People v. Gibbs
| Decision Date | 29 October 1970 |
| Docket Number | Cr. 3759 |
| Citation | 90 Cal.Rptr. 866,12 Cal.App.3d 526 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles William GIBBS, Jr. and Edgar Albert Lipman, Jr., Defendants and Appellants. |
Charles William Gibbs, Jr. (Gibbs) and Edgar Albert Lipman, Jr. (Lipman) appeal judgments of conviction of attempted escape from lawful custody (Pen.Code § 4532(b)), possession of deadly weapons by prisoners (Pen.Code § 4574), first degree robbery (Pen.Code § 211) and four counts of kidnaping (Pen.Code § 207). Lipman was found guilty of the robbery of two persons; Gibbs, of the robbery of one person. In all other respects they were convicted of the same crimes. Each was sentenced to prison and execution of the sentences was stayed as to all but one of the counts, which for Gibbs was count nine (robbery of Lane), and for Lipman count eight (robbery of Amos).
At arraignment on October 18, 1968, appointed counsel, Mr. Ehrenfreund, who appeared with Lipman, stated Lipman desired to proceed in propria persona. Counsel was then appointed to act as a legal advisor but the record is silent as to whether Lipman was advised of his right tio appointed counsel and effectively waived that right. At that time the court did not examine Lipman to determine his competence to act as his own lawyer. Both defendants pleaded not guilty to all counts.
Trial was set for December 12, 1968. On November 15, Lipman filed a motion for discovery, a separate notice of the motion, and a supporting declaration and memorandum of points and authorities.
On November 21, 1968, Lipman filed a petition before the United States District Court for removal to that court, which was denied on December 4.
Meanwhile, the motion for discovery and Gibbs' motion for severance came on for hearing on November 25 and were continued to November 26. On that date the hearing of the motions was continued without date because of the pending proceeding in the federal court.
On December 12, 1968, the case trailed. Lipman asked leave to enter a plea of not guilty by reason of insanity, which was denied.
On December 16, 1968, Lipman, in propria persona, filed a typewritten notice of motion for dismissal under Penal Code section 995, supported by a memorandum of points and authorities.
The case was assigned for trial to Judge Glen on December 18, 1968.
Lipman appeared for trial before Judge Glen and there stated he challenged the court under Code of Civil Procedure section 170 (challenge for cause). No affidavit in support of the challenge was presented. Judge Glen told Lipman if he wished to exercise a peremptory challenge he might do so, although the district attorney might object that Lipman's right to do so had been waived. Lipman stated he wished to challenge for cause. The judge then said he would allow Lipman until 2:00 p.m. to prepare an affidavit. As stated by Lipman at that time, his objection to Judge Glen was that the latter at some earlier time had conducted a probation hearing on another defendant, and in a different matter, in which the probation report made unfavorable mention of Lipman.
At 2:00 p.m. Lipman presented a declaration under penalty of perjury, in support of his challenge, which was ordered stricken from the file by Judge Glen who denied the challenge. Lipman then said he wished to exercise a peremptory challenge. Gibbs' counsel made a statement indicating he had thought Lipman's peremptory challenge coild not be made until after the challenge for cause had been made. Judge Glen denied a peremptory challenge (Code Civ.Proc. § 170.6) on the ground it had been waived by both defendnats. The challenge had not been attempted before the presiding judge of the criminal department when the case was assigned for trial to Judge Glen.
Judge Glen then proceeded to deny Lipman's motion to enter a plea of not guilty by reason of insanity and Gibbs' motion for severance, and started to hear a joint motion for change of venue and a joint motion to quash the jury venire.
Judge Glen became ill before the trial and the case was thereafter assigned to Judge Mahedy who refused to declare a mistrial requested by defendnats or to determine de novo some of the matters ruled upon by Judge Glen.
Evidence in support of the joint motion to quash the venire was presented anew and the motion denied. The motion for change of venue was denied with the reservation that should the voir dire examination disclose grounds for change of venue the motion would be reconsidered.
