People v. Tewksbury

• Decision Date: 29 January 1976
• Docket Number: Cr. 18499
• Citation: 15 Cal.3d 953,127 Cal.Rptr. 135,544 P.2d 1335
• Court: California Supreme Court
• Parties: , 544 P.2d 1335 The PEOPLE, Plaintiff and Respondent, v. Gilbert TEWKSBURY, Defendant and Appellant.

Page 135

127 Cal.Rptr. 135

15 Cal.3d 953, 544 P.2d 1335

The PEOPLE, Plaintiff and Respondent, v. Gilbert TEWKSBURY, Defendant and Appellant.

Cr. 18499.

Supreme Court of California In Bank.

Jan. 29, 1976.

George H. Rhodes, Woodland Hills, under appointment by the Supreme Court, and Roger S. Hanson, Woodland Hills, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., James H. Kline and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Gilbert Tewksbury was convicted by a jury of first degree murder (Pen.Code, § 187) and two counts of first degree robbery (Pen.Code, § 211). He contends on appeal from the ensuing judgment that his convictions were unlawful in that they are supported only by the uncorroborated testimony of two witnesses who were as a matter of law accomplices. ¹ He contends alternatively that the jury was improperly instructed that he had the burden of proving by a preponderance of the evidence that one of such witnesses was an accomplice. We conclude that neither of the foregoing nor other contentions can be sustained and we affirm the judgment.

In the early morning hours of December 24, 1970, two masked men armed with handguns robbed two employees of the El Torito Restaurant in Encino. The robbery occurred in a parking lot near the restaurant shortly before it closed. During the robbery one of the victims was fatally shot. The surviving victim was not able to identify his assailants.

Defendant's connection with the robberies and murder was established only by the testimony of two witnesses, Mary Pedraza and Sheila Twiford. Defendant lived in the home of Mary and her husband Mike Pedraza at the time of the charged crimes. Sheila Twiford was then defendant's girlfriend. On the day prior to the crimes she was employed as a cocktail waitress at the El Torito Restaurant. She left work around 9 that evening and went to the Pedraza residence to visit defendant. The Pedrazas were not then at home. As she talked to defendant about her job she mentioned how busy the restaurant had been. Defendant asked how much money she thought the restaurant had taken in and when she told him about $8,000 or $10,000 he replied that 'he wanted to rob it.' Defendant telephoned his friend Richard Eribes, told Eribes of his plans and asked him to join them. Defendant told Eribes to bring dark clothing, dark nylons, handkerchiefs, and tape.

Sometime between 10 and 11 p.m. Mary Pedraza had returned home. She was followed shortly thereafter by her husband Mike. Both Pedrazas were under the influence of drugs. It is not clear whether they arrived home before defendant had telephoned Eribes, but in any event Eribes was not present when they arrived. As Mary was busying herself about the house she overheard defendant and Sheila as they conversed but Mary paid no attention to the substance of the conversation. At Sheila's request Mary telephoned the El Torito Restaurant and was informed that the kitchen closed at 12 o'clock.

After Eribes arrived at the Pedraza residence he discussed plans with defendant and Sheila in a back room. The Pedrazas were in a different part of the house and did not participate in the discussion. Sheila used pencil and paper supplied by Mary to draw a diagram of the restaurant. She showed the diagram to defendant, Eribes, and Mary. According to Mary no one seemed to be able to understand the diagram, so she suggested to Sheila that she accompany defendant and Eribes to the restaurant so they might personally observe it. Sheila, however, stated that she did not wish to do so.

Around midnight defendant and Eribes left for the restaurant in Eribes' car. Before leaving they told the others to meet them at a predetermined place near the restaurant in another car. Mary was at first reluctant to go but her husband urged her to join them 'for the ride.' Finally she agreed to go, partly because she wanted to get out of the house and partly because she thought her husband was too intoxicated to drive the second vehicle.

With Sheila giving directions Mary drove to the place where defendant and Sheila had planned to meet. After waiting for 20 to 25 minutes defendant and Eribes approached in Eribes' car. Defendant stated that something had gone wrong, that Eribes had shot someone and that they would have to leave quickly. Defendant then left Eribes' car to join Sheila, forcing the Pedrazas to move to Eribes' car. On the way back to the Pedraza residence defendant related to Sheila what had occurred. He stated that while engaged in tying two restaurant employees outside the restaurant Eribes' gun had accidentally fired and that they fled without receipts from the restaurant. They had, however, taken a total of $480 from the two employees.

