People v. Donohoe

• Decision Date: 06 February 1962
• Docket Number: Cr. 4038
• Citation: 19 Cal.Rptr. 454,200 Cal.App.2d 17
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Richard DONOHOE, and Roberta Grace Hinson, Defendants and Appellants.

Page 454

19 Cal.Rptr. 454

200 Cal.App.2d 17

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Richard DONOHOE, and Roberta Grace Hinson, Defendants and Appellants.

Cr. 4038.

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

Feb. 6, 1962.

Rehearing Denied Feb. 23, 1962.

Hearing Denied April 3, 1962.

John R. Aye, Rio Vista, for appellants.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Nat A. Agliano, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

Defendants John Richard Donohoe and Roberta Grace Hinson were charged in an information with the robbery of one Joe Zoller and in a second count with having committed and assault on Zoller by means of force likely to produce great bodily injury. Donohoe was also charged with three prior convictions. A jury found the defendant Donohoe guilty of both counts and the defendant Hinson guilty of robbery but not guilty of the assault. Upon motions made separately as to each defendant, the matter was then referred to the probation officer pending pronouncement of judgment and sentence. The court denied probation to Donohoe but granted probation to Hinson for a period of five years, the first year to be spent in the county jail. The motion of both defendants for a new trial was denied. Both defendants appeal from the judgment of conviction ¹ and from the order denying their motion for a new trial.

At about 1:00 a. m. on Sunday morning, October 23, 1960, the prosecuting witness Joe Zoller, a 70-year-old construction work inspector, entered the Solano Inn, located in Vallejo, took a seat at the bar and ordered a drink of beer. He had on his person at the time the sum of $150 or $160 which was the balance of his wages for two weeks. The defendant Hinson was also seated at the bar, not too far away. She moved over near Zoller and the two got into a conversation. Zoller testified that Mrs. Hinson moved over without his invitation. According to the bartender, Zoller ordered a drink of whiskey when he came in and almost immediately invited Mrs. Hinson to join him. They then had several drinks together, for all of which Zoller paid.

About 15 or 20 minutes later, the defendant Donohoe came into the bar, stood on the other side of Mrs. Hinson, had some conversation with her, became involved in a scuffle with another patron, and finally left. Donohoe had been in the establishment altogether about 10 to 15 minutes. Zoller did not recall seeing him there at any time. Donohoe and Mrs. Hinson knew each other and had been in the Solano Inn earlier that night, at which time she introduced Donohoe as her brother Jack. They had been living together for approximately two months at a Vallejo auto court.

When the bar was about to close, Zoller invited Mrs. Hinson to go with him to have something to eat and the two left together for an eating place in South Vallejo which she had suggested. At this point Zoller was somewhat intoxicated. The two of them got into Mrs. Hinson's car, she in the driver's seat and Zoller in the right front seat. According to the testimony of a witness who saw Zoller and Mrs. Hinson get into her car, a white man opened the rear door and got into the car after they did, and just before it pulled away.

After Mrs. Hinson and driven some distance on the way to South Vallejo, Zoller was attacked by someone from the back seat of the car, who threw his arms around Zoller's neck and started to bring it over the front seat, at the same time demanding Zoller's money. The assailant then hit Zoller on the head three or four times with a bottle or other hard object. Zoller lost consciousness. He never saw his attacker at any time.

When Zoller regained consciousness, he found himself out on the road about a quarter of a mile from the place where he had been attacked. He was bleeding and injured. All of his money, except 30 or 32 cents, was gone. He walked to a nearby service station where the attendant called the police. The officers took Zoller to the police station, to a hospital and then back to the police station where Mrs. Hinson had already arrived. During the attack Mrs. Hinson continued driving the car; so far as Zoller could recall she did not join in the attack.

Among the $150 or $160 which Zoller had on his person at the time he entered the Solano Inn was a $50 bill which the bartender saw when Zoller paid for the first drink but for which he could not make change.

The evidence showed that Donohoe and Mrs. Hinson was together at the auto court on Sunday. On Monday, October 24th, they appeared at a Vallejo used car lot where they had attempted to buy a car on credit the week before. They told the salesman that they now had a hundred dollars to apply as a down payment on a Buick, but being informed that they still could not finance the purchase, bought a cheaper car for $69.60. Donohoe paid for it in cash; among the money paid, was a $50 bill.

