People v. Combes

• Decision Date: 26 June 1961
• Docket Number: Cr. 6814
• Court: California Supreme Court
• Parties: , 363 P.2d 4 PEOPLE, Respondent, v. David Allan COMBES, Appellant.

Page 4

14 Cal.Rptr. 4

56 Cal.2d 135, 363 P.2d 4

PEOPLE, Respondent, v. David Allan COMBES, Appellant.

Cr. 6814.

Supreme Court of California, In Bank.

June 26, 1961.

Ben K. Ashby, Ventura, under appointment by the Supreme Court, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce A. Thompson, Dist. Atty., Ventura, for respondent.

McCOMB, Justice.

Defendant was found guilty of first degree murder, and the jury fixed the penalty at death. His appeal is automatic, pursuant to section 1239, subdivision (b), of the Penal Code.

Viewing the evidence in the light most favorable to the People, the record discloses the following facts:

Between August 1 and August 15, 1960, defendant, a parolee, met with three other parolees, Parker, David and Perrin, in Oakland, California. During that period defendant said several times that he would be killed before he would be sent back to prison.

Before August 16, 1960, the four men planned to rob a market in Redwood City. Defendant obtained a gun for this job, so that he would not be taken by anyone who tried to stop him. He tested the gun on August 16, 1960, to make sure it would work. Although it would fire, it malfunctioned, and unsuccessful attempts were made to repair it. On August 17, 1960, defendant, Parker and David went to Redwood City and stole a car for the purpose f robbing the market. They did not carry out the robbery. At that time defendant stated he would 'have to go all the way,' because he was not going back to prison.

The three men then embarked on a series of robberies. On August 17, 1960, upon leaving Redwood City, they drove toward Bakersfield. During that drive defendant stated he would not be taken back alive. That evening they held up a drug store in Oildale. At that time defendant expressed dissatisfaction because his gun did not work very well, and he suggested they go to Las Vegas to buy better guns. They did so, defendant purchasing a Colt .32 automatic on August 18, 1960.

They started back to California the same day and stopped in the desert to target practice. Defendant said at that time, 'I want to be able to use this (gun) good enough to hit a man.' He also stated that rather than go back to prison he would 'hold court' in street. In convict jargon, to 'hold court' means to fight it out, or to shoot it out with the authorities and kill as mony as possible before the convict himself is killed.

After target practicing, the men drove on toward Los Angeles. They stopped in San Bernardino, intending to rob a store, and there formulated a plan to shoot their way out in the event a policeman attempted to apprehend them. Defendant said he would not go back to 'the joint' (San Quentin) for any reason.

Somewhere between San Bernardino and Ventura they robbed a gas station. They arrived in Ventura in the early morning of August 19 and checked in at a hotel. That afternoon they drove to Santa Barbara for the purpose of locating a place to rob. They decided upon a drug store and returned to Ventura in the early evening for their guns. They then returned to Santa Barbara, but the drug store was closed; so they looked around for another place to rob. They decided upon a liquor store.

David and Parker held up the assistant manager of the store while defendant waited in the car to drive. This robbery occurred shortly before 10 p. m. on August 19, 1960. They took between $150 and $200. The assistant manager of the liquor store alerted the police and gave descriptions of the men who had robbed him. At 10:16 p. m. the Ventura County Sheriff's radio operator received a call from Santa Barbara about the robbery, including descriptions of the suspects.

At 10:17 p. m. the radio operator dispatched Auxiliary Deputy Sheriff Bryce Patten to establish a roadblock on Casitas Pass Road in Ventura County. At 10:29 p. m. Patten radioed back that he had established the roadblock.

Defendant, Parker and David drove from Santa Barbara toward Ventura and turned off the main highway onto the Casitas Pass Road. Defendant was driving, while David was in the right front seat and Parker in the back seat. After proceeding 10 or 15 minutes they observed a patrol unit parked in the road with red lights flashing.

Defendant stopped the car. The deputy sheriff came to the window and asked for identification. Defendant and Parker handed him identification cards. David had none.

The deputy asked them to get out of the car. They did so, defendant getting out by the left front door with his gun in his hand. He fired two or three times at the deputy. The deputy fell. Defendant walked rapidly to where the deputy lay and fired several more times while the deputy tried to raise up on his elbow. Neither Parker nor David fired any shots. Defendant yelled, 'Get in the car,' and they drove off at a high rate of speed.

