People v. Lopez

• Decision Date: 05 August 1963
• Docket Number: Cr. 7067
• Citation: People v. Lopez, 60 Cal.2d 223, 32 Cal.Rptr. 424, 384 P.2d 16 (Cal. 1963)
• Court: California Supreme Court
• Parties: , 384 P.2d 16 The PEOPLE, Plaintiff and Respondent, v. Ernest Barragan LOPEZ and Willard Arthur Winhoven, Defendants and Appellants.

Page 424

32 Cal.Rptr. 424

60 Cal.2d 223, 384 P.2d 16

The PEOPLE, Plaintiff and Respondent, v.Ernest Barragan LOPEZ and Willard Arthur Winhoven, Defendants and Appellants.

Cr. 7067.

Supreme Court of California, In Bank.

Aug. 5, 1963.

Rehearing Denied Sept. 4, 1963.

Hugh R. Manes, Los Angeles, under appointment by the Supreme Court, and Morris Lavine, Los Angeles, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Ernest Barragan Lopez and Willard Arthur Winhoven were found guilty after jury trial of one count of murder and four counts of attempted murder.The jury fixed the penalty on the murder count at death as to both defendants.Each appeals from the judgments ¹ rendered accordingly, from orders denying their respective motions for new trials on all counts and from orders denying their respective motions to reduce the penalty on the murder count.These appeals come to us automatically (Pen.Code, § 1239, subd. (b)) on behalf of both defendants and, as to defendant Lopez, pursuant to Notice of Appeal and Request for Record filed by his counsel.

The Multifarious Contentions.Both defendants contend that they were convicted by evidence obtained through an illegal search and seizure; that they were denied the 'right' to have counsel present at a police 'show-up' or 'line-up' during which they were identified by witnesses; that they wre denied that right to discover the names of certain prospective witnesses for the prosecution; that on pretrial discovery they were erroneously ordered to disclose certain names and evidence to the People; that the trial court committed numerous prejudicial errors, especially in receiving evidence of other crimes; that they were prejudiced by the court's permitting the People to proceed on a conspiracy theory, although defendants were not charged with conspiracy as a separate crime; that the prosecuting attorney committed prejudicial error during his argument to the jury; that the court erroneously failed to give accomplice instructions and committed error in the giving of conflicting instructions; and that there were errors committed during the penalty phase of the trial.In addition, Lopez contends that the evidence is insufficient to support the judgment against him, especially with respect to identification; that he was required to incriminate himself; that he was not legally committed by a magistrate in that during the preliminary examination a witness was not, but should have been, excluded from the courtroom, and the trial court erroneously denied a motion to dismiss the information; that he was prejudiced because no Mexicans were on the jury; that the prosecution knowingly used perjured testimony; that notes made by one witness were improperly admitted into evidence; that he was denied a fair trial because of certain assertedly unfavorable newspaper publicity; and that he was prejudiced by the failure of the court to grant his motion for severance.Winhoven, who testified in this own behalf and, in effect, judicially admitted the crimes with which he was charged, contends that he was denied the right to counsel; that the court erred in excusing from the jury panel those prospective jurors who held conscientious objections to the imposition of the death penalty; and that the death penalty constitutes a cruel and unusual punishment.

After examination of the entire record, we have concluded that no prejudicial error is shown, that the evidence amply supports the verdicts, and that defendants have been accorded a fair trial with due process of law.Hence, the judgments should be affirmed.

The pleadings.By information defendants were charged in Count I with the murder of Travis Keith.In Counts II through V, respectively, defendants were charged with the attempted murder of John Ringo, the attempted murder of Lawrence Robbins, the attempted murder of Lyle Mason, and the attempted murder of Robert Kirtz.All offenses were allegedly committed on or about July 29, 1960.In addition, Winhoven was charged with six, and Lopez with three, prior felony convictions.Lopez's motion to set aside the information (Pen.Code, § 995) was denied.Each defendant entered a plea of not guilty, admitted the prior convictions as charged, and was tried before a jury.

