People v. Rowland
| Decision Date | 07 June 1968 |
| Docket Number | Cr. 13762 |
| Citation | 262 Cal.App.2d 790,69 Cal.Rptr. 269 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Arnold Franklin ROWLAND, Defendant and Appellant. |
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.
*
Defendant Arnold Franklin Rowland was convicted of an assault with a deadly weapon (Pen.Code § 245) by a court, sitting without a jury. Sentenced to state prison, he appeals from the judgment of conviction.
The crux of the defendant's contentions of error is that by erroneous exclusion of relevant evidence, the trial court thwarted his counsel's attempt to put on an adequate defense. The theory of the defense was that defendant was warding off a homosexual advance by the alleged victim and prosecution witness, Leon Fricke, and that the gun was accidentally discharged by Fricke's grabbing it. The line of questioning stopped by the trial court consisted of attempts to elicit testimony from a defense witness that Fricke was an aggressive homosexual as relevant to a claim of acting in self-defense.
Leon Fricke, the prosecuting witness, testified to the following: He lived in Altadena and worked as a barber at People's Barber Shop, located at 2279 North Lake in Altadena. He was married and the father of three children. On the evening in question, August 23, 1966, he had not been drinking. Shortly after midnight, he drove down to a pizza parlor located next door to and approximately 15 feet away from the Honey Bunny nightclub on Woodbury Road in Altadena. He went for the purpose of getting some pizza. He parked his car in a gas station located across the street from the pizza parlor. He crossed the street and found the pizza parlor closed.
At the time, four men were standing in front of the Honey Bunny club. They approached him. Defendant Rowland asked which way Fricke was going. Fricke replied, 'Toward Fair Oaks.' Rowland then asked for a ride. After walking across the street and getting into Fricke's car, the two drove off towards Fair Oaks.
When they reached the corner of Fair Oaks and Woodbury, Fricke told Rowland that that was as far as he was going, that he was going home. Rowland wanted Fricke to take him downtown towards Washington Boulevard. When Fricke refused, Rowland became upset, pulled a gun from his belt, and said, 'Now, you are going to take me downtown.' Fricke refused and pulled his car into a service station located on the northeast corner of Woodbury and Fair Oaks. '(T)hat is when he (defendant) shot me, in front of the service station.' A bullet passed through Fricke's right calf. At the time of the shooting, defendant told Fricke, 'I told you so.' 'It was because I (Fricke) didn't take him downtown.' Fricke was not armed. He did not hit the defendant. He denied upon cross-examination that he had ever propositioned Rowland during the ride or that he had put his hand on Rowland's leg.
According to Fricke, defendant jumped out of the car following the shooting, ran about 50 feet, and fired another shot. This shot did not hit Fricke. The defendant ran easterly down Woodbury. Fricke identified a gun as looking like the weapon with which he had been shot.
By stipulation of counsel, a transcript of the testimony of an absent witness, Raymond Johnson, given at the preliminary hearing was received into evidence. 1 Johnson had testified that he was employed at Bill's Self-Service gasoline station at the corner of Woodbury and Fair Oaks around midnight on August 23, 1966. He first saw Fricke in a car. Then he saw another person leave the vehicle and 'head' easterly. He heard a loud explosion which he assumed to be a firecracker. He did not hear any such explosion while the two persons were still in the vehicle. He was not sure of the identity of the person who exited from the car, but the defendant appeared similar to such person. He saw the defendant Rowland in a police car within 10 to 15 minutes after the incident.
Donn Berrier was called as the People's next witness and he testified: He was on duty the night of August 23, 1966 as a deputy sheriff of Los Angeles County. He first noted Fricke, when Fricke whistled and waved to the patrol car in which Berrier was riding. Fricke was at Bill's service station, 2186 North Fair Oaks. He observed that Fricke had a 'hole' about 4 inches below his right knee, which was bleeding, and another 'hole' above his ankle bone on the inside portion of the leg. He called for another sheriff's unit for assistance, obtained a description of his assailant from Fricke, and then went in search of the person described.
About 12:20 or 12:30 a.m., he spotted the defendant walking south on Summit Avenue. Defendant then appeared to observe Berrier and his partner officer, started running, and later turned into 2121 North Summit Avenue and ran up the driveway. Shortly thereafter, defendant was found hiding in the ivy on the north side of the premises. The gun introduced into evidence was found in an adjacent vacant lot about 20 feet north of where defendant was hiding. Berrier was able to see live ammunition and an empty shell which had been fired in the gun. The gun and 'bullets' were turned over to the detectives assigned to the case.
After Berrier had advised defendant of his constitutional rights, defendant denied the shooting. Berrier was unable to see any signs of injury on the defendant.
Defendant testified: He had just come out from the Honey Bunny nightclub and was waiting for a ride. He wanted to get down to Washington and Fair Oaks. Fricke asked him if he wanted a ride. Defendant replied, 'yes,' indicating that he intended going down Fair Oaks towards Washington Boulevard.
As they drove down Woodbury and approached Fair Oaks, Fricke was driving in We had completely stopped * * * He Fricke to get over to the center lane to turn down Fair Oaks. Fricke pinched the inside of defendant's thigh about halfway between the knee and the hip, and then said, "Oh, let's ride a little bit,' just like that, and I didn't say anything to him. When we got to the lights, I said, just like that. We had completely stopped * * * He played like he didn't hear me, so I pulled the gun out, and the only reason that he got shot is because he grabbed the gun. He grabbed it with one hand and he was driving with the other hand, and he went up in the gas station and the gun went off. He didn't know he was shot.'
The defendant did not intend to shoot Fricke or to harm him. Asked, 'What was your intention when you pulled the gun?', defendant replied,
Defendant got out of the car and started running. He stumbled and the gun went off accidentally again. He didn't know that the car following him was a police car, but he was running, threw the gun away, and went behind some bushes to hide. He admitted on cross-examination that he had not been truthful with the officers because they had not advised him of his right to remain silent, 'almost snapped (his) head out of the car,' grabbed him by the hair of his head, and were 'trying to trick him.'
The defense then called a Carl Petway as a witness. He testified that he was the manager of the Honey Bunny nightclub on East Woodbury in Altadena and vaguely recalled having seen Fricke once or twice in the club, remembering just his face. Then the following transpired:
'A. At one time, yes, I did.
'Q. What was his name?
'A. Bruce Banks.
'Q. Were you there when it was necessary for Mr. Banks to evict Mr. Fricke from your bar?
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