As they drove away, Parker and David looked out the back window and observed the deputy pull himself up on the fender of his patrol unit and then collapse by the left front door. Defendant said, 'You didn't think I'd do it, did you,' and 'You should have seen the look on his face when I shot him.' He also stated that he had hit the deputy in the chest 'every time'; that he must have hit him in the lung to cause bubbles of blood to come to his mouth; and that he would like to have seen the body to observe where he shot the officer.

The men drove to their hotel in Ventura and packed. While in the hotel defendant explained what had happened at the scene. He stated that he saw the officer had stepped into his headlights and could not see, so he reached for his gun and fired at the officer, who fell down, and that he shot him again as he lay on his back. He said that he did not feel any different and if he had it to do all over again he would do the same thing.

Defendant and his companions then fled from California to Arizona, New Mexico and Texas, and in a few days returned to California.

They hid the .32 caliber murder gun under a rock in the desert.

They were arrested in Bakerfield about 2:30 a. m. on August 25, 1960, six days after the murder. By 9 a. m. the sheriff of Ventura County, with the undersheriff and four or five deputies, arrived in Bakersfield. The sheriff immediately thereafter detailed some of the members of his staff to collect evidence in Modesto, the Las Vegas-California border area, and other nearby points in connection with the charges against defendant and his companions, and it was not until the following afternoon that sufficient members of the staff were available to transport the three men back to Ventura. Defendant was arraigned in Ventura at 5 p. m. on that day.

During the time they were held in Bakersfield all three men made confessions.

An autopsy disclosed that the deputy sheriff had been struck by eight bullets. The fatal wound entered near the collarbone, coursing downward through the jugular vein, causing massive hemorrhaging. The other wounds ranged from the upper torso to the-abdomen and thigh. Some of the wounds in the torso and thigh coursed upward and backward, indicating that they were inflicted while the deputy was in a horizontal position.

Defendant took the stand as a witness in his own behalf and stated that he had participated in the robbery at Santa Barbara and had driven to the roadblock. He admitted that he shot the officer several times and hit him 'three or four or five times.' He said that he shot fast because he 'didn't want the officer to use a shotgun.' He also admitted on cross-examination that he bought the .32 Colt automatic in Las Vegas so that if anybody tried to stop him or got in his way, he would have a weapon and could shoot his way out.

Defendant does not question the sufficiency of the evidence to support the verdict and judgment of guilty of murder in the first degree, but makes the following contentions:

First: That he was denied a 'fundamental right' in that he was not brought before a magistrate as quickly as conceivably possible after his arrest.

This contention is devoid of merit. A violation of a defendant's right to be taken before a magistrate within the time specified by the law does not require a reversal unless he shows that through such wrongful conduct he was drprived of a fair trial or otherwise suffered prejudice as a result thereof. (Stroble v. California, 343 U.S. 181, 197, 72 S.Ct. 599, 96 L.Ed. 872; Rogers v. Superior Court, 46 Cal.2d 3, 9, 291 P.2d 929; Dragna v. White, 45 Cal.2d 469, 473(9), 289 P.2d 428; People v. Stroble, 36 Cal.2d 615, 626(7), 226 P.2d 330; People v. Jackson, 183 Cal.App.2d 562, 573(17), 6 Cal.Rptr. 884; People v. Guarino, 132 Cal.App.2d 554, 558(3), 282 P.2d 538.)

The record in the present case affords no basis for an inference that defendant was prejudiced by any delay in being taken before a magistrate or that he was deprived of a fair trial. Actually, as will hereinafter appear, there was no unnecessary delay.

Second: That his detention was unlawful, in that he was arrested in Kern County and not promptly taken before a magistrate.

This contention is not sound. On August 24, 1960, which was the day before defendant was taken into custody, a complaint was filed in the Ventura Municipal Court charging him with the crime of murder. Under section 859 of the Penal Code ¹ he was therefore entitled to be taken before a magistrate without unnecessary delay.

Section 821 of the Penal Code, relating to arrests in counties other than where the crime was committed, reads in part: '* * * If the defendant is arrested in another county, the officer must, upon being required by the defendant, take him before a magistrate in that county, who must admit him to bail in the amopunt specified in the (warrant) * * *.

'If the warrant on which the defendant is arrested in another county does not have bail set thereon, or if the defendant arrested in another county does not require the arresting officer to take him before a...