PEOPLE v. CURRY

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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Lee CURRY, Defendant and Appellant.

Cr. 8908.

Decided: June 21, 1967

Howard E. Beckler, Hollywood, by appointment of the District Court of Appeal, for appellant. Johnny Lee Curry, in pro. per. Stanley Mosk, former Atty. Gen., and Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth, Deputy Atty. Gen., for respondent.

This motion to recall remittitur is Curry's second motion for that purpose, and is projected before us by reason of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

In Anders, appointed counsel wrote to the court:

“ ‘I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal.   I have visited and communicated with Mr. Anders and have explained my views and opinions to him.  * * * [H]e wishes to file a brief in this matter on his own behalf.’ ”

The court said at page 1400 of 87 S.Ct., at page 498 of 18 L.Ed.2d:  “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.   The no-merit letter and the procedure it triggers does not reach that dignity.   Counsel should and can with honor and without conflict, be of more assistance to his client and to the court.   His role as advocate requires that he support his clients appeal to the best of his ability.”

The court also said at page 1399 of 87 S.Ct., at page 497 of 18 L.Ed.2d:

“ ‘If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account.   If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied,’ [Ellis v. United States, 356 U.S. 674,] at 675, 78 S.Ct. at 975 [2 L.Ed.2d 1060 at 1061].”

Our original unpublished opinion, filed on September 16, 1964, in respect of which a petition for hearing was denied, is appended hereto and made a part hereof.

When the case was originally on appeal before us, we appointed counsel who did not fact file a brief which presented and argued a number of points.   The crucial question was whether “Curry was as he testified a surprised witness to a spontaneous robbery” committed by someone else or whether he participated in the robbery.   The evidence was more than ample to justify the jury's conclusion, that he was a participant.   Appellant's counsel, however, did in fact confess that this point had no merit.  (People v. Newland, 15 Cal.2d 678, 104 P.2d 778;  People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911.)

Curry thereafter, acting for himself, petitioned the California Supreme Court for a hearing and asserted as his sole point that the superior court which tried him, lacked jurisdiction because “ * * * it is clearly shown in the record that the petitioner who was then the defendant did not have counsel through any stage of the Criminal Proceedings in the court below nor did he have assistance of counsel on Appeal in the District Court, on appeal from the Judgment of the trial to which it referred.”   Curry was tried with a codefendant Abdelkader (see opinion, filed January 30, 1964, not published.)

The transcript of the proceeding in the trial court shows that Curry was in fact aggressively represented at all stages of the trial.

On the original appeal we closely scrutinized the record, and as the opinion shows, although we considered the appeal as if it had merit, it was in fact completely without merit and might have been designated a frivolous appeal.

On September 7, 1966, Curry made a first motion to recall the remittitur.   In support of this first motion, Curry avers:  “Your appellant appealed and was appointed counsel as indigent on appeal, but the said Court appointed Counsel, Howard E. Beckler, who wrote a Report to the court stating that your appellant did not have any merits on appeal.

“Your appellant thereafter requested this Honorable Court other appointment of counsel in said matter on appeal which was denied.1

“On the 16th of September 1964:  this Honorable Court wrote an adverse opinion against your appellant affirming the judgment of conviction herein the instant case, by a common invidious discriminatory practice which is wholly directed, at the indigent Negroe appellants in the State of California, namely, the said opinion was certified for non-publication in the official Reporter denying the public the right to see the said opinion which could not conform to its official examination for the said opinion is inconsistent with the fact of the trial record which proceedings reflects a denial to your appellant of a fair and impartial trial, contrary to the 6th and 14th Amendments of the U.S. Constitution, and despite the fact that your petitioner did not have the assistance of counsel on appeal and that Section 1253 of the California Penal Code prohibited this Honorable Court from writing [sic] an opinion more favorable to your appellant, namely, this Honorable Court could affirm the judgment of conviction herein but could not reverse for there was not any brief or argument presented to this Honorable Court on behalf of your appellant.   See:  Douglas vs. [People of State of] California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811].

