People v. Deatherage

Defendant was charged with robbery (Pen. Code, § 211) and that at the time of its commission, and his arrest he was armed with a deadly weapon; and a prior felony conviction (later stricken on motion of the People). He entered pleas of not guilty and not guilty by reason of insanity; experts were appointed to examine him regarding his present sanity and sanity at the time of the commission of the offense. The case proceeded to a jury trial; during its course the charge against codefendant O’Brien was dismissed on the People’s motion. Defendant was found guilty as charged and that he was armed at the time of the commission of the robbery, and his arrest. Another codefendant, Patricia Bledsoe, was acquitted. Defendant personally and all counsel waived trial by jury on the issue of his sanity and stipulated that the matter be submitted on the file, doctor’s reports and evidence heard at the trial. The judge found defendant to be sane at the time of the trial and at the time of the commission of the offense. Defendant was sentenced to the state prison; he ap- ' peals from the judgment.

On September 3, 1965, around 4:30 p.m., Joan Kelly, a cashier at J. W. Robinson store, was walking from the third

Defendant, known to Shirley Wickland, a security officer for the store, as Travis, came to the personnel office to pick up his paycheck; he was unable to obtain it at that time and stayed around in the office area for 5 or 10 minutes. She described a driveway along the west side of the store adjacent to the employees ’ entrance. Around 5 p.m. Robert Na.nma.nn, a security guard, observed defendant, whom he knew as Wayne Travis, on the first floor employees’ stairwell; defendant came down the stairs wearing dark glasses. Na.uma.nn noticed a stack of bills in his coat pocket. As defendant reached Naumann, defendant turned and pointed a gun at him and proceeded to search him; defendant then left starting down the stairs toward the basement where he turned and went out of the employees’ entrance walking at a fast rate. Stationed at the employees’ desk near the employees’ entrance checking people in and out through the exit was Phyllis Jossman. She saw defendant leave through the exit around 5 p.m. Before that she had been outside where she informed a woman, identified as eodefendant Bledsoe, that she would have to move her car (a 1956 Buick) which was double-parked in the driveway.

Around 9 :30 p.m. defendant was arrested in an apartment in Hollywood; he was in the company of codefendants Bledsoe and O’Brien. When the police entered they observed a gun containing four rounds of live ammunition in defendant’s hand; there were additional rounds on the dresser. They found $1,194 in new currency on the dresser, and removed $41 from a purse on the sofa bed and $43 from codefendant O’Brien. Defendant's car, a 1956 Buick (identified in a photograph contained in People’s Exhibit 5 as the one in which

Codefendant Patricia Bledsoe testified that defendant asked her to drive him to J. W. Robinson to pick up his check; they took a cab to where defendant’s car was located then she drove him to the store; upon arriving she parked in the driveway near the employees ’ entrance; some time later defendant came out, got into the car and told her to “take off”; he had a gun with him at the time and a large amount of cash in Ms possession. Two weeks prior to this she observed defendant drink alcoholic beverages, usually Scotch. When asked if defendant was intoxicated when they went to Robinson’s she answered, “I suppose he had had a few.” She was asked a number of times whether he was intoxicated at the time and each time she parried the question and evaded answering it. Finally, when asked by the court if he was under the influence of intoxicating liquors, she said, “He had been drinking some, ’ ’ but " he didn’t act intoxicated. ’ ’

Defendant testified that he went to J. W. Robinson where he had been previously employed; he had been off work for some time because of alcoholic hangovers and “D.T.’s”; on September 3 he had been drinking Scotch; he carried a gun with Mm because his life had been threatened by someone; he took a cab to where Ms car was picked up because a friend had previously borrowed it and he had just found out where it was; he felt unable to drive because of his drinking; on arriving at the store he went to the personnel department but was unable to obtain his paycheck ■ he left the office and went to the cafeteria in search of the shoe department manager; bis memory was hazy about what occurred thereafter but he recalls that he grabbed the box from Miss Kelly while on the stairway and that it fell to the floor whereupon he picked up the money and put it in his pocket; he did not have the gun drawn at the time but the gun fell from his belt to the floor and he picked it up and held it in his hand; then he ran downstairs where he met the guard, at which time he had his gun down at his side; when he left that area he became confused and started for the basement, thereafter leaving the store and reaching the car where codefendant Bledsoe was waiting, and instructed her to drive off.

In rebuttal, O’Brien, after the charges against him were dismissed, testified that he met Patricia Bledsoe and defend

The first point raised by appellant is that the trial court committed prejudicial error in failing to properly endorse his Special Instruction No. 5 (on voluntary intoxication when relevant to specific intent). He argues that from this failure it must be assumed that the instruction was not given and the jury was not instructed on his defense of intoxication.

While the reporter’s transcript does not contain the instructions read by the judge, the clerk’s transcript reveals a folder prepared by the clerk of the superior court containing 38 pages of “Instructions Given” to the jury; included therein is defendant’s Special Instruction No. 5 which is stamped but does not bear the endorsement of the court. Section 1127, Penal Code, requires that “. . . Upon each charge presented and given or refused, the court must endorse and sign its decision and a statement showing which party requested it. . . .”; and section 1176, Penal Code, provides that “the judge must make and sign an indorsement upon such instructions, showing the action of the court thereon.” It is apparent that as to Special Instruction No. 5 the strict technical requirements of these sections requiring the court to indicate which instructions were given and which were refused by endorsing its decision thereon, have not been met. Faced with a similar noncompliance with section 1127, the court in People v. Lazard, 229 Cal.App.2d 347 [ 40 Cal.Rptr. 358 ], stated the general rule to the effect “that if an instruction is unmarked, it must be deemed to have been refused. [Citations.] ” (p. 349), but considered the augmented record on appeal which included the jury instructions as packaged by the clerk of the court and statements in the reporter’s transcript and clerk’s transcript, each to the effect that the jury was instructed, and concluded that the instructions had in fact been read to the jury, and affirmed the judgment. Likewise in People v. Bush, 227 Cal.App.2d 795 [ 39 Cal.Rptr. 17 ], there was a noncompliance with section 1176—“a technical error on the part of the judge,” but the court held that “the agumented record clearly reflects all of the instructions offered by both sides, and also which instructions were given and which were refused” (pp. 797-798), and found that there was no reversible error.

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied May 4, 1967.