PEOPLE v. ANDREWS (1964)

A jury found appellant Andrews and his co-defendant, one Dunn, guilty of first degree murder. The same jury fixed appellant's penalty at life imprisonment but disagreed as to Dunn's penalty, a mistrial as to that issue being ordered. Appellant's motion for a new trial was denied. He appeals from the judgment of conviction, his main contention being that the evidence is insufficient as a matter of law to support the verdict.

In the late evening of July 16, 1962, the body of the victim, Peter Follis, was found by police among some bushes at the deadend of Dilling Street in the North Hollywood area. At that time there was no evidence of his identity, nor were there any possessions on his person. The body, which bore the marks of a brutal beating, was later identified by the victim's brother, Jack Follis; he last saw his brother in the early morning of July 14th shortly before departure from a Hollywood cocktail lounge, the Peppermint West, where they and another man had spent part of the evening. Betty Follis, the victim's wife, testified that her husband left home for the last time about 5:45 on the afternoon of July 13th. He bore no bruises on his face or body. The deceased had a checking account (with printed checks) upon a Toluca Lake branch bank, owned several credit cards and wore a wrist watch. He was also the owner of a 1956 Chevrolet and a 1961 Thunderbird—Mrs. Follis testified that she never saw the Thunderbird after that evening. Less than a week later, the Thunderbird was involved in an accident in Zanesville, Ohio; it was being driven by appellant's co-defendant, Dunn, who was placed under arrest. Appellant was subsequently arrested in New York.

Both appellant and Dunn made separate statements to the police. Each was received in evidence, the jury being cautioned that the statement was binding only against the maker thereof. Each defendant also took the stand. Their statements and testimony are without conflict up to a certain point in each recital of the pertinent events. Appellant and Dunn had known each other for some time before their departure from Maryland for California. With appellant's brother, Ronald, they left Baltimore in a 1951 Cadillac registered to Ronald, arriving in Los Angeles on Friday or Saturday, July 6th or 7th. Within two days or so they secured accommodations at a Hollywood hotel; there all three shared the same room until July 14th. None of the group apparently either sought or obtained permanent employment. On the afternoon of July 13th Dunn and appellant's brother picked up a $25 Western Union money order sent Dunn by his father; they spent the rest of the afternoon walking up and down the streets of Hollywood. Ronald finally suggested to Dunn that they go to the Peppermint West. This they did after Ronald had parked his Cadillac in a lot behind the USO, two blocks away. Ronald left the Peppermint West about 11:00 p. m. in the company of a girl he had met. Dunn could not recall the exact time of his own departure—‘It could have been anywheres from 11:00 to 1:00.’ He testified that he went back to the parking lot, looking for Ronald; after buying a fifth of wine, which he consumed at his hotel, he returned to the Peppermint West and found that it was closed. Again he went back to the parking lot—the Cadillac was still not there.

According to Dunn, he then ‘started to retrack my route.’ When he was halfway to an adjacent parking lot, to the rear of Via Vigna on Vine Street, he heard somebody yell, ‘Hey.’ After a few moments, ‘I saw this person sitting in the gray Thunderbird waving me over.’ He asked Dunn to get in, and Dunn did so. After asking a few questions, the man made a lewd suggestion and gesture of a homosexual nature. He started to pull Dunn towards him, and Dunn in turn tried to get out of the car.

At this point, there is a variance in Dunn's testimony and the statement given to police. Dunn testified that the man (decedent Follis) struck him on the head, and Dunn pushed him away with a handkerchief until he (Dunn) passed out. On coming to, Dunn found Follis in a crooked position and was unable to revive him. In his statement to police, however, Dunn said that he found a man (decedent Follis) ‘passed out’ or asleep in a Thunderbird. Thinking this would be a good time to get some money, he started to rifle Follis' pockets. Follis woke up and yelled: ‘Whats going on? What are you doing?’ At this time, Dunn struck Follis three or four times, rendering him unconscious. Dunn then took $13 from Follis' front pocket. As he did so, Follis regained consciousness and started to raise up. Dunn took out his pocket handkerchief, put it around Follis' throat and applied pressure until Follis lapsed into unconsciousness once again.