“That the police confronted Herman Abdelkader, Jr., Co-defendant, with the involuntary statement of Herbert Burns, Abdelkader as a result made an involuntary statement implicating your petitioner which was introduced into evidence at your appellant's preliminary hearing and trial against him.   See:  The Testimony of Police Officer, Dwight E. Stevens in the Preliminary Transcript on pages 53 through 57, and Reporter's Trial Transcript pages 155 through 162, The Record on Appeal in the instant case.   See:  Anderson vs. United States, 318 U.S. [350, pp.] 356–357 [63 S.Ct. 599, 87 L.Ed. 829];  People vs. Aranda, 63 A.C. p. 542 [63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265];  People vs. Marbury and Horn;  3rd Crim.No. 3515, Crim.No. 9157.”

When the first motion to recall remittitur was before us, we made a re-examination of the record on appeal for a possible Aranda error claimed by Curry in his first motion to recall.   We found none.

 This court has now, for the third time, re-examined this record and we reaffirm our original opinion that there is nothing in the record which would remotely sustain a successful appeal.   We further reaffirm that the appeal in the first instance was substantially devoid of merit, and that, in our opinion, “ * * * after conscientious investigation, that the appeal is frivolous.”  (Anders, supra, at p. 1399 of 87 S.Ct., at page 497 of 18 L.Ed.2d.)   Anders also holds at page 1400 of 87 S.Ct. at page 498 of 18 L.Ed.2d:  “ * ––– If it [the court] so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires.   On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to a decision, afford the indigent the assistance of counsel to argue the appeal.”

In this case there was no motion by counsel to withdraw but we did proceed to a consideration of the appeal as if it had merit and did not dismiss it as frivolous, although we had the discretion to dispose of it in that manner.

Three independent examinations of the record disclose that there are no “ * * * legal points arguable on their merits * * *.”

The motion to recall the remittitur is denied.

APPENDIX

Appellant was charged with robbery in Count 1 (section 211, Penal Code) along with defendants Abdelkader and Burns.   In Count 2 he was charged with assault with a deadly weapon with intent to commit murder (section 217, Penal Code) along with the other defendants.   The jury found him guilty as charged in Count 1 and fixed the degree of the offense as robbery in the first degree.   As to Count 2, the jury found him guilty of assault with a deadly weapon (section 245, Penal Code), a lesser and necessarily included offense in the charge originally contained in that count.   He has appealed from the judgment.

The V & O Liquor Store, located at the southwest corner of Vermont Avenue and Venice Boulevard in Los Angeles, was robbed a few minutes before 2:00 a.m. on June 13, 1962.   Initially a person resembling appellant Curry entered the store and purchased a bottle of beer and left.   Shortly thereafter, another man 1 entered, drew a gun and ordered the clerk to give him his wallet and then to lie down.   The clerk saw a hand reach into the cash register and remove money but it appeared to him that the hand reaching into the cash register was the hand of some person other than the person holding the gun.

Elaime Hommel testified that she and her husband stopped their car close to the liquor store so that she could deposit a letter in the mail box at the corner;  that she passed close to two men standing on the sidewalk;  that the men she observed were appellant and defendant6 Abdelkader;2 that appellant Curry entered the liquor store and that she and her husband followed into the entranceway;  that she heard someone say, “Lay down”, and “We don't want no trouble out of you”;  that she saw somebody's hand reach over the cash register in the liquor store;  that there were two men there, appellant Curry and another man who was not present in court but identified by photograph;3 that she and her husband turned and left the premises.

Martin L. Schwartz, a Los Angeles police officer, testified that he was stopped for a traffic signal at the intersection of Venice and Vermont shortly before 2:00 a.m. on June 13, 1962;  that he saw two men in the liquor store at the corner standing near the cash register and one of them had a gun in his right hand;  that he observed both men reaching over the counter, taking things and placing them in their pockets;  that the person with the gun was Burns and the other was appellant Curry;  that he saw Curry leave the liquor store followed by the man with the gun;  that he ordered the latter to put his hands up, was fired at by this man and that he returned the fire;  that the shots fired at him (the officer) struck the windshield and wind wings where he was seated in the car;  that he pursued this man and with the aid of other officers, who later arrived, located him under a house, arrested him and recovered his gun.   Several days later the officer identified appellant Curry in a police lineup.

