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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Michael FOOTE, Raymond De Forest Johnson, and William E. Curtis, Defendants and Appellants.*

Cr. 1073.

Decided: July 31, 1956

Edgar G. Langford, J. Perry Langford, San Diego, and Robert O'Connor, for appellant Foote. Charles E. Karpinski, San Diego, for appellant Johnson. Barton C. Sheela, Jr., San Diego, for appellant Curtis. Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

Appellants Foote, Johnson and Curtis were charged in count one of an indictment with the crime of robbery, committed on or about July 31, 1955, in that by means of force and fear they took from one Richard Thielges the sum of $800, the personal property of Midway Drive-In Theatre in San Diego. It was also alleged in said count that appellants Foote and Johnson were armed with deadly weapons at the time of the commission of the offense. In count two, the three appellants were charged with the crime of conspiracy to commit first degree robbery, committed on or about July 31, 1955, and seven overt acts occurring on July 31, 1955, in furtherance of the conspiracy were alleged, to wit: 1. That appellants met at 4944 Colingwood Street, San Diego; 2. That they were in a 1950 Mercury automobile in San Diego; 3. That appellants Curtis and Johnson were in an automobile in the vicinity of Diamond and Ingraham Streets in San Diego; 4. That appellants Curtis and Johnson were stopped in a 1950 automobile by San Diego police officers and that they drove off to avoid detection and apprehension; 5. That appellants took a Luger type gun and a Woodman automatic pistol from the Collingwood address; 6. That appellants Curtis and Johnson abandoned the 1950 Mercury automobile in the vicinity of the Collingwood address to avoid detection and apprehension; and 7. That appellants Curtis and Johnson, to avoid detection and apprehension, ‘swapped’ automobiles in the vicinity of Malden and Collingwood Streets. Appellant Johnson was charged in the third count of the indictment with the crime of possession of a firearm capable of being concealed upon the person by one previously convicted of a felony, committed on or about August 29, 1955, in that said appellant had been previously convicted of a felony and that he had in his possession and control a firearm having a barrel less than 12 inches in length, to wit, a 38 calibre Smith and Wesson revolver. It was further alleged in said count three that Johnson had suffered prior felony convictions of first degree robbery in 1947 and second degree burglary in 1951, and that he had served terms of imprisonment therefor in the state prison at San Quentin. It was also alleged in said count three that appellant Curtis had suffered a prior felony conviction of second degree robbery in 1949 and that he had served a term of imprisonment therefor in the state prison at San Quentin.

The three appellants pleaded not guilty to the charges in the first two counts of the indictment. Johnson admitted the two prior convictions with which he was charged and Curtis also admitted his prior conviction of a felony as alleged in the indictment. Subsequently, Johnson pleaded guilty as charged in count three of the indictment. A Jury trial was had which resulted in verdicts finding the three appellants guilty as charged in counts one and two of the indictment and fixed the degree of the offense as charged in count one as robbery in the first degree. The jury also found that appellants Foote and Johnson were each armed with a deadly weapon at the time of the commission of the robbery and a similar finding as to appellant Curtis was ordered stricken by the court. Motions for a new trial were denied as to each appellant and they were sentenced to imprisonment in the state prison. Appellant Johnson was adjudged an habitual criminal. Each of the three appellants appeals from the judgments of conviction and the order denying his motion for a new trial.

Appellants Curtis and Johnson contend that the evidence was insufficient to support the verdicts and judgments and all three appellants contend that the court erred in its rulings and that the deputy district attorney who represented the People at the trial was guilty of prejudicial misconduct.

The pertinent facts, summarized, are as follows: On July 31, 1955, at about 10:00 p. m., Richard Thielges, who was employed as a ticket taker and cashier at the Midway Drive-In Theatre in San Diego, was alone in the ticket office at the entrance to the theatre and when his back was turned, he felt an object against it and upon turning around, saw that it was a gun, which appeared to be a German Luger. The man holding the gun was wearing a silk stocking mask over his face and a blue suit. Thielges was ordered to open up the ticket office and while he was so engaged, a second man appeared, who also had a silk stocking over his head and was carrying what appeared to be a German Luger type gun. He was wearing an orgnge colored shirt. The man in the blue suit walked with Thielges to the ticket office door and the other man remained stationary. Both men kept their guns drawn. Thielges handed over the cash box on the table in the office upon being ordered to do so by the man in the blue suit and the two men then pulled out the ‘phone. They then left, after ordering Thielges to stand in the center of the ticket office. After their departure, Thielges went to the theatre snack bar and called the police. He testified at the trial that the total amount of money taken by the robbers was about $800, some of which consisted of coins rolled in paper, stamped with the name ‘St. Brigids Church’. Thielges further testified at the trial that appellants Johnson and Foote resembled the two men who took the money, both as to weight and height, and that the two guns introduced in evidence by the prosecution resembled the guns held by the robbers at the theatre.

