People v. Demes

• Decision Date: 19 September 1963
• Docket Number: Cr. 8001
• Citation: 220 Cal.App.2d 423,33 Cal.Rptr. 896
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Respondent, v. Walter Raymond DEMES, Appellant.

Page 896

33 Cal.Rptr. 896

220 Cal.App.2d 423

The PEOPLE of the State of California, Respondent, v. Walter Raymond DEMES, Appellant.

Cr. 8001.

District Court of Appeal, Second District, Division 1, California.

Sept. 19, 1963.

Hearing Denied Nov. 13, 1963.

Morris Lavine, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

In this, the last of three trials, Demes was convicted by a jury of murdering one Browse and of assault with a deadly weapon with intent to murder Adam Safian, a police officer. The first trial resulted in a jury disagreement. At the second trial Demes and his codefendant, Kerfoot, were convicted of both offenses charged in the information. Kerfoot abandoned his appeal. The judgment as to Demes, however, was reversed by this court because of certain procedural errors violative of due process and the reception of inadmissible evidence prejudicial to Demes. (184 Cal.App.2d 622, 7 Cal.Rptr. 674, sub nom. People v. Kerfoot.) The present appeal is from the judgment and the order denying a new trial, the latter having been made before the effective date of the 1961 amendment to section 1237, Penal Code. An attempted appeal from certain non-appealable orders designated in the notice of appeal must be dismissed.

In conformity with the views of this court on the prior appeal, and at Demes' request for such representation, present counsel was appointed to defend him at the third trial. Defendant personally entered a plea of once in jeopardy. Following the denial of preliminary motions and defendant's admission of the two prior felony convictions alleged in the information, the matter proceeded to trial some two months after the substitution of present counsel. The trial was a lengthy one--the reporter's transcript exceeds 2500 pages. Upon the denial of a new trial, defendant was sentenced to life imprisonment; the court also made a finding that defendant was an habitual criminal.

Nineteen assignments of error are listed and argued, the first of which challenges the sufficiency of the evidence to support the verdict. Since the People's case in the third trial, save for the inadmissible matters previously mentioned, was essentially the same as that produced in the second trial, we adopt the summary of such evidence found in the prior opinion (184 Cal.App.2d 622, 632-634, 7 Cal.Rptr. 674, 681) with appropriate deletions indicated by brackets together [ ] and appropriate additions indicated by brackets enclosing such additions or insertions: 'On January 19, 1959, a sporting goods store in Reno, Nevada, was burglarized and several revolvers or pistols and some other items were stolen therefrom. Among the guns taken was a .22 calibre Smith and Wesson, Serial No. 26,780 and a .38 calibre Smith and Wesson, Serial No. 126,586. There was also a green jacket missing.' [ ]

[On January 20, 1959, Mrs. Marion Karr was working at the counter of a cafe owned by herself and her husband in North Las Vegas. She served Demes and Kerfoot a meal. When they had finished eating, about thirty minutes later, Kerfoot pulled a gun out of his pocket and held it on the waitress. Demes said to Kerfoot: 'Put that down, put that thing away.' He then left, but Kerfoot told Mrs. Karr: 'I want everything that's in that register.' $57.00 was taken by Kerfoot.]

[On the morning of January 23, 1959, Demes and Kerfoot entered a grocery store in Phoenix, Arizona. Kerfoot was armed with a short-nosed .38 calibre revolver and demanded of Ben Pilon, an employee, that he put all the money in a paper bag. Pilon complied with this demand--in a sum approximating $270.00. The customers were made to lie on the floor, and Pilon was ordered to do likewise. He was then robbed of $10.00. Demes and Kerfoot were in the store about three or four minutes, during which time Demes stood at the entrance about four feet from Pilon.]

'On January 25, 1959, a barmaid saw the defendants in a bar in Hollywood that evening. She left the bar about 1:20 a. m. (January 26) and the defendants preceded her by about half an hour to 45 minutes. While at the bar Kerfoot showed a gun to the bartender and asked if he could use it and the bartender answered 'No.'

