People v. Rosoto

• Court: California Supreme Court
• Writing for the Court: McCOMB; GIBSON
• Citation: People v. Rosoto, 58 Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867 (Cal. 1962)
• Decision Date: 02 August 1962
• Docket Number: Cr. 6862
• Parties: , 373 P.2d 867 The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph ROSOTO, John Frank Vlahovich and Donald Glen Franklin, Defendants and Appellants.

Page 779

23 Cal.Rptr. 779

58 Cal.2d 304, 373 P.2d 867

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph ROSOTO, John Frank Vlahovich and Donald Glen Franklin, Defendants and Appellants.

Cr. 6862.

Supreme Court of California.

Aug. 2, 1962.

Rehearing Denied Aug. 29, 1962.

A. L. Wirin, Paul M. Posner, Los Angeles, Samuel Dreizen and Robert L. Corfman, Santa Ana, under appointment by the Supreme Court, and Rice & Rice, David Rice and Samuel K. Rice, Hawthorne, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Justice.

These are automatic appeals from judgments of guilty of murder in the first degree setting the penalty at death.

On March 9, 1957, shortly after it was closed at 2 a. m., the bar of the South Seas Restaurant in Anaheim, California, was robbed by armed bandits. Defendant Rosoto (hereinafter referred to as 'Rosoto'), Michael Rosoto (Rosoto's half-brother, hereinafter referred to as 'Michael'), Thomas Wearen Jenkyn and Warren Bruce Larson were involved in the robbery. Michael and Jenkyn wore silk-stocking masks, while Rosoto wore a blue-black yachting cap. Larson was in the bar pretending to be drunk and let the others in. Louis Suboter helped plan the robbery.

Mr. Leslie Simpson, the owner of the bar; Fern Vanatta, a guest (who later became Mrs. Simpson); and Howe, Welch, and Allen, employees, were robbed, herded into another room, and locked up, after which the cash registers were rifled and the telephone ripped from the wall.

Jenkyn was apprehended and questioned about a series of other robberies, and at the time implicated Michael and Rosoto in the South Seas robbery. Rosoto was later charged with the armed robbery of Simpson, Howe and Allen at the South Seas bar, and his trial was set for April 20, 1959.

February 7, 1959, shortly after 3 a. m., Leslie Simpson was shot and killed as he returned home from the South Seas bar with his wife, who was seriously injured. According to the testimony of Mrs. Simpson, the killing was accomplished by a tall, thin man who wore a loose jacket, carried a big gun, and came running from the north side of their home after they had parked their car preparatory to going into the house. Mr. Simpson was shot through the chest; Mrs. Simpson's left arm was shot off at the wrist and her right arm was badly wounded.

Rosoto was acquitted of the armed robbery charges at his trial on April 20, 1959.

In the present proceeding Rosoto was found guilty of (1) murder in the first degree for killing Leslie Simpson, (2) conspiring with Michael, Suboter, Jenkyn and Larson to commit burglary and robbery of the South Seas bar in Anaheim, California, on March 9, 1957, (3) burglary of the South Seas bar, (4) kidnaping with intent to commit robbery (two counts), (5) perjury, and (6) conspiracy to obstruct and pervert justice by delaying, impeding and avoiding criminal proceedings instituted against him for the robbery; defendant John Frank Vlahovich was found guilty of (1) murder in the first degree for killing Leslie Simpson, (2) perjury, and (3) conspiracy to obstruct justice; and defendant Donald Glen Franklin was found guilty of (1) murder in the first degree for killing Leslie Simpson and (2) conspiracy to obstruct justice.

Questions: First. Was there substantial evidence to establish the guilt of each defendant on the charges of which he was found guilty?

Yes. In a criminal prosecution the weight of the evidence is for the jury to determine in the first instance; and if the circumstances reasonably justify its verdict, this court must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

Applying the foregoing rule to the facts in the present case, the record discloses as follows:

Rosoto participated in the South Seas bar robbery. Both Mrs. Simpson and Mr. Howe testified he was the unmasked bandit. The testimony of Mr. Simpson, which was read into evidence, also identified him as such. In addition, Larson, Suboter, Jenkyn and Michael testified that he had participated; and in a telephone conversation with Michael on March 4, 1960, Rosoto admitted his participation.

On February 6, 1959, Rosoto bought a plane ticket for Tacoma, Washington, departing on a plane which left Los Angeles at 12:30 a. m. February 7, 1959. The murder of Mr. Simpson and the mutilation of Mrs. Simpson occurred shortly after & a. m., while Rosoto apparently was airborne.

