People v. Langdon

• Decision Date: 26 June 1959
• Docket Number: Cr. 6391
• Citation: 341 P.2d 303,52 Cal.2d 425
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Respondent, v. Harold Almus LANGDON, Appellant.

Page 303

341 P.2d 303

52 Cal.2d 425

PEOPLE of the State of California, Respondent, v. Harold Almus LANGDON, Appellant.

Cr. 6391.

Supreme Court of California, In Bank.

June 26, 1959.

Rehearing Denied July 22, 1959.

Thomas L. Berkley and Frederic L. Harvey, Jr., Berkeley, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., and John S. McInerny, Deputy Atty. Gen., for respondent.

McCOMB, Justice.

After trial before the court without a jury, defendant was found guilty of (a) three counts of robbery in the first degree, (b) attempted robbery in the first degree, (c) three counts of forgery, (d) kidnaping for the purpose of robbery, the kidnaped person suffering bodily injury, and (e) assault with intent to commit rape.

The court found that defendant was armed with a dangerous weapon at the time of the commission of the foregoing offenses. After trial on the issue of penalty, the court sentenced him to death on the kidnaping charged and to the state prison for the term prescribed by law on the other charges. Defendant appeals from the convictions.

Facts: About 9:10 p.m. on December 27, 1957, defendant entered the Western Union office at 1307 West 7th Street, Los Angeles, and pretended to be interested in sending a telegram. While Mrs. Willingham, the clerk on duty, was helping defendant with his telegram, another man came in. When she glanced up at him, he told her to keep writing, whereupon defendant went behind the counter. Both men had guns. While the two men held guns on her, defendant took cash, checks, about 215 blank money order drafts, and traveler's checks in the sum of about $15,000 from the cash drawer.

On December 28, 1957, defendant, using the name Richard W. Mitchell, cashed a $20 traveler's check at a clothing store operated by Samuel Zablen in Los Angeles. This was one of the checks stolen the night before from the Western Union office. In order to cash the check, defendant showed Mr. Zablen a driver's license bearing the name 'Richard William Mitchell.'

Later the same day, defendant cashed one of the stolen traveler's checks at a shoe store owned by William Levy in Los Angeles. The amount of the check was $20, and again defendant used the name of Richard W. Mitchell. Still later on December 28, he cashed another of the stolen traveler's checks at the shoe store of Bernard Learnihan in Los Angeles. The amount of the check was $50, and defendant used the name and identification of Richard W. Mitchell.

Mr. Mitchell testified that the duplicate driver's license that defendant used for identification had been issued to him earlier in 1957 but that he had lost it some time prior to October 14, 1957. When the license was issued to him, he had failed to sign it, and the signature on it at the time of the trial was not his.

About 10 a. m. on February 28, 1958, defendant and his partner, James Spates, robbed the liquor store of Harold Curiel at 7528 South Figueroa Street, Los Angeles. The men, each armed with pistols, entered Curiel's store shortly after he had opened for business. After threatening him with their guns and tying him up, they took approximately $60 from his cash register and also took his wallet containing about $15.

On March 8, 1958, defendant and Spates robbed the dry goods store of Maurice Block at 1721 E. 103 Street, Los Angeles. Defendant entered the store first about 8 p. m. and asked to see a white sweater. Jennie Torres, a clerk in the store, took him to the rear of the store and was showing him a sweater when Spates entered and stuck a pistol against Mr. Block's body. Block grabbed Spates' pistol and a struggle ensued, during which Joseph Evans, another customer, came to Block's assistance, and together they disarmed him. Upon being disarmed, Spates fled from the store and managed to elude his pursuers. During the struggle, defendant seemed to suggest silently to Miss Torres that she not go to Block's aid. He did not display any weapon, nor did he attempt to help Spates. The police were summoned, and defendant remained in the store until they arrived and questioned him about the attempted holdup. He identified himself to the police officers as Richard Mitchell and showed them a driver's license bearing that name.

