Post by Admin Horan on Apr 26, 2015 12:35:12 GMT -6
This information was originally published by Tom Voigt on his website zodiackiller.com/ He has no idea what it means, but he did publish it first. Since it's nothing but public records concerning various court cases, he can't copyright it. But he did publish it first. It's not the only thing he published first, without having a clue what it means, but he did publish it first.
From court records:
"The record indicates that previous to the December 18, 1980, search, appellant had a long history of criminal activity. For example, on December 11, 1969, the California Highway Patrol made a traffic stop of appellant and observed within his vehicle a large bayonet protruding from underneath the driver's seat.
"Also found within the vehicle were an automatic
pistol, stolen credit cards, 1.5 grams of amphetamines, and a narcotics injection kit
containing a needle and a syringe with residue of
amphetamine present.
"Appellant's criminal activity is further evidenced by a December 1969 Vallejo Police Department report that, over the past year, it had maintained a nightly surveillance of appellant's Vallejo residence. During this period, the police made several narcotics arrests
and were informed by the persons arrested that they had purchased drugs from appellant at his residence, often in exchange for stolen property. (Resp. Br., Rx. D.)
"On December 11, 1969, appellant's residence was
searched pursuant to a search warrant and numerous items of stolen property were seized. (Resp. Br., Ex. E.)
"On January 21, 1970, a plea bargain was reached
and appellant pled guilty to possession of dangerous drugs, with, four prior convictions and was sentenced to the Solano County Jail."
By Tom Voigt (Tom_Voigt) (12-224-139-118.client.attbi.com - 12.224.139.118) on Monday, July 15, 2002 - 12:37 am:
THE PEOPLE, Plaintiff and Respondent, v.
DAVID LEON PERRY et al., Defendants and Appellants
Crim. No. 15048
Supreme Court of California
7 Cal. 3d 756; 499 P.2d 129;
1972 Cal. LEXIS 224; 103 Cal. Rptr. 161
August 2, 1972
PRIOR HISTORY:
Superior Court of Solano County, No. 5813, Edmund M. Moor, Judge. *
* Assigned by the Chairman of the Judicial Council.
DISPOSITION: Defendants have cited us to no
reversible error, and we have found none. The judgment of conviction is affirmed as to both defendants.
COUNSEL: E. C. Sylvia and David W. Lowe, under
appointments by the Supreme Court, for Defendants and Appellants.
Thomas C. Lynch and Evelle J. Younger, Attorneys
General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and George R. Nock, Deputy Attorneys General, for Plaintiff and Respondent.
JUDGES: In Bank. Opinion by Wright, C. J., with
McComb, Peters, Tobriner, Burke and Sullivan, JJ., concurring.
OPINIONBY: WRIGHT
OPINION:
Harry Redmon, David Perry, "Rockey" Dixon, and a person identified as "John Doe" Ott were jointly charged by indictment with murder and with conspiracy to commit murder. Redmon, Perry, and Dixon pleaded not guilty to both counts of
the indictment and were jointly tried by jury; "John Doe" Ott had not been apprehended by the time of trial.
At the close of the prosecution's case, the trial court ruled that the principal witness for the prosecution, Diana Moore, was an accomplice as a matter of law and entered a judgment of acquittal on both counts of the indictment as to Dixon because the prosecution failed to present evidence corroborating his guilt. Thereafter,
the court dismissed the conspiracy count as to the remaining defendants and submitted the murder count to the jury.
The jury returned verdicts finding Redmon and Perry guilty of murder in the first degree. Jury trial was waived on the penalty issue, and both defendants were sentenced to life imprisonment.
Defendants appeal from the judgments entered on the jury verdicts. Assuming, as we must, that Diana Moore is an accomplice, we are initially confronted with the question of whether
her incriminating testimony is sufficiently
corroborated as required by Penal Code section 1111 by independent evidence establishing consciousness of guilt on the part of the defendants.
In a related contention, Perry claims that evidence seized from his vehicle should have been suppressed because the search of that vehicle without a warrant violated his Fourth Amendment rights. Furthermore, both defendants contend that evidence of other crimes and wrongful acts was improperly admitted. In addition, Perry contends that Diana Moore waived the psychotherapist privilege so the trial court should have granted his request to review certain medical records concerning her
treatment; that the court incorrectly refused to instruct the jury to return a special finding of fact or a special verdict; and that the court improperly denied permission to play a certain tape recording in its entirety before the jury.
Redmon contends that, as a matter of law, the
evidence is insufficient to support a guilty verdict as to him; that the trial court erroneously refused to examine prospective jurors
separately, outside the presence of other veniremen; that by adopting a procedure whereby the testimony of one witness was taken
outside the presence of the jury and then read to the jury, the court violated the Sixth Amendment right of confrontation; that the
court improperly prevented the defense from reading several pages of a transcribed statement to the jury; that the court incorrectly
refused to instruct the jury that evidence found in Perry's car could be considered only against
Perry for a limited purpose; that the court erroneously failed to instruct the jury on second degree murder and manslaughter;
and that the prosecutor committed prejudicial misconduct.
An examination of defendants' numerous contentions reveals no reversible error, and therefore the judgment of conviction is
affirmed as to both defendants.
The Facts
On December 7, 1967, the body of Ronald Lee Roy was discovered in the Carquinez Heights area of Vallejo. An autopsy of Roy's body revealed three bullet wounds in the head and three facial lacerations. The pathologist who conducted the autopsy testified that the lacerations had occurred before death and were probably inflicted by a hard, blunt object. The
coroner of Solano County was of the opinion that the victim had been killed less than 12 hours before the body was found.
The day after Roy's body was discovered, his
automobile was found parked on a Vallejo street.
Sergeant Kenneth Odiorne, the investigating officer, examined the vehicle. He noticed that the edge of the trunk lid, the back bumper, and the door handles were cleaner than other parts of the car; that the trunk contained a large quantity of blood and some flesh tissue; that the latch on the inside of the trunk was scratched; and that paint from the latch was stuck to a tool found in the trunk.
