People v. Rising Sun
| Decision Date | 03 March 1976 |
| Docket Number | Cr. 26853 |
| Citation | 55 Cal.App.3d 1024,128 Cal.Rptr. 281 |
| Parties | Previously published at 55 Cal.App.3d 1024 55 Cal.App.3d 1024 The PEOPLE of the State of California, Plaintiff and Respondent, v. Leonard RISING SUN and Robin Louis Black Cloud, Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
Patricia A. Shanahan, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Leonard Rising Sun.
James A. Goldstein, Van Nuys, under appointment by the Court of Appeal, for defendant and appellant Robin Louis Black Cloud.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and William R. Pounders, Roger W. Boren and Andrew D. Amerson, Los Angeles, for plaintiff and respondent.
Defendants Leonard Rising Sun and Robin Louis Black Cloud were charged in an amended information as follows: in Count I, with robbery in violation of Penal Code section 211; it was alleged that defendants had inflicted great bodily harm upon the victim. In Count II, defendants were charged with assault with a deadly weapon, in violation of Penal Code section 245(a). In Count III, it was alleged that defendants had committed burglary, in violation of Penal Code section 459, and it was further alleged that defendants entered the victim's premises with intent to commit theft and that they had inflicted great bodily harm upon the victim.
Prior to the filing of the amended information, there were proceedings in the juvenile court to determine the age of defendant Black Cloud and, if found to be a minor, whether he was amenable to treatment as a juvenile. The juvenile court found that Black Cloud was seventeen years of age, was a minor unfit for juvenile-court treatment, and certified him to the superior court for prosecution as an adult.
Both defendants pleaded not guilty to the charges in the amended information. Trial was by jury. On Count I, the jury found defendants guilty of robbery in the first degree; it found the bodily injury allegation true as to defendant Rising Sun, but not as to defendant Black Cloud. On Count II, the jury found defendant Rising Sun guilty, but found defendant Black Cloud not guilty. Both defendants were found guilty on Count III; the bodily injury allegation was found to be true as to defendant Rising Sun, but not as to defendant Black Cloud.
The trial court dismissed Count III in the interest of justice, after denying defendants' motions for a new trial. Probation was denied for both defendants. Defendant Rising Sun was sentenced to state prison for the term prescribed by law. Defendant Black Cloud was committed to the California Youth Authority for the term prescribed by law.
Defendants appeal from the judgments of conviction.
On October 8, 1974, the victim, Herell Wood, a forty-nine year old unemployed laborer, was living alone in a cabin on Box Canyon Road in the Santa Susanna Mountains in Ventura County. He testified at the trial that on that date he had received two unemployment compensation checks and had gone to a nearby town with a neighbor to deposit the checks in the bank and buy groceries and beer. Mr. Wood spent much of the day drinking beer. But by 7:30 p.m., he had returned to his cabin; while he was cooking his dinner, drinking beer and listening to his radio, he heard a knock on his front door.
Wood testified that when he opened the door he found the two defendants outside, with defendant Black Cloud carrying a gaff hook. The two defendants pushed their way into the cabin and defendant Rising Sun displayed a knife which he had removed from a scabbard attached to his belt. Defendants asked Wood if a person named Joe Soto was on the premises; Mr. Wood replied that he was not there, and that defendants knew that. Joe Soto was a former tenant who had lived in the cabin for a time.
Defendant Rising Sun asked for a beer; Mr. Wood said 'no' and was pushed down on his bed by defendant Rising Sun. Defendant Rising Sun then went to Mr. Wood's refrigerator, found some cans of beer, tossed one to Mr. Wood, one to defendant Black Cloud, and took one for himself. Defendant Rising Sun stated, according to Wood, that Wood should not lie to Indians, and that they were all going to drink together. Defendant Rising Sun then hit Wood on the forehead with the end of his knife.
For the next hour defendants sat and talked. Every so often defendant Rising Sun would hit Wood and, on one occasion, he pressed his knife into Wood's leg. Defendant Black Cloud, according to Wood, attempted to intervene. Defendant Rising Sun also forced Wood to eat some hot peppers and struck lighted matches near his face.
