People v. Duncan

• Citation: 350 P.2d 103,3 Cal.Rptr. 351,53 Cal.2d 803
• Decision Date: 11 March 1960
• Docket Number: Cr. 6490
• Court: United States State Supreme Court (California)
• Parties: , 350 P.2d 103 PEOPLE, Respondent, v. Elizabeth Ann DUNCAN, Appellant.

Page 351

3 Cal.Rptr. 351

53 Cal.2d 803, 350 P.2d 103

PEOPLE, Respondent, v. Elizabeth Ann DUNCAN, Appellant.

Cr. 6490.

Supreme Court of California, In Bank.

March 11, 1960.

Rehearing Denied April 5, 1960.

Frank Duncan, Leonard Nasatir, Ward Sullivan, Los Angeles, and Burt M. Henson, Camarillo, for appellant.

A. L. Wirin, Gerald L. Rosen and Richard L. Lissner, Los Angeles, amici curiae on behalf of appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Roy A. Gustafson, Dist. Atty., Ventura, for respondent.

GIBSON, Chief Justice.

Luis Moya and Augustine Baldonado confessed to the police that they had killed Olga Duncan, the wife of defendant's son Frank, and in their confessions stated that defendant had hired them to do the killing. The three were indicted for murder and tried separately. Defendant pleaded not guilty and not guilty by reason of insanity. The jury found her guilty of murder in the first degree and fixed the punishment at death. Pursuant to stipulation, the court sitting without a jury passed upon the sanity issue, and defendant was found to have been sane at the time of the commission of the offense. Her motion for a new trial was denied, and the appeal comes before us automatically under subdivision (b) of section 1239 of the Penal Code. ¹

The facts stated below are summarized from the testimony of a number of witnesses. Moya and Baldonado testified regarding the arrangements defendant made with them and the manner in which they carried out the plan to kill Olga. Several persons testified concerning threats made by defendant against Olga, efforts of defendant to obtain assistance in killing her, and other circumstances connected with the crime.

In 1956 defendant moved to Santa Barbara with her 27-year-old son, Frank, an attorney who was then unmarried. Late in 1957 she was hospitalized as a result of taking an overdose of sleeping pills, and she explained to her doctor that she had taken them because she was afraid Frank would 'leave her.' While visiting defendant in the hospital, Frank met Olga, who was working there as a nurse. Defendant objected to Frank's seeing Olga and telephoned her almost daily for three months. During the course of these calls, which defendant discussed with a friend, Mrs. Emma Short, or made in her presence, she told Olga to 'leave her son alone' and frequently threatened to kill her if she did not stop seeing him. On one occasion, when Olga said that she and Frank were going to be married, defendant replied, 'You'll never marry my son, I'll kill you first.'

Frank and Olga were secretly married on June 20, 1958, and when defendant learned of the marriage she declared that she would not allow them to live together. Frank stayed at defendant's home until the end of June, visiting Olga in her apartment. During one of these visits defendant knocked on the door and angrily demanded that Frank come home. A quarrel ensued, and he left with her. A few days later he started to live with Olga at another apartment, keeping the new address secret from defendant.

About the middle of July 1958 defendant told Mrs. Barbara Reed, whom she had known for several years, that Olga had become pregnant by another man and was trying to 'frame' Frank. She offered Mrs. Reed $1,500 to assist her in killing Olga. Mrs. Reed replied that she would think the matter over, and later she informed Frank of the proposal his mother had made to her. Shortly thereafter Frank moved back to defendant's home.

In the early part of August defendant arranged with an ex-convict, Ralph Winterstein, to assist her in carrying out a fraudulent plan for the annulment of the marriage between Frank and Olga. Defendant posed as Olga and Winterstein as Frank. After a brief uncontested hearing in which Winterstein, as the plaintiff, testified that Olga had not lived with him since their marriage, that she refused to do so, and that she had told him she had never intended 'to go through with the marriage,' a decree was granted to the plaintiff. Defendant later persuaded Mrs. Short to propose to Winterstein that he 'take care of Olga.' Winterstein refused but did not report the incident because he was afraid of getting into trouble as a result of the fraudulent annulment.

In the middle of August defendant discovered where Olga was living and gained admittance to the apartment in her absence, apparently for the purpose of discovering whether any of Frank's clothes were there. She said to the manager of the apartment house, 'She is not going to have him. I will kill her, if it is the last thing I do.'