The investigation of Roy's death did not progress
significantly until August of 1968 when a local barber told Sergeant Odiorne that
Diana Moore had information concerning the killing. At trial, the barber testified that Diana came into his shop in early 1968 and
told him that she was facing a sentence for parole violation, a sentence she particularly did not want to serve because she was a drug addict. Diana told the barber that her habit
would probably cost $ 100 per day but that "her
people" furnished her with narcotics to keep her from divulging certain information. The information of which Diana had knowledge was that "her people" had murdered Roy.
On August 12, 1968, while Diana was in custody
awaiting trial on an unrelated charge, Odiorne talked with her about Roy's murder. Diana led Odiorne to the place where the corpse had been discovered and told him a version of the commission of the crime.
At trial, Diana was called as a witness and, pursuant to Penal Code section 1324, was granted
immunity from prosecution. Her testimony as the same relates to the murder of Roy is hereinafter summarized.
Diana was 19 years of age, the mother of an
illegitimate child, and an addict whose drug habit was supplied by defendant Perry. At the time of the killing, she lived with her
parents but subsequently moved into Perry's residence.
On the evening of December 6, 1967, Diana and Perry drove around Vallejo in Perry's car, smoking marijuana as they drove. At approximately 10 p.m., they arrived at the Fireplug 6, a beer parlor, where Diana consumed several beers.
At 10:30 p.m., Perry told Diana to meet him outside the Fireplug 6 in 45 minutes, and then he departed. Diana left at 11:15 as instructed. She saw Perry's car parked across the street, approached it and seated herself in the front passenger seat. Perry was in the driver's seat; Dixon and Redmon were in the back seat. Diana's arrival did not interrupt the conversation between the three men. She heard Redmon say, "Ott should be right on time."
The three men talked about Ronald Roy and someone
said, "Well, he's not going to talk. We're going to keep him quiet." When Diana asked what Roy had done, Redmon told her that Roy was a "snitch" (an informer).
While she was seated in Perry's car, Diana noticed a car drive into the parking lot of the
Fireplug 6 and saw the driver alight from his vehicle. A few minutes later, she looked back toward the parking lot and noticed the same man standing behind a different car, talking to a second man. She observed the first man strike the other on the head but looked the other way before she was able to determine whether a weapon was used. When she looked back again, Diana did not see the person who had been
struck, but she did observe the assailant close the trunk of the car behind which the two men had been standing, enter the car, start
the motor, and drive the car into the street. Perry and his passengers followed in his car.
The two cars proceeded to the Carquinez Heights area and parked next to each other. Dixon, Redmon, and Perry got out of their car, and the man identified as Ott got out of the other automobile. The four men gathered behind the car
driven by Ott and began talking. Dixon stood back from the others and said, "Let's hurry and get it over with. . . . I don't want to be a part of this thing."
After responding to Dixon, Ott asked Perry to
identify "the broad in the car." Perry replied that she was his "old lady." Ott approached Diana and said: "Well, look here, you haven't seen nothing here tonight. You never been
here tonight. You don't know me, you never seen me." He also warned, "If you ever say anything, I'll take care of you because this isn't my
first time and it won't be my last."
Ott returned to the rear of the car he had driven and opened the trunk, inadvertently enabling Diana to see the head of a person
who was in the trunk. Addressing that person, Ott
screamed, "I just want you to know that we know n1 . . . You know why we are doing this." Diana thought that the person in the trunk was going to be beaten so she lay down on the front seat of Perry's car, presumably to avoid seeing the violence.
The person in the trunk began crying and pleading. Three shots were fired, and the
suppliant's voice was heard no more. Diana sat up and saw Ott closing the trunk of the other car; she also noticed Perry give a gun
to Redmon. Ott told Dixon to drive the car containing the body, and when Dixon protested, Ott replied, "Well, you have to do part of it."
Perry and Redmon returned to Perry's car;
Dixon and Ott entered the other vehicle. The two cars left the Carquinez Heights area and separated.
By Sylvie (Sylvie14) (spider-ntc-tb013.proxy.aol.com - 198.81.16.153) on Saturday, July 13, 2002 - 05:04 pm:
He also was in possesion of a 12 gauge shotgun and a .308 calibre rifle. The 1970 sentence though was only for one year.
Interesting possible suspect Tom, esp. since I continue to believe David and Betty Lou look like drug hits.
By Ed N (Ed_N) (acc15288.ipt.aol.com - 172.193.82.136) on Saturday, July 13, 2002 - 11:29 pm:
Isn't this the same guy who figures into Harry Martin's pathetic Z theory, who he claims ordered a hit on Darlene because she wouldn't give Ott a percentage of her earnings?
And Sylvie, how do you figure that LHR was a drug hit?
By Sylvie (Sylvie14) (spider-ntc-ta053.proxy.aol.com - 198.81.16.43) on Sunday, July 14, 2002 - 09:40 am:
Really Ed, I do not call any Z theory "pathetic" anymore. Actually, the only thing that is pathetic is that after 30+ years, noone is any closer to solving this mystery. Thus I am perfectly willing to think out of the box, nothing else has worked and this one psycho creep has made fools of some very bright minds.
As for the LHR drug involvement, well as you know the first idea, the first rumblings around the high school was that David had been involved in some deals. Perhaps everyone's initial instinct was the correct one. Also that area is was quite known to be an area where deals were made.
Moving on to DF and MM, it also makes sense that they were at BRS to score drugs (not score each other). From what MM told my brother, he took alot of drugs in his late teens.
Look, there is no reason why Z was not also somehow involved in the drug trade such as this DWO character (or BMD for that matter.) The two are not mutually exclusive.
By Ed N (Ed_N) (acbfe198.ipt.aol.com - 172.191.225.152) on Monday, July 15, 2002 - 12:58 am:
Sylvie: the only reason I consider it pathetic is because it isn't even a theory. Martin took ideas from everyone and their grandma, kinda mixed them together, ensured that he blamed everyone he could think of for the Z crimes, put his own little spin on it, and called it a "new" theory. It changed over the course of the 19 parts, he contradicted himself, couldn't get his facts straight, fabricated evidence, and didn't even understand the basics of the case itself. At least Gareth Penn was relatively consistent.
