People v. Dickson, Cr. F002421

Decision Date06 May 1985
Docket NumberCr. F002421
Citation167 Cal.App.3d 1047,213 Cal.Rptr. 722
PartiesThe PEOPLE, Plaintiff and Respondent, v. Gerald W. DICKSON, Defendant and Appellate.
CourtCalifornia Court of Appeals Court of Appeals
OPINION

FRANSON, Acting Presiding Justice.

STATEMENT OF THE CASE

Appellant was charged by information as follows: count one--the murder of Ida Marie Husler in violation of Penal Code section 187, with two special circumstances allegations of robbery-murder and burglary-murder under Penal Code section 190.2, subdivision (a)(17); count two--robbery of Ida Marie Husler in violation of Penal Code section 211; count three--burglary of Spanky's restaurant (where Ida Husler was murdered) in violation of Penal Code section 459; count four--attempted rape of Ida Marie Husler in violation of Penal Code sections 664 and 261, subdivision (2); count five--robbery of Karen B. in violation of Penal Code section 211; count six--kidnaping in violation of Penal Code section 207; count seven--rape of Karen B. in violation of Penal Code section 261, subdivision (2); and count eight--forced oral copulation of Karen B. in violation of Penal Code section 288a, subdivision (c).

As to counts one, two, three, five and six, it was further alleged that appellant personally used a handgun during the commission of the crimes within the meaning of Penal Code section 12022.5. As to counts four, seven and eight, it was further alleged that during the commission of the sex offenses appellant personally used a handgun within the meaning of Penal Code section 12022.3, subdivision (a). Appellant pleaded not guilty to all counts.

Appellant filed motions to suppress evidence under Penal Code section 1538.5. The motions related to a statement appellant gave to the police and to evidence seized pursuant to a search warrant. Appellant also filed a Penal Code section 995 motion to dismiss count four and a motion to sever counts one through four from counts five through eight. The respective motions were denied.

Thereafter, the jury returned verdicts of guilty on all counts, and all of the firearm use enhancements were found true. As to count one, it was murder in the first degree and the robbery-murder and burglary-murder special circumstances were found true.

Appellant's motion for a new trial was denied.

Appellant was sentenced to state prison for life without the possibility of parole on count one with two years consecutive thereto for the use of a firearm. He was sentenced on count seven to state prison for the upper term of eight years plus three additional years for the use of a firearm; the sentence on count one was consecutive to the sentence on count seven. The sentences on counts four, five and eight were to run concurrent to the sentences on count seven. Sentences on counts two, three and six were stayed. Appellant received total credits (as to the determinate sentences) of 454 days.

STATEMENT OF THE FACTS

This case involves two incidents. First, in the evening of June 3, 1982, Ida Marie Husler was murdered at "Spanky's," a restaurant she co-owned. She was found dead, shot in the back, with her pants down around her knees. A trail of blood showed that she was shot in the front of the restaurant near the cash register and died as she tried to call for help on the telephone in the back room. The telephone was off the hook. Money from the cash register was gone, and a .32 caliber shell casing was on the floor.

The second incident was the armed robbery of a Seven-Eleven and the kidnaping, oral copulation and rape of the cashier, Karen B. On June 21, 1982, Karen was working alone in the Seven-Eleven at West and Shaw. Appellant came in, asked for a pack of cigarettes, then pulled a gun and demanded all of the money in the cash drawer. After taking the money, he discovered a surveillance camera in the store. Appellant made Karen help him remove the surveillance camera. He put Karen and the camera in his truck.

Appellant then took Karen to a remote area, ordered her to disrobe, forced her to orally copulate him and raped her. Afterward, he threatened to bomb her house if she told the police he was black and released her. The next day, she and her boyfriend saw him driving his truck and turned the license number over to police. The surveillance camera was recovered from his apartment, and the photographs it contained show appellant holding a gun on Karen B. in the Seven-Eleven.

Appellant admits robbing the Seven-Eleven, but denied the other charges. He claims that someone named "Robert Smith" was with him when he robbed the Seven-Eleven, that Smith kidnaped Karen over appellant's objection and that he (appellant) jumped out of the truck and walked home. Karen testified that appellant was alone when he robbed and raped her. Sperm found in her body may have come from defendant, and footprints found at the scene of the rape matched his shoes.

Appellant's gun was shown to be the murder weapon in the "Spanky's" robbery-murder. A witness testified that appellant's truck was parked nearby at the time, and other witnesses testified that appellant came to the scene later and asked restaurant employees about the murder and about the progress of the investigation. Appellant also quizzed one of his neighbors, a policeman, about the investigation's progress. Appellant's defense was alibi, substantiated by relatives. He also claimed that he bought the murder weapon on June 5th or 6th, after the murder had occurred.