Defendant Rising Sun took pennies from Wood's piggy bank, removed Wood's wristwatch from his arm, and took his wallet which contained several dollars. Defendant Rising Sun then began to load in a sack the groceries Wood had purchased earlier in the day, and put two cans of tuna in his jacket. Defendants stated to Mr. Wood that he would be harmed further if he did not obtain fifty dollars for them. Defendant Black Cloud, who had been sitting watching the proceedings, then hit Wood on the head with his hook and also held a lighted cigarette to his check.
A neighbor of Mr. Wood's, Mr. O'Driscoll, who lived nearby, had arrived home about 7:30 p.m., and had noticed unusually loud sounds of a radio emanating from the Wood cabin. O'Driscoll also heard loud voices, and recognized one as that of Wood. O'Driscoll called the Ventura County Sheriff's Department to determine whether they had jurisdiction in the Box Canyon area; he found out that they did, but did not tell them anything else. Mr. O'Driscoll heard Wood shout, 'Don't hit me anymore.' O'Driscoll again called the sheriff, and this time asked them to investigate. Sergeant Galitz and Deputies Cooney and Jackson responded to the call.
Galitz and Cooney testified at the trial that as they approached the Wood cabin, they heard defendants threatening Wood concerning fifty dollars. They also heard blows being struck, announced their presence and kicked in the front door, which was locked. According to Wood, defendants fled into a closet upon hearing the officers outside. They were taken into custody and their weapons were found in the closet by the deputies after their arrest.
Herell Wood was transported to a hospital, where he stayed for two days for treatment of a broken nose and other injuries inflicted by defendants.
The defense introduced evidence that defendant Rising Sun, aged twenty-four years, and defendant Black Cloud, aged seventeen years, were American Indians who were living at an American Indian Movement camp located near the Wood Cabin; that they had spent the day drinking wine and beer and smoking marijuana. Defendant Rising Sun's blood alcohol level, determined after his arrest, was .14 percent. After their arrest, the defendants were advised by Sergeant McCoy of their rights with respect to custodial interrogation, I.e., their Miranda rights. (See Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625.) Defendants indicated they would like to speak to an attorney, but Sergeant McCoy continued to interrogate the defendants.
In response to this interrogation, defendants told McCoy that they had met the victim, Wood, bleeding about the face, while they were on their way down the canyon and that he had invited them into his cabin for a beer. At the trial, defendants testified in their defense and admitted visiting Wood, but denied that they had formed any intent of robbing or beating him before entering his cabin. Their account of the events on the premises included admissions of striking Wood and taking money. Defendants also testified that Wood had offered money and food for the children in residence at the Indian camp, who were not getting enough to eat.
After defendants had testified, a hearing was held outside the presence of the jury to determine whether their statements to McCoy, made after Miranda warnings had been given, were voluntary and could be used for impeachment. There is no dispute regarding the intention of the interrogating officer, McCoy. He testified:
At the conclusion of the hearing, the trial judge ruled that the statements were given without coercion and permitted their introduction into evidence to impeach the testimony of the two defendants.
Prior to the decision of the California Supreme Court in People v. Disbrow (1976) Cal., 127 Cal.Rptr. 360, 545 P.2d 272, Miranda-defective statements of a criminal defendant were held admissible as prior inconsistent statements to impeach such defendant as a witness even though such statements were not admissible to prove the truth of the matters stated in such statements because of their being obtained in violation of Miranda. The authorization for impeachment admissibility was established by the United States Supreme Court in Harris v. New York (1971) 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 and followed by the California Supreme Court in (People v. Nudd (1974) 12 Cal.3d 204, 115 Cal.Rptr. 372, 524 P.2d 844.)
In Disbrow, the California Supreme Court overruled Nudd and held that California decisional law would no longer follow Harris. The Disbrow court stated that the prosecution is precluded from using any extra-judicial statement of a defendant, whether inculpatory or exculpatory in nature, either as affirmative evidence or for purposes of impeachment, if obtained during custodial interrogation in violation of Miranda.
The Disbrow court rejects Harris on...
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