People v. Hembree, Cr. 5585

• Decision Date: 08 August 1956
• Docket Number: Cr. 5585
• Citation: 143 Cal.App.2d 733,299 P.2d 1043
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Deanna Lynn HEMBREE, Defendant and Appellant.

Page 1043

299 P.2d 1043

143 Cal.App.2d 733

The PEOPLE of the State of California, Plaintiff and Respondent, v. Deanna Lynn HEMBREE, Defendant and Appellant.

Cr. 5585.

District Court of Appeal, Second District, Division 3, California.

Aug. 8, 1956.

Hearing Denied Sept. 6, 1956.

John P. Brown, Pasadena, for appellant.

Edmund G. Brown, Atty. Gen., and Arthur L. Martin, Deputy Atty. Gen., for respondent.

PARKET WOOD, Justice.

Defendant Deanna Hembree was convicted of conspiracy to commit grand theft. Probation was granted on condition that she spend six months in the county jail. She appeals from the judgment and the order denying her motion for a new trial. She contends on appeal that the court erred: (1) in denying her motion for a continuance after a second amended information was filed; (2) in refusing to set aside the second amended information as to Count II; and (3) in instructing the jury.

In an information, filed October 18, 1955, Paul Weatherford, Bernard Madej and Deanna Hembree were charged with robbery in that they unlawfully took $600 from the person of Daniel Dowling by force and by putting him in fear. It was alleged therein that Madej had been previously convicted of a felony. They were arraigned on the information. On November 30, 1955, an amended information was filed, wherein there was an additional allegation that Weatherford had been previously convicted of a felony. The defendants were arraigned on the amended information, and they pleaded not guilty. Weatherford and Madej, each, admitted the allegations as to his prior conviction.

Trial by jury, upon the amended information, was commenced on November 30, 1955. The trial proceeded on that day and on December 1; and after six prosecution witnesses had testified and after the prosecution had rested, and after one witness, called by defendant Hembree, had testified, the district attorney requested permission to file a second amended information charging defendants with conspiracy to commit grand theft, in Count I, and with assault with a deadly weapon, in Count II. (The overt act alleged with reference to conspiracy was that Deanna Hembree accompanied Daniel Dowling to the Topper Motel.) The requested permission was granted. Thereupon Weatherford and Madej were arraigned upon the second amended information, and they pleaded guilty to Count I and not guilty to Count II. The attorney for defendant Hembree requested at least a two-hour opportunity to draw up his own instructions 'on this.' The judge, said, 'I will give you the opportunity.' When defendant Hembree was asked how she was pleading to Count I, her attorney said: 'We are not ready to plead as yet. We request a continuance in this matter for one week.' The judge replied: 'We are not going to continue this case for one week with a jury hanging fire. We have a jury up in the room. That is absolutely unreasonable. If you insist upon time to plead, I will give you twenty-four hours but that is the limit.' The attorney for defendant said: 'May we have ten minutes, ten more minutes?' The judge did not reply thereto. Then, upon request of the attorney for Weatherford and Madej, the judge discharged the jury as to Count II insofar as Weatherford and Madej were concerned. (Later the judge dismissed Count II as to Weatherford and Madej--the count wherein the evidence was that Madej hit the victim on the hand with a club.) The attorney for defendant Hembree requested that Weatherford and Madej be ordered to stay 'here' to be called as defense witnesses. The judge did not make the order but suggested that the attorney for Hembree 'issue a subpoena for them when we decide when we are going to go ahead. Right now you left the matter completely up in the air.' Then the attorney for Hembree asked if he could have ten minutes. The judge said, 'we will take a fifteen-minute recess. That will give you time.' The judge also said to him: 'Well, Mr. Brown [attorney for Hembree], would you be satisfied if I gave you a continuance until two o'clock to give you the opportunity to determine whether you want to plead at this time and also prepare your instructions?' The attorney replied, 'Yes.' Thereupon the jury returned to the courtroom and the judge stated to the jury: 'There has been a severance of the cases so that the case before you will be only as to the Defendant Hembree.' The matter was continued (at 10:30 a. m.) until two o'clock.