As far as Ott goes, however, he does turn up in Martin's "theory," where he ordered Paul Petri, a corrupt CHP officer, who dated Darlene and was in love with her, to kill her, because she chose not to join his organization and so did not give him a percentage of her earnings. In this "theory," Petri failed to kill her and Mageau, and Martin goes on to suggest, without actually naming the officer who went with them in the ambulance (who we can deduce was Richard Hoffman), that he killed her but not Mageau on the way to the hospital. At best, it's a bizarre theory; at worst, it's an incoherent, slapped-together composite of everyone else's theories.
People v. Ott (1978)
84 Cal. App. 3d 118
[Crim. No. 17015. First Dist., Div. Two. Aug. 22, 1978.]
THE PEOPLE, Plaintiff and Respondent, v. DAVID WALLY OTT, Defendant and Appellant.
(Opinion by Kane, J., with Taylor, P. J., and Rouse, J., concurring.) [84 Cal. App. 3d 119]
COUNSEL
Shapiro, Shapiro & Shapiro and Carl B. Shapiro for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson, Jr., and R. Gordon Baker, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KANE, J.
Defendant appeals from a judgment of conviction fn. 1 entered upon a jury verdict finding him guilty of sale of a controlled substance (methamphetamine) in violation of Health and Safety Code, section 11379. The charge and conviction grew out of an undercover narcotics operation, the circumstances of which may be summarized as follows:
About 5:20 p.m. on May 18, 1976, Inspector John Eisler, an officer of the Solano County Bureau of Narcotic Enforcement, and his informant, one Robin Saunders, went to Traveler's Inn Motel (aka Kentwig Motel), Vallejo, California. Saunders had informed Eisler that Larry Hershman, known to him as "Cherokee," was residing in room 53 of the motel and was selling narcotics.
Upon entering the room, Eisler and Saunders negotiated to buy a quantity of amphetamine, a controlled substance, from Hershman. While Hershman agreed to sell them a quarter ounce of amphetamine for $80, he stated that he did not have any drugs at the moment, but was [84 Cal. App. 3d 123] expecting his supplier -- appellant -- to arrive within an hour to an hour and a half; that if Eisler returned after his supplier came, he could purchase the drug.
After agreeing to the terms of the sale, Eisler and Saunders left room 53. On leaving, they encountered appellant who was sitting on the steps leading from the sidewalk to the parking lot and was listening to police calls through his four-channel radio scanner. Since Saunders and appellant had been old acquaintances, Saunders greeted Ott and introduced Eisler to him. Ott inquired why Saunders and Eisler were in Hershman's room. On learning that they were attempting to purchase drugs from Hershman, he stated: "Why are you scoring from that turkey for? That's my dope he's selling. Why go through the middleman? You and I can do something better." When asked if he had any drugs, appellant patted a wallet in his rear pocket and replied, "'Right here.'"
After the above described encounter and discussion, appellant started walking towards Hershman's motel room, inviting Eisler, Saunders and James Exxon, a friend of appellant who had arrived during the conversation, to accompany him. Shortly after entering the room and exchanging greetings, Hershman, appellant, Exxon and Hershman's girlfriend, Cheryl Rickard, had a conversation in the rear of the room behind a partition. Exxon and Rickard were the first to emerge from behind the partition. Hershman followed and, holding a plastic bag which contained a white powdery substance, stated that he had just "scored a half ounce" and that they could consummate the sale when he found his "rig, kit," necessary for packaging the drug.
At Hershman's direction, Eisler and Saunders searched Hershman's car for the "rig, kit." While searching the car, they noticed that the trunk was filled with men's and women's clothes. After the "rig, kit" was found, Hershman and Eisler went to the rear of the motel room and packaged the drugs behind the partition. Eisler selected four of the bags into which the powder had been "cut," and paid Hershman $80 as they had previously agreed. Upon leaving the room, appellant told them that they should contact him next time they wanted to buy drugs by repeating "'That turkey [Hershman] is dealing my drugs.'" The powdery substance purchased from Hershman was subsequently analyzed and found to be nonpharmaceutically produced methamphetamine.
At trial Hershman, Rickard and appellant denied that appellant had delivered drugs to Hershman. Appellant advanced the explanation that [84 Cal. App. 3d 124] he and Exxon went to the Travelers Inn to deliver some clothes that belonged to Hershman. He stated that he did not give any drugs to Hershman while they were behind the partition. However, during his trial testimony, appellant admitted that at a certain point of his conversation with Eisler he had stated "'I have got all kinds of drugs,'" and also that he had told them that "they ought to score off of me instead of that turkey Cherokee."
Appellant assails the judgment of conviction on multiple grounds. Thus it is contended that (1) the trial court erred in denying appellant's motion to suppress evidence pursuant to Penal Code fn. 2 section 1538.5; (2) evidence of other crimes was erroneously admitted and the prosecution's failure to give adequate notice that evidence of other crimes would be offered violated appellant's right to a fair trial; (3) the trial court erroneously instructed the jury on the elements of aiding and abetting; (4) the corpus delicti of the crime was proved by appellant's admission rather than independent evidence; and (5) the trial court made improper remarks with respect to the elements of aiding and abetting. Appellant's contentions are discussed seriatim.
Suppression of Evidence: Appellant first contends that the trial court committed prejudicial error by admitting in evidence a fictitious driver's license and a vehicle registration report, both of which were obtained as a result of a warrantless search of the premises at 5092 Black Oak Drive, Concord, California. Appellant maintains that the search in dispute was an unjustified parole search not necessitated by the legitimate demands of the operation of the parole process (In re Martinez (1970) 1 Cal. 3d 641, 647 [83 Cal.Rptr. 382, 463 P.2d 734], fn. 6; People v. Coffman (1969) 2 Cal. App. 3d 681, 688 [82 Cal.Rptr. 782]), and involved premises which did not serve as apellant's residence. Appellant's argument cannot be accepted for several reasons.
