People v. Graves

• Decision Date: 09 July 1968
• Docket Number: Cr. 6056
• Citation: 263 Cal.App.2d 719,70 Cal.Rptr. 509
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Charles E. GRAVES, Defendant and Appellant.

Page 509

70 Cal.Rptr. 509

263 Cal.App.2d 719

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles E. GRAVES, Defendant and Appellant.

Cr. 6056.

Court of Appeal, First District, Division 1, California.

July 9, 1968.

As Modified on Denial of Rehearing Aug. 6, 1968.

Hearing Denied Sept. 5, 1968.

Jay R. Mayhall, San Francisco, for appellant) under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of the State of California, Jerome C. Utz, George R. Nock, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction stemming from jury verdicts finding him guilty as charged of a violation of Health and Safety Code section 11530 (unlawful possession of marijuana) and five counts of first degree robbery.

Defendant contends as follows: first, that the trial court committed reversible error in giving an instruction stating that drunkenness is not a defense per se (CALJIC No. 78), in conjunction with an instruction relating to intoxication as negating specific intent (CALJIC No. 78--B); second, that marijuana cigarettes were illegally seized in a search of defendant's person and should not have been admitted in evidence; third, that prejudicial misconduct of the prosecutor and certain actions of the court concurred to deny defendant a fair trial; fourth, that defendant's conviction of robbery under count four is posited on physically impossible evidence; fifth, that the lineup procedure in this case was unfair because the participants were too much alike.

Facts

Defendant was convicted of five separate robberies of service stations in 1966 occurring on Friday, February 4, Sunday, February 6, and Monday, February 7, on which last date three of the alleged robberies took place. The modus operandi of the five robberies was similar; in each case, the robber, an adult male Negro, approached a service station operator who was busy near a cash box or cash register, brandished a small caliber dark blue or black revolver, and demanded cash. In two of the robberies, the robber told his victim not to be a hero. Four of the robberies occurred in the East Oakland area and one occurred in Alameda.

The testimony of the five victims, reported here in the chronological order in which the robberies occurred, may be summarized as follows: around 6:45 p.m. the night of February 4, (Friday) Collins was in a 'dog house' where cash was kept at a Regal Gas station in Alameda when a person, whom Collins identified at the trial as defendant, appeared, wearing dirty white pants and a tan trench coat and hat and brandishing a bluish revolver, and demanded money. Collins put the change in a paper sack; a customer came in, and defendant said 'to play it cool and just like nothing was happening.' After taking the money defendant said, 'I'm going to leave, so turn around and face the glass. Don't nobody turn around or somebody will get shot. Maybe not you, but somebody. Don't try to be a hero.'

Around 6:40 p.m. on Sunday, February 6, Luckey was counting money in the cash house of a Simas Brothers filling station at 4200 MacArthur Boulevard in Oakland when a person whom he identified at the trial as defendant approached, carrying a small caliber black or dark blue, revolver, and said 'Move slow and nobody will get hurt.' Defendant was wearing a black nylon ski jacket with a hood in the collar. Defendant took all the money and left.

At 6:30 p.m. the evening of February 7 (Monday) a person, identified by Dewey at the trial as defendant, approached Dewey, an attendant at a Chevron station located at 1451 Liemert Boulevard in Oakland, pulled a small caliber blue or black gun and said, 'Give me your money and don't be a hero.' Defendant was wearing a dark blue or black nylon ski jacket with hood. As instructed by defendant, Dewey put the money in a change bag and gave it to defendant. A customer arrived and defendant told Dewey to 'Go take care of the customer and don't be a hero.'

A Mr. Elseth, who lived one block from the Chevron station, at around 6:30 p.m. the evening of February 7 (Monday) saw a 1954 green Studebaker parked in front of his house with its lights off and its engine running; the window in front opposite the driver's side was cracked. He saw a Negro leave the car, go toward the gas station, then run back to the car and drive away. Later, at 6:50 p.m., in the vicinity of 2nd Avenue and East 14th Street in Oakland, Elseth saw that same vehicle parked with a Negro in the passenger seat. He took the license number, went to the Chevron station and gave it to the police officer whom he found there. Elseth could not identify the driver of the vehicle but testified that he wore a dark blue or black loose jacket. In court Elseth identified the Studebaker from photographs offered in evidence by the People of a 1954 Studebaker belonging to defendant.

