Penney v. Superior Court

• Decision Date: 22 November 1972
• Citation: 28 Cal.App.3d 941,105 Cal.Rptr. 162
• Court: California Court of Appeals Court of Appeals
• Parties: James Edward PENNEY et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF TULARE, Respondent; The PEOPLE, Real Party in Interest. Civ. 1835.

Page 162

105 Cal.Rptr. 162

28 Cal.App.3d 941

James Edward PENNEY et al., Petitioners, v. The SUPERIOR COURT OF the COUNTY OF TULARE, Respondent The PEOPLE, Real Party in Interest.

Civ. 1835.

Court of Appeal, Fifth District, California.

Nov. 22, 1972.

[28 Cal.App.3d 943] Lloyd L. Hicks, Visalia, for petitioner James Edward Penney.

Jay W. Powell, Tulare County Public Defender, for petitioner Johnnie Richard Moss.

No appearance for Respondent.

Evelle J. Younger, Atty. Gen., Edward A. Hintz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Nelson P. Kempsky and Arnold O. Overoye, Deputy Attys. Gen., for real party in interest.

OPINION

FRANSON, ^* Associate Justice.

On January 26, 1972, the Grand Jury of Tulare County indicted petitioners for the murder of Charles Gibson. On February 18, 1972, petitioners entered pleas of not guilty. On May 8, 1972, they moved to dismiss the indictment on the grounds that they had been denied due process of law by reason of pre-indictment delay. An evidentiary hearing on the motion to dismiss was held in respondent court on May 30, 1972, before N. O. Bradley, Judge. On June 21, 1972, the motion was denied. On July 27, 1972, the petition for writ of mandate was filed in this court. On August 22, 1972, respondent was ordered to show cause why such extraordinary relief should not be granted.

The threshold question is whether the petition was timely filed in this court. Respondent argues that petitioners made their motion to dismiss the indictment pursuant to Penal Code section 995, and that this court lacks jurisdiction to hear the cause in that the petition was not filed within the 15-day time allowed by Penal Code section 999a. This argument is without merit because the time limitation provided by this section applies only to a petition for a writ of prohibition predicated upon the ground that the indictment was found without reasonable or probable cause. (Pen.Code, § 999a; McGonagill v. Superior Court, 214 Cal.App.2d 192, 194--195, 29 Cal.Rptr. 485; Guerin v. Superior Court, 269 Cal.App.2d 80, 81, 75 Cal.Rptr. 923.) Here petitioners moved to dismiss the indictment not for a lack of probable cause but on the ground that pre-arrest delay had denied them due process of law. Inasmuch as a direct appeal does not lie from the order denying the motion to dismiss (Pen.Code, § 1237; People v. Phipps, 191 Cal.App.2d 448, 454, 12 Cal.Rptr. 681), petitioners have no plain, speedy or adequate remedy at law other than by this petition. We conclude that the petition herein was timely filed and within the jurisdiction of this court. (Code Civ.Proc. § 1086; Jones v. Superior Court, 3 Cal.3d 734, 736--737, 91 Cal.Rptr. 578, 478 P.2d 10.)

From the transcripts of the grand jury proceeding and the evidentiary hearing before the superior court, together with the affidavits and exhibits filed therein, we have ascertained the following:

Sometime between 10:30 p.m. and midnight on January 22, 1966, Mr. Gibson was killed by gunshot during an armed robbery of his liquor store in Earlimart, California. At the time of the robbery Clementina Cantu was present in her mother's house across from the liquor store, and Mr. and Mrs. Joseph Miller were in their 'house car,' also situated across from the liquor store. These people heard shots, saw two men exit the store, on holding a gun in his hand, and thereafter a car was heard driving off. None of these witnesses were able to identify either petitioner as one of the men seen leaving the store.

