People v. Dorsey

• Decision Date: 31 March 1975
• Docket Number: Cr. 25428
• Citation: 120 Cal.Rptr. 508,46 Cal.App.3d 706
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee Daniel DORSEY, Defendant and Appellant.

Page 508

120 Cal.Rptr. 508

46 Cal.App.3d 706

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee Daniel DORSEY, Defendant and Appellant.

Cr. 25428.

Court of Appeal, Second District, Division 5, California.

March 31, 1975.

As Modified April 7, 1975.

[46 Cal.App.3d 708] Herbert F. Blanck, Encino, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Steven H. Kaufmann, Deputy Attys. Gen., for plaintiff and respondent.

LORING, ^* Associate Justice (Assigned).

Count I of an information charged Lee Daniel Dorsey (Dorsey) with a violation of Penal Code section 459 (burglary of a commercial building occupied by Branch Realty at Covina City on July 30, 1972). Count II charged Dorsey with a violation of Penal Code section 447a (arson of a dwelling house at 14346 Gates, Baldwin Park on August 26, 1972). Count III charged a violation of Penal Code section 447a (arson of a dwelling house at 708 Alta Drive, Pomona on September 9, 1972). Count IV charged a violation of Penal Code section 12303.3 (exploding explosive with intent to destroy a residence used as an office building at 890 North Indian Hill Boulevard, Pomona on September 16, 1972); count V charged a violation of Penal Code section 12303.3 (exploding explosive with intent to destroy an aluminum storage shed located at 623 East Arrow Highway, Azusa on September 22, 1972); count VI charged a violation of Penal Code section 470 (forgery of a check for $104.74 with intent to defraud Sears, Roebuck and Company and Security Pacific National Bank on October 20, 1972); count VII charged the same offense against the same victims in the sum of $81.65 on October 21, 1972; count VII charged the same offense against the same victims in the sum of $94.49 on October 21, 1972. Counts I through V were severed from counts VI through VII on defendant's motion. A jury returned guilty verdicts (after two and one-half days of deliberation) on counts I through V. Count I was fixed as burglary in the second degree. Dorsey was sentenced to state prison on each count. The sentence on count IV was imposed under Penal Code section 1268. The sentence on counts I, III and V were ordered to run concurrent to the sentence on count IV. The sentence on count II was ordered to run consecutively to the sentence on count IV. Dorsey was given credit for 25 days in presentence custody. On motion of the People counts VI through VIII were dismissed. Dorsey appeals from the judgment of conviction.

CONTENTIONS

The sole contention on appeal is that Dorsey was denied the right of effective representation of counsel under Ibarra standards. (People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487), because his counsel failed to object on proper legal grounds to certain testimony by Patricia Ann Dorsey (former wife of Dorsey) ¹ which constituted privileged communications between husband and wife.

FACTS

Count I

The night of July 30, 31, 1972, Branch Realty premises were burglarized; books The day after the burglary Dorsey drove Mrs. Dorsey to Salton Sea to visit his parents. Enroute they drove off the highway on a dirt road near the City of Covina to a point where a pile of material was burning. Dorsey then told Mrs. Dorsey (according to her testimony) that this was where he burned the stuff he had taken from Branch Realty. Mrs. Dorsey took sheriff's deputies to the point later, where they retrieved partially burned documents and other material which had been taken from Branch Realty in the burglary.

records, cards, papers, typewriters, adding machines, file cabinets, and small change from a piggy bank were taken. A tire iron from a Toyota car was later found on a desk in the office. Dorsey had worked for Branch Realty several months before and had visited the office a few days before the burglary. Dorsey became a suspect. Mrs. Dorsey testified that the evening before the burglary at the Branch [46 Cal.App.3d 710] Realty and also a day or two before, Dorsey told her that he was going to rob the Branch Realty, 'that they were trying to bankrupt him.'

Dorsey's defense on count I was an alibi that on the night the Branch Realty was burglarized he was painting (all night) at the Windjammer Bar at Salton Sea. Receipt for certain rental equipment tended to support his alibi. His alibi was supported by several other witnesses.