'Nathan Fram and Leland Browse were working in Fram's liquor store on Hollywood Boulevard at about 1:20 a. m. or 1:25 a. m. on January 26, 1959. Kerfoot entered the store with a gun in his hand and Fram told him to put the gun away and to get out. Kerfoot went towards Browse and demanded the money. Fram walked behind the counter and saw Adam Safian, a policeman, starting to enter the store. Browse called to Safian, 'Watch this man, he's got a gun$' Kerfoot turned around and started stooting. Browse ran out of the store and Fram heard guns firing. Safian was hit twice and fell backwards. Safian saw that the gun Kerfoot had was a .22 or .25 calibre. Browse was shot and fell down and Kerfoot ran around the corner. Safian fired several shots at Kerfoot as he ran. Kerfoot got into a 1954 or 1955 Pontiac automobile on the passenger's side. The car started moving before the car door closed. Two shots were fired at the car by Safian.

'At about 10 or 15 minutes before 2 a. m. the defendants returned to the bar where they had previously been and were served a drink. They stayed at the bar until between 2:15 and 2:30 a. m. at which time they walked north to Hollywood Boulevard with the bartender.

'At about 2:30 a. m. on January 26, 1959, Officer Kjorlien saw a Pontiac automobile parked near 6709 Selma Street. He noticed a crease on the car over the rear window which appeared to have been made by a bullet. ¹ Officer Seela arrived and opened the trunk of the car and found therein a .38 calibre revolver. The car was locked up again. At about 3:55 a. m. the defendants were walking in a westerly direction on Selma Avenue in the general direction of the Pontiac car. One of the defendants said, 'There it is.' When they reached the parked automobile they kept on walking and turned north on Highland Avenue. The officers followed and saw the defendants standing back of some bushes. The defendants were ordered by the police (who identified themselves as such) to come out with their hands in the air. A second command was given and Kerfoot came to the sidewalk and after a further command Demes came out. The defendants were handcuffed and taken to the vicinity of the parked Pontiac car. Some keys were removed from Demes' pocket which unlocked the doors and the ignition of the Pontiac car. The defendants were taken to the police station. Keys were taken from Kerfoot's pocket which also unfastened the car locks. Two live .22 calibre shells were also found in Kerfoot's pockets.

'An autopsy was performed on Browse and it was found that he died from a gunshot wound in the chest. ²

'Officer Hancock found a pair of sunglasses in the Pontiac car which contained a thumb print which matched a thumb print of Kerfoot. On January 28, 1959, at the rear of 6709 Selma Street, Hancock found a .22 calibre revolver lying under some asparagus fern bushes. Near the gun were some heel prints. A plaster cast of one of the heel prints was taken and later compared with the heel of one of Kerfoot's shoes. A most favorable comparison was noted. The trousers of Kerfoot contained some particles of asparagus fern leaves.'

On the prior appeal we had occasion to observe, in reply to the contention presently made, that except for the errors there discussed 'the evidence would have been sufficient to sustain the judgment * * *.' (184 Cal.App.2d 622, 648, 7 Cal.Rptr. 674, 691.) Despite defense testimony to the contrary (which merely raised certain conflicts), and despite counsel's vigorous argument that the People's case is lacking in sufficient substantiality to warrant an affirmance, we are of the same view previously entertained as to this phase of the instant prosecution. Demes recognizes that if he aided and abetted in the commission of the crimes, he is equally guilty regardless of the precise acts he performed. ³ Accordingly, it is argued that there was an insufficient showing that two persons were riding in the car which sped away from the scene of the crimes. As already noted, however, the vehicle started moving before the car door closed and Kerfoot had entered on the passenger side; there was also competent testimony by a prosecution witness that two males were in the car when it left the scene. The further argument is made that Demes was never identified as the second person in the subject automobile. But admittedly he was the owner of the vehicle; he and Kerfoot were in each other's company immediately before and after the shooting; he denied that he had left the bar although the falsity of this testimony was established by two witnesses; there were other incriminating circumstances which include his actions and statements following the homicide. It was for the jury to determine whether the above circumstantial evidence sufficiently implicated the defendant. (People v. Cullen, 37 Cal.2d 614, 625, 234 P.2d 1; People v. Scott, 176 Cal.App.2d 458, 1 Cal.Rptr. 600.)

Further, on the issue that he did not aid and abet, it is contended by Demes that the prosecution failed to show that he knew of Kerfoot's plans to commit a robbery. While presence at the scene of the crime does not alone establish that appellant was an abettor (People v. Hill, 77 Cal.App.2d 287, 175 P.2d 45), the test seems to be 'Whether the accused in any way, directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures' (People v. Villa, 156 Cal.App.2d 128, 134, 318 P.2d 828, 833), and previous knowledge of what was about to transpire may be reasonably inferred from the defendant's actions at the time and place in question. In the present case, defendant's car was not parked in front of the liquor store but further up the street; the...