At about 10:00 p. m. on the night of the robbery, two police officers, after receiving information concerning the robbery, were observing traffic three or four miles from the theatre and stopped a 1950 Mercury automobile in which three men were riding in the front seat. The man who was riding on the passenger side was wearing a blue suit and as the spotlight from the police car shone upon him, he looked toward the police car and made a ‘ducking motion’. Appellant Foote emerged from the Mercury and walked back to the police car, and the two men remained in the Mercury. When the two men remaining in the Mercury were ordered by the officers to step out with their hands in view, the man in the center slid under the wheel, put the car in gear and sped away. Almost at the same time, the man in the blue suit turned around and looked directly at one of the officers. This man was appellant Johnson. The officers fired eight shots at the departing automobile, and after placing appellant Foote in their car, attempted unsuccessfully to catch the departing Mercury. Within fifteen or twenty seconds after the firing of the shots, the officers asked appellant Foote who was driving the Mercury, and he replied, ‘All I know is his name is Bill’, and stated that the man in the blue suit was ‘Terry’ Johnson. When asked why the other two men had driven away, he stated that he had no idea. Appellant Foote was asked if he knew where Johnson might go. He stated the Johnson lived with him occasionally and that he might go to Foote's place at 4944 Collingwood Drive. When the officers arrived at this address, Officer Desch observed the abandoned Mercury about 100 feet from the Foote residence. The officer searched the Mercury and found three rolls of coins on the floorboards. Other coins were found and one of the rolls had the marking ‘St. Brigids Church’. There were bullet holes in the car and a pair of rubber gloves and the toe part of a pair of brown stockings were found in the back of the car.

The police officers took Foote, who was wearing a yellow or orange shirt, to the drive-in theatre and Thielges there stated that he could not make a positive identification but that Foote resembled one of the men. The officers asked Foote about the coins found in the Mercury and he said he knew nothing about them. He stated that he had not been in the vicinity of the theatre that evening. However, later he stated that he and the others went past it but did not stop and that the others had not been out of his sight for two or three hours.

Mabel Foote, the mother of appellant Foote, testified that she was residing at 4944 Collingwood Drive with her son and her husband. Appellant Johnson, whom she knew as ‘Terry’ Johnson, had stayed at their residence some of the time during June and July, 1955, and shared the same bedroom with her son. Appellants Foote and Johnson had worked for Scripps Institute of Oceanography, including work on boats. In the late afternoon of July 31, 1955, Johnson came to the Foote residence, accompanied by Mary Talamantes and appellant Foote, and about an hour later appellant Curtis arrived. He had been to the Foote residence once or twice previously and was known to Mrs. Foote as ‘Bill’. Appellant Foote left the house around 9:00 p. m. and Mrs. Foote did not know if anyone left with him. Later that night, shortly before the arrival of the police, Mrs. Foote heard a car door slam and a car starting up. She took it for granted that it was appellant Curtis' car; it sounded as if it was in the vicinity of where he had parked and as far as she knew, there was no other car in the area. She heard a man's voice, which seemed to come from this car, and this voice said something like ‘Terry, hurry up or I am going to leave you.’ She saw Johnson come in through the entry hall door and then leave with Mary Talamantes. The police car arrived a few minutes later with her son. The two guns in evidence had been kept in her home. They were not found the night of the robbery but were discovered the next day under the mattress on her son's bed. Both guns were then loaded.

On August 29, 1955, a number of officers surrounded a building at 1028 24th Street in San Diego. Officer Paul Walk knocked on the door and his knock was answered by Mary Talamantes. Walk kicked the door open and jumped into the room with a drawn gun. Appellant Johnson lay on the bed and was covered with a sheet. When Johnson started to put his hands beneath the sheet, Walk told him to raise them above his head and when he complied Walk pulled the sheet off and saw that there was a loaded .38 calibre Smith and Wesson revolver by Johnson's right hip. The officers found ammunition on the premises and a hypodermic ‘outfit’.