The two cars returned to the Pedraza residence where the money was divided. Each of the five parties received $100 except Sheila who received only $80. However, the two Pedrazas each gave $20 to Eribes and Sheila gave her entire $80 to defendant.

,2] Defendant urged two defenses at trial. One was an alibi, and by the other defendant sought to establish that Both Sheila and Mary, the only witnesses who connected defendant with the crimes, were accomplices whose testimony had to be corroborated pursuant to section 1111. ² There is no question that Sheila was an accomplice and no challenge is made to the trial court's ruling to that effect. Sheila was initially charged with the murder and robberies and was held to answer at the preliminary hearing. In exchange for her testimony, however, the prosecutor agreed to allow her to plead guilty to a single charge of second degree robbery. The question of Mary's status as an accomplice is crucial, for if she is an accomplice then her testimony cannot be used to corroborate Sheila's testimony as the required corroboration must come from a source other than another accomplice. There is no other independent source of corroboration in the instant case.

Initially Mary was charged with the murder and robberies and was held to answer following a preliminary hearing. However no further proceedings had been undertaken against her at the time of defendant's trial. She at first asserted her right not to incriminate herself and refused to answer any questions as a witness at defendant's trial. She was thereafter granted immunity but she again refused to answer all but a few background questions for fear of incriminating her husband Mike. (See Evid.Code, § 970.) Although proceedings against Mike had been dismissed and he was thereafter granted immunity, Mary nevertheless remained a very reluctant witness. She was once adjudged in contempt for refusing to testify but the court vacated its ruling when she finally indicated that she would cooperate. Nevertheless her testimony remained less than complete. She testified that she was 'loaded' on 'reds' on the night in question and neither was fully aware of nor remembered what had happened. ³ Each time Mary returned to the stand her memory improved and her testimony became increasingly detailed. Eventually she was able to corroborate Sheila's testimony that defendant was one of the two robbers. She also remembered receiving a share of the stolen money from either defendant or Sheila when they returned to her house after the robbery. Moreover she recanted somewhat her earlier testimony that she did not have knowledge of the intended robbery and that she did not actually realize that a robbery was to take place until Sheila told her about it while waiting in the car.

'] An accomplice is . . . defined as one who is liable to prosecution for the identical offense charged against the defendant . . ..' (§ 1111.) This definition includes all principals in a criminal act (i.e., '(a)ll persons concerned in the commission of a crime' (§ 31)) but does not include accessories (i.e., '(e)very person who, after a felony has been committed, harbors, conceals or aids a principal in such felony' (§ 32)). Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom. (See People v. Hoover (1974) 12 Cal.3d 875, 880, 117 Cal.Rptr. 672, 528 P.2d 760.) The fact that 'the witness was prosecuted for the same offense as defendant does not alone establish her to be an accomplice (as a matter of law).' (People v. Gordon (1973) 10 Cal.3d 460, 467, 110 Cal.Rptr. 906, 909, 516 P.2d 298, 301.) Thus Mary Pedraza is not necessarily an accomplice merely because she was held to answer for the same crimes as defendants and then granted immunity. Nor did she necessarily become an accomplice if it be deemed that she aided in the commission of the crimes. Criminal liability as a principal attaches to those who aid in the commission of a crime only if they also share in the criminal intent (§ 20; see also Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287, 42 Cal.Rptr. 676) or, in the language of section 31, abet the crime. ⁴ Mary was thus an accomplice only if at the time she acted she had 'guilty knowledge and intent with regard to the commission of the crime.' (People v. Duncan (1960) 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 358, 350 P.2d 103, 110.) Although it is undisputed that Mary aided appellant by calling the restaurant, by supplying Sheila with pencil and paper, and by driving some of the principals to a point of rendezvous in the vicinity of the crimes, such actions do not confer upon her accomplice status unless she also acted with the requisite guilty intent. She need not have actually had the specific intent to commit a robbery however; the intent requirement is satisfied if Mary, prior to its commission, realized that a robbery was being planned and that she was facilitating its commission. (People v. Terry (1970) 2 Cal.3d 362, 401, 85 Cal.Rptr. 409, 466 P.2d 961; People v. Germany (197...