People v. Nabayan, Cr. 3502

• Decision Date: 23 September 1969
• Docket Number: Cr. 3502
• Citation: 80 Cal.Rptr. 779,276 Cal.App.2d 361
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Franklin Cruz NABAYAN, Defendant and Appellant.

Page 779

80 Cal.Rptr. 779

276 Cal.App.2d 361

The PEOPLE of the State of California, Plaintiff and Respondent, v. Franklin Cruz NABAYAN, Defendant and Appellant.

Cr. 3502.

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

Sept. 23, 1969.

[276 Cal.App.2d 362] Daniel N. Busby, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

[276 Cal.App.2d 363] Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, ^* Associate Justice Pro Tem.

In an indictment returned by the Grand Jury of San Diego County, Appellant Franklin Cruz Nabayan was charged with murdering Donald R. Warren, in violation of Penal Code, section 187. He was tried by a jury and found guilty of murder in the second degree. Probation was denied and he was sentenced to prison for the term prescribed by law. He appeals from the judgment of conviction. The contentions made on appeal require a summarization of the evidence.

In early December, 1967, Nabayan, an unemployed entertainer, had resided for approximately one month with the victim, Donald R. Warren, in Warren's rented house on Wonderland Street in Los Angeles. He did household work and driving for Warren in exchange for room and board. On the evening of December 4, 1967, Nabayan and Al Scott, who was also a friend of Warren, went to the 'Body Shop', on Sunset Boulevard, and met Patricia Riley, who was employed there as a dancer. After the 'Body Shop' closed, Nabayan, Scott and Miss Riley drove to the Warren residence, arriving shortly before 2:30 a.m. Warren and a male negro were at the house. After some drinking and small talk, Scott and Miss Riley went upstairs. Shortly before 3 a.m., Warren went upstairs, got some clothes from the bedroom and stated, 'We are leaving now. We'll see you in the morning.' Shortly afterwards Miss Riley went downstairs and found the premises empty. A neighbor heard Nabayan state he was leaving, heard two car doors open and close and the sound of a car driving away.

At approximately 6:40 a.m., on December 5, Nabayan appeared at the emergency room of Scripps Hospital in San Diego. He was met by a nurse, Miss Pilcher, to whom he stated there was a man outside in a car who was bleeding badly and needed help. The nurse went outside with Nabayan and found Warren lying across the front seat of the car; he was unconscious and covered with blood. Nabayan helped the nurse place Warren on a gurney. He told her, after several inquiries, he had found Warren in his car along the roadside and had driven him to the hospital. Miss Pilcher testified Nabayan was welldressed, not bloody, and did not appear nervous. When Nabayan was told where he could park the car, he got into the car and drove rapidly away from the hospital without identifying himself. Later three one-hundred-dollar bills were found in Warren's pants pocket.

A doctor saw Warren at approximately 6:40 a.m. and pronounced him dead as of that time. There were lacerations on his head; two gunshot wounds in the right forearm had broken the ulna and radius bones; four gunshot wounds in the chest and abodomen had broken several ribs and severely lacerated the spleen and liver. On autopsy, the cause of death was found to be due to bleeding in the abdomen cavity from the gunshot wounds. A blood sample was taken from Warren's body, and tests indicated a blood alcohol level of .23% Alcohol.

Warren's car was recovered later in Los Angeles and several bullet holes and ricochet marks were found in the car. A month later, on January 6, 1968, Nabayan was stopped and arrested in Los Angeles because he was driving a car (not Warren's) which had been reported as stolen. Under the front seat of the car, the arresting officer found a loaded .357 Magnum revolver. Two of the five bullets in the gun had (X's) filed across the nose; the effect of such filing is to increase the tendency of the bullet to flatten out when it strikes an object and to do more damage. Expert testimony established Warren's wounds were inflicted by a .357 Magnum, but tests to determine whether the gun found in the car driven by Nabayan when arrested was the one used to shoot Warren were inconclusive.

Miss Erla Erlendsson testified she had known Nabayan, Warren and Al Scott. She had lived at Warren's residence on Wonderland for a few days during the time Nabayan had lived there. She had seen a pistol similar to the .357 Magnum at the residence. It was kept under a cushion of the couch in the living room. She had felt it when she sat on the couch and had lifted the cushion to see the weapon. A witness testified he had sold a .357 Magnum revolver to Al Scott about three years before the incident.