At two o'clock the attorney for defendant Hembree made a motion that the second amended information be set aside on the ground that no probable cause was shown in the testimony at the preliminary hearing relative to Count II. The motion was denied. Said attorney also made a motion for a dismissal on the ground that there were material variations between the pleadings and the proof. The motion was denied. Then said attorney stated: 'I wish to move for a two-week continuance based on the fact that the defendant's constitutional rights to have adequate time to prepare his defense to a charge such as we have in this case.----.' Thereupon the judge said: 'Whereas here we have merely a difference of theory of guilt. The evidence is exactly the same under both theories. It must be assumed that defendant prepared to meet the evidence presented and that motion is also denied. That takes care of the motions then? Are you ready to proceed now, Counsel?' The attorney for Hembree said: 'I can't in good conscience advise my client to plead guilty.' The judge directed the deputy district attorney to arraign defendant Hembree. When he asked her how she was pleading to Count I, she said that she was not ready to plead. The judge directed the clerk to enter a plea of not guilty as to Count I. When the deputy district attorney asked her how she was pleading to Count II, she said that she was not ready to plead. The judge directed the clerk to enter a plea of not guilty to Count II, 'as the defendant has refused to enter a plea of guilty or not guilty.'

The trial then proceeded, and defendant Hembree was found guilty as to Count I and not guilty as to Count II. Her motion for a new trial was denied.

Appellant contends, as above stated, that the court erred in denying her motion for a continuance after the second amended information was filed. It will be necessary to state the substance of the evidence that had been presented at the time the second amended information was filed.

Daniel Dowling testified that on September 28, 1955, about 11:30 p. m., he was driving an automobile in Hollywood, and when he stopped at an intersection three girls were there, one of whom was defendant Hembree; the girls made a remark about his car; he replied that there is safety in numbers, and by his actions he invited them into the car; they got in the front seat of the car and he took them to three bars where they (including himself) had some 'drinks'; at the last bar or restaurant he bought sandwiches and a pint of whiskey; he put the whiskey in the front seat of his car; the girls had told him that they were from 'out of the state,' were hungry and had no place to stay; something was said about going to a motel, and he took them to the Topper Motel; while he was in the office registering, the girls were in the car; thereafter he and the girls went into the motel room; he and defendant Hembree sat on one bed and two of the girls sat on the other bed; he took his coat off and opened the bottle of whiskey and took a sip; then he went to the office to get ice, and during that time he took $540 from his pocket and put it in his car; he kept about $27 in his pocket; when he returned to the room two of the girls (not including Hembree) went out to get cigarettes, and after a few seconds defendant Hembree followed them; about two or three minutes later the three girls returned and sat on a bed; about seven or eight minutes later (about 2 a. m.) there was a knock on the door, and when he opened the door the defendants Weatherford and Madej came in and both of them said, 'What are you doing with our wives?'; he (witness) told them that they could stay and he would get out, and that he was a deputy sheriff; then he opened the door and there was 'a blinding flash' and that is all he remembered; when he recovered consciousness he was on an operating table, and at that time the $27 was gone. On cross-examination, he said that after he had taken a sip from the bottle and had left to get the ice he was not nauseated but he felt that he did not have control of his faculties; he thought that his feeling might have been caused by the sandwich, since there was something wrong with the sandwich; the whiskey which he drank from the bottle tasted 'funny'; the first time that he noticed the whiskey did not taste as it should taste was when he 'took a sip' from the bottle (before going to get ice); he did not notice anything (about the taste of the whiskey) until he returned to the room after getting the ice; he did not remember examining his pocket for the loss of money; after he had been in the hospital, the $540 was still in his car.

Mr. Jestude testified that on said September 28, about 2 a. m., when he was driving by the Topper Motel, Officer Fedderson stopped him, got into his car and told him to follow the car which was ahead of him; they overtook that car on a dead-end street, and the officer required the occupants of the car to get out; two men and three girls got out; the men were defendants Weatherford and Madej, and one of the girls was defendant Hembree; then pursuant to direction of the officer, he (witness) went to the motel; he saw Dowling sitting on the bed in room four, with a blood-soaked towel upon his head; he also saw a roller (about 18 inches long and 2 inches in diameter--Exhibit 1) on the bed; the motel owner and his wife were in the room with Dowling.

Officer Fedderson testified that he saw defendant Hembree loitering in front of the motel; then he and another officer drove into the...