People v. Durham
| Decision Date | 21 January 1969 |
| Docket Number | Cr. 11317 |
| Citation | 74 Cal.Rptr. 262,70 Cal.2d 171,449 P.2d 198 |
| Court | California Supreme Court |
| Parties | , 449 P.2d 198 The PEOPLE, Plaintiff and Respondent, v. Gilbert Lee DURHAM and Edgar Leonard Robinson, Defendants and Appellants. |
Eric A. Rose, Long Beach, under appointment by the Supreme Court, Richard S. Buckley, Public Defender, William V. Larsen, Gerald McC. Franklin and James L. McCormick, Deputy Public Defenders, for defendants and appellants.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.
A jury found defendants Gilbert Lee Durham and Edgar Leonard Robinson guilty of murder in the first degree. (Pen.Code, §§ 187, 189.) After a penalty trial the same jury fixed the punishment of Durham at life imprisonment and the punishment of Robinson at death, and sentences were rendered accordingly. Durham appeals from the judgment and from the denial of his motion for a new trial. 1 The appeal of Robinson is automatic. (Pen.Code, § 1239, subd. (b).)
On October 16, 1966, about 4:00 a.m., Los Angeles Police Officers Treutlein and Du Puis, engaged in routine patrol duties, were driving westward on Pico Boulevard in a marked patrol car. They noticed a beige Thunderbird automobile travelling in the same direction in the lane nearest the curb; it bore Ohio license plates and was occupied by two male Negroes. As the Thunderbird proceeded down the boulevard it swerved slightly to the right at two intersecting streets as if making a right turn into them; on each occasion however it continued westbound on Pico. The officers followed the vehicle and at the same time radioed headquarters to ascertain if it had been stolen. Before their radio call was answered, the Thunderbird again made a slight swerving motion to the right at an intersection and the officers decided to stop it and question its occupants. They moved into the curb lane behind the Thunderbird, activated their red light, sounded their horn, and directed their spotlight at the rear window. The vehicle stopped near a streetlight, and the patrol car stopped about six feet behind it.
Defendant Durham, the driver of the Thunderbird, got out and walked back toward the patrol car but his passenger, defendant Robinson, remained seated in the vehicle. The officers, who were in uniform, unsnapped the retaining straps on their holsters and alighted from the patrol car. Officer Treutlein asked Durham for his driver's license and the latter produced what appeared to be a plastic credit card. Officer Du Puis asked Durham the name of his passenger; Durham in reply gave a short name. Officer Du Puis then went to the passenger side of the Thunderbird and, using the name which Durham had given him, asked Robinson to come to the rear where Durham and Officer Treutlein were standing.
Robinson complied, and Officer Du Puis asked him to raise his hands so as to check him for weapons. 2 Instead, Robinson Officer Treutlein then directed his attention to Durham, who was crouched on one knee with his hands half raised and his palms spread at about shoulder level. The officer ordered him not to move. Then, keeping Durham covered with the gun, he stepped to the passenger side of the patrol car and reported the shooting on his radio. At one point during the radio call Durham began to lower his hands and Officer Treutlein again commanded him to keep them raised. Durham obeyed. At this point Robinson, who was still in the same position, began to raise his gun toward Officer Treutlein; the latter commanded him to drop it. Robinson did not do so, and the officer thereupon fired a shot which struck the pavement close to Robinson's head. Robinson then dropped the gun.
[449 P.2d 202] sprang to a position between the two vehicles and drew a gun from a concealed holster under his shirt. He pointed the weapon at the two officers and ordered them not to move. Officer Du Puis reached for his own revolver and Robinson fired a shot at him, hitting him in the mouth. As he fell Officer Du Puis, who had apparently succeeded in getting his gun free of the holster, fired at Robinson. At this point, Officer Treutlein, who had also drawn his gun, fired at Robinson and hit him. The latter stumbled backward and fell into the street where he lay face up with his gun still in his hand.
Officer Treutlein ordered both defendants to lie face down on the pavement. Within a few minutes other officers arrived and took them into custody. A search of Durham produced a knife and sheath from his coat pocket.
