People v. Johnson

• Decision Date: 20 June 1966
• Docket Number: Cr. 11570
• Citation: 242 Cal.App.2d 870,52 Cal.Rptr. 38
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Ray JOHNSON, Defendant and Appellant.

Page 38

52 Cal.Rptr. 38

242 Cal.App.2d 870

The PEOPLE, Plaintiff and Respondent, v. Donald Ray JOHNSON, Defendant and Appellant.

Cr. 11570.

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

June 20, 1966.

Hearing Denied Sept. 7, 1966.

Marvin J. Segalove, Encino, under appointment by the District Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert A. Feldman, Deputy Atty. Gen., for plaintiff and respondent.

WOOD, Presiding Justice.

Defendant and one Brown were accused in 5 counts, as follows: count 1, armed robbery of Herman Libbey, count 2, kidnaping Herman Libbey to commit robbery; count 3, armed robbery of Tommy Webster; count 4, kidnaping Tommy Webster to commit robbery; and count 5, assault with a deadly weapon upon the person of Officer Higbee. In a jury trial, defendant Johnson was found guilty, and defendant Brown was found not guilty, on all 5 counts. Defendant Johnson appeals from the judgment.

Appellant contends (1) that he was denied a fair trial by reason of his not being present during a conference in the judge's chambers; (2) that the evidence is insufficient to support the verdict on the count of kidnaping Herman Libbey to commit robbery; and (3) that he was improperly sentenced.

Tommy Webster, who is the manager of the shoe department of Libbey's Department Store at 1763 East 103rd Street in Los Angeles, testified in substance as follows: In the morning of January 11, 1965, defendant and a man came into the store. (The witness could not identify the other man.) Defendant and the man approached him, and defendant asked him whether he had any mohair suits. They walked over to the suit department and he introduced defendant to Mr. Hunter, an employee of the store. Mr. Hunter showed defendant some suits and defendant said that he did not see anything he liked. The other man then said: 'I don't see anything over here that I like either. Let's go.' Defendant then walked to a counter where Mr. Libbey, the owner of the store, was counting money for that day's 'deposit.' Johnson pulled a revolver from his jacket, pointed it at Libbey, told him 'not to make any funny moves,' and took the money and money bags from the counter. Johnson also told him (witness) to 'raise his hands,' pointed the revolver at his head, cocked the trigger, and said that it 'was a new gun,' he 'hadn't used it,' and 'It had been three months since he had shot anybody.' Johnson then took his (witness') wallet, which contained $5.00. Johnson also took Libbey's wallet, and told the other man, who also held a revolver, to take Webster (witness) to the shoe department and get a pair of shoes. The man, while holding a revolver against Webster's back, walked with him about 50 feet to the shoe department. While he was getting the shoes, he saw the officers enter the door.

Mr. Libbey testified in substance as follows: About 11 o'clock in the morning of January 11, he was in the store counting money and putting it in bags for deposit in the bank. Johnson and another man (whom he could not identify) entered the store and talked to a salesman. He continued counting the money. Later, Johnson 'sprang' toward him, 'flourished' a gun, and said, 'Don't move or I'll kill you.' Johnson then asked him where the bank deposit was, and he pointed to the money and bags on the desk and below the counter. Johnson took the money and bags of money, amounting to approximately $2,000. Johnson then asked for the witness' wallet, and the wallets and purses of other employees of the store. He (Libbey) pressed a 'silent' alarm button. Johnson then hit him with the gun, held the gun against his head, and said 'he'd like to kill' him. Johnson told him to move to a point in front of the counter, about 10 feet from where he was standing, and he moved there. Johnson then told Webster to get him a pair of shoes. While Webster was getting the shoes, the officers entered the store. Then he (witness) crawled on the floor toward the door, and at that time the 'shooting started.' He heard several 'shots,' and saw Johnson 'fire' his gun in the direction of the entrance where the officers had come in.

Officer Higbee testified in substance that on January 11, at approximately 11:45 a.m., while he was in a police car on 103rd Street, about one block from the store, he heard on the radio of the car 'a broadcast of a 211 silent, which is a robbery alarm'; he drove to the store, left the car, and looked into a window of the store; he saw defendant Johnson standing near a counter with a gun in his hand; he (officer) went to one of the doors in front of the store and said, 'Police officers, drop your gun'; Johnson dropped down behind the counter and fired a shot toward the front of the store; he (officer) fired several shots in Johnson's direction, and told him to throw his gun out; Johnson threw his gun out; and he (officer) picked it up and placed Johnson under arrest. (The gun, which was received in evidence, was identified by the officer and by witnesses Libbey and Webster as the same gun which Johnson had at the store.)

The People called three other witnesses (another officer and two other employees of the store). Their testimony in substance corroborated the testimony of Libbey, Webster, and Officer Higbee. (None of the witnesses could identify defendant Brown as the man who had been in the store with defendant Johnson. The man apparently left the store after the officer arrived.)

Defendant Brown and two witnesses, called by him, testified in support of his defense of alibi. After the second witness had testified, counsel for defendant Brown asked whether the case could be recessed until the next day. The district attorney and counsel for both defendants then had a discussion with the judge at the bench (not within hearing of jury), which was in substance as follows: Counsel for defendant Brown said that Brown intended to call Johnson as a witness on Brown's behalf. Counsel for defendant Johnson said that he (counsel) had advised Johnson not to take the stand, but that Johnson wanted to take the stand anyway. The judge recessed the case until the next morning, when the discussion was resumed in chambers. The judge said that it would be prejudicial to Johnson if Brown called him as a witness, and he refused, in the presence of the jury, to testify on the ground of his 'privilege' against self-incrimination; but that if Johnson wanted to waive the privilege outside the presence of the jury, he would be permitted to do so. Counsel for Brown then said that, in the circumstances, he would rest Brown's case when the trial was resumed; and counsel for Johnson said that he would rest Johnson's case. The judge then called the case and, in the presence of the jury, both defendants rested.

After the defendants had rested, all counsel had a further discussion with the judge in chambers. The discussion was in substance as follows: Counsel for both defendants expressly waived the presence of defendants at the discussion. The district attorney said that when defendants had rested, he had the impression that Johnson did not want to testify, but that although 'we have not heard this from his lips,' there is some indication that Johnson wants to testify, and that he (district attorney) did not want to foreclose anyone from testifying, especially in view of the decision in People v. Blye, 233 Cal.App.2d 143, 43 Cal.Rptr. 231. Counsel for defendant Brown then said that, in his opinion, the Blye case applies only to a 'defendant testifying on his own behalf, not being called as a witness'; that both defendants have rested; that defendant Brown no longer desires to call Johnson as a witness; and that defendant Brown would 'object to re-opening the case.'...