Count II

The Gates Street arson on August 26, 1972, was caused by rags in a closet soaked in a flammable liquid apparently ignited by an electric wire plugged into a wall plug. David Brown testified that he and Dorsey set the fire by spreading gasoline around and igniting it with an extension cord and that Dorsey told him he wanted to burn down the residence to collect insurance. Mrs. Dorsey testified that Dorsey told her that a man named Caproni had put furniture in the house to make it look occupied and that he and Gene Gilmore were going to burn it down to collect insurance because he, Dorsey, could not sell it. Mrs. Dorsey testified that the day before the fire Dorsey told her 'we're going to burn it down,' and the night the fire was to have been committed Dorsey dorve her by the house to see the fire but it was not burning and that he would return to determine why. Later Dorsey returned home and said the fire department was there and the place was 'burning wild.'

He took her back the next day to show her the house burned up.

Count III

The residence dwelling on Alta Drive, Pomona, was set on fire on September 9, 1972, but the fire was extinguished after only partial damage. Investigation disclosed that the fire started at two different points--in the living room by a soldering or woodburning tool plugged into an electrical outlet and laying on top of a rug under which there was a box of paper matches, and on a carpet in the recreation room.

David Brown testified that Dorsey told him to spread gasoline around the carpeting in the house and he observed Dorsey put a hot iron in a shoe box with matches and place the shoe box under the carpeting.

Mrs. Dorsey testified that Dorsey took her by the house the next day and indicated that he and Brown had started the fire, but there was not as much damage as they expected.

Count IV

An explosion and fire occurred at 890 Indian Hill, Pomona, on September 16, 1972. The explosive device was galvanized pipe with holes drilled into it which holes had been used as a fuse.

Mrs. Dorsey testified that about a week before the explosion and fire she went with Dorsey to pick up Brown. They picked up a box of rags and gas and went to 890 Brown testified that he had gone to 890 Indian Hill with Dorsey several times and the last time they took a small glass jar filled with gasoline and a sponge, but he did not see anyone light it. They returned later to the building with a pipe about five inches long filled with gun powder with a hole drilled in a cup at one end with gun powder coming out. The pipe was placed in a shoe box with gun powder all around it. Brown testified that he saw Dorsey make the bomb. Dorsey told Brown to light a small birthday candle which when it burned down would ignite the gun powder. The box was set next to the hot water heater.

Indian Hill where Dorsey had Brown get out and place the box. Nothing happened. She also testified that about a week after the explosion and fire Dorsey told her that he had planted a pipe bomb there and it had gone off.

Count V

On September 22, 1972, an explosion occurred in a metal shed at 622 East Arrow Highway. Investigators recovered pieces of a pipe and fiberboard material from a box.

Brown testified that he and Dorsey went to the building and Dorsey gave him the box and told him to place it under the shed and light it, which he did.

Mrs. Dorsey testified that Dorsey told her before the explosion 'that they ought to do something to themselves to look like someone else was doing the jobs instead of them.' ²

The defense to counts II, III, IV and V consisted merely of a denial and an attempt to attack the credibility of the People's witnesses.

DISCUSSION

When the matter of eliciting from Mrs. Dorsey statements made to her by Dorsey first arose, Mrs. Dorsey was being examined about an incident which occurred in which Dorsey drove her past the Branch Realty office several times when he had a gun.

The following occurred:

'Q. And while driving past the office or just before driving past the offices, did he tell you what he was going to do?

'A. Yes.

'MR. VROMAN: Objection. Any statement made by Mr. Dorsey to her would be hearsay.

'THE COURT: There's no question. Are you objecting to this question?

'MR. VROMAN: Withdraw my objection.

'THE COURT: All right.

'MR. VROMAN: It's premature.

'Q. BY MR. ROTH: What did he tell you?'

Dorsey's counsel objected to the last question on the ground that it called for 'hearsay.' The objection was sustained. An argument at bench then ensued, in the course of which the question was withdrawn. Defense counsel then moved to strike all of the evidence about driving past the Branch Realty office with the gun. The court indicated that it was about to reverse its ruling. The prosecutor, in resisting the motion to strike, indicated that he intended to ask the same question later. The motion to strike was denied. The prosecutor then took up the subject of what happened the evening of the burglary at Branch Realty, and the following occurred:

'Q. All right. Before your husband left that evening--did he go out somewhere?

'A. Yes.

'Q. Before he left to go out, did he tell you where he was going?

'A. Yes.

'Q. What did he tell you?

'MR. VROMAN: Objection. Hearsay. Offered to prove the truth of the matter stated.

'MR. ROTH: We'll offer this as an admission as to Count I.'

An argument then ensued at bench in which the following occurred:

'THE COURT: We're at the bench beyond the hearing of the jury.

'Mr. Roth, what's...