People v. Birdwell

Decision Date16 August 1967
Docket NumberCr. 3440
Citation253 Cal.App.2d 621,61 Cal.Rptr. 536
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Donald BIRDWELL, Defendant and Appellant.

Theodore B. Lee, Court appointed counsel, by J. David Hertzer, Stockton, for appellant.

Thomas C. Lynch, Atty. Gen., by Edward Hinz, Jr., and Kelvin L. Taylor, Deputy Attys. Gen., Sacramento, for defendant.

BRAY, Associate Justice Assigned.

Defendant appeals from judgment of conviction of the crime of attempted murder.

QUESTIONS PRESENTED

1. Was defendant given inadequate legal representation and hence denied his constitutional right to the aid of counsel?

2. Do Escobedo, Dorado, Miranda and Aranda apply to Brinsfield's extrajudicial statements implicating defendant?

3. Was the evidence sufficient?

4. Was there double punishment in the imposition of concurrent sentences for (a) armed robbery and attempted murder, (b) armed robbery and conspiracy to commit robbery?

RECORD

A three count information was filed against defendant and one LeRoy Brinsfield. The first count charged them with the crime of robbery; the second count with the crime of attempted murder; and the third count with the crime of conspiracy to commit robbery with a shotgun. Both defendants pleaded not guilty to all three counts. However, defendant withdrew his plea of not guilty to count one (robbery) and pleaded guilty thereto. The court found the offense to be robbery in the first degree and sentenced defendant to state prison for the term prescribed by law, commitment to await the termination of the trial on the other two counts. At the opening of that trial, defendant changed his plea to count three (conspiracy to commit robbery) from not guilty to guilty. Brinsfield then changed his plea to counts one and three to guilty. The trial then proceeded as to count two (attempted murder). The jury found both defendant and his co-defendant Brinsfield guilty. Defendant was then sentenced under counts two and

three to state prison for the terms prescribed by law. Defendant 1 appealed from the judgment of conviction under count two. 2

THE EVIDENCE

Armando Alvarez was the night manager of Hodge's Richfield Station in Sacramento, and was alone there at the time in question. Defendant entered carrying a shotgun, pointed it at Alvarez and said 'This is a holdup. Don't look at my face, turn around.' Defendant then got behind Alvarez and held the gun on him. Defendant then asked Alvarez where the money was and was told that it was in the cash boxes outside the station. Defendant took the keys from Alvarez's belt, signaled for Brinsfield, who was outside. Brinsfield entered, took the keys and then went to the cash boxes by the pumps and began emptying them.

Meanwhile, defendant continued to cover Alvarez with the shotgun and asked him if there was any more money around. Alvarez replied 'No.' Defendant then took Alvarez's cigarette lighter from him and asked 'Where's your wallet?' On being told that it was in Alvarez's rear pocket, defendant removed it. Defendant then said 'Well, you been pretty good up to now, but I got your name and address, your wallet, and I know where you live. If you ever try to identify me, I come and kill you.'

Then a customer drove up to the station. Defendant told Alvarez to go outside and said 'I got a gun with me, so don't forget it.' The customer only wanted cigarettes which he obtained from the cigarette machine and left.

Defendant then approached Alvarez with the shotgun and told him to go around to the rear of the station. Arriving there, Alvarez started to lift his head up to look at Brinsfield. Defendant said 'Don't get smart, put your head down' and told Alvarez to go into the restroom. Alvarez went to the back of that room and stood facing the wall. Defendant then placed the shotgun close to Alvarez's head, saying, 'I ought to shoot you in the head.' Alvarez replied 'What for? I haven't give you no trouble. You got all the money, the money is yours.' Defendant lowered the gun and said 'Well, you stay in here for ten minutes and don't come out.' Alvarez then heard a click which he thought was from the gun and abruptly started to turn around. Then he was struck in the back by a shot from the shotgun. On cross-examination, Alvarez testified that when defendant first produced the gun, the hammer was closed and that he heard no clicking sounds until he heard the one in the restroom. On being asked to compare the click that he had heard with the clicking sound produced in the courtroom by the falling of the hammer on the shotgun, he stated that the two sounds were not the same. At a lineup at the hospital, Alvarez identified defendant as the man who had robbed and shot him. When interrogated the day after the robbery, defendant stated that he had no recollection of being in Sacramento the morning of the robbery. Further prosecution evidence will be discussed later.

