People v. Smith
| Decision Date | 11 December 1963 |
| Docket Number | Cr. 8588 |
| Citation | 223 Cal.App.2d 225,35 Cal.Rptr. 719 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Billy Romain SMITH, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Robert E. Krause, Long Beach, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.
Defendant was charged by information in four counts, with (1) kidnapping for the purpose of robbery, subjecting the victim to bodily harm while armed with a deadly weapon; (2) armed robbery; (3) attempted kidnapping, while armed with a deadly weapon; and (4) kidnapping, while armed with a deadly weapon. Defendant pleaded not guilty. At the close of the evidence count 2 was dismissed. Verdicts were returned finding defendant guilty as charged in counts 1, 3 and 4. Defendant waived jury trial on the issue of penalty and moved for a new trial which was denied. Probation was denied. Defendant was sentenced to the state prison on each offense for the terms prescribed by law, the sentences to run concurrently. The term for the violation of count 1 is for life without possibility of parole. Defendant appeals from the judgment of conviction and from the orders denying a new trial and probation.
On October 7, 1961, a married woman, the mother of three children, had been shopping at a market on Western Avenue at about 9:15 in the evening. While she was leaving the parking lot preparatory to returning home defendant approached her, opened the back door of her car, entered the car and pointing a gun at her directed her to drive to an area where houses were under construction. He ordered her to enter one of the unfinished houses, tied her hands behind her back, taped her mouth and disrobed her. He performed an act of sexual perversion upon her and then proceeded to rape her. Afterwards he took a wallet from her coat and removed $13 in bills; he admonished her not to scream and drove away in her car. The victim described the defendant as dressed in a leather jacket, wearing dark glasses and leather gloves. He removed his glasses when he raped her and she testified she could recognize his features. The victim stated that defendant had a voice she would never forget.
A second woman testified that on Friday night, November 10, 1961, she was washing her clothes at a laundromat at 228th Street and Western at about 11 p. m. She was alone. Suddenly a person appeared at the rear door and ordered her to come outside, pointing a revolver at her. She refused. The person left and returned later repeating his direction that she come outside. She still refused. She testified she could not see the face of this person because he wore large dark glasses shaped somewhat like goggles, that he was light-skinned, about 25 years of age and around 155 pounds in weight. Someone drove up to the laundromat and he left. She testified further that the height, weight and general appearance of the person who had menaced her was the same as the height, weight and general appearance of defendant. She identified defendant's gun in evidence as similar to the gun used to menace her. The arresting officers brought defendant to her house on the night of his arrest and instructed him to speak the words, 'Come here, I want you to take me some place.' The intended victim testified the voice sounded familiar to her and when she heard it she trembled.
On the night of December 30, 1961, a third woman was washing her clothes in the same laundromat about midnight. A man was also using the laundry, and defendant appeared and asked him for help in getting his car started. Both men left the laundry and within a few minutes defendant reapeared at the back door of the laundromat with a gun in his hand and ordered the woman to come with him. The woman testified the man was wearing gloves and a cap but was not wearing glasses. She identified defendant as being the man. She said defendant led her to a shack in a clump of trees about a block away and told her to take off her clothes. After commencing to undress she told him that she was menstruating. Defendant verified this by examining her and then left. The victim saw defendant drive away in a Ford automobile, either a '52, '53 or '54 model. A week later the arresting officers brought defendant to the victim's home and she testified she had no uncertainty in identifying him. She said his gun in evidence was similar to the gun used by defendant that night. The other man who had been in the laundromat at the time testified he could not identify the man who asked for help with his car except that he was a shorter man than himself, less than 5 feet, 8 inches tall, fair in complexion and probably under 30 years of age.
The arresting officer described the manner in which defendant was arrested by a stakeout posted on January 5 and 6, 1962. At about 1 a. m., watching from a trailer, a Ford car was observed passing and repassing the laundromat. The police stopped defendant who was driving the car, a 1954 Ford sedan. A loaded gun was found over the glove compartment. A pair of gloves and sun glasses were over the sun visor on the driver's side. A leather thong lay within the round center of a roll of two-inch adhesive tape on the front seat.
The officers substantiated the testimony of the victims concerning confrontation and identification.
Defendant was asked by the officers if the two women involved in counts 3 and 4 were the only women he had bothered and defendant stated they were, that he hadn't done them any harm, and that the gun was not loaded.
An alibi defense was offered by defendant who claimed he was visiting with his relatives on the evenings the crimes were committed. He denied admitting to the officers that he had bothered two of the women. He also denied commission of the offenses. He stated he was a cook and that he bought the adhesive tape for cuts on his fingers because he frequently cut them in his work; he bought the two-inch width because the store had no narrower width in stock.
The principal grounds for appeal asserted by defendant are assigned errors of the trial court in giving and refusing instructions to the jury.
Defendant asserts that the trial court committed prejudicial error in instructing on the crime of robbery after count 2 (robbery) had been dismissed on motion of the district attorney at the completion of the taking of evidence. The court defined robbery twice, once in its instruction on count 1, kidnapping to commit robbery, 1 and again in separate instructions dealing specifically with the definition of robbery 2 and the degrees of robbery. 3 Having already defined robbery in the instruction dealing with count 1, it was unnecessary for the court to repeat the definition in a separate instruction. However, since the elements of robbery were still pertinent and the issue was before the jury for determination in connection with count 1, the repetition of the instruction was not prejudicial and did not constitute improper or distorted emphasis. (People v. Carter, 56 Cal.2d 549, 563, 15 Cal.Rptr. 645, 364 P.2d 477.) The cases cited by defendant dealing with the giving of instructions which find no support in the record, or as to issues not remaining in the case, are therefore not pertinent. Furthermore, defendant is not in position to complain, having tendered a number of instructions on the same subject, including the two the giving of which he now claims was prejudicial. 4
Defendant contends that kidnapping for the purpose of robbery, robbery and attempted kidnapping are crimes requiring specific intent. (People v. Camodeca, 52 Cal.2d 142, 338 P.2d 903; People v. Chessman, 38 Cal.2d 166, 183, 238 P.2d 1001; People v. Garcia, 169 Cal.App.2d 368, 337 P.2d 100; People v. Sheasbey, 82 Cal.App. 459, 255 P. 836.) Defendant asserts the court gave instructions as to general intent on count 2, robbery, and count 3, attempted kidnapping, and as to specific intent on count 1, kidnapping for purpose of robbery, and count 3, attempted kidnapping.
The court gave three successive instructions on the subject of intent, as follows:
5
'In the case of certain crimes it is necessary that, in addition to the intended act which characterizes the offense, the act must be accompanied by a specific or particular intent without which such a crime may not be committed.
'This [sic] in the crime of kidnapping for the purpose of robbery charged in count one of the information, a necessary element is the existence in the mind of the perpetrator of the specific intent to commit robbery and, unless such intent so exists, that crime is not committed.' 6
'An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.' 7
The specific intent to commit robbery is a necessary element of kidnapping for purpose of robbery. (Pen.Code, § 209.) Therefore, the court properly instructed to this effect as to count 1.
Defendant points out that as to count 3 the...
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People v. Hill
...art. VI, § 13) results where the jury could not have been misled by an unnecessary instruction on general intent (People v. Smith, 223 Cal.App.2d 225, 233, 35 Cal.Rptr. 719); nor is the error prejudicial where the nature of the acts done by the accused preclude belief that they were done wi......
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