Annette Dobson testified that she was with Burns at their apartment on the evening of June 12, 1962;  that at about 1:00 a.m. (June 13) appellant Curry and defendant Abdelkader arrived;  that there was a conversation between them and Burns about robbing a liquor store;  that Abdelkader exhibited a gun which he showed to her and which he then proceeded to load;  that thereafter the three men left the apartment;  that at 2:20 a.m. Abdelkader and appellant Curry and a third person returned and that either Abdelkader or Curry told her Burns had been shot;  that no one said anything at that time about a robbery of a liquor store or how Burns came to get shot.

Defendant Abdelkader testified to having met Burns and Curry at the former's apartment during the early hours of the morning of June 13;  that the three of them left Burns' apartment in his (Abdelkader's) car ostensibly to go to a party;  that Burns was driving because he knew where the party was being held;  that his (Abdelkader's) gun was locked in the glove compartment;  that they stopped near Vermont and Venice to buy some beer;  that he (Abdelkader) left the car, entered the store, made the purchase and then came out of the store;  that he saw Burns and Curry standing on the sidewalk but the car was out of view;  that Burns entered the liquor store;  that Curry asked him (Abdelkader) if he had purchased cigarettes and started into the store when Abdelkader said he had not;  that he (Abdelkader) looked into the store window and saw Burns with a gun in his hand;  that he had not seen the gun in Burns' hand before this time;  that he became frightened and broke and ran.

Appellant Curry testified substantially to the same effect as Abdelkader;  that he and Abdelkader planned to go to a party with Burns and went to Burns' apartment to pick him up;  that he (Curry) had some wine and took some red-devil pills;  that they later left the apartment;  that he fell asleep in the back seat of the car;  that Burns, who was driving, parked the car near the liquor store and woke him up, telling that “Abdelkader had gone to get some liquor.”   Appellant said to Burns that he wanted to get some cigarettes and inquired of Burns if he had asked Abdelkader to get him some cigarettes.   Burns replied, “No, but we could get them.   So, we got out of the car and proceeded to the liquor store.”   Appellant was then asked, “Did you enter the liquor store?”   He replied, “Yes, I did.   Me and Burns, as we walked up to the door, Abdelkader as he said, was coming out and I asked him, I said, ‘Did you buy some cigarettes?’   And he says, ‘No.’ ”   Appellant continued, “Well, at this time, just this little hesitation, Burns stepped forward in front of me.   Then I immediately turned to proceed behind him, and as I walked in across the door, that's when I observed that Burns had pulled” a gun.   He then testified that he “immediately turned and proceeded out of the store”;  that as he came out he noticed Abdelkader was standing there staring in the window.   He further stated that he walked rather fast across the street, turned south on Vermont and soon broke into a run.   He was apparently not apprehended until some time later.   Appellant further stated that he did not realize a robbery was about to be committed until he saw Burns pull the gun in the store.   He also stated that he did not make any statements at all to the police.

The evidence unmistakably establishes the commission of the robbery and the felonious assault an Officer Schwartz during his apprehension of one of the suspects.   The evidence further establishes that appellant Curry was present at the time of these occurrences.   The only question presented at the trial was whether appellant was a participant in a planned robbery or a surprised witness to a spontaneous robbery committed by Burns.

 While there was a conflict in the evidence as to appellant Curry's participation in this robbery, the jury, whose duty it was to weigh the evidence, evaluate the credibility of the witnesses and draw reasonable inferences from the testimony, resolved that conflict against appellant and impliedly found that he was a participant in a planned robbery, which would make him responsible as well for the felonious assault committed by his accomplice.   The conclusion of the jury is amply supported by the evidence and is controlling on appeal.

Court appointed counsel has noted four points that might be properly considered.

 The first concerns attempted impeachment of Witness Charles Hommel by questions concerning whether he asked the police officers to be compensated for his testimony and the court's ruling that this was an immaterial matter.   Mr. Hommel only testified on direct examination that he had seen both appellant Curry and Abdelkader outside the V & O Liquor Store.   Appellant's testimony establishes that both he and Abdelkader were in fact outside the store at the same time.   Accordingly, attempted impeachment of Mr. Hommel would under this circumstance be of no consequence.

