People v. Powell

Decision Date26 June 1974
Docket Number18355,Cr. 22227
Citation40 Cal.App.3d 107,115 Cal.Rptr. 109
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Gregory Ulas POWELL, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Jimmy Lee SMITH, Defendant and Appellant.

Irving A. Kanarek and Sheldon Berlin, Van Nuys, for defendant and appellant Jimmy Lee Smith.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

VOGEL, Associate Justice. *

Appellants were convicted in separate trials of first degree murder. Appellant Gregory Ulas Powell was sentenced to death and appellant Jimmy Lee Smith was sentenced to imprisonment for life. Each conviction has come to this court by way of a separate appeal. However, prior to the trial on the merits appellants were jointly prosecuted and almost all of the pretrial proceedings involved common appearances. Because the case arises from a single incident in which both appellants participated and because a majority of the issues on appeal pertain to joint legal proceedings, we dispose of the appeals in one opinion.

FACTS

There are no substantial disagreements as to the factual background on which the charge against Powell and Smith is predicated. On March 9, 1963, Smith was a passenger and Powell was the driver of a 1946 Ford automobile. They were driving in the Hollywood area of Los Angeles County. Both men were armed.

The Ford automobile was noticed by two Los Angeles police officers, Ian Campbell and Karl Frank Hettinger. The officers were then assigned to a plainclothes detail in an unmarked 1960 Plymouth automobile. They observed that the 1946 Ford did not have an illuminated rear license plate. The police vehicle followed and the officers directed its red spotlight on the rear window of the vehicle occupied by appellants. Both vehicles made a stop on Gower Street. Campbell was the driver of the police vehicle and brought it to a stop an inordinate distance from the curb and directly behind the Ford. Campbell and Hettinger got out of the police vehicle. They approached the Ford. Campbell went to the driver's side and Hettinger approached the passenger's

When Powell brought the Ford to a stop, Smith removed the hand gun on his person, dropped it to the floor of their automobile and kicked it under the seat. 1 Smith then got out of the Ford and approached Hettinger. Within seconds, Campbell, with Powell behind him, was also moving to the rear of the Ford automobile and approaching Hettinger and the police vehicle. Powell informed Smith and Hettinger that he had 'gotten the drop on' Campbell. Campbell verified this fact and informed Hettinger that Powell was armed. Powell directed Smith to take Hettinger's weapon. Smith complied. The police officers were ordered into the Ford. Before leaving the area, Smith unsuccessfully attempted to move the police vehicle from its conspicuous position. Smith was unable to release the hand brake of the police vehicle and abandoned his effort to reduce its visibility. Smith returned to the Ford where Campbell was in the driver's seat, Hettinger was behind the front seat on the floorboard and Powell was in the front passenger seat guarding the prisoners. Campbell was ordered to begin driving in the direction of Bakersfield.

During the course of the drive Smith and Powell, located in the front seat, pointed weapons at the police officers and made various threatening statements. Smith and Powell had their own hand guns, the weapons taken from the police officers, as well as the officers' flashlights. Before reaching their ultimate destination Powell inquired as to the amount of cash Campbell and Hettinger had on them. He ordered Hettinger to give him his currency. Powell took it, but later returned it during the course of the drive.

When they arrived in Kern County, and before reaching Bakersfield, Campbell was directed to turn on to a secluded dirt road and to drive out into a field. Finally, he was ordered to bring the vehicle to a stop and all four persons got out. Campbell and Hettinger were standing next to each other with Smith and Powell facing them. Powell then asked Campbell whether he had heard of the 'Little Lindbergh Law.' Campbell replied affirmatively and Powell raised his gun and shot him in the mouth. Hettinger immediately turned and began to run. He ran down a dirt road, through a fence and into another field. While in flight he turned around and saw three figures: one of them prone, one firing a gun into the prone figure, and the third approaching him. The individual approaching Hettinger fired two shots at him. Hettinger resumed his flight.