About 5:30 p. m. on March 12, 1958, Miss Jo Cooper was working alone in the Western Union office at 5945 South Avalon, Los Angeles. Defendant entered the office, threatened her with a pistol, and said, 'This is a holdup.' He then forced Miss Cooper to open the safe and cash drawer, from which he took 250 blank Western Union money orders, American Express money orders, and cash. He then had Miss Cooper lie on the floor and tied her wrists. In doing so he tore her skin and bruised her wrists. He then forced her into a small room at the rear of the office, where he made her lie down and committed an indecent assault on her. When she tried to resist him, he hit her several times on the head with a pipe wrench. Defendant was then interrupted, and when he returned, he attempted to assault her sexually. During this period he removed her underpants. When she continued to resist him, he held a gun against her head and threatened to kill her. Defendant was again interrupted for a few moments. When he returned, he found Miss Cooper on her feet and began to beat her again. Shortly thereafter he left the store. Miss Cooper was taken to the hospital, when she was found to be hysterical and to have suffered three deep lacerations near the top of her scalp, from which she was bleeding profusely.

Defendant was arrested about March 28, 1958, by officers of the Sacramento Police Department. While he was in custody he was questioned by Officer Eastenson of the Los Angeles Police Robbery Detail. At this time he made a written statement, confessing to the robbery of the Western Union office on December 27, 1957.

Defendant was later questioned by Officer Tidyman, after which he gave a second statement in which he implicated Spates and confessed to the robbery of Harold Curiel, Maurice Block and Miss Cooper. In this conversation he admitted robbing and hitting Miss Cooper with his gun, but he denied attacking her sexually. He also denied hitting her with a wrench. During this conversation, Officer Tidyman saw a wound on defendant's hand, which he admitted had been caused by Miss Cooper's biting him.

During the course of Officer Tidyman's investigation of the robbery and assault on Miss Cooper, he went to defendant's apartment at 430 East 27th Street in Los Angeles and found a gun, a Western Union money order, some cards, and a tag bearing defendant's name. He also found various other items that had been taken from the robbery victims and some of the clothing defendant had worn at the time of the robberies.

Defendant was the only witness in his own defense. On direct examination he admitted his guilt of the robberies and the forgeries; and, in connection with the charges involving Miss Cooper, he admitted hitting her. On cross-examination he stated that he had first tied her hands and had then told her to go into the back room, that he threatened her with a pistol, and that he tied up her feet, slapped her and, when she tried to get away, pistol-whipped her. He stated that during all this time her hands were tied.

Defendant also admitted prior felony convictions for (1) burglary and forgery in 1946, (2) forgery in 1947, (3) forgery in 1949, and (4) forgery in 1954.

Questions: First. Did defendant effectively waive his right to a trial by jury?

Yes. Defendant contends that (a) his purported waiver of a jury trial was qualified in such a manner as to make it no waiver at all and (b) the trial court committed prejudicial error by not fully explaining to him the nature of his action in waiving a jury trial.

These contentions are devoid of merit. (a) The record shows that when defendant's case was called for trial on May 27, 1958, he personally waived his right to a jury trial. The exact proceedings are as follows:

'Mr. Osterman (for defendant): Your Honor, on this matter I have discussed with the District Attorney's office, Mr. Alexander, and also with counsel for Spates, and I think the matter can be disposed of without a jury, if the matter was continued today, provided the matter remains in this courtroom. I don't think it will take over an hour and a half to try.

'Mr. Nathanson (for the People): Well, it depends on what kind of a trial it is, your Honor.

'The Court: He is just indicating, without a jury.

'Mr. Nathanson: I realize that, but I mean, if it goes on the transcript, that is one thing, but there are a great many witnesses, and I think it would take a considerable more time than an hour and a half.

'Mr. Osterman: There are several counts there, your Honor. We are trying to straighten out which counts.

'Mr. Nathanson: I feel if the matter goes over, there is a possibility that there may be a disposition without too much time being consumed, and I know we are in no position to take it up today here.

'The Court: Do you want to waive a jury today, then?

'Mr. Osterman: We will waive a jury today, your Honor.

'The Court: You represent

'Mr. Osterman: Langdon, your Honor.

'The Court: Which is Mr. Langdon?

'The Defendant Langdon: Here, sir.

'The Court: Mr. Langdon, do you waive your right to a trial by jury, and want to be tried by the judge without a jury?

'The Defendant Langdon: Yes, providing it stays in your court, your Honor.

'The Court: Do the People join?

'Mr. Nathanson: The People join, your Honor.

'The Court: As to both these waivers?

'Mr. Nathanson: Yes, your Honor.'

The record thus shows that defendant expressly and explicitly waived his right to a jury trial, and the fact that he stated that the waiver was conditional upon the case's remaining before the judge then presiding does not result in its being ineffective. (Cf. People v. Terry, 99 Cal.App.2d 579, 584(9), 222 P.2d 95; People v. Olson, 166 Cal.App.2d 532, 333 P.2d...