Three statements were given to the Vallejo police by the defendant Hinson. In the first statement orally made at the Vallejo police station at 3 a. m. on the morning of the robbery, Mrs. Hinson stated that a Negro had attacked Zoller from the back seat of the car and then robbed him. The assailant had her drive him farther on, and then got out of the car.

On October 26, 1960, three days after the robbery, Mrs. Hinson made a second statement in her own handwriting at the Vallejo police station where she had been brought for questioning. The statement, in substance, related her meeting with Zoller at the bar, his displaying the money, the appearance of Donohoe, and the departure of Zoller and Mrs. Hinson to get something to eat. During the drive, according to the statement, Donohoe jumped up from the back seat, held something at Zoller's head, and demanded Mrs. Hinson's purse and Zoller's wallet. She threw her purse into the back seat but when Zoller failed to turn over his wallet, Donohoe hit him with a bottle, rifled his pockets and pulled him out of the car. Donohoe then had Mrs. Hinson drive him to a restaurant and instructed her to report to the police that the robbery was committed by a Negro.

The third statement was given the next day, October 27, to Vallejo police officer at the Solano County sheriff's office in Vallejo. It was taken down by a certified shorthand reporter and then transcribed. In this statement Mrs. Hinson repudiated her first statement as being false and admitted that the portion of her second statement which was to the effect that she did not know of Donohoe's plan to rob Zoller, was not the complete truth. Mrs. Hinson repeated substantially the meeting in the bar, the ride and the attack except that she not know Donohoe's plan to rob Zoller, at the bar, Donohoe told her that "the old man has got a wad * * *. Get him in the car and I will get it." She also added that during the attack the bottle broke and Donohoe started beating Zoller with his fists until she pleaded with him to stop. She repeated Donohoe's instructions to give a false statement to the police and added details not in the former statements. These latter were to the effect that both defendants went out drinking on Sunday, that Donohoe told her the robbery netted $115 of which he gave her $5 to spend and that on Monday they spent $65 of the stolen money for a car.

About a half hour after the statement was completed, Officer Lopez of the Vallejo police who had interrogated Mrs. Hinson, had a conversation at the same office with both of the defendants. During this conversation Lopez told Donohoe that Mrs. Hinson had stated that Donohoe had committed the robbery with her. When Donohoe denied committing the robbery, the officer asked Mrs. Hinson to relate to Donohoe what she had told Lopez about Donohoe's participation. When Mrs. Hinson began to cry and pleaded with Donohoe to tell the truth, he replied that she would get probation anyhow and questioned 'why should we both go up for something like this.' Thereupon Donohoe's offer to make a statement to Lopez, if the latter would agree not to prosecute Mrs. Hinson, was refused by Lopez. Donohoe then stated that he would think the matter over and 'if I decide to confess to you, I'll ask for you.'

Upon the arraignment of both defendants, attorney John Aye was appointed as counsel for both and the case continued one week to plead. On that date, before the defendants entered their pleas, counsel's motion for a dismissal of the information, made on behalf of the defendant Donohoe was denied. Thereupon, counsel made a motion that separate counsel be appointed for each defendant on the ground of conflict of interest between the defendants. It was also denied. Both defendants then entered pleas of not guilty to both counts, the defendant Donohoe admitting all three prior convictions.

Neither defendant took the stand at the trial. Zoller, the victim, was the only witness called by the defense. In his closing argument, the district attorney commented on the failure of both defendants to testify.

The defendants contend here that (1) they were denied their constitutional right to be represented by counsel when the court refused to appoint separate counsel for them; (2) Donohoe's conviction of both robbery and assault constitutes double punishment; and (3) the evidence is insufficient to sustain their conviction. We will discuss the first two contentions. Our decision makes it unnecessary for us to consider the third.

We take up the trial court's appointment of counsel. This occurred on November 21, 1960, when upon the arraignment of the defendants, Mr. Aye was appointed counsel for each. The defendants were then given until November 28, 1960, to plead to the information. On that day after Mr. Aye's motion to dismiss the information, made on behalf of the defendant Donohoe, had been denied, the following took place: 'MR. AYE: And also, may it please the Court, I have gone over this transcript very carefully and have gone over...