Smith and Powell quickly gave chase after Hettinger. Powell took out on foot with a flashlight and Smith took the Ford automobile apparently to use its lights in the search for Hettinger. In the course of this effort Smith and Powell separated. 2

Ultimately, Hettinger found his way to a farm house and made contact with law enforcement authorities, advising them of the events that had transpired. Smith used the automobile to escape from the area, abandoned it near Bakersfield and made his way to a rooming house known as 'Mom's Place.' It was there that Smith was arrested on March 10 sometime after 10:40 p.m. At that location the arresting officers found a leather jacket and a .38 caliber revolver underneath it. The jacket and revolver were located in the room apparently occupied by Smith. The weapon was identified as the one that was taken from Hettinger.

Powell was arrested during the early morning hours on the day after the homicide by a California Highway Patrol Officer approximately twenty miles south of Bakersfield. He was then driving a vehicle that had been reported as stolen.

Further factual background will be given where necessary to explain and resolve the issues raised on appeal.

Appellants were previously tried, convicted of first degree murder and sentenced to death. That conviction was reversed by the California Supreme Court and remanded for retrial. (People v. Powell (1967) 67 Cal.2d 32, 59 Cal.Rptr. 817, 429 P.2d 137.) Thereafter, appellants made numerous pretrial motions, including an application for change of venue and to quash the 1968--1 and 1968--2 jury venire. These motions were denied and another trial on the merits commenced against appellants in a joint proceeding. On the motion of Smith, his then trial counsel was discharged and the case was finally severed in order to permit Smith's newly appointed counsel to prepare for trial. For that reason Smith's trial on the merits was delayed to commence after and separate from the trial on the merits as to Powell.

We now turn to the issues raised on appeal designating the same by abbreviated titles and indicating to which appellant each issue pertains.

SMITH AND POWELL
VENUE

Appellants argue that the Los Angeles Superior Court was without territorial jurisdiction and that venue was actually in Kern County. Appellants strenuously urge that Penal Code section 790 required that the trial be held in Kern County and that Penal Code section 781 3 is not applicable because no element of the offense was accomplished in other than Kern County.

The record plainly shows that the chain of events culminating in the death of Campbell commenced in Los Angeles County when appellants were stopped by the deceased and his partner Hettinger. At that time appellants 'got the drop' on the officers, took their weapons, under threat of force compelled Campbell and Hettinger into the Ford automobile and ordered Campbell to drive the group to Bakersfield where Campbell was shot to death. Even if none of the events described prior to the shooting of Campbell constituted any element of the crime charged (Pen.Code, § 187), they were preliminary acts accomplished in Los Angeles County.

In this very case the supreme court determined that the 'preliminary acts' were sufficient to fix jurisdiction in Los Angeles County. (People v. Powell (1967) 67 Cal.2d 32, 62--63, 59 Cal.Rptr. 817, 429 P.2d 137.) Appellants urge that the supreme court's construction is dictum and should not be followed. Whenever the supreme court interprets a statute other courts are obliged to follow it. (People v. Hallner (1954) 43 Cal.2d 715, 720--721, 277 P.2d 393; Steelduct Co. v. Henger-Seltzer Co. (1945) 26 Cal.2d 634, 642, 160 P.2d 804.) In holding that Penal Code section 781 was applicable to circumstances where preliminary acts take place in one county and the perpetration of the crime occurs in another, the supreme court construed the legislative intent and purpose as broadening jurisdiction beyond rigid limits fixed by the common law. (People v. Williams (1973) 36 Cal.App.3d 262, 268--269, 111 Cal.Rptr. 378.)

The holding as to jurisdiction in People v. Powell, Supra, is not dictum. Even though it was not necessary for the court to address that issue to accomplish its result, confronting the subject was entirely consistent with the law. (Code Civ.Proc., § 43.) Since the reversal required a new trial it was appropriate to recognize and rule on this issue because it was bound to be a continuing problem:

'Independent of the mandate of the code provision, the obligation rests on the court in the efficient and proper administration of the law to determine all questions legitimately submitted by an appeal. Justice so demands and the litigants are entitled to no less.' (King v. Kaplan (1949) 94 Cal.App.2d 697, 700, 211 P.2d 578, 580.)

Therefore, jurisdiction was properly fixed in Los Angeles County because it was so determined in...

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