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District Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Fulton ROLLINS, Defendant and Appellant.

Cr. 9275.

Decided: August 17, 1965

Howard E. Beckler, Hollywood, under appointment by the District Court of Appeal, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth, Deputy Atty. Gen., for respondent.

This case was previously submitted on December 21, 1964, and an opinion was filed with reference thereto (certified for non-publication) on March 4, 1965. That opinion is as follows:

‘In an information filed in Los Angeles County on February 21, 1963, defendant was charged with his co-defendants, Willie Slater and John Palmer, Jr., in count I with robbery, in that on or about January 28, 1963, they robbed James Carter and U-Sav-On Service Station of $45.90, and that at the time of the offense the said defendants were armed with deadly weapons, namely, two revolvers. In count II they were charged with kidnaping for the purpose of robbing James Carter on January 28, 1963, and that they were armed at the time as above set forth. In count III they were charged with robbery in that they did, on about January 28, 1963, rob Arthur E. Hammond and Jet 777 Service Station of $105, and that, at the time, they were armed with deadly weapons, namely, two revolvers. In count IV they were charged with kidnaping Arthur E. Hammond to commit robbery, and were so armed at the time as above set forth. Slater and Palmer were represented by the public defender. Other appointed counsel represented Rollins. (Penal Code, § 987a.) Each of the defendants pleaded not guilty. A trial was had before the court without a jury. The court found each of the defendants guilty of robbery in the first degree as charged in counts I and III, and not guilty of the kidnaping charges as set forth in counts II and IV. The court also found that defendants Slater and Palmer were armed with deadly weapons and that Rollins was not personally armed. Probation was denied and Rollins was committed to the Youth Authority of the State of California, counts I and III to run concurrently. (Rollins was born August 21, 1942, thereby making him substantially 20 years and 5 months old at the time of the commission of the offenses.)

‘A reśume ́of some of the facts is as follows: about 12:50 a. m. on January 28, 1963, James Carter, while employed as a service station attendant, was held up by defendants Slater and Palmer. Palmer held a gun pointed at Carter and stated, ‘This is a holdup’ and the two defendants proceeded to take money from him at gun point.

‘At about 1:30 a. m. on January 28, 1963, Arthur Hammond, while employed as a service station attendant, was robbed of his coin changer (with the money therein) from his waist, and his wallet by Slater and Palmer, each of whom possessed and used a gun in the course of such robbery. Hammond further said he thought that perhaps Rollins had been at the station earlier in the evening.

‘Officers Helvin and Matock were uniformed and on duty patrolling in a marked police car at about the time and in the general area of the robberies. They saw a black Chevrolet car make a sudden right turn after the driver of said car had looked in the direction of and had seen the patrol car. The Chevrolet car accelerated rapidly to about 50 miles per hour in a residential district. The officers turned and followed the car and saw an arm extend from the Chevrolet car in an outward motion, saw the Chevrolet make several directional changes at various cross streets, and saw it go through two boulevard stops without stopping. The red lights of the police car were on and it was driven at a rapid rate of speed to catch up with the Chevrolet automobile. When the police stopped the Chevrolet in question, appellant was observed to be the driver thereof, and Slater and Palmer to be passengers. When the Chevrolet was stopped, the coin changer which was taken from Hammond was removed from the floor thereof near where appellant sat. At about that time the officers heard an all-unit police radio call which was then broadcast with reference to the robbery which had occurred at Imperial and Main Streets involving two suspects who had taken money and a money changer. The place of the second robbery was about ten blocks away from where the officers had first noticed the Chevrolet being driven in an erratic fashion. Upon retracing the route followed by the cars during the chase, the officers found on the front lawn of a house currency and a wallet bearing Hammond's identification—on 104th Street a loaded gun in the middle of the street, and on the sidewalk of 104th Street another loaded gun. The two guns were at about the location where the officers had previously noticed the arm extended from the Chevrolet automobile which appellant was driving. Upon being booked at the police station, the defendants had no more money than a small amount of change in their possession. The guns were identified by Hammond and Carter as being like the guns which had been used in the respective holdups.

‘Appellant was questioned at the police headquarters and he there said, among other things, that he was not involved in the robberies, that Slater and Palmer had come to his house about 12:30 a. m. and had asked to be driven somewhere, that he had driven them to Imperial and Main Streets and there parked his car and Slater and Palmer had left and then returned in a few minutes—that he had started to leave and the police car had chased him but he didn't know anything about any robberies. In another later conversation appellant, in the presence of his codefendants, stated that he knew his codefendants; that he had driven a car on the subject service station robberies, but that he had not entered the service stations. The codefendants stated that they had participated in the robberies and that appellant was driving the Chevrolet car and that when the police were chasing them, Slater had thrown the two guns from the automobile.

‘Appellant testified at the trial, among other things, that on January 27, 1963, he saw Palmer at a bar on Imperial and Avalon Streets between 11 and 12 p. m., that Palmer had borrowed his car to go someplace and later had returned and they had left together in appellant's car and, ultimately, had seen Slater on the street leaving a night club. Further, that appellant's car was stopped at Palmer's instruction and Palmer got out and later returned with Slater and that they drove on and were then confronted by the police car—that he didn't know he was being chased until he looked up and saw the red lights and heard the sirens. Appellant testified that he was beaten at the police station, but received no marks therefrom; that he had told the officers he was the driver of the car in the robberies out of fear. The officers denied using any force or threats and stated that all statements made by each of the defendants were freely and voluntarily made.

