People v. Stoltz

• Citation: 196 Cal.App.2d 258,16 Cal.Rptr. 285
• Decision Date: 11 October 1961
• Docket Number: Cr. 3187
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. David Allen STOLTZ, Defendant and Appellant.

Page 285

16 Cal.Rptr. 285

196 Cal.App.2d 258

PEOPLE of the State of California, Plaintiff and Respondent, v. David Allen STOLTZ, Defendant and Appellant.

Cr. 3187.

District Court of Appeal, Third District, California.

Oct. 11, 1961.

Hearing Denied Dec. 6, 1961.

Timothy W. O'Brien, public defender, Ukiah, for appellant.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen. and John F. Foran, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

The District Attorney of Mendocino County filed an information against appellant charging him in Count One with having, on the 24th day of June, 1960, murdered one Peter Dorn. By a second count appellant was charged with robbery, in that on the same date and in the same place he robbed Dorn of a billfold and contents of the value of $1. By a third count appellant was charged with grand theft, in that on the same date and in the same place he had stolen Dorn's automobile.

After a trial, a jury returned verdicts as follows: Guilty of murder in the second degree; guilty of robbery in the second degree; guilty of grand theft. By the court's judgment appellant was adjudged guilty of second degree murder and guilty of grand theft. No judgment was pronounced on the robbery verdict. This appeal followed.

On June 24, 1960, Dorn was killed in Mendocino County. He was last seen alive in Santa Rosa about 4 p. m., at which time he was driving a Jaguar car and was headed in a northerly direction. He stated to a friend that he was going to his home in Kelseyville, Lake County. About 6:50 p. m. persons camped along the Russian River just south of Hopland heard someone yelling. On investigation they discovered Dorn, unconscious, on the bank of the Russian River, his body partially concealed under a fallen tree. Dorn was moaning and thrashing about. The sheriff's office at Ukiah was notified and about 7 p. m. appellant and one James Rose were intercepted there while driving Dorn's car. Asked by the intercepting officer for his driver's license, appellant handed over Dorn's license and social security card. He told the officer the car belonged to his uncle in Ukiah whom he had taken to Hopland to work. Asked for the address of his uncle he claimed he did not know, but gave the man's name as Fravel. The officer further pursued the matter of appellant's identity and eventually was given appellant's own driver's license, issued by the State of Washington. Questioned about his having the license of Dorn, appellant said he had met Dorn the night before in Ukiah and Dorn had given him the license for use in California so he would not have to get a California license of his own. He handed over two wallets. One of these contained the identification of Dorn, the other that of the appellant. Appellant and Rose were placed under arrest and at the police station appellant gave a statement which in summary was as follows: He and Rose had left Washington on June 19th and came to California in search of work. They went as far as San Jose and found no employment, then began hitchhiking to Los Angeles, getting as far as King City, where they turned back, intending to return to Washington. They hitchhiked north on Highway 101 until they had crossed the Golden Gate Bridge and were left off at a cafe. At this point they were picked up by Dorn and the three started north. They stopped at a point on the Russian River where Dorn produced a bottle of whisky, from which the three drank. They went further to another spot along the river and drank more whisky. Dorn told them he had been living with a 'queer' who had bought a car for him. Dorn offered to commit acts of perversion on appellant and Rose. Appellant picked up a 4 X 4 about 2 feet long which was on the ground and while Dorn was lying 'kind of sideways' appellant hit him on the head with the timber. Dorn turned around, looking angered, so appellant hit him again, then dropped the club and started to run toward the car. Rose picked up the club and hit Dorn on the head again. Dorn was trying to get up when Rose hit him, but after that blow he stayed down. He was breathing and making noise with his mouth. Rose took his wallet and his car keys out of his pocket. There was no money in the wallet as Dorn had given them his only dollar prior to this happening. The two men returned to the car and started north on Highway 101 until they were stopped by the 'California Highway Patrol.'

Sometime after midnight on June 25th, an officer went to the scene of the crime where he found a 4 X 4 piece of wood which he brought to the county jail and showed to appellant. On being asked if that was the piece of wood he used to strike Dorn, appellant said it was and then signed his name on the wood with the date. On the day following his arrest, appellant made another statement to the district attorney which conformed substantially to the one given the officer. However, in this second statement appellant said he and Rose had agreed to knock Dorn out and take his car. Appellant was to hit Dorn first if he got the chance. In this second statement appellant also described the incident of striking Dorn in this fashion: That after he had rejected Dorn's advances Dorn turned away and laid down and while he was lying down and facing away from appellant, the latter struck Dorn on the back of the head with the 4 X 4. Dorn turned around and began screaming and moaning, so appellant hit him on the head again. Appellant said he knew the board was a heavy piece of wood and that it 'was big enough to break his head open.' Having struck the second blow, appellant dropped the club and ran up the hill, at which time Rose came to Dorn and struck him twice more on the head with the 4 X 4 and took Dorn's wallet and keys. Appellant and Rose then lifted Dorn and carried him over by a log to hide him.

About 8 p. m. on June 24th Dorn was picked up by a member of the California Highway Patrol and brought to the hospital. He was almost completely unconscious and an examination disclosed that he was suffering from concussion and possibly a fractured skull. Brain surgery was deemed necessary, but before it could be performed Dorn died. He never regained consciousness. At the trial an expert pathologist testified that Dorn's death was caused by intracranial bleeding due to multiple skull fractures which, in his opinion, were caused by a number of blows on the head which could not have been self-inflicted. Analysis of Dorn's blood showed no alcoholic content.

Appellant testified in his own behalf. Rose was called as a defense witness but declined to testify on constitutional grounds. Appellant admitted that the accounts of events he had given in his pretrial statements were substantially correct, but as a witness he denied he had struck Dorn more than once, denied agreeing with Rose to strike Dorn and take his automobile, and he added some detailed testimony as to Dorn's homosexual advances toward him. He claimed that he was frightened by these advances and in fright struck Dorn without intent to kill or to rob, or to take Dorn's car, declaring that the decision to take the car was arrived at after Dorn had been struck down. A psychiatrist and neurologist testified for the defense that in his opinion appellant's act of striking Dorn was performed while in a state of panic or extreme fear. The witness said that panic reaction to a homosexual situation is recognized in the field of psychiatry. Another psychiatrist called in rebuttal took a position opposing that of the defense's expert.

Appellant asserts that his appeal is based on two issues, the first of which he defines as follows: 'The first issue is to determine the effect of all verdicts. Since the verdicts are inconsistent, appellant contends conviction of the lesser crime amounts to a verdict of acquittal of the greater crime. Robbery and murder of the second degree cannot be based upon the same transaction; and therefore, the jury verdict convicting the defendant of robbery in the...