People v. Antick

Citation123 Cal.Rptr. 475,539 P.2d 43,15 Cal.3d 79
Decision Date26 August 1975
Docket NumberCr. 18447
CourtUnited States State Supreme Court (California)
Parties, 539 P.2d 43 The PEOPLE, Plaintiff and Respondent, v. Frank John ANTICK, Defendant and Appellant. In Bank

Frank John Antick, in pro. per., Benjamin R. Winslow, Mill Valley, under appointment by the Supreme Court, Roger J. Broderick, San Bernardino, under appointment by the Court's of Appeal, and Dale W. Johnson, San Bernardino, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Frank John Antick was charged by an amended information (hereafter information) with burglary (Pen.Code, § 459) 1 (count I), grand theft (§ 487) (count II), assault with a deadly weapon upon a peace officer (§ 245, subd. (b)) (count III), murder (§ 187) (count IV), and two prior felony convictions. 2 With respect to counts I had II, it was alleged that at the time of the commission of said offenses, defendant was armed with a deadly weapon within the meaning of section 12022. 3 He pleaded not guilty and admitted the prior convictions. A jury found defendant guilty as charged and determined (§ 1157) that the burglary and the murder were of the first degree. (§ 460, subd. (1); § 189.) As to each count, defendant was sentenced to state prison for the term prescribed by law, such sentences to run consecutively with each other. The court further determined that section 3024, subdivision (d), 4 was applicable and made defendant's minimum term in state prison 10 years. Defendant appeals from the judgment.

On September 28, 1973, between 7 and 10 p.m., property having a value in excess of $200 was taken from the Valentine residence in Upland, San Bernardino County. This property included an adding machine, a typewriter, a check writer, a two-speaker stereo and a Spanish style television set. 5 The Valentines, who were not at home at the time, were unable to furnish a description of the burglar.

About 9 p.m. on the same evening Officers Smeaton and Petronzio of the Upland Police Department, on patrol in a marked police vehicle, noticed a Cadillac automobile in traffic with furniture or a stereo in the back seat and furniture in the trunk, whose lid was open and blocking the rear view mirror. The officers saw two people in the car; both driver and passenger appeared to be white male adults. At trial neither officer could identify defendant as an occupant of the vehicle.

After losing sight of the Cadillac for a short time in the traffic, the officers came upon it in a parked position with its motor turned off. Officer Smeaton approached the driver's side of the vehicle while Officer Petronzio stationed himself near the front of the police car. Only the driver, Donald Bose, was in the Cadillac; but Smeaton saw another person about 30 feet away approaching a nearby house. At trial the officer described the person as a white male, about 5 feet 10 inches tall, 145 pounds, with dark brown collar length hair. 6 He could not identify defendant as the individual he had seen. Officer Petronzio did not notice anyone in the general vicinity.

When questioned by Officer Smeaton, Bose gave evasive answers and made a furtive movement, apparently stuffing something underneath his leg. The officer ordered him out of the vehicle and to the front of the police car so as to frisk him. Seeing a revolver and holster on the front seat of the Cadillac and drawing his own gun, Officer Smeaton ordered Bose to put his hands on the hood of the police car. At this point the officer saw the other suspect approaching the Cadillac. Bose then pulled another gun from his waist and fired at Smeaton. The officer returned the fire and Bose started running. Petronzio ordered him to stop and when he failed to do so fired again. Bose staggered and fell. He later died of the bullet wound.

A search of the Cadillac revealed the television set and other personal property that had been taken from the Valentine home. A green sweater and a set of car keys were also found in the car.

In the early morning hours of September 29, 1973, investigating officers went to Bose's home in Banning. They informed Bose's mother that her son had been killed in the shoot-out and that they were looking for defendant, whose Mustang was parked outside the Bose home and matched the car keys found in the Cadillac. Bose's mother told them that defendant had been living there for several months but that she did not know where he was.

Later that morning, defendant, learning of these developments, took Bose's other car from a neighborhood garage, drove to Bose's residence, removed most of his belongings, and proceeded to his father's home in San Pedro. He was arrested in San Pedro a few days later.