‘Defendant testified that he was driving his car on the night in question with Palmer in the back seat and Slater in the front seat—that he saw the police car and believed it to be following him and then he ‘started to drive fast’—the police turned on the siren again and he pulled over and stopped—that before stopping he drove pretty fast.

‘He further testified that the police asked him why he was driving so fast and he answered: ‘I was just driving fast, that's all.’ Also, he testified that the police asked him what it was that was thrown out of the car as they were pursuing him, and he answered that he knew of nothing which was thrown out. He further indicated that the robbery call came over the police car radio while the officers were questioning him, and that the radio call indicated that one of the robbers was wearing a brown coat and that he, the appellant, was wearing a brown coat at that time. Further, he testified that the police with the three suspects immediately following the stopping of the Chevrolet automobile retraced the route of the pursuit and found the two weapons and a billfold which were secured from the victims of the robberies and were placed in evidence.

‘It is assumed that the police did not affirmatively advise the appellant of his right to an attorney or of his right to remain silent.

‘This case went to trial on May 13, 1963. The judgment was imposed on June 20th, 1963. Escobedo v. [State of] Illinois, [378 U.S. 478, 84 S.Ct. 1758] 12 L.Ed.2d 977 indicates that that case was decided on June 22, 1964, or, in other words, the case at bench was heard and sentence was pronounced one full year before Escobedo was decided. A notice of appeal was filed on June 20, 1963, in this case, the clerk's transcript and the reporter's transcript were filed in this court on August 5, 1963, appellant filed his opening brief on February 14, 1964, the attorney general filed respondent's brief on September 16, 1964, and appellant filed his reply statement on October 14, 1964. The cause was submitted without argument at our December, 1964 calendar with the understanding that the determination here would be deferred until the Dorado decision in our Supreme Court was filed.

‘In appellant's opening brief he commendably sets forth in effect that Palmer, one of the codefendants, confessed to the armed robberies in his own testimony and that ‘the evidence implicating appellant * * * in each robbery is amply sufficient to support the trial court's * * * finding of guilt thereon.’ It is further set forth in the brief, in effect, that appellant's involvement in the robberies is established ‘by his own confession during the conversation in which his co-defendants were present. * * *’ Properly, it is also stated that appellant at the trial asserted that the confessions were the result of fear, violence and physical force exerted upon him by the police. It is also pointed out in the brief that each of the officers specifically denied any undue influence, force or violence and established overwhelmingly that the confessions were freely and voluntarily made. Appellant also correctly points out that the judge decreed the issue against the appellant. There were other contentions raised at the trial by appellant's then counsel; however, appointed counsel in this court correctly states in the opening brief in effect that each and every contention so raised at the trial was without merit. No useful purpose would be served in considering each separate item so raised—suffice it to say that appellant's counsel in this court concluded by stating ‘For the reasons above stated it is respectfully submitted that the instant appeal is without merit and the judgment appealed from should be affirmed.’

‘It took the attorney general's office seven (7) months to get around to answering the appellant's opening brief, which opening brief is about as straightforward and as easy to answer as any I have ever seen in any court. In the meantime, Escobedo was decided by the Supreme Court of the United States on June 22, 1964. Appellant filed a reply brief and there properly raises the questions raised in Escobedo and Dorado.

“The Escobedo rule does not automatically call for retroactive application in order to correct past convictions of innocent defendants.'

‘The procrastination and what appears to be the inexcusable dilatory tactics of the attorney general's office in this particular case may ultimately result in the release of an admitted first-degree robber; however, I am of the belief that article VI, section 4 1/2 of the Constitution of California calls for an affirmance of the judgment.

‘It would be a foul miscarriage of justice to reverse the judgment under the circumstances.

‘The judgment is affirmed.


‘I concur:


‘I concur in the judgment.

‘WOOD, P. J.’

Following the filing of the opinion, appellant petitioned the Supreme Court for a hearing. That court granted a hearing on April 28, 1965, and ordered ‘the cause is retransferred to the District Court of Appeal, Second Appellate District, Division One, for further consideration in light of People v. Dorado (1965) 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and People v. Stewart (1965) 62 A.C. 597, 43 Cal.Rptr. 201, 400 P.2d 97.’

It is apparent from a reading of the order that this court, as an intermediary appellate court, is now, in effect, ordered to reverse the judgment. Under our court system of administering justice, it would appear that the members of this court have no alternative but to comply with the directive or to retire, even though the appellant is plainly guilty and his own lawyer stated, as heretofore indicated, that ‘the instant appeal is without merit and the judgment appealed from should be affirmed.’

This case will do little to increase the faith of the decent law-abiding public in the enforcement of our criminal statutes as presently administered.

Judgment reversed.

Hearing granted; MOSK, J., not participating.

FOURT, Justice.

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