People v. Dozier

Decision Date26 July 1965
Docket NumberCr. 2222
Citation236 Cal.App.2d 94,45 Cal.Rptr. 770
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Donnie DOZIER, Defendant and Appellant.

Langford, Langford & Lane and J. Perry Langford, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Anthony M. Summers, Deputy Atty. Gen., for plaintiff and respondent.

WHELAN, Justice.

Defendant appeals from a judgment finding him guilty of robbery in the first degree and of assault with a deadly weapon. In view of the nature of some of the questions involved, it is well to summarize the testimony of several of the witnesses.

George Whitaker testified that between midnight of August 21, 1964 and 2:00 a. m. of August 22, while walking to the Fleet Landing, he was hailed at the corner of Fourth and Market in San Diego, California by the defendant, a male dressed in a woman's long white dress, wearing a fur piece, a black wig and black high-heeled shoes and carrying a woman's handbag. Defendant was a short distance south of Market Street on the east side of Fourth Avenue. Whitaker went to him and was asked by defendant for a dollar to buy a drink. Whitaker refused and turned to walk away. He was grabbed by his sailor's neckerchief from behind; he turned around and again was asked for money, the defendant having produced from his purse a metal object which Whitaker thought was a gun. Defendant struck Whitaker and attempted to take his wallet; defendant got Whitaker down on the sidewalk and started hitting him with the metal object and stamping on Whitaker's head; defendant obtained Whitaker's wallet and began taking everything out of it; Whitaker managed to get up and ran to the corner of Fourth and Market where he encountered police, to whom he related what had happened. In Whitaker's wallet, which was not recovered, there had been $22.

Sherman Robert Wiseman testified that while walking north on Fourth Avenue between Island and Market at about 2:00 a. m. of August 22, 1964, he saw the defendant slap a sailor; that defendant was in a dress and had hold of the sailor by the front of his blouse and said, 'Give me a dollar, you son-of-a-bitch, or I'll kill you.'; he next saw the sailor lying on the sidewalk and the person in the dress was stamping on him; he also saw something glinting in the hand of the person in the dress, which he had also noticed before the sailor went down; he thought the object was a knife; he also saw the person in the dress pulling papers out of something and flipping them; he thought the person in the white dress was a woman; he approached the police, whom he accompanied to the scene of the described events, where the police picked up the papers lying about; that some 10 minutes after seeing the attack on the sailor he saw the person in the white dress alongside a police car on Fifth Avenue between Island and Market and pointed him out to the police as the attacker. Wiseman then saw the person in the white dress inside the same police car and identified that person as the attacker; Wiseman had seen the same person earlier in the evening before the assault and believed the defendant to be that person.

Frank Douglas Price, a sailor, while on the east side of Fourth Avenue and on the north side of Market Street at about 2:00 a. m. on August 22, saw a commotion on Fourth Avenue, about one-quarter block south of Market Street. He walked toward that point until he reached a spot some five or ten feet from where a person in a woman's white dress and high-heeled shoes had hold of a sailor by his uniform and had what appeared to be a gun in one hand. He took the person to be a woman and heard this person say, 'I'll shoot ya if you don't give me some money'; not wishing to run the risk of gunfire, Price walked back to the corner of Fourth and Market. He observed the defendant (sic) beating the sailor with the gun barrel and saw the sailor go down after awhile. Then the defendant (sic) started stamping on the sailor, all the time demanding money. When there didn't seem to be any more resistance, the person in the dress reached down and took a wallet from the sailor and strewed papers all over the street. The person in the dress then walked south on Fourth Avenue to Island Avenue and turned the corner to go east on of Fourth and Market. There was blood of Fourth and Market. There was blood, on his uniform. Some 15 minutes later, Price saw the defendant in a police car which was facing north on the east side of Fifth Avenue between Island and Market and identified the defendant seated in the car as the assailant of the sailor.

Terrence Paul Conlin, a San Diego police officer, at about 2:10 a. m. on the morning of August 22, 1964, saw the defendant hobbling in an easterly direction on the north side of Island Avenue between Fourth and Fifth Avenues; one of the defendant's shoes had the heel missing, which was the cause of the hobbling; the officer, who was accompanied by Officer Davis, learned by radio that there had been a disturbance and met the witness Wiseman in the company of another officer; Conlin, along with Wiseman, went to the scene of the assault where Conlin picked up Whitaker's identification papers; the officers then proceeded to the Jolly Inn on the east side of Fifth Avenue between Island and Market, where they saw the defendant standing in the doorway; they placed defendant under arrest and searched his handbag, in which they found a right angled drill chuck which had on it what was later identified as human blood; there was also blood on the dress worn by the defendant and on one of his shoes there was blood which was later identified as human blood; at the time of his arrest, the defendant did not have a heel on either shoe; also in the purse were a $5 and three $1 bank notes.