Eleven days later, on October 27, 1966, Officer Du Puis died as a proximate result of the gunshot wound inflicted upon him. 3
Evidence of the foregoing facts, the substantiality of which is not here disputed, was admitted at trial. There was also admitted, over the strenuous objections of defendants, a considerable volume of evidence regarding the joint activities of defendants during some three weeks preceding the incident of October 16, 1966. 4 This evidence showed in substance: (1) that on the day of the homicide both defendants were on parole under felony sentences from the State of Ohio; that defendant Robinson was at that time subject to arrest in Ohio for violation of the terms of his parole; and that the presence of defendants in California under the circumstances obtaining involved several violations of the terms of parole relating to each of them; (2) that on October 5, 1966, eleven days prior to the incident, defendants Neither Durham nor Robinson took the stand during the guilt phase or the penalty phase of the trial. We proceed to consider separately the contentions of each defendant on appeal.
robbed an A & P store in Toledo, Ohio, of $648; and that in the course of this robbery, Robinson exhibited a pistol similar to that used by him on October 16; (3) that on October 8, 1966, eight days prior to the incident,[70 Cal.2d 179] defendants robbed the Hinky-Dinky Grocery Store in Omaha, Nebraska, of $2,815; that in the course of this robbery Robinson again exhibited a pistol similar to that used by him on October 16; and that he threatened to shoot a cashier in the store if she did not comply with his demands and Durham told the cashier that he (Robinson) 'meant it'; (4) that after defendants' departure from the Hinky-Dinky Store the manager ran out to the sidewalk in front of the store after them and, although he saw neither defendant, he noticed a white car parked in an alley across from the store and heard a loud report which he assumed to be a backfire; that the rear window of a car then driving past the market was shattered by a bullet and an occupant of the car was injured by flying glass; that the bullet was found under the seat of that car, and a cartridge casing was found near the position of the lone car which the manager had noticed in the alley; and that scientific examination and tests had determined that the cartridge casing found in the Omaha alley was ejected from the same gun which Robinson used to kill Officer Du Puis; and (5) that the Thunderbird automobile in which defendants were riding on October 16, 1966, had been stolen from a San Francisco automobile agency on or about October 12, and it bore California license plates at that time.
Defendant Durham advances but two contentions. They reflect a fundamental misunderstanding of the prosecution's theory of the case.
Durham first contends that the evidence is insufficient to sustain his conviction of first degree murder 'under either of the two theories of conspiracy and aiding and abetting advanced by the prosecution, thereby denying Durham a fair trial.' In support of this point, he argues (1) that the evidence is insufficient to convict him under the prosecution's 'conspiracy theory' because any conspiracy to rob had terminated prior to October 16 and there is no substantial evidence to show a conspiracy to resist arrest on or before October 16; and (2) that the evidence is insufficient to convict him under the prosecution's 'aiding and abetting theory' because the only evidence introduced in support of this theory is that indicating that Durham lowered his hands after Officer Treutlein had ordered him to keep them raised after the shooting--and this last item of evidence is not sufficient to support a finding that he aided and abetted in the commission of the crime. 5 Thus would defendant Durham divide and conquer. The difficulty is that the prosecution's theory of the case cannot be split into such fragments.
We observe at the outset that the defendants were not charged with the crime of conspiracy; they were charged with murder. Durham was found guilty of that charged crime as a principal. Our Penal Code provides in relevant part: 'All persons concerned in the commission of a crime * * * whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission * * * are principals * * *.' (Pen.Code, § 31.) 6 Since Durham It is true that in presenting its case the prosecution had recourse to the principles of conspiracy. However, this thesis, far from seeking to establish a basis of criminal liability separate and apart from that of aiding and abetting, was pursued for the purpose of demonstrating Durham's intimate involvement in the continuing criminal enterprise which culminated in the shooting of Officer Du Puis. 7
was present at the time of the act constituting the offense, and since he did not directly commit that act, it is clear that he was found guilty as a principal on the theory that he aided and abetted in the commission of the act.
In the frequently cited case of People v. Villa (1957) 156 Cal.App.2d 128, 318 P.2d 828, the court set forth the following principles relevant in the case before us: ...
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