People v. Cartwright
| Decision Date | 25 June 1980 |
| Docket Number | Cr. 34244 |
| Citation | 107 Cal.App.3d 402,166 Cal.Rptr. 37 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. James Darrell CARTWRIGHT, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab, and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.
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Defendant appeals from the judgment having been found guilty, after jury trial, of violation of section 211 of the Penal Code, robbery; that he was found to have used a handgun during the commission of the offense within the meaning of section 12022, subdivision (a) of the Penal Code, and that he personally used the gun during the robbery within the meaning of sections 12022.5 and 1203.06, subdivision (a)(1) of the Penal Code.
At 9:30 a. m., on March 15, 1978, Michael Conover, age 21 years, was brushing his teeth in his apartment located at 8547 Imperial Highway in the City of Downey, County of Los Angeles. He shares this apartment with his brother and his brother's girl friend. The girl friend, Melody May Martin, was asleep in her bedroom at the time; the brother Billy Conover, had left earlier to attend college classes. Michael Conover was preparing to go to college classes.
There was a knock at the door and Michael Conover answered the knock. There were two male people at the door, both wearing hats, and one of them, the defendant, was holding a gun. Michael Conover identified the defendant as the man who had committed the robbery at his apartment. He recognized the defendant as the same person who had been to his apartment or the apartment complex where Michael lives on three other occasions for a total of about three and a half hours.
At defendant's order, Michael Conover backed into the apartment and the person with the defendant locked the door. Defendant asked Michael Conover for money and Michael took out his wallet and laid $7 on a table and the defendant picked it up. The defendant was holding the handgun. Defendant asked Michael if he had any dope. Michael went to the kitchen where he had two joints of marijuana; he laid them on the counter. Defendant asked if there was more. He walked into the bedroom where Melody Martin was in bed. Defendant's companion was standing in front of the door to the apartment to bar any attempted exit. There was only one door for entry or egress to the apartment. Defendant was in the bedroom a short time and came out.
Before leaving the apartment, the defendant said they were "cops" and asked the other person with him if they should "bust him for this." He told Michael Conover not to follow them and he pulled the telephone cord out of the wall. It was a phone jack.
Mr. Conover waited a minute after the defendant and his companion had departed. He ran to the balcony above his apartment to try to locate defendant and his companion, but could not see them. He then went downstairs and around the apartment building in an effort to locate them, but they were out of sight. He then got into his automobile and drove for a two-block area, but could not find the two people who had The defendant had worn a black trimmed hat and his companion wore a red ski cap.
just robbed him. He went back to the apartment and into the bedroom[107 Cal.App.3d 406] and told Melody Martin what had happened, and called the police after plugging the phone back in.
The men had been in the apartment for about twenty minutes. Michael usually leaves at about 9:45 a. m. to get to school by 10 a. m. He had spoken to Melody Martin for about two minutes. Michael Conover estimates the time as thirty minutes from his answering the door until he got back from his search to tell Melody what had happened. He estimates that it took the police five minutes to come to the apartment.
Michael thinks that the defendant was high on angel dust because he "misslurred" his words. He knew that he has high from the previous times that he had seen the defendant in similar condition.
Michael went to a mutual friend to determine defendant's name, after which he told the police.
While defendant was in the bedroom occupied by Melody Martin, she saw him come in, look around and walk out. He was in the room for about two minutes. She had seen the defendant on a prior occasion at her boy friend's apartment, the apartment where Michael Conover and Billy Conover lived. This was about three months before the incident here in question.
Officer Terry Pruitt of the Downey Police Department came to Michael's apartment at 9:55 a. m. on the morning of the robbery.
Paul Tully testified on behalf of the defendant that he lived in Bell Gardens near Downey; that on the morning of the robbery at the Conover apartment the defendant had come to his home, by prearrangement, to help him move his family to another residence. That they had gone to a U-Haul rental yard in Cudahay to rent a truck for this purpose. They got to the U-Haul establishment at 8:30 a. m. They left there, the defendant driving Mr. Tully's car and Mr. Tully driving the rented U-Haul truck. Mr. Tully had a receipt for the rental. They stopped at Charley Turner's house to pick him up to help them move. They got back to Mr. Tully's house near 9 a. m. They started loading the truck and did not finish until 12:30 or 1 p. m., when they unloaded at the new residence. The defendant was with Mr. Tully all this time.
Mr. Tully said that he and the defendant had been to the Conover apartment on some prior occasions.
Mr. Tully received a phone call from Michael Conover some time that day in the afternoon. He was trying to find out the name of the defendant, whom he described to Mr. Tully. Mr. Tully said he knew who he was talking about because they referred to the defendant as "Slim," but he wouldn't give Michael the name. In fact, Michael had called earlier in the morning, when Mrs. Tully answered, but Mr. Tully refused to talk to him. There was a subsequent phone call by Michael to Mr. Tully in which the defendant was discussed by name, and Michael told Mr. Tully about the robbery and the defendant's involvement. Mr. Tully said it must be a mistake because the defendant was with him all day.
Mrs. Katherine Jennings, a neighbor of the Tullys testified that she saw the people loading the truck to move at about 8:45 to 9 a. m. when she left her home. She returned about 10:45 a. m. With Mrs. Jennings, when she left her home, was Mrs. Mary Smith, who corroborated the time they left and returned to Mrs. Jennings' home.
The defendant's testimony on the witness stand was the same as Mr. Tully's, to the effect that he was loading and moving furniture from the old residence to the new residence where it was unloaded. He testified that he did not go over to the Conover apartment at all that day; that he did not hold up Mr. Conover.
On cross-examination, the defendant testified that he did not tell the police that he had been helping Mr. Tully move because he didn't remember the date. However, he testified that he did talk to detectives after he was arrested, but he couldn't remember "Q. This story that you were at Paul Tully's house helping him move when this incident went down, did you tell the police this story?
who they are. Later he testified that he didn't recall whether he had told a police officer that he had been with Mr. Tully that day. Under questioning by the court and the deputy district attorney, the defendant was unable to positively state that he had told the police or anyone else of his alibi.
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