Basic Facts.All the crimes with which defendants are charged were committed in connection with the July 29, 1960, robbery of MORE, Inc.(hereinafter sometimes called 'MORE'), a discount business establishment located at 3443 Sepulveda Boulevard in West Los Angeles.Lawrence Robbins, a bank messenger, regularly went to MORE on Mondays through Fridays for the purpose of collecting bank deposits from the various business units at MORE.On Friday, July 29, 1960, Robbins, following his usual procedure, drove his car into the MORE parking lot around 12:40 p. m. He parked near the front door in a No Parking zone, then entered the store.He returned to his car about 1:00 p. m. with several thousand dollars in cash and checks in a brief case.He backed his car from the stall and started toward the parking lot exit.At that moment a car pulled in front of him, blocking his way.Robbins saw a man wearing a mask jump from that car and run toward Robbins' car.Robbins thought something was wrong, so he put his car in reverse and began to accelerate.The masked man then drew a gun and Robbins stopped.The masked man ordered Robbins to drive on, but the car was stalled.The masked man then opened the car door and reached across Robbins to get the brief case, which was next to Robbins on the front seat.Robbins believed the gun to be a .38 caliber revolver, manufactured by either Colt or Smith and Wesson.Robbins grabbed the robber's arms and they struggled.They continued to struggle outside the car and Robbins began yelling for help.Robbins was struck and bitten by the robber during their fighting.

John Ringo, a police officer who had stopped at MORE as a customer, heard a commotion in the parking lot.He observed two men, one of them masked, scuffling.He ran out to the parking lot and attempted to separate the two men.As he did so, he was shot in the back.He turned around and saw a man whom he identified at the trial as Winhoven.Robbins ran toward the store but was shot in the leg before he reached the building.

Edward Will, associate manager of MORE, had heard cries for help on the parking lot and ran to that area.He observed the second robber shoot Ringo; he identified Winhoven as the man who fired the shot.Will then returned to the store to trip the burglar alarm.He hastened back to the parking lot, arriving just in time to see Travis Keith, an assistant manager at MORE, shot by Winhoven while Keith was fighting with the masked robber.Keith died as a result of that gunshot wound.The murder weapon was never recovered by the State.

Lyle Mason, a MORE salesman, had followed Will onto the parking lot.He also identified Winhoven, of whom he had a full side view, as the person who shot Ringo and Keith.Mason heard several additional shots, one of which struck him in the leg.Mason then saw the two robbers get into a blue Oldsmobile parked on the lot.The car apparently would not start, so they left that car and ran toward Sepulveda.One of the men stepped in front of a 1957 red and white Ford driven by Leroy Caldwell.The robber carrying a brief case and gun and wearing a mask ordered Caldwell out of the car.Caldwell got out; the two robbers got in and sped southward on Sepulveda.

The mask worn by the one robber was described in somewhat varying ways by the numerous eyewitnesses but all the witnesses agreed that it was some type of pull-over mask which completely covered the robber's head.Numerous witnesses compared Lopez with the masked man and stated that he was of similar build, height and weight.

Robert Kirtz was in an automobile driving south on Sepulveda near the MORE establishment when he saw two men commandeer a 1957 Ford.Kirtz followed these two men as they drove south on Sepulveda.The Ford turned on Bently Streed and Kirtz pursued it.The Ford stopped on Bentley and the man on the passenger side got out and fired a couple of shots at Kirtz as he drove by.The second shot pierced the windshield of Kirtz's car and the bullet struck Kirtz under the left eye, missing the brain by about 1/16th inch.The wound bled profusely but he was able to continue driving on Bentley.When he reached the intersection of Palms and Bentley, he turned left; the men in the Ford, who had followed Kirtz down Bentley, turned right on Palms.Kirtz parked his car and was eventually picked up by an ambulance.

Three witnesses on Tilden Avenue, a dead-end street, saw a car similar in description to Caldwell's Ford brake suddenly near the end of Tilden Avenue, pull into a driveway, back out and speed back toward the exit from the dead-end.One witness stated that the driver appeared to be wearing some type of hat, perhaps a hunting cap.(It appears that the pullover mask had by this time been discarded.)Lopez looked like the driver.Another witness also said Lopez looked like the driver; she saw mainly the back of the driver's head as the car drove away.The driver's hair was long, black and curly, and the drive appeared to be of Latin descent.The third witness observed the back of the driver's head and part of his face as the driver looked back over his shoulder while backing out of the driveway.The driver had dark hair and a distinctive jawline.This witness stated that Lopez's jawline and dark hairline bore a strong resemblance to those of the driver.She further stated that she had never seen anyone outside of Lopez who more resembled the driver.Two of these witnesses identified Winhoven as resembling the passenger in the car on Tilden Avenue.

The blue Oldsmobile in which the robbers...