People v. Oakley

• Decision Date: 01 June 1967
• Docket Number: Cr. 337
• Citation: 59 Cal.Rptr. 478,251 Cal.App.2d 520
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Spencer Whittemore OAKLEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 478

59 Cal.Rptr. 478

251 Cal.App.2d 520

The PEOPLE of the State of California, Plaintiff and Respondent, v. Spencer Whittemore OAKLEY, Defendant and Appellant.

Cr. 337.

Court of Appeal, Fifth District, California.

June 1, 1967.

Richard A. Case, appointed by the Court of Appeal, Third District, Sacramento, for appellant.

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

CONLEY, Presiding Justice.

The appellant was convicted by a jury of first degree burglary in that 'on or about the 18th day of May, 1966, at and in the County of Siskiyou, State of California (he) did wilfully enter the house occupied by Gloria Phillipe, at 617 French Street, in the City of Yreka, County and State aforesaid, with the intent then and there and therein unlawfully and feloniously to commit theft.'

There is no claim by the appellant that he did not enter the house in question or that there was not an asportation by him of money and property, including a typewriter, belonging to Mrs. Phillipe; his sole argument for reversal, apart from objections to certain procedural features which will be referred to later, is that the instructions given by the court did not fully and fairly state to the jury the defendant's contention that, by reason of extreme intoxication, he was unable to form, and therefore did not have, a specific intent to commit theft when he entered the house in question. It is unquestionably true that if he did not so intend to commit theft in the circumstances shown by the present record he could not have been properly convicted of burglary. (Pen.Code § 459; People v. Lopez, 249 A.C.A. 113, 118--119, 57 Cal.Rptr. 441; 9 Cal.Jur.2d, Burglary, § 6, pp. 454--456.) There was testimony by witnesses for the People, which, if believed by the jury, would permit it to discard the defendant's contention that the ingestion of alcohol had completely eliminated by intent on his part to commit theft when he entered the house. Consequently, the reliance of the appellant on this feature of his defense is based wholly on his argument that the court did not properly instruct the injury in accordance with his clai m of lack of intent. A defendant is, of course, entitled to instructions on every theory of defense which is supported by substantial evidence, and the major premise argued by the appellant throughout his trial was lack of intent, so that he was entitled to proper instructions covering this feature. (People v. Carnine, 41 Cal.2d 384, 390, 260 P.2d 16; People v. Burns, 88 Cal.App.2d 867, 871, 200 P.2d 134; 48 Cal.Jur.2d, Trial, §§ 467, 468, pp. 479--480.)

At his original arraignment, defendant stated that he wished to appear in propria persona, and he then entered a plea of not guilty; later, he appeared before the court, told the judge that he was attempting to obtain counsel, and said that he wished to change his plea to not guilty and not guilty by reason of insanity. Proceedings were suspended and the defendant was sent to the Napa State Hospital for a psychiatric examination by two alienists, who thereafter reported to the court.

On appellant's return from Napa, he stated to the court that he had not been able to secure counsel, and the public defender was then appointed to represent him. A week later, defense counsel moved for a continuance of the trial for two weeks to permit the taking of depositions; the motion was denied. The case was tried by a jury on June 30, 1966; it found defendant guilty of burglary in the first degree. Defendant then withdrew his plea of not guilty by reason of insanity, waived a reference to the probation officer, and requested immediate sentence. The court should not have accepted this waiver as no previous convictions were alleged in the information, and, under the circumstances, the requirement of a report by the probation officer was absolutely called for. (Pen.Code § 1203.) However, this error is not such as to require a reversal. The court sentenced defendant to state's prison for the term prescribed by law.

It should be noted in passing that, when he was on the witness stand, Oakley volunteered that he had previously been convicted of four different felonies and also that he was an alcoholic.

