People v. Axtell

• Decision Date: 22 April 1981
• Docket Number: Cr. 20778
• Citation: 118 Cal.App.3d 246,173 Cal.Rptr. 360
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph William AXTELL, Defendant and Appellant.

Page 360

173 Cal.Rptr. 360

118 Cal.App.3d 246

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph William AXTELL, Defendant and Appellant.

Cr. 20778.

Court of Appeal, First District, Division 2, California.

April 22, 1981.

Hearing Denied July 16, 1981.

Nolan, Constantinides & Parnes, Thomas J. Nolan, Palo Alto, B. E. Bergesen, III, Paul N. Halvonik, Berkeley, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., Ronald A. Bass, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

On this appeal from a judgment of conviction entered after defendant, J. W. Axtell, entered a nolo plea to one count of kidnaping for robbery (Pen.Code, § 209(b)), the only question is whether the trial court abused its discretion and deprived him of due process by sentencing him to prison. For the reasons set forth below, we have concluded that the judgment must be affirmed.

Although defendant does not challenge either the underlying conviction or his plea, a detailed statement of the pertinent facts is useful for our determination of the issues raised.

About 9:30 a. m. on the morning of Sunday, August 5, 1979, defendant knocked and was admitted to the home of Mr. and Mrs. Mills in South San Francisco. When Mrs. Mills answered the door, defendant asked to speak to her husband. After both returned, defendant took a sawed-off shotgun from under his coat and ordered the Mills to awaken their two teenage daughters. Defendant held all four captive until the codefendant Haggard arrived.

Defendant then told Mr. Mills (who was manager of the Bank of America branch in San Bruno) that he needed money and wanted Mills to open the bank vault so defendant could rob it; while defendant and Mills went to the bank, Mills' wife and daughters would be moved to a different location. Defendant indicated that if anything went wrong, they would be killed; if all went well and everyone cooperated, no one would be harmed.

J. Tolson, a family friend from San Diego, arrived unexpectedly and was also taken hostage. Haggard held Tolson, Mrs. Mills and her daughters ¹ at gunpoint while defendant and Mr. Mills proceeded to the bank. Defendant instructed Mills to blink his car lights as they were under continued observation. From the bank, Mills called two of his employees: Ms. Pasdera who had the key to turn off the alarm; Ms. Zerrilla who had the second half of the vault combination. After both arrived, Mills ordered them to open the vault. Defendant said: "This is exciting. I've never seen a vault opened before." Mills, in response to a visit from a San Bruno police officer, indicated that nothing was wrong, as defendant instructed. When Ms. Pasdera and Zerrilla began to fill the suitcase with $1 bills, defendant objected and indicated that he wanted $50 or $100 bills. Seventy-one thousand dollars was put into a suitcase and Ms. Pasdera and Ms. Zerrilla were forced to accompany defendant and Mills to the Mills home.

Defendant and Haggard then tied up and gagged the Mills family, Tolson and the bank employees. Their hands were tied together and all were tied in a circle around a pole in the living room and the stereo turned up to a loud volume. One of the Mills daughters provided the telephone number of a neighbor so that defendant and Haggard could telephone instructions to free all of the hostages. After a third confederate failed to arrive to pick them up, defendant and Haggard took the keys to Tolson's van and left in the van with the suitcase and the weapon.

The Mills, however, succeeded in untying themselves a few minutes later and telephoned the police about 2:23 p. m. The police quickly spotted the van in downtown Redwood City. After a high speed chase, the van was rammed by two police cars. Defendant fled over a fence and into the home of P. J. deKulp and his family. Defendant threatened no one in the deKulp home and surrendered after police had surrounded it. Subsequently, defendant confessed his role in the crimes.

In return for defendant's nolo plea to Count One for kidnaping with robbery, the remaining nine counts of the information were dismissed.

The probation report indicated that at the time of the offense, defendant was 22 years old. He had been "reared in a decent, stable, and well-respected family home," raised in the small community of Newton, Iowa, where his parents still resided. Over 130 people in or around Newton wrote letters on defendant's behalf that were introduced into evidence at the sentencing hearing. The letters indicated that defendant was "intelligent, a leader, an excellent athlete, a hard worker, ambitious and popular with his peers and elders." School officials characterized defendant as "a healthy, active boy in high school ... a good kid with good ability and average achievement." Defendant's former swim coach had a less positive view.