[1] One, while parolees are protected against unreasonable search and seizure (In re Martinez, supra, fn. 5; People v. Coffman, supra), it is well established that a parole officer may enter and search a parolee's residence even if the information relied on by the parole officer does not reach the level of probable cause required under the Fourth Amendment (People v. Lamb (1972) 24 Cal. App. 3d 378, 382 [101 Cal.Rptr. 25]). As stated in People v. Thompson (1967) 252 Cal. App. 2d 76, 85 [60 Cal.Rptr. 203], "The rationale underlying this principle is that a parolee is at all [84 Cal. App. 3d 125] times in custodia legis. Although he is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls. [Citations.] Accordingly, so far as necessary for the maintenance of parole guardianship, the status of a parolee as a prisoner is no different than that of one who remains in confinement, and, therefore, for the purpose of maintaining the restraints and social safeguards accompanying such status, the correctional authorities who supervise the parolee on parole may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them." (Accord: People v. Ford (1975) 54 Cal. App. 3d 149, 153 [126 Cal.Rptr. 396]; People v. Anglin (1971) 18 Cal. App. 3d 92, 95 [95 Cal.Rptr. 588].) It is likewise well settled that where a parole officer initiates a supervisory parole search, he may enlist the assistance of the police (People v. Thomas (1975) 45 Cal. App. 3d 749, 758 [119 Cal.Rptr. 739]; People v. Coffman, supra). The fact that a parole officer cooperates with ordinary peace officers does not render a parole search invalid. On the contrary, when the parole officer exercises independent judgment and undertakes the search for the purpose of supervising the parolee, discovering parole violations and the protection of the public, the search is legal and unassailable (People v. Gilkey (1970) 6 Cal. App. 3d 183, 190 [85 Cal.Rptr. 642]; People v. Coffman, supra).
[2] When viewed in light of the foregoing principles, the facts indicate that the parole search of appellant's residence was fully justified, and the items in dispute which had been developed as a result of a lawful search were admissible in evidence. Briefly described, the facts reveal that after appellant had been arrested, Sergeant Morrison informed appellant's parole officer, Cardoza, that during appellant's arrest goods were observed in appellant's residence which appeared to be stolen merchandise and also that appellant acted "kind of strangely" upon being booked. Based upon this information, which raised the suspicion that appellant may have been under the influence of narcotics fn. 3 when he was arrested and/or may have otherwise violated his parole, Cardoza initiated a parole search of the residence, which included the garage as well. The license plate of the automobile which led to the evidence appellant sought to suppress was discovered during the search of the garage. In sum, since the search was parole oriented (i.e., it was not for the purpose of discovering evidence that appellant participated in the May 1976 drug transaction, but rather was to determine if appellant had violated his parole by unlawfully possessing narcotics), and since the license plate leading to the [84 Cal. App. 3d 126] incriminating fictitious documents was found in the course of a permissible parole search, the evidence in dispute was clearly admissible at trial.
Appellant's reliance on People v. Coffman, supra, 2 Cal. App. 3d 681, is obviously misplaced. In Coffman, the police initiated the search of the parolee's apartment and the parole officer was invited solely in order to supply color of legality to a warrantless entry of the apartment and to serve as a "front" for the police. In contrast, in the case at bench Cardoza exercised independent judgment of evaluating the information received from the police and he himself initiated fn. 4 the search for the avowed purpose of discovering a probable violation of parole.
Appellant's alternative argument that even if the parole search was valid, the search of the residence at 5092 Black Oak Drive was improper because he had informed his parole officer that he was not living in his home any more, is likewise without substance. While the record indicates that appellant had told Cardoza that he resided in various motels, the evidence is uncontroverted that the Black Oak residence was appellant's home, his last known address and also the place where he was arrested. It is settled that where, as here, the parole officer is justified in searching the parolee's residence, he may search a residence reasonably believed to be the parolee's (cf. People v. Kanos (1971) 14 Cal. App. 3d 642 [92 Cal.Rptr. 614]).
Although our conclusion that the search of appellant's residence was a legitimate parole search is by itself dispositive of appellant's claim, we note that the search in dispute is also sustainable on the further ground that the license plate, which triggered the further police investigation leading to the fictitious driver's license and vehicle registration report, was in plain view. As the record indicates, on July 26, 1976, Officer Hayes and other members of the Concord Police Department arrived at appellant's home to arrest him pursuant to an arrest warrant. In order to secure the premises, one officer went to the rear yard from where he saw that there was a car in the garage. This information was relayed to Officer Hayes. Hayes, who was standing on the driveway, noticed that the front door of the garage was ajar. From his position on the driveway, the officer could observe the car, including its license plate. He took down the license number and ran a check on the vehicle. The check revealed that the car was registered to "David Rawlings" of Rodeo. Subsequently, it [84 Cal. App. 3d 127] was discovered that appellant had obtained a fictitious driver's license under the name of "David Rawlings." [3] It is, of course, well settled that observations of things in plain sight made from a place where the police officer has a right to be, do not amount to a search in the constitutional sense, and that items in plain sight are subject to seizure and admissible in evidence (Lorenzana v. Superior Court (1973) 9 Cal. 3d 626, 634 [108 Cal.Rptr. 585, 511 P.2d 33]; People v. Sirhan (1972) 7 Cal. 3d 710, 742 [102 Cal.Rptr. 385, 497 P.2d 1121]).
Admission of Other Crimes in Evidence: Appellant next argues that the admission of the fictitious driver's license and vehicle registration report was assailable upon other grounds as well. First, it is contended that the items in question constituted evidence of other crimes (Veh. Code, § 20 fn. 5) and were either inadmissible under Evidence Code section 1101, subdivision (b), or excludable under Evidence Code, section 352. In the alternative, it is claimed that appellant was denied a fair hearing because the prosecutor failed to give adequate notice that evidence of other crimes would be offered. Appellant's contention is mistaken on both counts.
[4a] In addressing the first question, we note that, contrary to appellant's position, Evidence Code, section 1101, does not prohibit the introduction of other crimes if they are relevant to prove some fact exemplified in the statute. fn. 6 [5] The general test of relevancy is whether the evidence tends logically, naturally or by reasonable inference to establish any factual material for the People or to overcome any material matter sought to be proved by the defense (People v. Peete (1946) 28 Cal. 2d 306, 315 [169 P.2d 924]; (People v. Enos (1973) 34 Cal. App. 3d 25, 34 [109 Cal.Rptr. 876]).