As in his statement to police, Dunn testified that he found the keys to Follis' car and drove out of the parking lot. Almost immediately he encountered appellant who was driving Ronald's Cadillac and accompanied by an unknown white male. Appellant pulled his car over and got into the Thunderbird; the two defendants drove around for a short time. In his testimony Dunn stated that he told appellant he had been in a fight with a man and had ‘hurt him pretty bad.’ Appellant suggested that Dunn take the car and the body and leave them somewhere. He further testified that he did not know whether appellant took anything from the body. Dunn stated to the police, however, that he told appellant he thought he had killed a man by choking him with a handerchief; that appellant leaned over to the rear and felt the man's pulse, saying that he did not think he was dead; that appellant removed a large wallet from the man's pocket, keeping the wallet and its contents; that appellant told Dunn, upon return to appellant's car, to take the Thunderbird and the victim ‘and abandon it [sic].’

Appellant's meeting with Dunn at the time and place above mentioned was, according to his testimony, entirely by accident and substantially as narrated by his co-defendant. He detailed his activities on the evening and early morning of July 13th and 14th. He spent the early part of the evening in the company of a male homosexual who later dropped appellant off at the USO Club. There appellant eventually met his brother Ronald. At 10:30 or so the brothers, one Thomas Mafera, a man called ‘John’ and six marines all went to an Italian restaurant known as ‘Dino's' where they remained until 1:00. Appellant then dropped Ronald off at the Peppermint West, and all the others except ‘John’ were later dropped off at the USO. Appellant and his companion then purchased some liquor at a store located at the corner of Cahuenga and Yucca, three or four blocks from the USO. This they consumed in the car. More liquor was then purchased at another nearby store on Yucca; this they proceeded to consume. As they sat in the car drinking the second purchase, appellant observed Dunn on Yucca Street driving the Thunderbird. Dunn motioned for appellant to come to the automobile. Appellant did not get into the car, but stood by the window and talked to Dunn. The latter pointed out the ‘person’ in the back seat. Appellant had ‘never seen it [sic] before’ in his life. The man was breathing very heavily and hard. Appellant leaned through the window and felt the man's pulse; in appellant's opinion, the man was still alive but badly hurt. He so advised Dunn, adding that Dunn should take him to a hospital. Appellant denied that he removed any possessions from Follis' person.

After appellant had gone back to his own car, he and his companion drank the rest of the liquor; they finally returned to appellant's hotel and retired at about 3:30 a. m. Approximately thirty minutes later, appellant's brother returned to their room; he was followed a short time later by Dunn. Appellant testified that Dunn was in possession of a book of blank checks and a wallet containing credit cards. According to appellant, Dunn tore out half the checks and left them on the table, stating that he had to get out of town.

The next afternoon, at about 4:00 p. m., appellant met Thomas Mafera. Appellant testified that Mafera said he was in need of money; appellant then filled out one of the checks, in the sum of $45, signed Follis' name and gave it to Mafera. He told Mafera that he ‘got it off a guy.’ Although Mafera corroborated the testimony above quoted, appellant in his statement to the police had this to say about the transaction: ‘I told Tommy that I had obtained this I.D. from a queer and then he said that he wanted to use some of the man's checks, so I wrote him out a check using the man's name for $45.’

As in the case of his co-defendant, appellant's testimony and his statement to police are likewise not without variance, at least of omission. Thus, no mention of any kind is made in his extrajudicial statement to a meeting with Dunn on Yucca Street. He told the police that after dropping Ronald at the Peppermint West, he went to the USO and ‘I sat for a few minutes.’ Continuing, ‘Then we went to my car and got some beer and rum from a liquor store a few blocks away. We then drove around the Hollywood area and drank the beer and rum. We finally stopped and had hamburgers and coffee and arrived back at the Wilcox Hotel around 3:00 a. m. on Saturday morning. I went to bed then and the Marines slept on the floor.’ He admitted possession of Follis' checks and credit cards, claiming that he was given them by Dunn when the latter finally returned to the hotel early on the morning of July 14th; he purchased gasoline with the credit cards and cashed a few of Follis' checks on his return trip from California. Subsequently he learned that Dunn had been arrested in Ohio, and that both of them were wanted for murder. ‘As soon as I found out the man was dead I tore up the credit cards and checks and threw them along the highway.’

