People v. Wester

• Decision Date: 24 September 1965
• Docket Number: Cr. 145
• Citation: 237 Cal.App.2d 232,46 Cal.Rptr. 699
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert Arthur WESTER, Defendant and Appellant.

Page 699

46 Cal.Rptr. 699

237 Cal.App.2d 232

The PEOPLE, Plaintiff and Respondent, v. Robert Arthur WESTER, Defendant and Appellant.

Cr. 145.

District Court of Appeal, Fifth District, California.

Sept. 24, 1965.

Carl P. Evans, appointed by District Court of Appeal, Fresno, for appellant.

Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and Anthony S. Da Vigo, Deputy Attys. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

This case was before the court on the calendar for June, 1965, and resulted in an opinion filed June 14, 1965. When the companion case, People v. Winkelspecht, 46 Cal.Rptr. 697, was placed on a subsequent calendar, the court noted from the brief of the appointed attorney in that case that he had raised certain defenses which had not been mentioned by counsel for the appellant in the Wester case, but which, in fairness, would, if sound, be applicable to both defendants. Accordingly, the court set aside the Wester opinion within the thirty days after filing within which it retained jurisdiction, and set both cases for hearing on the calendar for September, 1965. We have fully considered the additional claims for reversal made in the Winkelspecht case, which were joined in orally by counsel for the defendant in the Wester case, and have refused to reverse the Winkelspecht judgment on any of these grounds, as noted in the opinion in that case (ante, p. 699). The same observations relative to these additional points urged for a reversal in the Winkelspecht case are equally applicable to the Wester case, and, accordingly, are adopted with respect to this defendant's appeal.

Apart from the foregoing considerations, the points raised by the defendant, Wester, are covered in the same manner as in the former opinion of this court, which, as above stated, was previously set aside. Accordingly, we dispose of these points by the identical wording used in the previous nullified opinion, as follows:

Robert Arthur Wester, after conviction of a felony in the County of San Diego, was incarcerated at Folsom as a recidivist; he nevertheless earned the confidence of the authorities to the extent of winning an assignment to the outdoor crew of prisoners at the California Conservation Center at Susanville. From there, he was transferred to Camp 16 at Beaver Creek, a conservation camp of said institution, where he remained under the general custody of the superintendent of the California Conservation Center and the local custody of the officials in charge of Camp 16. He engaged in the healthy outdoor exercise incidental to a prisoner's life in the camp, and enjoyed the salubrious climate of the High Sierras while thus doing constructive work for the community and looking toward a hoped-for rehabilitation. However, on the 9th day of July, 1964, he and a fellow prisoner named Winkelspecht disappeared from the area of the Calaveras Big Trees in Tuolumne County where the conservationists were working, and an intensive search by the authorities failed to locate either of the prisoners on that day.

The defendant was finally apprehended by Frederick Joseph Kern, Deputy Sheriff of Calaveras County, and Lieutenant Frank F. Mendozo of the State Department of Corrections, on July 11, 1964, at 12:30 o'clock a. m., after a painstaking search of the mountainous area. The defendant was alone and walking along the highway at Hanford Hill, some five or six miles from the point where he had previously been detailed to work for the Forestry Service.

Deputy Sheriff Kern testified that Lieutenant Mendozo and he were patroling the roads at Hanford Hill when they saw this person on the shoulder of the highway; the two officers got out of the car, but the pedestrian then said nothing to them. Frank Mendozo testified that it was so dark that when he first saw the man he did not know whether he was coming from behind a shelter by the side of the road or was headed toward the road; as the beam of the headlights hit him, he turned toward the car and that was the first time Mendozo got a fairly clear look at him. Mendozo testified that when the deputy stopped the vehicle the pedestrian 'kind of headed out toward the car like he was trying to get a ride and recognized the car.' The officers called him over to their automobile and then observed his clothing in the focus of the car lights. When the man came up to them, they asked him where he was going and he said, 'Stockton.' They asked his name, and in reply he gave what later proved to be a fictitious name; when he came close to the automobile and they saw him clearly, they were more certain of the identification; they searched the suspect in the light, compared the picture they had of the escaped prisoner with the man in front of them, and then positively identified him as Wester; they radioed the other units of the searching party who notified Lieutenant Johnson.

The defendant was held to answer at his preliminary examination and was charged with escape, a felony (Pen.Code, § 4530, subd. (b)), by an information filed in the Superior Court. The defendant was represented in the court below by successively appointed counsel, and on the appeal by an experienced attorney named by this court.

The defendant makes three claims for the reversal of the judgment against him: First, he alleges that it was error, at the preliminary examination in the Second Judicial District of Tuolumne County, to admit evidence of certain admissions made by him to Lieutenant Johnson after his arrest, contrary to the principles enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361; he had not then been advised that he could remain silent and that he had a right to the services of an attorney in connection with the taking of his statement; secondly, it is claimed that error was committed when the superior court denied a motion to set aside the information; thirdly, it is urged that the trial judge gave a prejudicially erroneous instruction relative to the crime of escape.

Testimony given at the preliminary examination is not evidence upon the trial of the case itself, and no reversal can now be based upon evidence taken before the magistrate prior to the filing of an information. (People v. Dutton, 27 Cal.App.2d 364, 80 P.2d 1003.) When a defendant is first arraigned in the superior court, he may move to set aside the information on the grounds specified in section 995 of the Penal Code; such a motion must be made before a defendant demurs to the information, or pleads to the charge, and if he does not avail himself of his rights under that section he is deemed to have waived them (Pen.Code, § 996; People v. Gomez, 209 Cal.App.2d 187, 195...