Police Officer Robert Manchester had a conversation with appellant Foote at the police station on August 1, 1955, and Foote there stated that at about 8:00 p. m. on July 31, 1955, he, Johnson and Curtis left the Foote residence about 9:00 p. m. and stopped at a bar but did not go in; that they drove past the Midway Drive-In Theatre and were stopped by a police car; that while he was talking with the officers, his own automobile suddenly left the scene; that Curtis was driving it, as far as he knew, and that he, Foote, had no knowledge how the roll of coins got in the automobile.

On August 1, 1955, the officer had a conversation with appellant Curtis in which Curtis stated that he had gone to the Foote residence the night of July 31, 1955; that he left there between 8:00 and 8:30 p. m. and went to the home of his girl friend, arriving there shortly after 9:00 p. m.; that they drove around for about an hour, then returned to her place, where they retired. He denied going anywhere with Johnson and Foote.

On August 29, 1955, Manchester had a conversation with appellant Johnson at the city jail. Johnson stated that he was not in the automobile when it was stopped and the shooting took place. The following day Officer Manchester had another conversation with Johnson and a recording of this conversation was made and played in the courtroom at the trial. Johnson stated therein that his nickname was Terry; that he and Mary Talamantes went to the Foote residence on the night of July 31 and that appellant Curtis came there; that he, Curtis and Foote left together in the Mercury automobile and drove to Pacific Beach, where they stopped at a bar; that they went to Oscar's Drive-In; that thereafter they cruised around and, when they were pretty close to appellant Foote's residence, they passed a police car; that Foote, who was driving, got out of the car; that Curtis then put the car in gear and they drove off; that after they had driven around some, he and Curtis had an argument about going to the Foote residence, where Johnson wanted to go to meet Mary; that Curtis was against it because they were both on parole; that they went to the Foote residence and when he and Mary were leaving, Curtis shouted for them to ‘come on’; that he, Curtis and Mary then left in Curtis' car; that he did not know what Foote was doing when the shooting was taking place but that ‘according to his story, he was back there protecting us, ya know’; that he convinced Mary after the episode of the shooting ‘and everything * * * for them to be able to prove that Bill and I was together at the penitentiary sent me * * * I was dead’; that he, Curtis and Foote were out together about forty-five minutes from the time he left the Foote residence until the shooting; that he had not robbed anyone and would not be in any particular difficulty now if the police had not found a pistol near him when he was arrested; that neither Foote nor Curtis participated in anything because one or both of them was with him all the time during the night in question.

On August 31, 1955, Officers Walk and Manchester talked with Johnson at the city jail. The officers testified that no promise of reward or immunity or threats of violence were made and that Johnson's statements were freely and voluntarily given. This conversation was also recorded and the recording thereof played to the jury. Johnson stated, among many other things, that he had been intending to turn himself in because he was disgusted, he had no more money, and he did not like to have Mary ‘couped up’; that he ‘stuck the guy up’; that he had seen the ‘guy’ out there at the theatre one time carrying a tin box; that he observed how the place was crowded with automobiles and that it looked as if there would be a lot of money to be had; that Foote had access to some guns, that the purpose of the robbery was to finance another enterprise; that he knew practically every narcotic user in San Diego and consequently could get in on almost anything he wanted to know; that he and Foote had a perfect ‘in’ with the Scripps Institute research boats and that every other trip on the boats one of them would go down to Mexico; that ‘it seemed reasonable that people I knew down there, that narcotics and various things could be purchased and turned up here for a lot of money and that was basically what the whole operation was behind;’ that everyone seemed to be enthused but the initial buying money was lacking; that he and his associates checked on the theatre; that on the night of the robbery he and his associates argued about the advisability of robbing the place and that he finally got disgusted, grabbed a gun and went over to do the job himself; that Foote apparently got his nerve up the joined him; that there was no one in on the robbery with him except Foote and Curtis; that Curtis did not do anything with respect to the robbery but he knew what was going on and he was more or less part of the operation; that after the robbery, he let Curtis handle the proceeds; that he, johnson, after the robbery, put the guns under the mattress in Foote's bedroom; that the stockings were thrown out of the car and that he remembered Curtis sitting out front at the Foote residence, gunning the motor and hollering to him to hurry up.

Appellant Foote testified, in effect, that he, Johnson and Curtis were all together the night of July 31, 1955, before and during the period the Midway Drive-In Theatre was robbed, but he denied that any of them participated in the robbery; that he, Johnson and Curtis were driving in the vicinity of the Midway Theatre about five minutes before they were stopped by the police.