It will not be necessary to review in detail the evidence which showed defendant's entry in the nighttime to the home of Mrs. Phillipe, the removal of her typewriter to his car, the rifling of her pocketbook, or defendant's apprehension by the police officers while he was hiding in Mrs. Phillipe's living room. These elements were all proven by uncontradicted evidence.

It is only requisite to ascertain what the record shows with respect to appellant's intoxication at the time he entered the Phillipe house at about 3:15 o'clock a.m. When Graham and his fellow officer, Roop, went into the house, pursuant to a telephone call from the Phillipes, they found the defendant hiding behind the television set in the living room. They dragged him out to the center of the floor and there searched and handcuffed him. Officer Graham testified that at that time defendant appeared to be in a 'semiconscious condition.' They found Mrs. Phillipe's wallet and various articles, which had been carried in it, on the defendant's person, and also located the Phillipe typewriter and case in the 1964 Buick automobile used by defendant which was then parked in front of the lot west of Mrs. Phillipe's house.

Gilbert Gessler, night desk clerk at the Yreka Inn, testified that at about 2 o'clock in the morning of May 18, 1966, he saw Oakley get into a 1964 Buick Electra automobile near the inn; the license number of the car was noted by a Mrs. Russell, who was standing by; Gessler testified that Oakley had been breaking the windshields of cars parked in front of the inn, and he gave it as his opinion that the defendant was drunk. The night clerk also testified that defendant's car was blocking the driveway, that he asked Oakley to move it, and, after an ineffectual visit to the car, Oakley came back and asked the night clerk to move it for him, saying that he himself could not do so because he was so 'snockered I can't find the key hold and the door is locked.' Mr. Gessler then moved defendant's car for him.

Oakley himself took the witness stand and testified that, when he arrived in Yreka on May 17, he was '* * * on the lam of a parole violation,' and he intended to go on to Oregon to visit a cousin; that he had been playing low ball and poker at the Yreka Inn and had been drinking heavily, that he finally got too drunk to play, cashed in his chips, and then continued drinking while watching a topless dancer. This was at about 11:30 p.m., and he testified that he remembered nothing of the evening's activities after that time. The defendant claimed that he was emotionally disturbed for various reasons, and that he had been drinking all day, also, that he had blacked out on numerous occasions because of the over-consumption of alcoholic drinks.

The appellant attempts to make two preliminary points with regard to procedural matters. The first claim is that the trial court committed prejudicial error in denying a motion made by the public defender's office on behalf of the defendant for a continuance of the trial for two weeks in order to permit the taking of depositions of Drs. Slaughter and Theile, and of Ann Tappon. The record is completely silent as to what such witnesses could have testified to. It does not show that the witnesses had been subpoenaed and could not be present at the trial (Pen.Code § 1336), or that they were about to leave the state or were so sick or infirm as to afford a reasonable ground for apprehension that they would not be able to attend the trial (Pen.Code § 1337), or that they were residents of a state other than California (Pen.Code § 1349).

The statutory right to a deposition in a criminal case is strictly limited (Yannacone v. Municipal Court, 222 Cal.App.2d 72, 74, 35 Cal.Rptr. 838). The showing made by the defendant in this respect is totally inadequate, and this attempted point is worthless.

The second procedural point urged by appellant is that after the jury had returned a verdict of guilty in the first phase of the trial, appellant's counsel requested the appointment of Dr. Theile and Dr. Slaughter to examine the appellant. This motion for additional psychiatrists was denied. There was nothing to prevent the defendant from subpoenaing Dr. Theile and Dr. Slaughter if they had any knowledge concerning his mental condition, as might perhaps be inferred from the earlier demand that their depositions be taken. The showing made in support of this application is completely deficient as to any knowledge that these two doctors were supposed to have had concerning the psychiatric state of the defendant. People v. Richardson, 192 Cal.App.2d 166, 170--171, 13 Cal.Rptr. 321, 323, holds that there is no principle of law which would authorize a court to appoint alienists to support a defendant's contentions as to his mental...