[4b] Tested by these principles, the fictitious documents were clearly admissible even if they constituted a crime. The false driver's license and registration report demonstrated appellant's scheme to avoid apprehension. As repeatedly emphasized in case law, evidence of a design to [84 Cal. App. 3d 128] prevent
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From court records:
"The record indicates that previous to the December 18, 1980, search, appellant had a long history of criminal activity. For example, on December 11, 1969, the California Highway Patrol made a traffic stop of appellant and observed within his vehicle a large bayonet protruding from underneath the driver's seat.
"Also found within the vehicle were an automatic
pistol, stolen credit cards, 1.5 grams of amphetamines, and a narcotics injection kit
containing a needle and a syringe with residue of
amphetamine present.
"Appellant's criminal activity is further evidenced by a December 1969 Vallejo Police Department report that, over the past year, it had maintained a nightly surveillance of appellant's Vallejo residence. During this period, the police made several narcotics arrests
and were informed by the persons arrested that they had purchased drugs from appellant at his residence, often in exchange for stolen property. (Resp. Br., Rx. D.)
"On December 11, 1969, appellant's residence was
searched pursuant to a search warrant and numerous items of stolen property were seized. (Resp. Br., Ex. E.)
"On January 21, 1970, a plea bargain was reached
and appellant pled guilty to possession of dangerous drugs, with, four prior convictions and was sentenced to the Solano County Jail."
By Tom Voigt (Tom_Voigt) (12-224-139-118.client.attbi.com - 12.224.139.118) on Monday, July 15, 2002 - 12:37 am:
THE PEOPLE, Plaintiff and Respondent, v.
DAVID LEON PERRY et al., Defendants and Appellants
Crim. No. 15048
Supreme Court of California
7 Cal. 3d 756; 499 P.2d 129;
1972 Cal. LEXIS 224; 103 Cal. Rptr. 161
August 2, 1972
PRIOR HISTORY:
Superior Court of Solano County, No. 5813, Edmund M. Moor, Judge. *
* Assigned by the Chairman of the Judicial Council.
DISPOSITION: Defendants have cited us to no
reversible error, and we have found none. The judgment of conviction is affirmed as to both defendants.
COUNSEL: E. C. Sylvia and David W. Lowe, under
appointments by the Supreme Court, for Defendants and Appellants.
Thomas C. Lynch and Evelle J. Younger, Attorneys
General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and George R. Nock, Deputy Attorneys General, for Plaintiff and Respondent.
JUDGES: In Bank. Opinion by Wright, C. J., with
McComb, Peters, Tobriner, Burke and Sullivan, JJ., concurring.
OPINIONBY: WRIGHT
OPINION:
Harry Redmon, David Perry, "Rockey" Dixon, and a person identified as "John Doe" Ott were jointly charged by indictment with murder and with conspiracy to commit murder. Redmon, Perry, and Dixon pleaded not guilty to both counts of
the indictment and were jointly tried by jury; "John Doe" Ott had not been apprehended by the time of trial.
At the close of the prosecution's case, the trial court ruled that the principal witness for the prosecution, Diana Moore, was an accomplice as a matter of law and entered a judgment of acquittal on both counts of the indictment as to Dixon because the prosecution failed to present evidence corroborating his guilt. Thereafter,
the court dismissed the conspiracy count as to the remaining defendants and submitted the murder count to the jury.
The jury returned verdicts finding Redmon and Perry guilty of murder in the first degree. Jury trial was waived on the penalty issue, and both defendants were sentenced to life imprisonment.
Defendants appeal from the judgments entered on the jury verdicts. Assuming, as we must, that Diana Moore is an accomplice, we are initially confronted with the question of whether
her incriminating testimony is sufficiently
corroborated as required by Penal Code section 1111 by independent evidence establishing consciousness of guilt on the part of the defendants.
In a related contention, Perry claims that evidence seized from his vehicle should have been suppressed because the search of that vehicle without a warrant violated his Fourth Amendment rights. Furthermore, both defendants contend that evidence of other crimes and wrongful acts was improperly admitted. In addition, Perry contends that Diana Moore waived the psychotherapist privilege so the trial court should have granted his request to review certain medical records concerning her
treatment; that the court incorrectly refused to instruct the jury to return a special finding of fact or a special verdict; and that the court improperly denied permission to play a certain tape recording in its entirety before the jury.
Redmon contends that, as a matter of law, the
evidence is insufficient to support a guilty verdict as to him; that the trial court erroneously refused to examine prospective jurors
separately, outside the presence of other veniremen; that by adopting a procedure whereby the testimony of one witness was taken
outside the presence of the jury and then read to the jury, the court violated the Sixth Amendment right of confrontation; that the
court improperly prevented the defense from reading several pages of a transcribed statement to the jury; that the court incorrectly
refused to instruct the jury that evidence found in Perry's car could be considered only against
Perry for a limited purpose; that the court erroneously failed to instruct the jury on second degree murder and manslaughter;
and that the prosecutor committed prejudicial misconduct.
An examination of defendants' numerous contentions reveals no reversible error, and therefore the judgment of conviction is
affirmed as to both defendants.
The Facts
On December 7, 1967, the body of Ronald Lee Roy was discovered in the Carquinez Heights area of Vallejo. An autopsy of Roy's body revealed three bullet wounds in the head and three facial lacerations. The pathologist who conducted the autopsy testified that the lacerations had occurred before death and were probably inflicted by a hard, blunt object. The
coroner of Solano County was of the opinion that the victim had been killed less than 12 hours before the body was found.
The day after Roy's body was discovered, his
automobile was found parked on a Vallejo street.
Sergeant Kenneth Odiorne, the investigating officer, examined the vehicle. He noticed that the edge of the trunk lid, the back bumper, and the door handles were cleaner than other parts of the car; that the trunk contained a large quantity of blood and some flesh tissue; that the latch on the inside of the trunk was scratched; and that paint from the latch was stuck to a tool found in the trunk.
The investigation of Roy's death did not progress
significantly until August of 1968 when a local barber told Sergeant Odiorne that
Diana Moore had information concerning the killing. At trial, the barber testified that Diana came into his shop in early 1968 and
told him that she was facing a sentence for parole violation, a sentence she particularly did not want to serve because she was a drug addict. Diana told the barber that her habit
would probably cost $ 100 per day but that "her
people" furnished her with narcotics to keep her from divulging certain information. The information of which Diana had knowledge was that "her people" had murdered Roy.
