People v. Johns, Cr. 12878

Citation193 Cal.Rptr. 182,145 Cal.App.3d 281
Decision Date21 June 1983
Docket NumberCr. 12878
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Gerry JOHNS, Defendant and Appellant.

John K. Van De Kamp, Atty. Gen., and Peter Quon, Jr., Deputy Atty. Gen., for plaintiff and respondent.

McDANIEL, Associate Justice.

Defendant, Gerry Johns, appeals from a judgment of conviction based upon a jury verdict finding him guilty of robbery (Pen.Code, § 211) and murder (Pen.Code, § 187) and also finding to be true the allegations that he was armed with a firearm during the commission of both offenses. (Pen.Code, § 12022(a).) Except with respect to certain modifications of defendant's sentence, we shall affirm the judgment.

FACTS

San Bernardino County Sheriff's Deputy Thomas Seelig was responding to a call in Cucamonga at approximately 1 a.m. when he observed two black males running from the direction of two business establishments, a water company and a Jack-in-the-Box restaurant. The two subjects entered a vehicle parked across the street. Deputy Seelig pulled in behind the parked vehicle with the intention of effecting an investigative stop. Before he could do so, however, the vehicle pulled out without its lights on.

Deputy Seelig then followed and attempted to stop the vehicle, but it failed to respond to his red lights and siren. As Deputy Seelig followed in close pursuit he was informed by radio dispatch that a patron had been shot at the Jack-in-the-Box and appeared to be dead. At one point during the chase he observed both doors of the fleeing car open and sparks fly out from underneath. By ramming the car he was finally able to bring it to a halt. The driver immediately exited the car and began to run. Deputy Seelig ordered the subject to stop; when he failed to do so, Seelig drew his service revolver and fired once, striking the subject. The wounded individual was later identified as Gerry Johns, defendant herein.

The incident at the Jack-in-the-Box began when two black males were observed attempting to enter the restaurant shortly after 1 a.m. They were unable to gain entry because the restaurant was closing and the doors had been locked. Within minutes, two persons approached a vehicle at the drive-in window of the restaurant. The four young women in the car had placed an order and were preparing to pay for their purchases.

Teresa Sandoval was seated in the passenger seat behind the driver, her sister, Cecelia Sandoval. Teresa saw two figures approach the driver's side and heard a voice demanding money. A hand reached in through the window and grabbed her wallet. She heard her sister in a scared, shakey voice say "take it," referring to her purse and wallet. Then she heard a shot and saw her sister slump forward, bleeding. Cecelia had received a fatal wound to the head from a shotgun.

A shotgun in two pieces was later found in the area where Deputy Seelig had observed sparks coming from beneath John's vehicle. The gun had three live cartridges in its magazine and one spent cartridge in its chamber. The pellets and wadding removed from Cecelia's wound were similar to those found in the shotgun. Teresa Sandoval's wallet was found in John's vehicle.

Defendant was charged with two counts of robbery and one count of murder. It was alleged as to all three counts that he was armed with a firearm.

After a jury trial, he was found not guilty of the count charging the robbery of Cecelia, and guilty of the count charging the robbery of Teresa and the murder of Cecelia. The allegations that he was armed during both offenses were found to be true. Defendant was sentenced to the midterm of three years for the robbery plus one year enhancement for the armed allegation, followed by 25 years to life for the murder Defendant appealed the judgment, contending that the trial court erred in (1) denying his motion to suppress on the basis of an illegal stop by Deputy Seelig, (2) denying his motion to exclude certain pretrial statements to the police which he contends were coerced, (3) sentencing him on both the murder and robbery convictions and imposing two enhancements, because the crimes comprised an indivisible course of conduct, and (4) sentencing him on first degree murder, because the jury failed to determine the degree of the murder conviction.

plus one year enhancement for being armed.

DISCUSSION
I

Defendant contends that the trial court erred in denying his motion to suppress certain evidence because Deputy Sheriff Seelig's initial attempt to stop defendant's vehicle was not based on probable cause. The contention is meritless if not ludicrous.

Deputy Sheriff Seelig testified that he was responding to a call when he observed two individuals running toward a parked car from the direction of two business establishments, a water company and the Jack-in-the-Box restaurant. The time was shortly after 1 a.m. Deputy Seelig noted that both businesses were closed. These circumstances led the deputy to suspect that the two subjects might be involved in a burglary. Accordingly, he made a U-turn and pulled-up behind the parked vehicle. At that point, the vehicle sped away and the chase ensued.

It is well settled that "in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question." [Footnote omitted.] (In re Tony C., 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957; People v. Leyba, 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961.)

Applying the foregoing test to the facts as described, we conclude that it was objectively reasonable for Deputy Seelig to entertain a suspicion that the subjects whom he observed were involved in a burglary. The lateness of the hour; the fact that the businesses were closed, and that the two persons were running from the direction of the businesses to their parked car, are all facts which reasonably support Deputy Sheriff Seelig's suspicions.

We conclude that the initial attempt to stop the automobile was lawful. The motion to suppress was properly denied.

II

Defendant next contends that the trial court improperly denied his motion to exclude certain pretrial statements made to the police. He argues that two earlier statements to the police were illegally coerced and involuntary, and that the third, which was admitted into evidence, was thereby tainted.

As a reviewing court, it is our duty to "examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must 'accept that version of events which is most favorable to the People, to the extent that it is supported by the record.' [Citation.] The burden of proof which must be sustained by the prosecution on questions of voluntariness is proof beyond a reasonable doubt." [Citations.] (People v. Hogan, 31 Cal.3d 815, 835, 183 Cal.Rptr. 817, 647 P.2d 93.)

The police questioning of defendant, which consisted of three separate interviews, was conducted by two San Bernardino County Sheriff's Detectives, Detectives Clifford and Malmberg. The detectives began the first interview at approximately 11:30 a.m. on February 21 in Ontario Community Hospital, where defendant had been admitted some eight hours earlier as a result of the gunshot wound he received during the chase. Defendant was administered anesthesia in preparation for surgery. Surgery was concluded at approximately 5:45 a.m. Thereafter, defendant was periodically administered the pain-killing drug and muscle relaxant, Demerol.

As a result of the medication, defendant claims that his statements during the first interview were not the result of his "rational intellect and free will." (People v. Sanchez, 70 Cal.2d 562, 572, 75 Cal.Rptr. 642, 451 P.2d 74.) The record belies defendant's claim. Detective Clifford's uncontradicted testimony was that defendant initially answered his questions concerning defendant's name, the spelling of his name, his age, his mother's name and maiden name accurately and alertly. Defendant was read his Miranda rights and agreed to talk with the detectives. Defendant himself recalled much of the substance of the interview at his preliminary hearing. The anesthesiologist who treated defendant testified that defendant would have been conscious about one and a half hours after surgery, or approximately 7:15 a.m., four hours before the interview. The anesthesiologist further testified that Demerol will sedate a patient but does not usually affect the mental faculties or the ability to think rationally or exercise free will.

Furthermore, defendant categorically denied having any knowledge of, or of having planned or participated in either the robbery or murder. Therefore, there is no basis in fact or in logic for concluding that any of his statements were coerced or in any way "tainted" his later statements.

A second interview commenced the next evening in the San Bernardino County Hospital Jail Ward. Defendant was read his Miranda rights and agreed to talk to the detectives....

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