People v. Duren
| Decision Date | 02 April 1973 |
| Docket Number | Cr. 14328 |
| Citation | 9 Cal.3d 218,107 Cal.Rptr. 157,507 P.2d 1365 |
| Parties | , 507 P.2d 1365 The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee DUREN, Defendant and Appellant. In Bank |
| Court | California Supreme Court |
Carl B. Shapiro, San Anselmo, under appointment by the Supreme Court, for defendant and appellant.
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.
In an information filed by the District Attorney of Los Angeles County, defendant was charged with five counts of murder, one count of assault with intent to commit murder, and two counts of robbery. Defendant was also charged with one prior felony conviction (Pen.Code, § 211), which he first denied but later admitted. The jury found defendant guilty as charged and found all the murder counts, as well as the robbery counts, to be in the first degree. The jury fixed the penalty as death on each of the murder counts. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)
Viewed in the light most favorable to the People (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049(1)), the record shows, as follows: On Thursday, January 16, 1969, about 10:45 p.m., Fred Genchi, the manager of Genchi's Liquor at 5454 East Eashington Boulevard in the City of Commerce, was in the back room of the liquor store directly behind a one-way mirror, through which he could look into the general store area. David Munoz, an employee, was in the store behind the counter. Genchi heard a popping noise and a sound like the crashing of glass. He looked up and observed a male Negro, wearing a gold sweater and contrasting pants, in front of the counter. He did not see the man's face, as the man had taken a step back and was turning away from him. After the man left, Genchi went into the store area and saw Munoz on the floor, gasping and covered with blood. He had been shot between the eyes. The cash register was open and contained no currency. Shortly before, there had been around $3,000 in it. Munoz subsequently died.
Genchi's Liquor is located near Certified Grocers, a wholesale grocery business where defendant worked for a few weeks in December 1968. The employees in the department in which defendant worked were paid Thursday evenings around 10 p.m and were given a break around 11 p.m. Many cashed their pay checks at Genchi's Liquor during the break, and large amounts of cash were therefore kept on hand at that time.
Genchi called the police immediately after discovering the shooting. He told the investigating officers that the assailant was a male Negro with very dark complexion, approximately 30 years old, about six feet tall, and weighing around 200 pounds. 1 A .22 caliber shell casing discovered by the officers on the floor next to the edge of the counter was introduced in evidence at the trial.
Genchi testified that the gunman was about the same size and coloring as defendant and that the gold sweater introduced in evidence as People's Exhibit 26 was the same type of sweater as the man was wearing. He furhter identified defendant as a customer for whom the store had cashed checks; and evidence was presented that two checks of Certified Grocers payable to defendant (one dated December 10, 1968, for $107, and the other dated December 24, 1968, for $149) were cashed at Genchi's Liquor. Defendant denied being in Genchi's Liquor any time during January 1969.
In the late afternoon on January 28, 1969, defendant entered Dreskin's Liquor Store, in the 4200 block on South Western, and asked for a package of cigarettes. Samuel Hahn, a clerk at the store, gave him the cigarettes. Defendant then took a can of beer out of the beer case. Hahn went over near the cash register. By that time, defendant had returned to the counter and had a gun on it pointing toward Hahn. Upon demand by defendant, Hahn gave him money from a drawer in the cash register. Defendant asked him about the other money, the 20's and 10's. That currency was kept in another drawer. Although at first Hahn tried to avoid giving it to defendant, Dreskin, the owner, who was standing nearby, told him to do so; and Hahn did as he was told. Defendant went over to where O. B. Hunt, a Negro customer, was standing waiting for service, and shot him. He then walked over to Dreskin and shot him. Afterwards, he turned around and shot at Hahn; but before he did so, Hahn grabbed a steel chair and covered his head with it. The bullets struck the chair. Defendant then walked out of the store. Hunt was shot in the neck and Dreskin on the left side of his head in the area of the temple. Both of them died as a result of the gunshot wounds. Two expended shell casings found in the store, one on the day of the shootings and the other a few days later, were introduced in evidence by the People.
