People v. Terry

• Citation: 57 Cal.2d 538,21 Cal.Rptr. 185,370 P.2d 985
• Decision Date: 19 April 1962
• Docket Number: Cr. 6828
• Parties: , 370 P.2d 985 The PEOPLE, Plaintiff and Respondent, v. Doyle Alva TERRY, Defendant and Appellant.
• Court: United States State Supreme Court (California)

Page 185

21 Cal.Rptr. 185

57 Cal.2d 538, 370 P.2d 985

The PEOPLE, Plaintiff and Respondent, v. Doyle Alva TERRY, Defendant and Appellant.

Cr. 6828.

Supreme Court of California, In Bank.

April 19, 1962.

Rehearing Denied May 16, 1962.

Frank Duncan and Katz & Duncan, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.

DOOLING, Justice.

Defendants Doyle Alva Terry and Ross Edwin Wilson, Jr., were charged in an information with one count of conspiracy to commit robbery (10 overt acts alleged), five counts of robbery, and the final count of murder of Vernon J. Owings. Prior convictions of felony (moral offenses) were also alleged against each defendant: Terry, violations of Penal Code sections 288 and 286; Wilson, violation of Penal Code section 288. Defendants were arraigned; their motions to quash (Pen.Code, § 858) and to dismiss (Pen.Code, § 995) were denied. Defendants thereupon entered pleas of not guilty to each count and denied the prior convictions. Terry then moved for the right to appear in propria persona and with counsel; and his counsel (Frunk Duncan) renewed the motion to quash on the ground that Terry was denied his right to aid of counsel at the time of arraignment. The latter motion was heard on conflicting affidavits (Terry's affidavit as against those of the deputy public defender and two Long Beach police officers). Both motions were denied. When the case was called for trial, each defendant admitted the prior convictions. Midway in the trial and just before the People concluded its case, defendant Wilson withdrew his plea of not guilty to counts one and four (conspiracy to rob and robbery) and entered pleas of guilty thereto; the remaining counts were dismissed as to him and he filed an application for probation. Wilson thereupon testified for the People.

A verdict of guilty was returned against Terry on each count, with the jury finding the crimes of robbery and murder to be first degree. Trial was then had on the issue of penalty on the murder count and the punishment was fixed at death. Terry's motions for new trial, in arrest of judgment and for reduction of the punishment to life imprisonment were denied. Sentence as prescribed by law was pronounced on the first six counts, to run consecutively, and the death sentence was imposed for the murder. The appeal is automatic. (Pen. Code, § 1239.)

On June 24, 1960, about 6:00 p. m. Officers Brizendine and Owings were driving in a police car on patrol duty in the area of the Terminal Island Naval Station. They noticed two cars, one a black 1950 Cadillac and the other a maroon 1950 Chrysler, each with a single occupant, the driver, move out of a parking lot and turn onto Seaside Boulevard. About 10 minutes later the two officers proceeded down Seaside Boulevard and saw the same two cars standing on the side of the road. A Ford was parked in front of the Cadillac. Observing that the hood on the Cadillac was raised and that Wilson was looking into the engine, the two officers stopped to give assistance. Terry was in the Chrysler, which was parked directly behind the Cadillac. The officers stopped the police car to the side of the Chrysler; Brizendine walked forward to the Cadillac and Owings walked to the rear of the police car toward the Chrysler. Brizendine asked Wilson what was the matter and Wilson replied, 'I don't know. It just quit running.' Brizendine responded that it was running a little while ago. At that moment a shot was heard, apparently coming from the rear of the police car and the rear of the Chrysler. Brizendine turned and saw Owings fall to the ground as Terry stoof firing a gun. Terry then started shooting at Brizendine saw Wilson move out from leg. Brizendine saw Wilson move out from the Cadillac and began firing toward him, hitting Wilson in the finds. Meanwhile Terry advanced of shots between the two and an exchange of shots between the two and Brizendine retreated behind the Ford. Terry stooped to fire under the Ford at Brizendine but he ran out of ammunition. Terry then ran to the Chrysler, got into the driver's seat and with Wilson beside him, backed out the car, driving over Owings' fallen body, and sped down Seaside Boulevard.