Judge Mahedy also denied Lipman's motion to dismiss. The judge ordered that Lipman and Gibbs, during good behavoir, should not appear before the jury in irons, and that Lipman be furnished attire other than jail clothing.
On October 6, 1968, Gibbs and Lipman were cellmates in the San Diego County Jail. At about 5:45 p.m., Lipman complained to Deputy Donald Amos, who was assigned to the fourth floor where defendants' cell was located, that Lipman had cut his hand. Deputy Buford Lane, stationed on the sixth and seventh floors, was summoned and took Lipman to the dispensary. After the hand had been treated Lipman returned to the fourth floor alone. As Amos opened Lipman's cell door, Lipman stepped behind him holding a switchblade knife and removed Amos' keys and alarm signal box. While Lipman was attempting to open the door of the box housing the controls to the cells, Amos locked himself in a security well. Lipman released Gibbs and the two men disappeared in the direction of the elevator lobby.
Lwis Jackson was an inmate on October 6 and was a trusty assigned to the fourth floor. He was at the deputy station near the elevators when Lipman approached with a knife and said, 'This is an escape; do you want to go with me?' Upon seeing the knife, Jackson said, 'I guess I have no choice; I guess I have to go with you.' Lipman and Jackson proceeded to the area of F cellblock and Lipman attempted to release another inmate but was unsuccessful. Gibbs appeared with a broken mop handle he used as a club and suggested Lipman get Amos to open the door. About that time another inmate, John Hoover, who was also a trusty, was collecting trash cans from each floor, using the elevator. On the fourth floor he took on some trash cans and was looking about for others when Lipman beckoned him to come to him. Hoover refused and Lipman approached him, stuck the knife out at him and pushed Hoover along back to where the other men were waiting. Lipman and Gibbs took Jackson and Hoover with them to where Amos was locked in. Lipman finally opened the security well Amos was in and forced Amos to release Anthony Reserva. After Reserva was free, Lipman locked Amos, Jackson and Hoover in Reserva's cell and left with Gibbs and Reserva toward the deputy station.
Deputy Donald Sellers returned to the fourth floor from dinner at about 6:00 p.m. and as he stepped off the elevator he was confronted by Lipman, Gibbs and Reserva. Sellers attempted to press his alarm button but Gibbs, with a club raised over his head, ordered him not to do so. Gibbs then removed Sellers' alarm box. Another deputy arrived and distracted Lipman's attention, and Sellers stepped through an opened gate and locked it behind him. Sellers proceeded to a telephone and called for help, then released Amos and the tweo trusties. The four men armed themselves with broken mop handles ang began to search for the escapees.
Lane was informed some men were going up the stairs with clubs. He proceeded up the stairwell and found Lipman, Gibbs and Reserva on the ninth floor trying to open a door leading to the roof. Lipman forced Lane to give up his keys and alarm box and made him try to open the door. Lane was unsuccessful and the men went to the eighth floor, went through a gate to a fenced exercise area on the roof. The prisoners climbed the fence, got some tools from a shed on the roof, and were cutting a hole in the wire mesh covering the shed when they were apprehended.
Lipman and Gibbs contend as follows:
1. The court erred in allowing Lipman to proceed in propria persona.
2. The court erred in refusing to allow Lipman to enter a plea of not guilty by reason of insanity.
3. The court erroneously ruled on the challenge for cause and the peremptory challenge.
4. It was error to deny the motion to quash the petit jury panel.
5. The convictions of kidnapping and robbery cannot stand since they were wholly incidental to another distinct offense.
6. It was error to fail to instruct on the lesser offenses included in robbery.
7. The evidence is insufficient to support the robbery convictions.
At the arraignment of Lipman on October 18, the following occurred:
Lipman then entered a plea of not guilty, as did Gibbs.
Mr. Ehrenfreund's statement he had been appointed to represent Lipman went unchallenged, as did his statement Lipman wished to proceed in propria persona. That is mentioned only to show that Lipman and counsel had been in prior consultation.
The court had not, so far as the record shows up to the time Lipman appeared before Judge Glen, taken the necessary...
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