Appellant Johnson testified that he had listened to the recordings which were played in the courtroom; that some of the stories on the records were true, in part; that the story about where he went after he left the Foote residence the second time was not correct and that his confession to the armed robbery was not correct; that he had obtained the coins found in the Mercury automobile from one John Zahar as part payment on a debt; that the reason he had ‘hid out’ for thirty days was because he had violated his parole; that during the period he was in hiding, he had talked with appellant Foote and that they had agreed that they would not say who was in the automobile because of something which had happened previously to appellant Curtis. He also testified that the reason he made the confession was because he was afraid his mother and Mary would be charged with a crime.

The contention of the appellants that the evidence was insufficient to support the verdicts and judgments is without merit. The evidence, without the statements of appellants, discloses that two men with stocking masks over their faces and resembling Foots and Johnson in height and build held up the Midway Drive-In Theatre on July 31, 1955, at about 10:00 p. m. The robbery victim, Mr. Thielges, noted that one of the robbers was wearing a blue suit and the other an orange or yellow shirt. Both were armed with guns similar to those found under the mattress in Foote's bedroom. Rolls of coins bearing the name ‘St. Brigids Church’ were found in the Mercury car near Foote's residence, together with parts of silk stockings and a pair of gloves. In the late afternoon of that day all three of the appellants were at the Foote residence. Foote's mother heard an automobile drive up just before Curtis arrived, looked out the window and saw him either getting out of the automobile or standing near it. A short time before the police arrived, she heard a car door slam and a car start up and it sounded as if it was in the vicinity where Curtis had parked. As far as she knew, there was no other car in the area. She heard a man's voice, which seemed to come from this car, urging Terry to ‘hurry up’. Around 10:18 p. m. police officers stopped a Mercury automobile in which there were three men. Appellant Foote got out of the car and walked back to the police car and Officer Desch identified Johnson as the man sitting on the passenger side of the car. Appellant Johnson was wearing a blue suit, Foote was wearing a shirt which could have been orange in color. The man in the center of the front seat of the Mercury slid under the wheel and he and Johnson sped away. The officers fired several several shots at the speeding car and a few minutes later it was found abandoned, with bullet holes in it. Rolls of coins were found in the car bearing the name ‘St. Brigids Church’. Later, guns similar to those used in the robbery were found under the matters in Foote's bedroom. The foregoing facts are sufficient to establish a prima facie showing of a conspiracy to commit robbery and are sufficient to permit the introduction in evidence of the statement of the conspirators. The fact of the conspiracy must be proved before evidence of the declarations of the alleged conspirators is admissible against another. However, as is said in People v. Steccone, 36 Cal.2d 234, 238, 223 P.2d 17, 19:

‘* * * ‘The issue, however, need be proved only to the extent of establishing prima facie evidence of the fact. It need not be established by a preponderance of the evidence in a civil action nor beyond a reasonable doubt in a criminal action; the latter doctrine applies only to the issue of guilt. Any evidence received by virtue of this rule necessarily is received conditionally, for in the final analysis, the jury must first pass judgment on the question as to whether the asserted conspiracy has been proved.’'

The circumstances shown justified the reception into evidence against all the appellants of Foote's statement to the officers, made within a few seconds after the firing of the shots at the speeding, car, that the person who dorve the Mercury car away was named Bill. This statement was admissible as a declaration of a conspirator while the conspiracy was in effect. In People v. Brown, 131 Cal.App.2d 643, 656–657, 281 P.2d 319, 328, the court said:

‘Moreover the conspiracy ‘may, for various purposes, extend in point of time beyond the actual commission of the substantive crime, providing there is some evidence showing that subsequent activities of the conspirators were a part of their scheme or plan.’ 11 Cal.Jur.2d 223 and cases there cited. Examples are division of the loot and payment for participation in the crime. People v. Ross, 46 Cal.App.2d 385, 396–398, 116 P.2d 81, and acts contemplating escaping punishment, People v. Tinnin, 136 Cal.App. 301, 306, 28 P.2d 951.'

In the instant case the division of the loot taken in the robbery had not been made and the escape of the appellants had not been accomplished when the statement was made. Furthermore, appellant Foote, in his testimony at the trial, stated that he, Johnson and Curtis were all together the night of July 31, 1955, before and during the time of the robbery, thus definitely involving Curtis as one of the occupants of the Mercury automobile at the time of the robbery. The statement of Foote to the officers was also admissible under the doctrine of res gestae, People v. Costa, 40 Cal.2d 160, 168, 252 P.2d 1, and was admissible whether Curtis was present or not. People v. Jones, 160 Cal. 358, 363–364, 117 P. 176.