Appellant admitted a prior felony conviction, namely, interstate transportation of a stolen motor vehicle.

The only other testimony material to this appeal was that of Dr. Noguchi, a pathologist employed by the county coroner. It was his opinion, following an autopsy performed on July 17th, that the victim died of asphixia due to strangulation by probable ligature; that a handkerchief could have been the object used and that death occurred within two or three minutes after the application of a constrictive force lasting at least ten to fifteen seconds. There were at least twenty-five varying sized dark red abrasions in the victim's forehead, cheeks, lips, chin, and temporal areas and the anterior portion of the neck. Photographs, received as exhibits and transmitted to this court, substantially support the testimony just mentioned. Additionally, three or four abrasions were noted in the decedent's left hand; these were described by the witness as ‘defense marks.’ A blood test showed that the victim was ‘mildly under the influence of alcohol’ at the time of death.

It was the theory of the prosecution that the killing occurred during the perpetration of a robbery and was therefore murder in the first degree by force of the governing statute (Pen.Code, § 189); that proof of the independent felony was established by sufficient circumstantial evidence and was susceptible of the inference that it resulted from a joint venture on the part of both defendants. On the other hand, as shown above, appellant contended that he was not present at the scene of the homicide, that the crime committed was not planned in advance, and that the only possible felony attributable to him was the taking of property from Follis' dead or unconscious body—such felony not being one of those enumerated under section 189, supra. Asserting that the evidence at bar is ‘wholly circumstantial,’ appellant asks this court to consider the weight to be accorded circumstantial evidence in the light of certain instructions given to the jury as to that phase of the case.¹ This we cannot do. ‘The credence and ultimate weight to be given the evidence of the various particular circumstances are of course for the trier of fact, and ‘It is the trier of fact, not the appellate court, that must be convinced of a defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ [Citation.]' (People v. Redrick, 55 Cal.2d 282, 289, 10 Cal.Rptr. 823, 828, 359 P.2d 255, 260.) The case just cited also declares that the rule (spelled out in CALJIC No. 27) ‘is primarily for the guidance of the trier of fact.’ It is applicable to an appellate court ‘only where, giving to each circumstance in evidence all the legal effect toward guilt which it could support, it would still appear that a rational conclusion of innocence was not excluded.’ (Supra, 55 Cal.2d 282, 289–290, 10 Cal.Rptr. 823, 828, 359 P.2d 255, 260.

That Follis met his death as a result of the means described by Dr. Noguchi is not disputed—the photographs depict a cruel and brutal beating prior thereto. Appellant properly argues, however, that it must first be shown that there was a murder, not merely a killing; that under the ‘felony-murder doctrine’ there must first be substantial evidence to show that a robbery was in fact committed and that he (appellant) was involved in its perpetration. Robbery is defined as ‘the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’ (Pen.Code, § 211). The victim in the present case had several items of personal property in his possession when he left home on the evening of July 13th; none of these items was found on his person when police discovered his body, concealed under bushes, three days later; the body bore evidence of the use of great force and some of the victim's property was in appellant's possession the day following his death—too, still other items of decedent's personal property were admittedly used by appellant to finance his flight from California.

It is settled that when a person is shown to be in possession of recently stolen property, slight corroborative evidence of other inculpatory circumstances, tending to show guilt, supports the conviction of robbery. (People v. Sorrentino, 146 Cal.App.2d 149, 160, 303 P.2d 859.) There is corroborative evidence, albeit slight, tending to establish that appellant was a joint participant in the crime. ‘Guilty participation may be shown by circumstantial evidence.’ (People v. Anderson, 37 Cal.App.2d 615, 619, 100 P.2d 348, 349.) Appellant and Dunn were friends of long standing; appellant was in the vicinity of the crime at the time of its commission; the jury had the right to conclude that their subsequent meeting on Yucca Street was not by chance—to the contrary, that it was prearranged for any sinister purpose the jury wished to give it. As stated in Anderson, ‘If the circumstances proved reasonably justify the conclusion of the jury, the reviewing court has no authority to interfere therewith.’ (37 Cal.App.2d p. 619, 100 P.2d p. 349.)