There was evidence at the trial that defendant had lived in Bose's home for several months and that during this period neither man was regularly employed. Neighbors testified that the pair were frequently together and that they came home late at night or in the early hours of the morning. Bose's mother testified that on September 28 both men left in the Cadillac about 4:30 p.m., at which time defendant was carrying the green sweater later found in the car.

Detective Wulf of the Upland Police Department testified that certain statements volunteered by defendant after his arrest were inaccurate. Defendant allegedly had told Wulf that he had last seen Bose at 4:30 p.m. on September 28 when the latter was leaving by himself in the Cadillac. He also stated that on the night in question he had hitchhiked to Cucamonga to get a 'fix' of heroin from a contact known to him only as 'Juan.' At first denying that he had returned to Banning on the following morning, defendant finally admitted that he had arrived there at 5 a.m. on September 29 and had picked up Bose's other car at the garage. He neglected to mention his subsequent activities, including his return to Bose's home and his removal of his belongings.

Over defense objection, Wulf also testified that various items of personal property recovered from defendant's room at the Bose residence and from defendant's person after his arrest had been identified as stolen property. The owner of this property stated that his home had been burglarized on September 8, 1973, and confirmed that the items in question were among those which had been taken. He was unable to identify either defendant or Bose as a perpetrator of the burglary. These items were admitted into evidence without further objection.

Defendant presented an alibi defense. He admitted that on September 28 he and Bose had left the latter's home in the late afternoon. However, he claimed that they had parted company about 6 or 7 p.m., after Bose had refused to assist him in looking for some heroin. According to his testimony, defendant then hitchhiked to Cucamonga and, unable to obtain any heroin hitchhiked back to Banning, where he arrived about 8:30 or 9 a.m. on September 29, Learning from Bose's mother what had happened and apprehensive because of past experience with the authorities, he removed his belongings from the Bose house and in Bose's car drove to his father's home in San Pedro.

Defendant denied that he had participated in the charged or any other burglary. He testified that he did not own the green sweater found in Bose's car and neither wore, nor carried it with him on September 28. While admitting that the car keys were his, he stated that he had placed them in the Cadillac on September 28 but had neglected to take them with him when he left Bose later that evening. He claimed that the items of stolen property found in his room and on his person were gifts from Bose. He also claimed that his prior statements to police authorities regarding his activities on September 28 were consistent with his trial testimony.

Explaining his relationship with Bose, he testified that they had known each other for two and one-half years when Bose bought the Banning residence. The home needed landscaping and repairs and defendant agreed to do this work in exchange for room, board and a small salary, ranging from $50 to $200 per month. During the six-month period in which he lived with Bose, he also spent part of his time at his father's home in San Pedro. While on occasion he and Bose went out together socially, for the most part they led independent lives. Under cross-examination, defendant admitted two prior forgery convictions.

Defendant contends: (1) that his conviction on the murder charge was erroneous as a matter of law; (2) that the court committed error in admitting evidence of a prior offense of burglary and of two prior convictions of forgery; (3) that the evidence is insufficient to support any of the verdicts; and (4) that the court erred in various respects in imposing sentence. 1. The murder conviction.

Count IV of the information charged defendant with murder in that on September 28, 1973, 'during the perpetration of the burglary alleged in Count I of the information his copartner in the burglary, Donald Joseph Bose, initiated a gun battle which was the direct and unlawful cause of the death of the said Donald Joseph Bose.' Count I charged defendant with the burglary of the Valentine residence on the same day. Thus count IV charged defendant with the murder of Bose committed during the burglary of the Valentine house.

On the murder count, the trial court instructed the jury on murder (CALJIC No. 8.10), malice (CALJIC No. 8.11), first degree felony murder (CALJIC No. 8.21) and murder based on the theory of vicarious liability (based on Taylor v. Superior Court (1970) 3 Cal.3d 578, 582--583, 91 Cal.Rptr. 275, 477 P.2d 131). We set forth the last two instructions in the margin. 7 Under these instructions, defendant's conviction of first degree murder may have...

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