Officer Brizendine went to Officer Owings' body lying in a pool of blood and saw that Owings' gun was still snapped in the holster. Brizendine then went to his police car and broadcast a description of the Chrysler over the radio. A few minutes later Brizendine saw the Chrysler returning down Seaside Boulevard at a high rate of speed. Apparently the pontoon bridge at the end of the road was raised and egress from the island was blocked, so Terry had swerved around backtracking and met a police car that had been alerted by Brizendine's broadcast. There was an exchange of gunfire as the Chrysler sped past the police car. Meanwhile Wilson jumped out of the moving Chrysler and Terry continued down the road alone. A few minutes later the pursuing police came upon the abandoned Chrysler. After a brief search they found Terry on the road and took him into custody. In the meantime Wilson had hitch hiked to the hospital, where he was taken into custody.

In the abandoned Chrysler there was found a .44 Magnum revolver with six spent shells in the Cylinder. Owings had died as the result of a gunshot wound in the head, and an expert criminologist at the trial identified the Magnum revolver as firing the death bullet. Further search of the Chrysler revealed radio equipment over which the Los Angeles Police Department and F.B.I. calls could be heard; and two tin helmets were found in the car's trunk. At the time of arrest, identification papers were found on Terry indicating that he was then going by the name of Warren Durfy and on Wilson indicating that he was then going by the name of Michael Dupree.

It was the prosecution's theory that Terry shot Owings in the process of avoiding arrest because of implication in a series of robberies in the state committed over a period of some three years. Accordingly, the prosecution presented evidence establishing a conspiracy to commit robberies existing between defendants Terry and Wilson as well as with as with certain other persons Richard Vashon, Jack Corser and Chuck Stanford a 5-man gang operating mainly in the Los Angeles-Hollywood area. Terry was supposedly the leader; Vashon, Corser and Stanford were in court during the trial for purposes of identification with various robberies.

In March 1958 Terry and Vashon occupied an apartment together in Hollywood. On June 17, 1958, Stanley soboroff, an assistant manager for Thrifty Drugstore on Hollywood Boulevard, was carrying a bag of money on his way to the bank to make a deposit. It was about 2:30 p. m. A man holding a gun accosted Soboroff on the street and told him to 'Drop the bag.' Soboroff handed the bag to the gunman, who then jumped into a waiting car (a 1957 black Buick) and the two robbers sped away. Vashon fitted the general description of the gunman. Passers-by noted the license on the Buick, which the police found abandoned in the Hollywood hills some six weeks later. About four weeks before the Thrifty Drugstore robbery a black 1957 Buick had been reported stolen from a parking lot, though with a different license. The license plate observed on the Buick at the time of the robbery was identified as belonging to a car in a U-Drive garage, which plate was noted as missing a few days before the robbery. This apparently was the general modus operandi of the robberies: use of a stolen car, with change of license plates to thwart detection. This Thrifty Drugstore robbery was neither one of the robberies charged nor one of the overt acts stood firing a gun. Terry then started shooting at Brizendine, hitting him in the of the ensuing series of alleged robberies and held relevant to Terry's motive hitting Wilson in the hands. Meanwhile Terry advanced on Brizendine; there was companion officer on June 24, 1960.

In line with this theory the prosecution introduced evidence of robberies committed in 1959 which were neither overt acts alleged in support of the conspiracy count nor robberies charged in the robbery counts but which followed the same general pattern wherein Terry was identified as the driver in the waiting car and Vashon was identified as the holdup man accosting his victims with a gun: March, 1959, a noon robbery of the Bank of America in Beverly Hills; August 4, 1959, the assistant manager of another Thrifty Drugstore in the Westchester area, en route to make a bank deposit; August 14, 1959, a Brink's guard picking up money in the afternoon at the Emporium store in Stonestown, San Francisco (the only robbery outside of Southern California), with shooting and wounding of the guard during the holdup; October 23, 1959, a manager of a Safeway store in Reseda on his return from the bank. On January 8, 1960, an employee of an E1 Monte market was robbed on his return from the bank; Vashon was identified as the driver who also wielded the gun, and Corser was identified as the passenger in the holdup car.

Then follow the robberies charged in the five robbery counts and also alleged among the overt acts in support of the conspiracy count: (1) January 22, 1960, James Deglas, a restaurant owner in Reseda, was robbed of some $225 which he had just withdrawn from the bank; Corser was identified as the gunman and Terry as the driver of the waiting car; the robbers were wearing false mustaches and beards. (2) March 4, 1960, Fred Rambaud, an employee of a Covina school, was robbed of some money bags on his way to make a bank deposit; the gunman wore a false mustache and goatee. (3) March 21, 1960, Morris Danielson, manager of the Sav-On Drugstore in Granada Hills, was robbed of a bag of currency and checks he was carrying to the bank for deposit; Wilson was identified as the...