Michael was married in Seattle on february 7, 1959, at 6:30 p. m. There was a reception afterward in the Empire Way Community Club. Rosoto, however, did not attend the wedding.

A few days later Rosoto returned to California, and on April 20, 1959, was acquitted on the charges of robbing Simpson, Howe and Allen at the South Seas bar. At the trial Rosoto and Vlahovich testified that they were together the entire evening of March 8, 1957, and early morning of March 9, 1957; that from about midnight until 2 a. m. they were at the California Hotel; and that immediately thereafter they went to dinner at a home in Highland Park, remaining until some time after 4:30 a. m.

A few weeks after the trial Rosoto returned to Tacoma accompanied by Vlahovich. The day after their arrival they talked with Michael at the plant where he was working. That night they went to dinner with Michael and his wife at a restaurant.

The next evening, according to Michael's testimony, while he and defendants were eating dinner at the Roma Cafe, Vlahovich laughed and joked with Franklin about how 'this guy got killed' and stated that that was the way he was going to do things from then on. Vlahovich also indicated he was the driver of the murder car and said he had slumped down to make it seem as if he were Michael.

Michael further testified that Franklin said murder is 'the easiest thing in the world to get away with; you can fly from one town to another, do what you have to do and get back.'

He also testified that Rosoto made the following statements: 'We had them people taken care of real good.' 'There was only four people that knew about it. And anybody that done any talking, we would know who it was.' 'That's the way we are going to do things from now on. Anybody gets in our way, that's it.'

According to Michael's testimony, Rosoto had called him during April 1959 to collect witnesses. Michael then went to Captain Rouse, of the Seattle Police Department, again contacting Captain Rouse in May before and after Rosoto and Vlahovich returned to Tacoma.

Captain Rouse testified that Michael told him on the evening of May 13, 1959, that Rosoto and Vlahovich had just admitted to him at the Roma Cafe that they had been responsible for the death of Mr. Simpson.

On February 6, 1960, in a conversation with Michael at the Skyway Motel Rosoto said, regarding the Simpson murder: 'They'll probably indict me by the Grand Jury * * * murder is never over with.'

In addition, in his telephone conversation with Michael on March 4, 1960, Rosoto said: 'That's the way you go when you play the game. You don't play it for fun, you play for keeps * * *. No, that's just the start of it. I'm going to have to take care of about a half a dozen more one of these days.' When asked if he had said this, he replied, 'I was just going along with the gag.' Then he admitted, 'I could have, sir.' Finally, he said, 'I just don't know if I said it in those words.'

During the course of the telephone conversation Rosoto also said, when Michael cautioned him to watch himself, 'I do, but I've got my boys to do my work.'

Michael further testified that at the wedding reception Franklin said that he had just returned from California and that Rosoto was trying to contact him (Michael).

He also said that during the first week in March 1960 Franklin told him that on the evening of February 6, 1959, he had flown to San Francisco, where Ralph Johnson boarded the plane; that they proceeded to Los Angeles and were met by Vlahovich; that they had a few drinks and then they all went out to 'this guy's' house and waited a couple of hours for him to come home; and that Johnson then killed the man.

Barbara Hale testified that at Michael's wedding reception she heard Franklin tell three men that he had just flown to Seattle from California, had 'taken care of it for Joe,' and they should watch the newspapers and they would see it.

She further testified that in May or June 1959 she saw Franklin at a tavern in Seattle and that he started bragging about things he had done and 'gotten away with.' He first mentioned robbery and then said that when he was in California in February, he had shot and killed a man and shot the arms off a woman. He also told her he had done it for Rosoto, who had paid him to do it.

In a conversation with Charles Harrelson, another inmate of the jail, while awaiting trial, Vlahovich offered to kill a man for $35,000. In assuring the inmate he was the man for the job, he said: 'Well, there is this one. There have been several others and I haven't missed yet.'

On September 11, 1957, Rosoto was injured in an automobile accident in Tacoma. He was driving the car of his attorney (Mr. Ursich) and was struck by a truck driven by one Hickman and was injured, spending 64 days thereafter in a hospital. Hickman testified that he was paid $500, and promised $5,000, to strike the car from the rear and that Rosoto and Vlahovich conducted the negotiations. Similar testimony was given by Michael. In the conversation with Michael at the Skyway Motel, Rosoto said that he had beaten his case by stalling.

This evidence clearly supports the inference that the accident had been arranged to prevent Rosoto's extradition to California. His attorney, now deceased, represented at the extradition hearing that Rosoto was not well...