The day after his arrest, after being advised of his constitutional rights, Nabayan gave a complete statement to Sgt. Ashcraft of the San Diego Police Department. He stated that about 2:30 a.m. on December 5, Warren decided to go to San Diego and asked Nabayan to drive him there. They go into Warren's Chevrolet and Nabayan drove south on Interstate No. 5. Warren was drunk and fell asleep almost immediately. He began to wake up as they passed by the Nuclear Power Plant (San Onofre). As they approached an off-ramp (later determined to be Interstate No. 5 and Via de la Valle, from Nabayan's description) Warren told him to turn off the freeway; he did so, turned left and drove easterly on an underpass road. Warren told him to stop the car, get out, and wait for him. Warren then drove away; he returned about fifteen minutes later and honked the horn of the car. It was just then becoming daylight. When Nabayan reached the car he found Warren slumped over the wheel. Warren asked to be taken to a hospital. Nabayan drove north an undetermined distance and came to a new Shell Station where he called an ambulance. He noted then for the first time Warren was bleeding. Warren stated it would take too long to get an ambulance; instead he wanted Nabayan to take him to San Diego; Nabayan said they were a long way from San Diego; Warren then said, 'Well, take me to a doctor.' Nabayan then drove around for about forty-five minutes looking for a doctor's house, and finally ended up on the freeway traveling toward San Diego. He saw a sign that said 'Hospital'; drove to the hospital and told a nurse at the emergency entrance he had an injured man in the car. After he had helped the nurse place Warren on the gurney he got 'scared and panicked' and drove away from the hospital.

Nabayan drove north, stopped at a gas station, took off his shirt, which was bloody, and put on a coat. He resumed driving north and noticed there was blood all over the inside of the car and on the windshield. He stopped at a motel, rented a ten dollar room, and obtained some towels to clean up the car. In doing so he found an unloaded gun with blood on it under the front passenger seat. He wrapped it up, planning to pawn it later. It was the same gun found by the police officer when Nabayan was arrested. Nabayan stated he was not aware Warren had been shot until he returned to Los Angeles and was so advised by some friends. He went to the house on Wonderland Street and removed his belongings. Between December 5 and the date of his arrest he grew a goatee.

Nabayan testified at the trial. His testimony in most respects agreed with his pretrial statement to Sgt. Ashcraft. He denied any part in the killing. He admitted two prior felony convictions.

Nabayan produced several character witnesses who testified he had a reputation for being a peaceful and quiet person. He produced expert testimony to the effect he had a passive- dependent personality and that it was unlikely he would commit a crime such as brought about Warren's death. He made no contention he suffered from a diminished capacity by reason of mental illness or intoxication and produced no evidence upon which such a claim could be based.

In rebuttal the People presented evidence tending to show it was extremely unlikely a man with Warren's injuries would be able to drive a car, and further, the onset of shock would make a person with those injuries incapable of speech fifteen or twenty minutes after the shooting. The People also presented rebuttal evidence casting doubt on the expert testimony to the effect Nabayan's personality traits were such that he could not commit the crime of murder.

Appellant contends the evidence is insufficient to support his conviction of second degree murder. He first argues there is not sufficient evidence to connect him to the slaying. In making this argument, he points to that portion of the evidence giving rise to favorable inferences but ignores evidence supporting the finding of guilt.

Appellant was described and admitted being with Warren about the time of the killing. He fled to Los Angeles after leaving Warren at the hospital without identifying himself. He cleaned up the car to remove evidence of the killing. He immediately removed his belongings from the Wonderland premises; he grew a goatee and remained incommunicado even after learning Warren had died. At the time of his arrest, he had in his possession a .357 Magnum pistol, which he admitted he had taken from Warren's car and from which he admitted he had removed blood stains. Warren was killed by bullets fired from a .357 Magnum. Such a gun had been sold to Al Scott, a friend of appellant's, and had been seen at the residence occupied by appellant and Warren before the killing. This set of circumstances sufficiently connects appellant with the killing of Warren to support conviction by the jury. In view of them the jury was not required to believe or accept appellant's own account of what happened.

Conceding inferences consistent with appellant's...