While appellant was in jail, and after defense counsel was appointed, appellant made several requests to speak to the police. Appellant had read the police reports and knew that the Seven-Eleven surveillance camera had been recovered from his apartment and that the film showed him holding a gun on Karen in the store. Officer Jones, who received appellant's request from the jail, first called appellant's counsel, Gerald Kahl. Mr. Kahl did not want the police to take appellant's statement, but after another written request was received from appellant and Mr. Kahl did not respond to phone calls about the request, appellant was allowed to make a statement.

This interview was taped. It included a complete Miranda 1 advisement and other questions to establish that it was being done at appellant's request, free of coercion, that he knew he had counsel, knew that counsel was opposed to his desire to talk and chose to go ahead anyway.

Appellant's motion to suppress the tape was denied, and the tape was used at trial. The prosecution relied on parts of the tape to pin down the date when appellant purchased the murder weapon. On the tape, he claims that a woman (Sherry Nelson) went with him to buy the gun and would remember the date. Her preliminary hearing testimony set the date in mid-May, but at the trial she claimed it was in June. Her preliminary hearing testimony was admitted as a prior inconsistent statement.

Part of appellant's defense to the murder charge was his claim that he bought the murder weapon from Skip Johnson on June 5th or 6th, three days after the murder was committed. Appellant's counsel sought judicial "use immunity" to encourage Johnson to testify, but it was denied, and when called as a witness, Johnson asserted the Fifth Amendment. Johnson admitted, out of court, that he had been asked to commit perjury on appellant's behalf for $1,000 but that he had not been paid. Appellant sought to introduce statements Johnson made out of court to defense counsel and investigators that he sold the gun to appellant on June 5th or 6th. The court found Johnson was unavailable as a witness under Evidence Code section 1230, but ruled that Johnson's statements were inadmissible because there was no evidence that Johnson knew the statements were against his penal interest when they were made and that his statements were untrustworthy.

DISCUSSION
I.

The use of appellant's statement to police did not violate his Sixth Amendment right to counsel.

Upon his arrest on June 23, 1982, appellant invoked his Fifth Amendment right not to talk to the police, and defense counsel was appointed. But while in jail, he sent several messages to Officer Jones of the Fresno Police Department, who was investigating the murder of Ms. Husler. Officer Jones knew that appellant was represented by Deputy Public Defender Gerald Kahl. After receiving written messages and verbal messages via appellant's wife Annazette and his father-in-law Bemore Shillings, Officer Jones contacted Mr. Kahl and told him about the messages. Mr. Kahl said that he did not want the officer to talk to appellant at that time. Officer Jones did not talk to appellant at that time, but continued to receive messages through Annazette and Bemore Shillings. Finally, around July 30, Officer Jones received another signed, written message from appellant. Appellant asked to talk to Officer Jones even though Officer Jones had rejected his earlier requests. Officer Jones left messages at Mr. Kahl's office to contact him about appellant's continuing requests, but did not receive a response.

Officer Jones then had appellant brought to police headquarters and took a taped statement. Before the interview started, Officer Jones read appellant his rights from a Miranda card, reminded him that his attorney did not want him to talk to the police and stated that he was willing to go along with the attorney and not talk to appellant. Appellant told Officer Jones that he knew who his lawyer was and correctly told him Mr. Kahl's name. He also claimed to have "a private lawyer too." Officer Jones then reminded appellant...

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3 cases
  • People v. Stephens
    • United States
    • California Court of Appeals Court of Appeals
    • February 28, 1990
    ... ... Dickson (1985) 167 Cal.App.3d 1047, 1056, 213 Cal.Rptr. 722.) Yet again the discussion focuses on counsel at "interrogation," while the court here found ... ...
  • People v. Sultana, H002097
    • United States
    • California Court of Appeals Court of Appeals
    • August 11, 1988
    ... ... (See e.g. People v. Rankins (1986) 178 Cal.App.3d 1163, 1165-1166, 224 Cal.Rptr. 282; People v. Dickson (1985) 167 Cal.App.3d 1047, 1052-1057, 213 Cal.Rptr. 722; People v. Manson (1976) 61 Cal.App.3d 102, 164, 132 Cal.Rptr. 265; People v. Rowe (1972) ... ...
  • People v. Peters, F060719
    • United States
    • California Court of Appeals Court of Appeals
    • November 7, 2011
    ... ... Dickson (1985) 167 Cal.App.3d 1047, 1060 [same].) While the evidence in this case might be susceptible to the interpretation appellant suggests, in light of ... ...

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