On August 12, 1968, while Diana was in custody
awaiting trial on an unrelated charge, Odiorne talked with her about Roy's murder. Diana led Odiorne to the place where the corpse had been discovered and told him a version of the commission of the crime.
At trial, Diana was called as a witness and, pursuant to Penal Code section 1324, was granted
immunity from prosecution. Her testimony as the same relates to the murder of Roy is hereinafter summarized.
Diana was 19 years of age, the mother of an
illegitimate child, and an addict whose drug habit was supplied by defendant Perry. At the time of the killing, she lived with her
parents but subsequently moved into Perry's residence.
On the evening of December 6, 1967, Diana and Perry drove around Vallejo in Perry's car, smoking marijuana as they drove. At approximately 10 p.m., they arrived at the Fireplug 6, a beer parlor, where Diana consumed several beers.
At 10:30 p.m., Perry told Diana to meet him outside the Fireplug 6 in 45 minutes, and then he departed. Diana left at 11:15 as instructed. She saw Perry's car parked across the street, approached it and seated herself in the front passenger seat. Perry was in the driver's seat; Dixon and Redmon were in the back seat. Diana's arrival did not interrupt the conversation between the three men. She heard Redmon say, "Ott should be right on time."
The three men talked about Ronald Roy and someone
said, "Well, he's not going to talk. We're going to keep him quiet." When Diana asked what Roy had done, Redmon told her that Roy was a "snitch" (an informer).
While she was seated in Perry's car, Diana noticed a car drive into the parking lot of the
Fireplug 6 and saw the driver alight from his vehicle. A few minutes later, she looked back toward the parking lot and noticed the same man standing behind a different car, talking to a second man. She observed the first man strike the other on the head but looked the other way before she was able to determine whether a weapon was used. When she looked back again, Diana did not see the person who had been
struck, but she did observe the assailant close the trunk of the car behind which the two men had been standing, enter the car, start
the motor, and drive the car into the street. Perry and his passengers followed in his car.
The two cars proceeded to the Carquinez Heights area and parked next to each other. Dixon, Redmon, and Perry got out of their car, and the man identified as Ott got out of the other automobile. The four men gathered behind the car
driven by Ott and began talking. Dixon stood back from the others and said, "Let's hurry and get it over with. . . . I don't want to be a part of this thing."
After responding to Dixon, Ott asked Perry to
identify "the broad in the car." Perry replied that she was his "old lady." Ott approached Diana and said: "Well, look here, you haven't seen nothing here tonight. You never been
here tonight. You don't know me, you never seen me." He also warned, "If you ever say anything, I'll take care of you because this isn't my
first time and it won't be my last."
Ott returned to the rear of the car he had driven and opened the trunk, inadvertently enabling Diana to see the head of a person
who was in the trunk. Addressing that person, Ott
screamed, "I just want you to know that we know n1 . . . You know why we are doing this." Diana thought that the person in the trunk was going to be beaten so she lay down on the front seat of Perry's car, presumably to avoid seeing the violence.
The person in the trunk began crying and pleading. Three shots were fired, and the
suppliant's voice was heard no more. Diana sat up and saw Ott closing the trunk of the other car; she also noticed Perry give a gun
to Redmon. Ott told Dixon to drive the car containing the body, and when Dixon protested, Ott replied, "Well, you have to do part of it."
Perry and Redmon returned to Perry's car;
Dixon and Ott entered the other vehicle. The two cars left the Carquinez Heights area and separated.
By Sylvie (Sylvie14) (spider-ntc-tb013.proxy.aol.com - 198.81.16.153) on Saturday, July 13, 2002 - 05:04 pm:
He also was in possesion of a 12 gauge shotgun and a .308 calibre rifle. The 1970 sentence though was only for one year.
Interesting possible suspect Tom, esp. since I continue to believe David and Betty Lou look like drug hits.
By Ed N (Ed_N) (acc15288.ipt.aol.com - 172.193.82.136) on Saturday, July 13, 2002 - 11:29 pm:
Isn't this the same guy who figures into Harry Martin's pathetic Z theory, who he claims ordered a hit on Darlene because she wouldn't give Ott a percentage of her earnings?
And Sylvie, how do you figure that LHR was a drug hit?
By Sylvie (Sylvie14) (spider-ntc-ta053.proxy.aol.com - 198.81.16.43) on Sunday, July 14, 2002 - 09:40 am:
Really Ed, I do not call any Z theory "pathetic" anymore. Actually, the only thing that is pathetic is that after 30+ years, noone is any closer to solving this mystery. Thus I am perfectly willing to think out of the box, nothing else has worked and this one psycho creep has made fools of some very bright minds.
As for the LHR drug involvement, well as you know the first idea, the first rumblings around the high school was that David had been involved in some deals. Perhaps everyone's initial instinct was the correct one. Also that area is was quite known to be an area where deals were made.
Moving on to DF and MM, it also makes sense that they were at BRS to score drugs (not score each other). From what MM told my brother, he took alot of drugs in his late teens.
Look, there is no reason why Z was not also somehow involved in the drug trade such as this DWO character (or BMD for that matter.) The two are not mutually exclusive.
By Ed N (Ed_N) (acbfe198.ipt.aol.com - 172.191.225.152) on Monday, July 15, 2002 - 12:58 am:
Sylvie: the only reason I consider it pathetic is because it isn't even a theory. Martin took ideas from everyone and their grandma, kinda mixed them together, ensured that he blamed everyone he could think of for the Z crimes, put his own little spin on it, and called it a "new" theory. It changed over the course of the 19 parts, he contradicted himself, couldn't get his facts straight, fabricated evidence, and didn't even understand the basics of the case itself. At least Gareth Penn was relatively consistent.
As far as Ott goes, however, he does turn up in Martin's "theory," where he ordered Paul Petri, a corrupt CHP officer, who dated Darlene and was in love with her, to kill her, because she chose not to join his organization and so did not give him a percentage of her earnings. In this "theory," Petri failed to kill her and Mageau, and Martin goes on to suggest, without actually naming the officer who went with them in the ambulance (who we can deduce was Richard Hoffman), that he killed her but not Mageau on the way to the hospital. At best, it's a bizarre theory; at worst, it's an incoherent, slapped-together composite of everyone else's theories.