Defendant testified that about 5 p.m. on the evening preceding the holdup, he began drinking beer, consuming about 20 cans. Shortly before the holdup, he acquired a shotgun. He said that he had ordered Alvarez into the restroom and was standing in the door, holding it open with one leg, with the shotgun in his right hand. The hammer on the gun was not back. He then shouted to Brinsfield to go back into the office and get the wallet. At that time, he put the shotgun under his arm, with his hand still on the trigger or the hammer. He started to light a cigarette with the lighter he had taken from Alvarez. The gun then slipped from his hand and when he grabbed for it, it accidentally discharged. He did not intend to shoot Alvarez. On cross-examination, he stated that he had the specific intent of robbing the station and that he was 'not too drunk.'

Brinsfield testified to drinking with defendant; that defendant had purchased a shotgun and the two of them drove to the service station; that he had taken the money from the cash boxes and then saw defendant standing in the doorway of the restroom. Defendant told Brinsfield to get the wallet from the office. Thereafter, Brinsfield heard a shot and started to walk towards their car where he was joined by defendant who told him only that the man was shot.

1. AID OF COUNSEL

Defendant contends that he was denied adequate legal representation in that his counsel failed to investigate and consider two defenses which defendant might have had, namely, one, that defendant may have been legally insane at the time of trial, and, two, that because he had been drinking substantial amounts of alcoholic beverages during the day prior to the crime, the doctrine of diminished responsibility might have been open to him, and that either because of insanity or the effect of alcohol, he was not able to form the necessary intent to kill to make his act attempted murder. 3

Defendant 'has the burden * * * of establishing his allegation of inadequate representation 'not as a matter of speculation but as a demonstrable reality. '' (People v. Reeves (1966) 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 695, 415 P.2d 35, 39.) In his brief, defendant contends that he told his counsel prior to trial of his claimed impaired mental condition and of his drinking and asserts that investigation by counsel would have indicated witnesses who could have testified concerning defendant's mental condition. Defendant states further that after his conviction, he was committed to the State Medical Facility at Vacaville, where he remained for several years and asks that the court take judicial notice of this fact. He also moved to augment the record in this case by the records of the California Medical Facility at Vacaville and of Folsom. We see no reason for doing so.

Defendant's allegations find no support in the record, nor is defendant's mental condition at some period subsequent to the offense relevant to the issues on this appeal. Moreover 'where the brief contains matters on which the record fails to furnish any light such matters cannot be considered on appeal.' (People v. Janssen (1965) 237 Cal.App.2d 363, 366--367, 46 Cal.Rptr. 866, 868.)

'(A)n appellate court will not consider assignments of error based upon asserted matters not shown by the record and supported by nothing more than statements in an appellant's brief.' (People v. Lindsay (1964) 227 Cal.App.2d 482, 510, 38 Cal.Rptr. 755, 773; cf. People v. Shaffer, 182 Cal.App.2d 39, 42--46, 5 Cal.Rptr. 844.)

There is nothing in the record to indicate that defense counsel was not aware of the defenses of insanity and diminished responsibility open to a defendant in a proper case. An examination of the record discloses that defense counsel represented defendant with skill and ability. Applicable here is the following from People v. Amiotte (1963) 215 Cal.App.2d 176, 181, 30 Cal.Rptr. 102, 106: 'The rule is well settled that retrospective criticism of the way the defendant's lawyer handled the case is not sufficient to sustain the claim that defendant lacked proper representation. (Citations.) The record of this case contains no intimation of any lack of diligence or fidelity on the part of counsel, or any indication that defendant disapproved of anything that was done by counsel at the time it was done.'

Insanity or diminished responsibility at the time of the offense is wholly unsupported by the record. Defendant testified that while he had been drinking he was 'not too drunk,' that he went to the gas station with the specific intent of committing the robbery and indicated that he fully knew what he was doing all through the robbery. For example, he testified that he told Alvarez that if he tried to identify him, defendant would return and kill him and that he said that to scare Alvarez. Defendant, at the trial, was coherent and responsive and his memory was not impaired. He was able to recall with particularity his conduct prior...

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