On July 25, 1966, Nelson White, an investigator for the Tulare County District Attorney's Office, interviewed Betty Ruth Wideman, also known as Betty Moss and Betty Tucker (hereafter Betty) concerning the robbery and murder of Gibson. In the interview Betty implicated petitioners Penney and Moss and one Acey Cannon, since deceased, as the perpetrators of the robbery and murder. Betty repeated her implication of these three persons to the Tulare County Sheriff's investigators in August of 1966. Over a year later, on November 7, 1967, Betty again repeated her story in an interview which was tape recorded by officers of the Tulare County Sheriff's Department. In her testimony before the grand jury Betty repeated the substance of these various implicating statements, which can be summarized as follows: At the time of the crime Betty was married to petitioner Moss and living with Moss and his mother in a house at 702 State Street in Earlimart, approximately one-half block from Gibson's Liquor Store. Betty testified that on January 16 or 17 of 1966, she participated in a conversation with Acey Cannon, Johnnie Moss and James Penney, during which the robbery of Gibson was discussed. The plan called for Moss and Penney to rob Gibson and Acey Cannon to drive the getaway car. Penney had a gun which was to be used in the robbery, and after the robbery Moss was to return to his home while Penney and Cannon fled to Delano. Betty was asked to drive the getaway car but declined because she was afraid. Betty watched the robbery from a window at her home which gave her an unobstructed view of the liquor store. She saw Moss and Penney enter the store together, heard gunshots and saw them exit and go around to the side of the store. Moss returned home a few minutes later with $200 cash and was bleeding from a wound in the calf of his right leg. Betty bandaged his leg, and then Moss left with his brother, Howard Moss, for work. Betty said that sometime after the robbery she talked to both Penney and Moss, and they said that they had not intended to kill Gibson but when they started to leave he pulled a gun on them and they had to shoot him; that they took his gun with them when they left the store.

Additional evidence was presented to the grand jury to substantiate Betty's testimony. The Delano Police Department recovered a .38 caliber revolver in a rusted condition. It was turned over to the Tulare County Sheriff's Department on June 19, 1966. The gun, by means of its serial number, was determined to be the gun owned by Gibson. A number of photographs of Moss were taken on August 13, 1966, while he was in the custody of the Merced Police Department on felony charges unrelated to the murder of Gibson. A photograph of the rear of his right leg disclosed scars in the calf area. Merced County Police Sergeant Twiddy, who was present during the taking of these photographs in 1966, testified that in his opinion the scars represented a recent gunshot wound.

Captain Lyman of the Tulare County Sheriff's Department was in charge of the investigation of the robbery and murder. He was present when Betty gave her tape recorded statement on November 7, 1967, after which he personally presented the case to Assistant District Attorney Evans for prosecution. Lyman testified that he was advised that the district attorney's office would take the case under advisement and notify him 'but they never did.' He talked with the district attorney's office in the latter part of December 1967 or January 1968 but never contacted them thereafter.

Lyman testified that on January 24, 1968, he received a telephone call from the Bossier City Police Department in Louisiana, indicating that a Donna Potter had given a signed statement to Louisiana F.B.I. Agents to the effect that Bobby Isaacs and John Merrell had committed the Gibson robbery. The next day Lieutenant Day of the Tulare County Sheriff's Department spoke via telephone with Louisiana F.B.I. Agent Graves and Donna Potter while Lyman listened. During this conversation Donna stated that Ruby Thompson and she were standing in front of Gibson's Liquor Store and saw John Merrell and Bobby Isaacs commit the robbery and shoot Gibson, after which the four of them went to a motel in Earlimart. Lyman testified that he was of the impression that Donna Potter, at the time of the telephone conversation, was either on drugs or intoxicated because she continually drifted away from the subject of the conversation. Louisiana F.B.I. Agent Graves concurred in this judgment and stated that Donna seemed to be 'hopped up' on something. Agent Graves also stated that John Merrell was in jail in Louisiana for beating up Donna and indicated that he would call the Tulare County Sheriff's Office if anything further developed. No further call was received.

Lyman testified that about four days after the Gibson murder he and another officer had questioned Donna Potter and Bobby Isaacs, who were then living in Earlimart, in regard to the robbery but nothing relevant was disclosed. Captain Lyman never followed up on the January 25, 1968, conversation with Donna Potter and never sought to interview John Merrell in Louisiana or Bobby Isaacs, even though he learned at the time that Isaacs was in state prison in California. Lyman denied that any charges against Betty were dropped in return for her November 1967 statement; however, he acknowledged that Betty was arrested in the latter part of 1967 as an accomplice to an escape involving a friend and that this charge against her was dropped.

The reasons for the People's refusal to prosecute petitioners prior to the grand jury indictment are set forth in the affidavit of Guy Evans, who was Assistant District Attorney for Tulare County from May 1967 to July 1969, and can be summarized as follows: In the fall of 1967 sheriff's office investigators approached him to obtain a murder complaint against petitioners Moss and Penney. At this time Evans learned that the taped statement of Betty was given in return for a promise by the sheriff's office that an escape charge pending against her and for which she had been arrested would not be filed against her. Shortly thereafter Evans talked to Betty in the county jail, and she confirmed that she had given the implicating statement in return for a promise that charges would not be filed against her. Evans also learned of a statement given by Betty near the time of the murder in ...