People v. Ott (1978)
84 Cal. App. 3d 118
[Crim. No. 17015. First Dist., Div. Two. Aug. 22, 1978.]
THE PEOPLE, Plaintiff and Respondent, v. DAVID WALLY OTT, Defendant and Appellant.
(Opinion by Kane, J., with Taylor, P. J., and Rouse, J., concurring.) [84 Cal. App. 3d 119]
COUNSEL
Shapiro, Shapiro & Shapiro and Carl B. Shapiro for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson, Jr., and R. Gordon Baker, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
KANE, J.
Defendant appeals from a judgment of conviction fn. 1 entered upon a jury verdict finding him guilty of sale of a controlled substance (methamphetamine) in violation of Health and Safety Code, section 11379. The charge and conviction grew out of an undercover narcotics operation, the circumstances of which may be summarized as follows:
About 5:20 p.m. on May 18, 1976, Inspector John Eisler, an officer of the Solano County Bureau of Narcotic Enforcement, and his informant, one Robin Saunders, went to Traveler's Inn Motel (aka Kentwig Motel), Vallejo, California. Saunders had informed Eisler that Larry Hershman, known to him as "Cherokee," was residing in room 53 of the motel and was selling narcotics.
Upon entering the room, Eisler and Saunders negotiated to buy a quantity of amphetamine, a controlled substance, from Hershman. While Hershman agreed to sell them a quarter ounce of amphetamine for $80, he stated that he did not have any drugs at the moment, but was [84 Cal. App. 3d 123] expecting his supplier -- appellant -- to arrive within an hour to an hour and a half; that if Eisler returned after his supplier came, he could purchase the drug.
After agreeing to the terms of the sale, Eisler and Saunders left room 53. On leaving, they encountered appellant who was sitting on the steps leading from the sidewalk to the parking lot and was listening to police calls through his four-channel radio scanner. Since Saunders and appellant had been old acquaintances, Saunders greeted Ott and introduced Eisler to him. Ott inquired why Saunders and Eisler were in Hershman's room. On learning that they were attempting to purchase drugs from Hershman, he stated: "Why are you scoring from that turkey for? That's my dope he's selling. Why go through the middleman? You and I can do something better." When asked if he had any drugs, appellant patted a wallet in his rear pocket and replied, "'Right here.'"
After the above described encounter and discussion, appellant started walking towards Hershman's motel room, inviting Eisler, Saunders and James Exxon, a friend of appellant who had arrived during the conversation, to accompany him. Shortly after entering the room and exchanging greetings, Hershman, appellant, Exxon and Hershman's girlfriend, Cheryl Rickard, had a conversation in the rear of the room behind a partition. Exxon and Rickard were the first to emerge from behind the partition. Hershman followed and, holding a plastic bag which contained a white powdery substance, stated that he had just "scored a half ounce" and that they could consummate the sale when he found his "rig, kit," necessary for packaging the drug.
At Hershman's direction, Eisler and Saunders searched Hershman's car for the "rig, kit." While searching the car, they noticed that the trunk was filled with men's and women's clothes. After the "rig, kit" was found, Hershman and Eisler went to the rear of the motel room and packaged the drugs behind the partition. Eisler selected four of the bags into which the powder had been "cut," and paid Hershman $80 as they had previously agreed. Upon leaving the room, appellant told them that they should contact him next time they wanted to buy drugs by repeating "'That turkey [Hershman] is dealing my drugs.'" The powdery substance purchased from Hershman was subsequently analyzed and found to be nonpharmaceutically produced methamphetamine.
At trial Hershman, Rickard and appellant denied that appellant had delivered drugs to Hershman. Appellant advanced the explanation that [84 Cal. App. 3d 124] he and Exxon went to the Travelers Inn to deliver some clothes that belonged to Hershman. He stated that he did not give any drugs to Hershman while they were behind the partition. However, during his trial testimony, appellant admitted that at a certain point of his conversation with Eisler he had stated "'I have got all kinds of drugs,'" and also that he had told them that "they ought to score off of me instead of that turkey Cherokee."
Appellant assails the judgment of conviction on multiple grounds. Thus it is contended that (1) the trial court erred in denying appellant's motion to suppress evidence pursuant to Penal Code fn. 2 section 1538.5; (2) evidence of other crimes was erroneously admitted and the prosecution's failure to give adequate notice that evidence of other crimes would be offered violated appellant's right to a fair trial; (3) the trial court erroneously instructed the jury on the elements of aiding and abetting; (4) the corpus delicti of the crime was proved by appellant's admission rather than independent evidence; and (5) the trial court made improper remarks with respect to the elements of aiding and abetting. Appellant's contentions are discussed seriatim.
Suppression of Evidence: Appellant first contends that the trial court committed prejudicial error by admitting in evidence a fictitious driver's license and a vehicle registration report, both of which were obtained as a result of a warrantless search of the premises at 5092 Black Oak Drive, Concord, California. Appellant maintains that the search in dispute was an unjustified parole search not necessitated by the legitimate demands of the operation of the parole process (In re Martinez (1970) 1 Cal. 3d 641, 647 [83 Cal.Rptr. 382, 463 P.2d 734], fn. 6; People v. Coffman (1969) 2 Cal. App. 3d 681, 688 [82 Cal.Rptr. 782]), and involved premises which did not serve as apellant's residence. Appellant's argument cannot be accepted for several reasons.