It is contended that the trial court erred in permitting the prosecuting attorney to read certain grand jury testimony to Mrs. Foote to refresh her recollection; that the reading of such testimony was improper inasmuch as Mrs. Foote did not say that she did not remember. However, as was said in People v. Darby, 114 Cal.App.2d 412, 436, 250 P.2d 743, 759: ‘Refreshing the memory of a witness is not to impeach him. It is a common incident of trials to remind a witness of what he said on a former occasion, and this may be done by the party calling him.’ (Citations.) The witness was permitted to testify, after her recollection was refreshed by her grand jury testimony, that she took it for granted that a certain car was that of appellant Curtis. This statement was related to and explained by her other testimony and we find no error in the court's ruling in this connection.

Appellant Curtis asserts that there was prejudicial misconduct on the part of the prosecuting attorney. He refers in this connection to the recorded conversation of appellant Johnson with the police and complains of statements made therein by appellant Johnson relating to his prior association with Curtis in prison, to the two of them being on parole, to appellant Curtis using narcotics and to other derogatory activity on the part of Curtis. The evidence of commission of other crimes or degrading acts falling short of crime is, as a rule, incompetent if not relevant for special purposes. However, such evidence is admissible if it tends logically, naturally and by reasonable inference to establish any fact material for the People or to overcome any material matters sought to be proved by the defense and where, as here, the evidence was relevant to show intimate connection between the appellants and their motives, no reversible error is shown. People v. Brown, supra, 131 Cal.App.2d 643, 661, 281 P.2d 319.

It is contended that it was error not to allow defense counsel to hear the recordings of appellant Johnson's conversation with the police officers in advance of their being played to the jury. The record shows in this connection that in the absence of the jury, the prosecuting attorney explained that he had recordings to play; that he had been going through them for the first time and that he would try to have the transcript typed up during the week end. When court resumed on the following Monday, the prosecuting attorney stated that there had not been an opportunity to have all the recordings transcribed and that he was willing to let the defense counsel and the jury have copies of the transcripts he had. Defense counsel objected to this procedure and the court determined that inasmuch as counsel did not stipulate to it, the recordings would be played without copies thereof being furnished to counsel.

These lengthy recordings contain many statements by Johnson which related to immaterial matters and contained language which should not have been heard by the jury. Defense counsel should have been permitted to make timely objection to such matters and language. However, under the rules announced in the cases herein cited, the reference in the recordings to Johnson's prior association with Curtis in prison, to the two of them being on parole, and to appellant Curtis using narcotics was admissible, especially since Johnson stated to the officers that the purpose of the robbery was to finance another enterprise; that narcotics and other things could be purchased in Mexico and turned up here for a lot of money. We are of the opinion that it is not reasonably probable that a result more favorable to the appellants would have been reached in the absence of the error in playing the recordings without first exhibiting them to defense counsel and without deleting therefrom the immaterial matters and some of the language used. Therefore, in view of the provisions of Article VI, § 4 1/2 of the Constitution, we conclude that no reversible error is shown in this connection. People v. Watson, 46 Cal.2d 818, 299 P.2d 243.

Appellant Johnson contends that his recorded confession was not competent evidence in that it was not freely and voluntarily given. There was a conflict in the evidence as to this contention and this conflict was for the determination of the trier of fact. There was ample evidence that the confession was uncoerced. The officers refused to bargain with Johnson and told him that if he was going to confess, he would have to ‘lay it on the line’ convincingly. In this connection Johnson testified that he confessed because he was afraid that his mother and Mary would be charged with a crime and in another part of his testimony he stated he confessed because of an agreement with Foote.

Johnson also contends that the court erred in not instructing the jurors that it was their duty to determine whether or not the alleged conspiracy had terminated prior to the time Foote made his statement to the police at the time the Mercury car was stopped by them. Johnson made no request for such an instruction and the court instructed the jury both at the beginning and at the close of the trial that no statement of an alleged conspirator is binding on any other alleged conspirator until a conspiracy shall be proved to be in existence. ,Other instructions given by the court fully covered the subject of conspiracy.

We conclude, after an examination of the entire record herein, that there was ample substantial evidence to support the verdicts and judgments and that the claimed errors of the trial court and the conduct of the deputy district attorney who prosecuted the case do not constitute reversible error.

The judgments and orders denying a new trial are affirmed.

MUSSELL, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.

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