Officer Conlin testified also, over objection by the defendant, as follows:

'Yes, I asked the defendant Dozier if he had contacted the victim, and I pointed toward the victim, at any time earlier in the evening. He said, yes, he had. He mentioned that he had been with this person earlier in the evening, and that the victim, thinking that he was a woman, had made advances. Dozier then told me that he told the victim that he was a boy, and that he should go to the Zebra Club or the 552 Club, which is located in the 500 block of Fifth, if he wanted any activity with a person of the opposite sex. He said that the defendant--or the victim then left. * * *

'* * *

'* * * when I made reference to what appeared to me to be blood on Dozier's face and hands, and on the right-angle drill chuck, and the shoes in the area of the heels, he stated that it had come from the same victim who had bumped into him later when he had met him over in the 400 block--or the block of Fourth.

'* * *

'I asked him if he had assaulted this individual with the drill chuck, and he said, 'No."

About 15 minutes had elapsed from the time when Conlin first saw defendant and his later seeing defendant at the door of the Jolly Inn.

Appellant's testimony in his own defense was to the effect that from time to time during the evening Whitaker had solicited him to go to a room, that there was an issue over a dollar which Whitaker owed for a drink, and that Whitaker had attacked appellant, who merely defended himself. He testified also that Whitaker thereatened him with a switchblade knife; that Whitaker also had the drill chuck on his person; that defendant kicked the knife out of Whitaker's hand and knocked the drill chuck out of Whitaker's hand; that he had kicked Whitaker who fell down and got up and fell again when defendant struck him; that defendant knocked Whitaker down a third time and began to 'stomp' him; that he did not know how the drill chuck got in his purse, that he did not put it there; and that he did not take any of Whitaker's money; that at the time of his arrest the heels were on both of his shoes.

The trial court found defendant guilty of robbery in the first degree because he was armed with a deadly weapon at the time of the offense. Defendant was not charged in the information with having been armed with a deadly weapon. Appellant assigns fixing of the degree as first degree robbery as error. Respondent concedes this point.

The trial judge pronounced judgment only on the robbery conviction. Appellant contends that in reviewing a conviction on a charge of robbery this court should not review the propriety of the conviction of assault with a deadly weapon. It is proper, however, to review both convictions on this appeal. (People v. Jenkins, 231 A.C.A. 1044, 1050, 42 Cal.Rptr. 373.)

The statements made by defendatn, testified to by Officer Conlin, were made over defendant's objection based upon Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, in which latter case a rehearing had been granted by the California Supreme Court without having been finally decided at the time of the trial. The officer testified directly that he did not advise defendant of his rights to counsel and to remain silent. Although respondent argues otherwise, it appears that the officers were satisfied as to the identity of defendant as the assailant of Whitaker at the time of these conversations and that the various elements mentioned in People v. Dorado, supra, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, existed. It was error, therefore, to admit the statements into evidence. Those statements did not constitute a confession and in general they were of an exculpatory nature. An examination of the entire cause, including the evidence, to determine if the introduction of the statements caused prejudice to defendant, in our opinion, does not disclose such prejudicial effect. There is no reasonable probability that the court would have reached a result more...

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    • United States
    • California Court of Appeals Court of Appeals
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    ...Cal.App.2d 892, 901, 52 Cal.Rptr. 134; People v. Banks (1966) 242 Cal.App.2d 373, 376--377, 51 Cal.Rptr. 398; People v. Dozier (1965) 236 Cal.App.2d 94, 102--104, 45 Cal.Rptr. 770; and see People v. Berger (1968) 258 A.C.A. 721, 726, 66 Cal.Rptr. 213; People v. Gibbs (1967) 255 A.C.A. 864, ......
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    ...recognized "the right of confrontation as being part of due process" under article I of that document. (People v. Dozier (1965) 236 Cal.App.2d 94, 101, 45 Cal.Rptr. 770, 775.) Pointer itself declared that "the right of confrontation and cross-examination is an essential and fundamental requ......
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