People v. Pierce

• Decision Date: 10 April 1968
• Docket Number: Cr. 13577
• Citation: 260 Cal.App.2d 852,67 Cal.Rptr. 438
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. PIERCE, Defendant and Appellant.

Page 438

67 Cal.Rptr. 438

260 Cal.App.2d 852

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert E. PIERCE, Defendant and Appellant.

Cr. 13577.

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

April 10, 1968.

Hearing Denied June 5, 1968.

Donald F. Roeschke, Tarzana, for Appellant by appointment of the Court of Appeal; and Robert E. Pierce, in propria persona.

Thomas C. Lynch, Atty. Gen., Daniel J. Kreme and Gordon F. Bowley, Deputy Attys. Gen., for Respondent.

LILLIE, Associate Justice.

The trial court found defendant guilty of grand theft (§ 487(3), Pen.Code), escape (§ 4532(b), Pen.Code), kidnaping (§ 207, Pen.Code) and assault with intent to commit murder (§ 217, Pen.Code), and an alleged prior felony conviction (assault with a deadly weapon, July 21, 1966), case No. 322281, to be true. He was sentenced to the state prison on Counts I, II, III and IV for the term prescribed by law, the sentences on all counts to run consecutively to the sentence imposed in case No. 322281 and to each other. He appeals from the judgment.

On August 27, 1966, defendant was a prisoner in custody at the Altadena Sheriff's Substation as a result of a sentence imposed in case No. 322281; he was a trusty, and in his capacity as janitor had freedom of the substation. In the early evening Deputy Klein's locker was broken into and his revolver and jacket were stolen; defendant was missing, although he had no permission to leave the substation and knew this. Around 9 p.m. Steven Van Brasch, attendant at a service station across the street from the substation, was entering his automobile to go home; he felt a nudge in his back, turned around and saw defendant holding a revolver. Defendant told him, 'Get into the car. I have to go to Lakewood. If you get in my way, I will blow your guts out,' and forced him to drive to Paramount. Van Brasch was in fear of his life because of the way defendant brandished the gun and other things defendant threatened. Defendant said he had broken out of jail and was going to Paramount to shoot a man who had been going around with his girl friend. They drove to Paramount and several times circled the Green Door bar where defendant's girl friend worked; they stopped, and Van Brasch went into a store for cigarettes but did not inform anyone of his plight. Everything Van Brasch did was with the view toward what was the best thing in his judgment at the time for preserving his life and the safety of others; also, he tried to make friends with defendant because he reasoned that defendant would not 'get jumpy' and he was less likely to get hurt. Defendant showed him a picture of Eva Madore and told him to go into the Green Door and tell her she was wanted by her daughter at her apartment. Van Brasch did as he was told and then drove defendant to Eva's apartment; defendant ordered him to turn the lights off, leave the engine running and stay parked. They defendant left the car and ran across the street with gun in hand; Van Brasch escaped in his automobile and informed the police.

As Eva and Alvin Lettau approached the door of her apartment, defendant met her brandishing a revolver. She resisted and defendant struck her over the head with the gun butt forcing her into the apartment. Once inside defendant forced Lettau to stand against the wall, then pointed the revolver at Eva and fired one shot hitting her in the left foot; she tried to flee into the bedroom but could not close the door against defendant who then fired a second shot missing her. At that moment, approximately 11:15 p.m., the police arrived. As they approached the front door they heard the shot; they identified themselves and asked defendant, 'Have you killed her?' to which defendant answered, 'No, not yet.' They asked him to come out of the apartment but he refused, nor would he allow Eva or Lettau to leave; he shouted, 'Don't come through the door * * * Anybody that comes through the door, I'll kill him.' Sergeant Savage who knew defendant and the circumstances of his prior felony conviction just months before, carried on a conversation with defendant through the door while the officers prepared a tear gas grenade. Around midnight the police threw it into the kitchen of the apartment. In the next fifteen seconds defendant fired two more shots at Eva but missed her and came out the door partially bent over and threw the gun across the concrete. The gun was the revolver stolen from Deputy Klein; defendant's fingerprints matched those on the revolver.

Defendant was taken to the sheriff's substation. There was nothing unusual about his demeanor; he was neither nervous nor upset but appeared to be mentally alert, although apologetic. No force, threat of force, offer or promise was made to coerce a statement from defendant. The officers advised him of his constitutional rights in full compliance with Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to which defendant replied that he 'fully' knew his rights. Approximately 30 to 40 minutes after his arrest defendant made a free and voluntary confession.

Defendant took the stand but testified that he did not recognize Sergeant Savage, Van Brasch or Eva and did not know if he and Eva had gone together; and that he could not tell the court anything about the charges because he did not remember anything that had occurred.

Appellant contends that the evidence is insufficient to sustain the convictions of kidnaping and assault with intent to commit murder. As to the kidnaping, he argues that doubt was cast on Van Brasch's testimony to the effect that he was forced to drive him from the gas station through Paramount to the bar and then to Eva's apartment, because at different points along the journey Van Brasch had an opportunity to escape if he desired, thus his story that he was 'forcibly abducted' is incredible.

The substantial evidence in the record supports the finding that defendant forcibly took Van Brasch from his gas station to Paramount (§ 207, Pen.Code). Pointing a stolen revolver in his back defendant ordered Van Brasch into the car, then pointing the gun to his stomach defendant ordered him to drive to Paramount, threatening, 'If you get in my way, I'll blow your guts out.' Van Brasch testified that he was in fear and believed defendant; that defendant told him he had broken out of jail and was going to Paramount to shoot a man; and that defendant kept brandishing his gun as he gave orders. Van Brasch did not 'consent' to the abduction merely because in his judgment he could not safely escape before defendant left his car in front of Eva's apartment; he testified that everything he did was 'with the view towards what was the best thing in (his) judgment at that time toward preserving (his) own life and the safety of others.' Further, Van Brasch testified that he tried to make friends with defendant because he figured he could, more or less, ease defendant and maybe himself, and he didn't want defendant to be 'jumpy' at him, for he was afraid he still might get hurt. Thus, Van Brasch's conduct was motivated by fear for his life, and he went along with defendant until a chance to escape was presented to him; he felt that his first clear chance to escape without danger came when defendant finally left his vehicle and ran across the street, and he took it. 'The gravamen of the offense of kidnaping is some form of compulsion. People v. Guerrero, 22 Cal.2d 183, 189, 137 P.2d 21. The requisite force or compulsion need not consist of the use of actual physical force or of express threats; the taking is forcible where it is accomplished through the giving of orders which the victim feels compelled to obey because he fears harm or injury from the accused, and his apprehension is not unreasonable under the circumstances. People v. Broyles, 151 Cal.App.2d 428, 311 P.2d 88.' (People v. Dagampat, 167 Cal.App.2d 492, 495, 334 P.2d 581, 583.)

As to his conviction of assault with intent to commit murder, appellant claims there is no evidence that he specifically intended to take the life of another person--all he did was shoot Eva in the foot and fire three more shots, none of which hit her--and he was close enough to Eva to take her life had he wanted to.

The intent with which defendant committed the assault was, of course, a question of fact for the trial court. (People v. Becerra, 223 Cal.App.2d 448, 450, 35 Cal.Rptr. 808.) The evidence is sufficient to support the...