The meeting on Yucca Street also furnishes corroborative evidence by virtue of appellant's failure to make mention thereof in his statement to police officers. Appellant concedes that his deception in this regard is indicative of ‘guilty knowledge’—but, he adds, not of murder but of the crimes of forgery and receiving stolen goods. A somewhat similar argument was made in People v. Davis, 48 Cal.2d 241, 309 P.2d 1, it being urged that the only inference deducible was ‘a consciousness of guilt of forgery, not a consciousness of guilt of murder.’ Said the court: ‘On the record here presented the jury was entitled to draw inferences as to both.’ (48 Cal.2d p. 251, 309 P.2d p. 6.) We make the same determination in the present case.

There is this further incriminatory circumstance deducible from appellant's statement to police. When appellant met Thomas Mafera on the afternoon of July 14th, he stated to the officers, he told the latter that an item in his possession had been obtained ‘from a queer.’ Under cross-examination there was no denial that he made that statement. Since there is nothing in the record to indicate that Dunn told appellant of Follis' asserted homosexual tendencies, the proper adverse inference could reasonably have been drawn that appellant was not telling the whole truth from the witness stand. Appellant's felony conviction made suspect his testimony; the those portions which tended to establish those portions which tended to establsih his innocence. Since Dunn's testimony was impeached by prior inconsistent statements, the jury could also have disbelieved any portion thereof to the effect that he was alone and unaccompanied by appellant at the time of his encounter with Follis. In that connection, Dunn told police that he struck Follis about four times; but this statement, and his subsequent testimony which is silent about the striking of any blows, are hardly supported by the testimony of Dr. Noguchi which makes reference to some twenty-five abrasions of various sizes which, the jury could properly infer, were probably caused by more than one assailant.

Finally, it is stated in People v. Chavez, 37 Cal.2d 656, 669, 234 P.2d 632, 640: ‘The law of this state has never required proof of a strict causal relationship between the felony and the homicide.’ Appellant, in his endeavor to establish that the prosecution has not shown the necessary causal relationship, suggests the following matters pointing to his innocence: There is nothing improbable in the chance meeting of appellant and Dunn on the morning in question; appellant's car was well known to Dunn, and it is probable that Dunn would have noticed it on the semi-deserted streets and beckoned for help. Despite their inconsistency in other matters, Dunn's statements substantiate this chance meeting; asks appellant: ‘If it was Dunn's desire to completely exonerate Andrews, as the People will argue, why did he place Andrews at the scene at all? If the jury believed Dunn's original statement that he approached Follis' car with the intent to steal the wallet of a sleeping person or, perhaps a man who was drunk, it is a ‘drunk roll’ situation (theft from the person) and not robbery. Other suggestions of appellant's innocence are made out but we are satisfied that the case is controlled by the pronouncements in People v. Redrick, supra, 55 Cal.2d 282, 289, 10 Cal.Rptr. 823, 359 P.2d 255, with respect to the duty of an appellate court when confronted with a record such as the one at bar.

Appellant's only other assignments of error are subsidiary to his main claim that the jury's verdict cannot stand as matter of law. First, he contends that the trial court erred in denying his motion for an advised verdict of acquittal at the close of the prosecution's case. (Pen.Code, § 1118.) Such motion should have been granted only if a prima facie case had not been made out; our discussion of the facts and the law shows that such is not the case at bar. Complaint is also made that the language of the court in its denial of the motion indicates a contrary view: ‘I am inclined to deny the motion.’ The point is without merit and its lack of merit is emphasized by the trial court's subsequent denial of a new trial (appellant's remaining assignment of error) when it was his duty to satisfy himself that the evidence as a whole was sufficient to sustain the verdict. (See Witkin, Cal. Criminal Proc., § 500.)

The judgment is affirmed.

FOOTNOTES

1.  ‘CALJIC No. 26: If the evidence in this case (as to any particular count) is susceptible to two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant's innocence, and reject that which points to his guilt. ‘You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable one, bearing in mind, however, that even if the reasonable deduction points to defendant's guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt. ‘CALJIC No. 27: I instruct you further that you are not permitted, on circumstantial evidence alone, or when the case of the People rests substantially on circumstantial evidence to find the defendant guilty of the (any) crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty, but are irreconcilable with any other rational conclusion.’

LILLIE, Justice.

FOURT, Acting P. J., and KINCAID, J. pro tem., concur.