People v. Dykes

• Decision Date: 22 July 1966
• Docket Number: Cr. 10309
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leroy Eugene DYKES, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 537

52 Cal.Rptr. 537

243 Cal.App.2d 572

The PEOPLE, Plaintiff and Respondent, v. Leroy Eugene DYKES, Jr., Defendant and Appellant.

Cr. 10309.

District Court of Appeal, Second District,

Division 3, California.

July 22, 1966.

Michael Cullen, Torrance, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Charles R. Kocher, Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

Jointly accused of armed robbery, Leroy Eugene Dykes, Jr. and Ruben Frank Dorrough, Jr. were tried without jury; Dorrough was acquitted; Dykes was convicted and appeals; we appointed counsel.

The grounds of appeal are that the court erred in the receipt of evidence of Dykes' silence in the face of an accusatory statement; also that it was error to receive evidence of Dykes' withdrawn plea of guilty.

At 1:00 a.m., while parked in the Star-Lite Bowl in Burbank a young man and his young woman companion were robbed at gun point by two men (at least one of whom was masked) who came and departed in a blue and light-colored Pontiac. After robbing the couple one of the men shot up the right front tire of the victims' car and both men went to the rear of the car and fired shots. The front tire was deflated and a 'Beauty Rim' on the left rear wheel was shot off. Officers came to the scene; they found a .45 caliber semiautomatic casing near the right front wheel and three 9 mm. casings near the left rear wheel. Neither of the victims of the robbery identified either of the defendants at the trial. The defendants did not testify. There was evidence that the defendant were arrested shortly after the robbery and that a .45 caliber Remington semiautomatic and a 9 mm. Luger were found in the car. There was expert evidence that the shots fired into the victims' car were fired by the two guns taken from the defendants.

The court received, subject to motion to strike, and later struck out the following evidence of the discovery of the guns: about 4:00 a.m., on the morning of the robbery, two sheriff's officers who were patrolling the Angeles Crest Highway observed the defendants traveling southerly in a Ford car with two flat tires and bearing a Missouri license. The defendants were halted; Dykes was driving the car and was asked for identification. He produced a Missouri operator's license and a draft card. When questioned as to the ownership of the car Dykes examined his wallet but produced no evidence of ownership. Officer Rowland suggested that Dykes might prove ownership of the car by describing the contents of the trunk. Dykes said he had left the trunk key in Missouri. He produced four keys and endeavored to insert three of them into the lock; none fitted and he then pretended to insert the fourth key. Officer Rowland observing that Dykes was not attempting to unlock the trunk suggested that he might try the key. Dykes handed him the keys; Rowland fitted the fourth key into the lock and opened the trunk. There he found the .45 caliber semiautomatic Remington and the 9 mm. Luger. He also found under the rear seat cushion two rifles and in the glove compartment and in Dykes' pocket he found ammunition for the guns. The defendants were arrested and the officers took possession of the vehicle.

The guns were test-fired; casings were compared with casings found at the scene of the robbery and it was determined that the two guns had fired the shots into the car of the victims.

It was stipulated as hereinafter stated that Dykes was accused in the municipal court of violation of section 12025 of the Penal Code (carrying a concealed firearm in a vehicle without a permit) and that upon his trial in the municipal court evidence of his arrest and the seizure of the guns and ammunition was excluded upon motion of the defendant on the ground that the evidence had been illegally obtained. In the trial of the robbery charge it was contended by the defendants that the ruling of the municipal court was binding upon the court in the later trial under the doctrine of collateral estoppel. The court agreed and the evidence was stricken upon that ground alone. There then remained practically no evidence that the defendants had committed the robbery.

After the defendants were arrested the officers interrogated them separately. Dykes stated he had not been in Burbank; he had not been with Dorrough in the Pontiac in the vicinity of the Star-Lite Bowl and that he had been target shooting in the desert area. The officer also testified that immediately before bringing the defendants together for questioning he said to Dykes: 'We've already talked to Dorrough. You know that. I am going to get Dorrough. I am going to just ask him about two questions. In doing so, he is going to answer me right in front of you, and he's going to make a liar out of you right now. If I were you, I wouldn't want this to happen to me. I'd rather take this thing on my own shoulders and not have to have it proved by a buddy of mine. It's up to you.' He also testified that in the presence of Dykes the following occurred 'I asked the defendant Dorrough if it wasn't a fact that he had just told my partner, Sartoris, and myself that he stated that he and Dykes had been in the Star-Lite Bowl area in his Pontiac on the evening of his arrest by the Sheriff's Montrose Deputies, and that they were drinking beer.' An objection was made which was overruled. The witness answered: 'The defendant Dorrough stated, 'Yes", that Dykes was seated alongside of Dorrough and that Dykes said nothing. There was no evidence that Dykes had been advised of his right to remain silent and to have the assistance of counsel. It was error to receive evidence of Dykes' silence in the face of the accusatory statement. (People v. Cockrell, 63 Cal.2d 659, 47 Cal.Rptr. 788, 408 P.2d 116.)

The next point is that it was error to admit evidence that Dykes had pleaded guilty to first degree robbery and that his plea was withdrawn and a not guilty plea reinstated. In the trial the district attorney offered to stipulate that Dykes had pleaded guilty and that his plea had been withdrawn. At the suggestion of Dykes' attorney the court reporter was called and he read from his notes an account of the proceedings when the plea of guilty was withdrawn. The People contend that since the evidence came in at the request of defendant's attorney the incident cannot be assigned as error. We do not agree.

May 4, 1964, Dorrough was acquitted of the robbery charge and Dykes was found guilty. May 28, 1964, Dykes was sentenced to state prison. At that time it was well-settled that evidence of a withdrawn plea of guilty was admissible; many cases had so held. July 14, 1964, the Supreme Court in People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705, overruled the earlier cases and held evidence of withdrawn pleas of guilty to be inadmissible. The failure of defendant to object to the evidence does not bar him from claiming error. The admission of evidence of defendant's plea of guilty was not error at the time of the trial. If an objection had been made it would have been futile since it would have been the duty of the court to overrule it. In Quinn the District Court of Appeal had held evidence of the defendant's plea of guilty to be admissible. February 14, 1964, the Supreme Court had granted a hearing. The trial court in the instant case not being blessed with extrasensory perception, was not put on notice that a new rule of evidence on the subject was about to be declared by the Supreme Court. (People v. Natividad, 240 Cal.App.2d 244, ^* 49 Cal.Rptr. 437.)

The errors in the receipt of evidence of appellant's silence in the face of an accusatory statement and in the admission of evidence of his withdrawn plea of guilty require reversal of the judgment. It appears from the statements of the judge that in his opinion appellant's silence and his plea of guilty furnished strong evidence of guilt.

The People request that in the event of a reversal of the judgment we should decide whether upon a retrial evidence can properly be received of the arrest of Dykes, the seizure of the guns and the evidence of the ballistic tests. They contend that the court erred in holding that it was bound by the ruling of the judge of the municipal court in the exclusion of evidence. It is a proper request. (People v. Ditson, 57 Cal.2d 415, 431, 20...