[1] One, while parolees are protected against unreasonable search and seizure (In re Martinez, supra, fn. 5; People v. Coffman, supra), it is well established that a parole officer may enter and search a parolee's residence even if the information relied on by the parole officer does not reach the level of probable cause required under the Fourth Amendment (People v. Lamb (1972) 24 Cal. App. 3d 378, 382 [101 Cal.Rptr. 25]). As stated in People v. Thompson (1967) 252 Cal. App. 2d 76, 85 [60 Cal.Rptr. 203], "The rationale underlying this principle is that a parolee is at all [84 Cal. App. 3d 125] times in custodia legis. Although he is not a prison inmate in the physical sense, he is serving the remainder of his term outside rather than within the prison walls. [Citations.] Accordingly, so far as necessary for the maintenance of parole guardianship, the status of a parolee as a prisoner is no different than that of one who remains in confinement, and, therefore, for the purpose of maintaining the restraints and social safeguards accompanying such status, the correctional authorities who supervise the parolee on parole may subject him, his home and his effects to such constant or occasional inspection and search as may seem advisable to them." (Accord: People v. Ford (1975) 54 Cal. App. 3d 149, 153 [126 Cal.Rptr. 396]; People v. Anglin (1971) 18 Cal. App. 3d 92, 95 [95 Cal.Rptr. 588].) It is likewise well settled that where a parole officer initiates a supervisory parole search, he may enlist the assistance of the police (People v. Thomas (1975) 45 Cal. App. 3d 749, 758 [119 Cal.Rptr. 739]; People v. Coffman, supra). The fact that a parole officer cooperates with ordinary peace officers does not render a parole search invalid. On the contrary, when the parole officer exercises independent judgment and undertakes the search for the purpose of supervising the parolee, discovering parole violations and the protection of the public, the search is legal and unassailable (People v. Gilkey (1970) 6 Cal. App. 3d 183, 190 [85 Cal.Rptr. 642]; People v. Coffman, supra).
[2] When viewed in light of the foregoing principles, the facts indicate that the parole search of appellant's residence was fully justified, and the items in dispute which had been developed as a result of a lawful search were admissible in evidence. Briefly described, the facts reveal that after appellant had been arrested, Sergeant Morrison informed appellant's parole officer, Cardoza, that during appellant's arrest goods were observed in appellant's residence which appeared to be stolen merchandise and also that appellant acted "kind of strangely" upon being booked. Based upon this information, which raised the suspicion that appellant may have been under the influence of narcotics fn. 3 when he was arrested and/or may have otherwise violated his parole, Cardoza initiated a parole search of the residence, which included the garage as well. The license plate of the automobile which led to the evidence appellant sought to suppress was discovered during the search of the garage. In sum, since the search was parole oriented (i.e., it was not for the purpose of discovering evidence that appellant participated in the May 1976 drug transaction, but rather was to determine if appellant had violated his parole by unlawfully possessing narcotics), and since the license plate leading to the [84 Cal. App. 3d 126] incriminating fictitious documents was found in the course of a permissible parole search, the evidence in dispute was clearly admissible at trial.
Appellant's reliance on People v. Coffman, supra, 2 Cal. App. 3d 681, is obviously misplaced. In Coffman, the police initiated the search of the parolee's apartment and the parole officer was invited solely in order to supply color of legality to a warrantless entry of the apartment and to serve as a "front" for the police. In contrast, in the case at bench Cardoza exercised independent judgment of evaluating the information received from the police and he himself initiated fn. 4 the search for the avowed purpose of discovering a probable violation of parole.
Appellant's alternative argument that even if the parole search was valid, the search of the residence at 5092 Black Oak Drive was improper because he had informed his parole officer that he was not living in his home any more, is likewise without substance. While the record indicates that appellant had told Cardoza that he resided in various motels, the evidence is uncontroverted that the Black Oak residence was appellant's home, his last known address and also the place where he was arrested. It is settled that where, as here, the parole officer is justified in searching the parolee's residence, he may search a residence reasonably believed to be the parolee's (cf. People v. Kanos (1971) 14 Cal. App. 3d 642 [92 Cal.Rptr. 614]).
Although our conclusion that the search of appellant's residence was a legitimate parole search is by itself dispositive of appellant's claim, we note that the search in dispute is also sustainable on the further ground that the license plate, which triggered the further police investigation leading to the fictitious driver's license and vehicle registration report, was in plain view. As the record indicates, on July 26, 1976, Officer Hayes and other members of the Concord Police Department arrived at appellant's home to arrest him pursuant to an arrest warrant. In order to secure the premises, one officer went to the rear yard from where he saw that there was a car in the garage. This information was relayed to Officer Hayes. Hayes, who was standing on the driveway, noticed that the front door of the garage was ajar. From his position on the driveway, the officer could observe the car, including its license plate. He took down the license number and ran a check on the vehicle. The check revealed that the car was registered to "David Rawlings" of Rodeo. Subsequently, it [84 Cal. App. 3d 127] was discovered that appellant had obtained a fictitious driver's license under the name of "David Rawlings." [3] It is, of course, well settled that observations of things in plain sight made from a place where the police officer has a right to be, do not amount to a search in the constitutional sense, and that items in plain sight are subject to seizure and admissible in evidence (Lorenzana v. Superior Court (1973) 9 Cal. 3d 626, 634 [108 Cal.Rptr. 585, 511 P.2d 33]; People v. Sirhan (1972) 7 Cal. 3d 710, 742 [102 Cal.Rptr. 385, 497 P.2d 1121]).
Admission of Other Crimes in Evidence: Appellant next argues that the admission of the fictitious driver's license and vehicle registration report was assailable upon other grounds as well. First, it is contended that the items in question constituted evidence of other crimes (Veh. Code, § 20 fn. 5) and were either inadmissible under Evidence Code section 1101, subdivision (b), or excludable under Evidence Code, section 352. In the alternative, it is claimed that appellant was denied a fair hearing because the prosecutor failed to give adequate notice that evidence of other crimes would be offered. Appellant's contention is mistaken on both counts.
[4a] In addressing the first question, we note that, contrary to appellant's position, Evidence Code, section 1101, does not prohibit the introduction of other crimes if they are relevant to prove some fact exemplified in the statute. fn. 6 [5] The general test of relevancy is whether the evidence tends logically, naturally or by reasonable inference to establish any factual material for the People or to overcome any material matter sought to be proved by the defense (People v. Peete (1946) 28 Cal. 2d 306, 315 [169 P.2d 924]; (People v. Enos (1973) 34 Cal. App. 3d 25, 34 [109 Cal.Rptr. 876]).
[4b] Tested by these principles, the fictitious documents were clearly admissible even if they constituted a crime. The false driver's license and registration report demonstrated appellant's scheme to avoid apprehension. As repeatedly emphasized in case law, evidence of a design to [84 Cal. App. 3d 128] prevent
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