After graduating from high school, defendant worked at home for a year and then attended college for two years. During this time, he began to drink and by the age of 19, had become a "heavy drinker," and by the age of 21, he had become, in his view, an alcoholic. In January 1978, he was charged with petty larceny, as he had stepped outside a bar with a full drink in his hand; he pled guilty and was fined $20.

In September of 1978, after his second year of college, defendant came to this state and began to work with a real estate firm in San Bruno. According to M. Horowitz, his supervisor, defendant was a hard worker, dressed well, and was well liked. Horowitz believed defendant had tremendous potential. Defendant studied hard to pass his real estate license examination and did so. However, his license was held up as he had listed the petty larceny conviction on his application. Defendant was very disappointed. Although a hearing was scheduled for June of 1979, defendant did not appear at the hearing but returned to Iowa.

Defendant indicated that during the summer of 1978, he continued to drink and began to use cocaine heavily. He spent $1,000 a month on these substances, and exhausted his savings. During this summer, his parents "sensed something was wrong, but they did not know what was troubling him.... (H)e seemed 'phony and nervous.' " A long-time family friend also observed that defendant was uncharacteristically unkempt and that "something was bothering" him. Defendant left Newton in June and hitchhiked back to California. Horowitz also confirmed a change and noted that defendant was sloppy and evasive on the few occasions when they happened to meet. Early in July defendant met Haggard in Utah. Toward the end of July, they and others arrived in Foster City and moved into defendant's apartment.

At the sentencing hearing, defendant's parents, friends and neighbors, in person and by numerous letters, asked the court to grant probation. They detailed his earlier years in Iowa, described his many positive qualities, and expressed shock and disbelief that he had committed such a serious crime, so foreign to "the Joe Axtell I knew." Both parents and neighbors also described the change that had come over defendant during the months preceding the crime. Defendant received considerable community support, including a firm job offer from an Iowa friend and businessman.

Defendant also requested probation so that he could return to Iowa. He described his heavy use of alcohol and drugs, and their harmful effect on him. He expressed remorse for the crime and acknowledged that he had "put a family through a terrible experience in the hopes of satisfying my need, at the time, for money." He claimed that his confinement in jail had "cleared the alcohol and drugs out of my system, to a point that I can now look forward to a life without depending on either of the two." He also stated that, if permitted to return to Iowa, he would resume his college education and combine work, study, and volunteer work with school or church organizations.

Richard A. Kunin, the defense psychiatrist, opined that the character of defendant's crime was definitely a departure from his usual behavior. Kunin believed that the crime was motivated in large part by defendant's dependency on alcohol and cocaine and his need to support his habit. Kunin further opined that defendant's drug addiction had altered his personality and distorted his state of mind; that in one sense, it demonstrated "the extent to which his judgment had become impaired after three years of alcohol and drug abuse." According to Kunin, defendant "did not believe that he was acting out a serious crime"; that since "no one would get hurt and that since he was not carrying a loaded gun, his action was only a sham, not a true armed robbery." According to Kunin, defendant accepted these irrational beliefs because of "the narrowing of the scope of his thinking caused by prolonged exposure to alcohol and mind-altering drugs." Kunin opined that defendant was ready to abstain from alcohol and intoxicants, and that "it is very unlikely that he will ever repeat such serious criminal behavior."

At the sentencing hearing, numerous witnesses testified and were cross-examined, including the victims, the probation officer, Kunin, Horowitz and a family friend from Iowa. Defendant called Mr. deKulp, who expressed his desire that defendant receive psychiatric counselling rather than a prison sentence. Mrs. deKulp indicated that she experienced no fear as the result of her contact with defendant after the crime.

Mr. Mills and the other victims of the crime, however, insisted upon imprisonment. In a letter to the court (also attached to the probation officer's report) and in testimony at the sentencing hearing, the victims expressed a belief that defendant should serve the maximum term allowed by law. Although none of the victims was physically...