Hahn told the police that the gunman was a male Negro about 35 years old, approximately six feet tall, and weighing around 160 or 170 pounds. He also mentioned a mustache and said the man was wearing a black jacket. Hahn attended several lineups, but he did not identify defendant at any of them. He made a positive in-court identification, however, and testified that the gun introduced in evidence as People's Exhibit 1 was the gun in question or similar thereto.
Arthur L. Diggs, Jr., another customer in the store at the time of the shootings, testified at the preliminary hearing that defendant looked quite similar to the gunman. He had described the man to the investigating officers as a male Negro, 5 feet 11 to 11 1/2 inches tall, weighing approximately 175 or 180 pounds, about 35 to 40 years of age. Diggs was unable to identify defendant at a lineup he attended, and at the trial he testified that defendant did not look like the man. He said, however, that defendant's physical characteristics in the form of height and weight were the dame as those of the gunman in the liquor store and that the gold shirt, denoted People's Exhibit 26, appeared generally to be the same color as the one the man had on underneath his jacket. He also testified that he thought the person who did the shooting had a goatee and a slight mustache.
Christopher Giles testified that from time to time on January 28, 1969, he was at a service station about a block from Dreskin's Liquor Store. He was there constantly from about 3:30 to 7 or 8 p.m. He saw defendant there around 3:30 that day. Defendant left about half an hour later, and an hour or 45 minutes afterwards Giles heard police sirens and a helicopter. The sirens appeared to cut off in the neighborhood of Dreskin's Liquor Store. After defendant left the service station, Giles did not see him again that evening. Giler further testified that another man at the service station, a Mr. Cranon, left after the police sirens were heard and later returned, reporting that he had heard that two people had been shot at the liquor store. Giles said that defendant was not there at the time Cranon returned.
Defendant testified that he and Cranon had arrived at the service station together about 1:30 or 2 p.m.; that he went to the liquor store half an hour later, but, after making some purchases, returned to the service station in five minutes; that he had on a brown jacket; that later Cranon went to the liquor store, and, when he returned a few minutes before 5 p.m., reported that there were 'people laying all over the place' at the liquor store; that he heard sirens, but was not sure if they had sounded about the time Cranon returned or afterwards; and that about 5:15 or 5:20 p.m. he went home.
On Wednesday, January 29, 1969, defendant, according to his testimony, entered Rosie's Cafe in the vicinity of Vermont Avenue and Jefferson Street at a quarter to five in the afternoon. He spoke with someone there whom he knew from the union hall, had dinner, and then left around 10 minutes past six.
George Richardson, 16 years of age, testified that he went to Rosie's Cafe for a hamburger around 20 minutes to six that day and stayed about 15 minutes. While there, he saw defendant in the cafe. Defendant was still there when he left. About five minutes after six, he passed the cafe and happened to notice that the person to whom defendant had been talking was not there, and he did not remember that there was anyone there then besides defendant and the owners (an Oriental couple by the name of De Vinna). He testified that defendant at that time had a little goatee. He also stated that defendant was wearing a black three-quarter length leather jacket similar to People's Exhibit 51.
Mrs. Elzora Harris testified that she was waiting for a bus about 6:15 p.m. January 29, 1969, in the vicinity of Vermont and Jefferson. She heard three shots and then a pause and two more shots. They appeared to be coming either from a driveway or Rosie's Cafe. Shortly afterwards, Mrs. Harris saw defendant come out of the cafe and walk toward Vermont Avenue. He raised his leather jacket and stuck a pistol either in his right pocket or in the right side of his belt. Mrs. Harris stated that she was within a foot or two of defendant and noticed that he was wearing a mustache; that defendant commented to a man standing near her that perhaps they could walk on home before the bus came; and that they walked west up Jefferson toward Normandie. 2 Mrs. Harris then went over to the cafe and saw two Oriental people inside who appeared to have been injured. She did not see anyone else inside.
Police officers arrived around 6:30 p.m. and discovered the De Vinnas' bodies near the counter. Mr. De Vinna had a bullet wound about the middle of his forehead, and there was a bullet wound in Mrs. De Vinna's facial area near her cheek. Both of them died as a result of the wounds.
When questioned by the police following the shootings, Mrs. Harris described the man she had seen coming out of the cafe as a male Negro...
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