The fourth robbery occurred at approximately 7:00 o'clock that same Monday evening. McKenna was making change for himself at a Douglas Oil Company gas station at 2662 Fruitvale Avenue in Oakland when a person he identified at the trial as defendant approached, wearing a dark blue or black hooded ski jacket and carrying a dark blue revolver, and asked for money. The station manager then came out to the cash box and defendant, after taking some cash and stuffing it in his pocket, told the station manager and McKenna to go into the office and open the safe; however, a customer drove up and defendant told his victims to forget about the safe and to wait on the customers. McKenna testified that defendant had glassy eyes, slumped, and walked slowly, and that he had a mustache.

The final robbery took place that Monday evening at 10:15 at a Douglas Oil Company station at 2200 East 12th Street in Oakland. Cordova was counting money when a person, whom he identified at the trial as defendant, appeared carrying a black pistol with white handles and demanded money. At defendant's direction Cordova put the money in a red rag on the counter, opened the till and went into the back room, whereupon defendant left. Cordova testified that defendant was wearing a hat, khaki clothes, and a pullover sweater, that he had no mustache, that he walked with a slouch and dragged his feet, and that he didn't look sober and had alcohol on his breath, and staggered once or twice.

The circumstances surrounding defendant's arrest and the seizure of the marijuana are as follows: late Monday night, February 7, at approximately 11:00 to 11:15 p.m., Officer Garrison of the Oakland Police Department, prior to his going out on his beat, received information from the police lieutenant in charge at the lineup training (at which other police officers were present) that defendant was a possible suspect in the foregoing robberies. At that time Garrison and the other officers in the lineup training received a description of the 1954 green Studebaker, were advised that it was owned by defendant, and were given his residence address. At that time Garrison was also informed that there were outstanding traffic warrants for defendant's arrest. Garrison knew that an arrest warrant for defendant was on file for traffic offenses but he did not have this warrant in his possession when he went out on patrol.

Around 1:00 a.m. on Tuesday, February 8, Garrison stationed himself near defendant's residence at 550 Colorados Street. Defendant's car approached, which the officer recognized, and the officer followed the vehicle for a block and a half to two and a half blocks and observed that the car was swerving across the double line and traveling very slowly. After defendant stopped, the officer approached the car, recognized defendant, asked him to get out of the vehicle at gun point, and placed defendant under arrest pursuant to the arrest warrant for traffic offenses. Defendant's eyes were glassy, he said nothing and got out slowly. After arresting and handcuffing defendant, Garrison gave him a thorough search, going through his pockets checking for weapons and removing change and other personal items. Although no weapons were found, the officer discovered a packet of ten marijuana cigarettes. The officer could not remember on the stand whether defendant had appeared to be drunk or smelled of alcohol at the time of arrest. The marijuana cigarettes were admitted into evidence over the objection that there was no reasonable and probable cause to arrest defendant or make a search.

Numerous defense witnesses testified that defendant had spent the weekend with them on a drinking orgy; the gist of their testimony, if believed, would establish that defendant was drinking heavily and was in a state of intoxication from the afternoon of Friday, February 4 through at least midnight on Monday, February 7, and that he was at various wild parties and nightclubs Saturday, Sunday and Monday nights. Defendant's sole defense to the charges of robbery was alibi, i.e., that he had been on a 'lost weekend' and had not committed the robberies in question. Thus in his argument to the jury, defense counsel did not argue the defense of diminished capacity, but did argue that defendant had been drunk all weekend and that a man as drunk as defendant was could not have had the capacity to go into a service station and cold-bloodedly demand money at gunpoint.

Following his arrest defendant was placed in a lineup which was held on Tuesday, February 8. All the robbery victims were present to view it. They were told not to talk but to write down the number of anyone they recognized. All identified defendant, who had a mustache and was the man in the middle. The lineup included only Negroes with some facial hair and all participants were of roughly similar height and build. There is no contention here that any procedural irregularities occurred in the manner of handling the lineup, nor does the record give any evidence of such.

Instructions on Intoxication

The trial...