People v. Morrow, Cr. 502

CourtCalifornia Court of Appeals
Citation74 Cal.Rptr. 551,268 Cal.App.2d 939
Decision Date21 January 1969
Docket NumberCr. 502
PartiesThe PEOPLE, Plaintiff and Respondent, v. Raymond Delbert MORROW, Defendant and Appellant.

Page 551

74 Cal.Rptr. 551
268 Cal.App.2d 939
The PEOPLE, Plaintiff and Respondent,
Raymond Delbert MORROW, Defendant and Appellant.
Cr. 502.
Court of Appeal, Fifth District, California.
Jan. 21, 1969.
Rehearing Denied Feb. 18, 1969.
Hearing Denied March 19, 1969.

Page 552

[268 Cal.App.2d 940] George W. Kell, (under appointment by the Court of Appeal) Modesto, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Daniel J. Kremer and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.


CONLEY, Presiding Justice.

The defendant, Raymond Delbert Morrow, was charged in three separate indictments with crimes of violence against residents of Mariposa. First of all, he was accused of violating section 245 of the Penal Code on or about the 14th of September, 1967, by using force likely to produce great bodily injury against Irene Gonzales; the Penal Code section reads in part as follows:

'Every person who commits an assault upon the person of another with a deadly weapon or instrument or by any means of force likely to produce great bodily injury is punishable by imprisonment in the State prison. * * *'

Next, he was charged with violation of Penal Code, section 242 by assaulting Norman

Page 553

W. Garrett, the sheriff of Mariposa County, while the latter was engaged in the performance of his duties, and similarly of battery upon L. C. Scott, a deputy sheriff, while he was engaged in the performance of his duty. In the third information, the defendant was accused again of violating section 245 of the Penal Code by a similar assault of Irene Gonzales on or about November 12, 1967, and of the same crime against Elaine Rhoan. The three informations were ordered consolidated for trial and were disposed of at the same time; in the interest of clarity, the crimes originally contained in the three informations were referred to during the trial as counts.

At the end of the trial, the jury brought in verdicts as follows:

Count I, assault on Irene Gonzales on September 14, 1967; Guilty as charged.

[268 Cal.App.2d 941] Count II, battery upon Norman W. Garrett, sheriff, while in the course of official duty: Guilty of simple battery.

Count III, similar battery on L. C. Scott, deputy sheriff: Guilty of simple battery.

Count IV, assault on Irene Gonzales on November 12, 1967; Guilty as charged.

Count V, assault on Elaine Rhoan on November 12, 1967; Guilty as charged.

Thereafter, probation and a motion for a new trial having been denied, the court sentenced the defendant to state's prison on Counts I and V to be served concurrently; Count IV was dismissed as the court determined that the crime charged was part of the same act involved in Count V; the sentence on each of Counts II and III was six months in the county jail, the sentences to run concurrently, but the sentences on these misdemeanors were suspended and are to be dismissed when the felony sentences become final as to Counts I and V.

The basic facts relative to the physical attacks were proven without question. Mrs. Irene Gonzales testified that on September 14, 1967, the facts as to what happened are clear. She was at home; at about 8 o'clock in the evening defendant came to the house; he had been drinking; they talked for a few minutes and then she made him a cup of coffee; he started arguing with her and kept it up; when she did not answer, he slapped her face, and he kept arguing and hitting her repeatedly; he knocked her to the floor, kicked her and continued to kick her; finally, when she brought him a cup of coffee, he threw it in her face; she went to the bathroom; he followed her and said he was going to kill her; he knocked her down again and started to choke her.

Norman W. Garrett, sheriff of Mariposa County, testified that he was on duty in the evening of September 14, 1967; in response to a telephone call from Mrs. Gonzales, he found her sitting in a chair in a nearby service station; she was crying and appeared to have been beaten. The sheriff and his deputy, Scott, did not find the defendant in the Gonzales house but located him walking in the street. They asked him to get into their car, which he did; they returned to the service station and picked up Mrs. Gonzales and took them both to the sheriff's office. Mrs. Gonzales had several bruises on her legs and face; her lip was bleeding; after pictures were taken of her bruises, she was taken to the hospital. Sheriff Garrett testified that Mr. Morrow had been placed in a room in the jail, and he and Deputy Scott advised Morrow that he was under arrest [268 Cal.App.2d 942] and asked him to come to the booking counter. Morrow walked to the booking counter, but when he got there he became violent and said that he was not going to be put in jail. The sheriff told him to put his hands upon the counter so that he could be searched; then the defendant backed off; swore at the sheriff and struck at him, and Deputy Scott and another jailor had to help the sheriff wrestle the defendant to the floor; Sheriff Garrett testified that defendant hit his arm. The sheriff said he had known Morrow for several years. Officer Scott testified that he was on duty in the patrol car the night Sheriff Garrett told