 The second point relates to the trial judge's ruling to proceed with the direct examination of Annette Dobson and the denial of the request of defense counsel to interview her in advance.   Witness Dobson did not testify at the preliminary hearing and the District Attorney's decision to use her as a witness was made at noon on the day she was called to testify at the trial.   During the noon recess police officers interviewed Miss Dobson who was then in custody in the County Jail.   A statement containing the substance of her interview was prepared and a copy given to defense counsel when the court reconvened.   Defense counsel nevertheless asked for an opportunity to personally interview her before she took the stand.   In the circumstances it would appear that the ruling was well within the discretion of the trial court.   Defense counsel had the substance of the witness's anticipated testimony which apparently was as much as the District Attorney had, and the right to cross examination of this witness was not limited in any respect.   We find no error in this ruling.

 The next point also relates to the examination of Miss Dobson and has to do with the court's sustaining of an objection to a question by the defense as to whether she had a case pending at that time.   The basis of the objection was that it was immaterial.   It had been brought out that she was then confined to the County Jail and it is probable that the purpose of the inquiry was to show motive or inducement for her testimony.   This could well be an impeaching factor.   However, trial counsel did not further pursue the matter nor did he make an offer of proof or explain his purpose to the court.   Furthermore, Miss Dobson's overall testimony did not vary substantially from that of appellant Curry and defendant Abdelkader.   Consequently the impeachment of Miss Dobson (if that were the purpose) could have very slight, if any, effect on the trial.   Clearly such an error could not have been prejudicial.

 The final point relates to the refusal of the trial court to give two special instructions requested by appellant's trial counsel.   These proposed instructions are simply amplified statements of the rules pertaining to the definition of “aiding and abetting”.   The trial court gave standard CALJIC instructions 91 and 91E covering the meaning and requirements of aiding and abetting.   These instructions are sufficient statements of the applicable law.4

 The special instructions appear to be correct statements of the law.   However, it is clear that it is not error for a court to refuse an instruction requested by counsel where the principle is adequately covered in other instructions that are given.

After examining the record and considering the points above discussed, court appointed counsel came to the conclusion that no prejudicial error can be found in these matters or in any other aspects of the case.   Our independent examination of the record supports counsel's view that this appeal is without merit.

The judgment of conviction is affirmed.

FOOTNOTES

1.   Our files do show that on September 4, 1963, in a letter addressed to this court, petitioner admitted he knew that appointed counsel intended to file a no-merit brief and that because of “ * * * the lack of desire to pursue the matter with any effort, that Mr. Beckler be dismissed and Mr. Harry Weis be appointed by the court.”   We did not accede to this request.   The practice of this court at that time in respect of no-merit briefs was to refuse other counsel if requested, but to grant upon request to a defendant permission to file in pro. per. supplemental briefs.   Curry made no request to file a brief in pro. per.   In a letter dated March 1, 1964, addressed to the Clerk of this Court, Curry said:  “In The District Court of Appeal, there has been a ‘No Merit Brief’ filed by Mr. Howard E. Beckler, in the month of November 1963, for this defendant (Johnny Lee Curry).“Due to presently unknown circumstances, attorney Beckler has not notified me when my case is to be heard, or whether it has yet been heard.“I would like to know whether the ‘No Merit Appeal’ has been affirmed, or not.   Or I would like to be informed [sic] of the present disposition of my case in this court.”The brief referred to had been filed on November 14, 1963.   The record also shows that in a letter dated May 18, 1963, addressed to the Clerk of this Court, Curry says, among other things:  ‘'Now that I have the Reporter's Transcript, I will be able to prepare my appellant's Opening Brief from it.   Please let me know the date by which this brief must be filed by me.”However, our record shows, that pursuant to request dated May 27, 1963, for appointment of counsel, we made such appointment on June 14, 1963.

1.   This man was apparently defendant Burns, whose case was severed from this trial due to the fact that he was in the County Hospital and unable to sand trial at that time.

2.   Abdelkader's appeal (Crim. # 8775) was on our January 1964 calendar and his conviction on both counts was affirmed in an opinion designated not for publication.

3.   This man was defendant Burns.

4.   Instruction 91 reads as follows:  “All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.”Instruction 91E reads as follows:  “For one person to aid and abet another in the commission of a criminal offense means to knowingly and with criminal intent aid, promote, encourage or instigate by act or counsel, or by both act and counsel, the commission of such offense.”

PER CURIAM.

HERNDON and ROTH, JJ., concur. Hearing granted;  MOSK, J., not participating.