibit No. 3. Miss Dupree testified that McGautha's gun resembled exhibit No. 3, but Mrs. Lock stated that the gun used by Wilkinson resembled the .38 in question. Mr. Druley further indicated that the fatal shot might have been fired from either of the points in the store where Mrs. Smetana stated the robbers were standing when her husband was shot.

(c) The penalty trial: At the penalty phase defendant Wilkinson testified in his own behalf. He stated that he had come to California from Mississippi in 1960, and had lived at first with a Baptist minister. During most of the period prior to the robbery he had been gainfully employed and had been sending money to his family in Mississippi. He admitted that he had committed the robberies, but insisted that he had done so only with great reluctance and at McGautha's and Fannie Lue Smith's urging. Wilkinson stated that the only gun he had ever owned was a .32, and that although he had the gun with him at the Smetana store he had never fired it. He contended that, while he was holding the customer, McGautha had hit Mrs. Smetana and shot her husband.

Several character witnesses, including a Baptist minister, testified on Wilkinson's behalf. They stated that he had a good reputation, was not a violent person, and had regularly attended church until he met McGautha and Fannie Lue Smith. Sergeant Richard Sullican testified that after his arrest Wilkinson had cooperated fully with the police and answered all their questions.

McGautha also testified in his own behalf. He stated that he had owned a .38 revolver, but that he had lent it to Wilkinson during the Smetana robbery. He further contended that it was Wilkinson who struck Mrs. Smetana and killed her husband while he, McGautha, was holding the customer. He expressed regret over Mr. Smetana's death. McGautha admitted prior Texas convictions for...

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