Page 554

him to go to the Standard Station, and he testified that at the time of the booking the defendant took a swing at Sheriff Garrett and also grabbed Scott by the front of the shirt; he said that he himself suffered bruises when defendant Morrow grabbed him.

Elaine Rhoan testified that she was in the Bootjack Bar on November 12, 1967, and that when Morrow began arguing with Irene Gonzales, Mrs. Gonzales started to leave but stopped to talk to Elaine Rhoan; Morrow began fighting with Irene Gonzales who pushed him back; he went to the bar; he got a glass and threw it; the glass hit Mrs. Rhoan above the left eye. The object thrown was a beer mug; it broke; she was left with a scar over her eyebrow.

Dr. Paul Levy, a qualified psychiatrist, was appointed by the court at the request of counsel for both sides to examine defendant as to his mental condition and to judge whether, in his opinion, at the time of the commission of the alleged crimes he had the mental capacity to form the intent to commit them.

Appellant presents these arguments on appeal:

1) There was evidence by the defendant and Dr. Levy that would support a conclusion that the defendant suffered from alcoholic amnesia at the critical occasions when he employed violence toward others, and that it would constitute cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution if he were to be held guilty of the several crimes charged;

2) The court was in error, it is claimed, by failing to instruct the jury that if the defendant was unconscious at the time of the commission of his alleged offenses he should have been acquitted;

3) The court erred in giving instructions on voluntary intoxication and in failing to instruct concerning involuntary intoxication;

[268 Cal.App.2d 943] 4) In connection with the applicable assault section of the Penal Code (§ 245), there must be proof of a specific intent to injure the victim, and to sentence a defendant in the absence of such proof inflicts cruel and unusual punishment on him and deprives such defendant of due process of law in violation of the Sixth and Fourteenth Amendments of the United States Constitution.

The main argument which the appellant urges for a reversal is founded on the testimony of himself and the psychiatric witness, Dr. Levy, that he is an alcoholic and that his condition is such that when drinking, as here, he has periods of violent action against other people, which he does not remember. In other words, he claims that because of his alcoholism he suffers from blackouts, and that at the critical moments involved in the accusations against him he did so suffer and was unconscious of his violent acts and, therefore, innocent of crime. It should be remembered in this connection that the jury was not bound to accept his account of physical details of his condition. Dr. Levy made it clear that in diagnosing the case he had to assume that a writing relative to it, which emanated from the defendant, was true; the doctor himself did not observe the defendant during any of these alleged critical periods. We, thus, are presented with a situation which arises frequently in a jury trial: the jury was not bound to accept in detail the conclusion of the defendant and of the psychiatrist based wholly on what the defendant said with regard to unconsciousness. There were ample indications that, although the defendant was what is called an alcoholic and that he had been drinking heavily, nevertheless, he had knowledge of what he was doing.

But assuming that his self-serving declarations were true, it does not follow that he was not responsible for the violent actions constituting the charges which infringe the laws of this state. In this connection, the defendant relies principally

Page 555

upon federal decisions which have held that the state cannot legally imprison a man because of his status as a taker of durgs or an alcoholic. (Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758; Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50; Driver v. Hinnant, 4 Cir., 356 F.2d 761.) However, the United States Supreme Court has recently held that when a defendant is charged with doing an act, which is denounced as criminal under the law, it is no excuse to such a defendant to allege and prove also that he is an alcoholic; this is the essential holding in Powell v. State of Texas, [268 Cal.App.2d 944] 392 U.S. 514, 88 S.Ct. 2145, 2154--2155, 20 L.Ed.2d 1254, in which the United States Supreme Court refused to hold that an alcoholic, who was guilty under the law of appearing drunk in public, was excused for breaking the law concerning his appearance at a place other than at his...

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