Defendant told Mrs. Diane Romero, whose husband Rudolph was a client of Frank, that Olga was blackmailing Frank and asked her to help 'get rid' of Olga. At defendant's request Mrs. Romero went to Olga's apartment to 'look the place over,' and Olga answered the door. Mrs. Romero recognized her as a nurse who had cared for her several years earlier, and she left after a short visit. Thereafter defendant offered Rudolph Romero money to 'get rid' of Olga, and he refused.

During the time that she was seeking the assistance of the Romeros, defendant met Mrs. Rebecca Diaz, in whose house the Romeros lived. Defendant said that Olga was threatening her and demanding money, and she asked Mrs. Diaz to help find a man to 'get her out of town.' Mrs. Diaz agreed to notify defendant if she found anyone. Later, after defendant had met Moya and Baldonado, she telephoned Mrs. Diaz and asked, 'Becky, do you remember what we talked about?' Mrs. Diaz replied that she did, and defendant said, 'Well, forget about it. I won't need you any more. It will be today or never.'

On November 12, 1958, defendant went with Mrs. Short to the Tropical Cafe in Santa Barbara. Mrs. Esperanza Esquivel, who owned the cafe, and her husband had been charged with receiving stolen property, and Frank, as their attorney, had obtained a dismissal of the case against her and was seeking probation for her husband, who had pleaded guilty. Defendant told Mrs. Esquivel that Olga was blackmailing her and had threatened to throw acid in Frank's face, and she asked whether Mrs. Esquivel had any friends who would help 'get rid' of Olga. Mrs. Esquivel replied that 'there were some boys' but she did not know whether they would want to talk to defendant.

The next day defendant, accompanied by Mrs. Short, returned to the Tropical Cafe and was introduced to Moya and Baldonado by Mrs. Esquivel. Defendant told the men that her son was being blackmailed by Olga and said that she wanted to 'get rid' of her. They discussed how much this would be worth to defendant and agreed that she would pay $3,000 when the 'job' was done and $3,000 within three to six months. They considered several plans and finally decided that Moya and Baldonado would kidnap Olga, take her across the border and kill her in Tijuana. Moya said that he and Baldonado would need money for transportation, a weapon, and gloves. Defendant left for a while and on her return went to the kitchen with Moya where she paid him $175 she had obtained by pawning some rings. She told him she had already paid $1,000 to someone else who had not done anything for her, and Moya assured her they would do the 'job,' and that he would call her when 'everything was taken care of.'

Moya and Baldonado hired a car from Mrs. Sara Contreras, borrowed a pistol from a friend, and purchased some ammunition, gloves, and adhesive tape. On the evening of November 17, 1958, they drove to Olga's apartment. When Olga came to the door, Moya told that her husband was in the car, drunk, and asked for help, and she went with him to the car. Baldonado was then in the back seat pretending that he was Frank. When Olga opened the rear door, Moya hit her on the back of the head with the pistol and Baldonado pulled her into the car. On their way out of Santa Barbara, they drove to the beach, where they stopped because Olga was screaming and struggling. While Baldonado held her, Moya struck her on the head with the pistol, knocking her unconscious and breaking the handle of the gun. Baldonado then 'tied her up' with the tape, any they continued on out of town.

A short time later they had trouble with the car, and, instead of following their original plan of going to Mexico, they drove into the mountains near Ojai, in Ventura County. They dragged Olga out of the car and down the side of a hill to a culvert that ran under the road. The pistol had been damaged so that it could not be fired, and Moya and Baldonado took turns strangling her. After a while they could not feel her pulse, and they dug a hole and buried her.

On returning to Santa Barbara, Moya and Baldonado hid their bloody clothes and the seat covers of the car. They tried to clean the car by sweeping it and spraying lacquer to hide blood spots. The next day they told Mrs Contreras that the seat covers had been burned by a cigarette and that they would fix them or give her money for repairs.

Moya informed defendant by telephone that they had performed their 'part of the bargain.' She said that she had not been able to draw any money out of the bank because the police had been inquiring about Olga's disappearance. Defendant cashed a check which Frank had given her to pay for a typewriter, and she met Moya by appointment in a downtown store in Santa Barbara, where she handed him an envelope containing $150. Later, at defendant's request, Mrs. Short left an envelope for Moya with the cashier of a restaurant. The envelope, which was addressed to 'Dorothy,' contained $10, and Moya obtained it by saying it was for his aunt.

During the period that she was making payments to Moya and Baldonado, defendant was questioned by Frank about the check he had given her to pay for a typewriter, and she told him she was being blackmailed. Frank informed the police and said that he was afraid defendant was involved in Olga's disappearance and was being blackmailed for...