*1 Dist., Sept. 16, 1968.] No. 13506. Second Div. Five. [Crim. PEOPLE, THE Plaintiff and Respondent, WILLIAM H. al., Appellants. FANNING et Defendants and '730 *2 appoint- and Daniel L. Dintzer Herbert E. under Selwyn, Appellants. Appeal,
ments for Defendants the Court of and Attorney General, Lynch, Thomas C. Elizabeth Miller and Deputy Attorneys Katz, General, for Plaintiff and Robert F. Respondent. Fanning KAUS, jointly Defendants P. J. Blake were robbery Safeway Saturday tried for of a store on June guilty. robbery 1966. Both were found After the escaped in an Fanning. the defendants automobile driven police gave point Fanning At chase. one fired a bullet Thompson. Finch the direction of Officers II and Counts charged Fanning III of the information both and Blake deadly weapon alleged they assault with a knew that performance engaged the victims were officers (Pen. Code, 245, (b).) Fanning their duties. subd. III, acquitted, guilty found on counts II and Both Blake appeal, of the contentions made and view the conclusions we very briefly: have reached the facts can be summarized early morning in the 18, 1966, hours on June both defendants were hanging question. around the market The factual employees supports they various acted in conclusion bought At A concert. one Blake a bottle of vodka. little Fanning, employee later point, forced an to hand interpreted $82. His behavior after the as could be Apparently hurry somewhat odd. no he headed toward closed manager, door. The store that there had been who knew a robbery, opened told him that the door would not be until Fanning 9 a.m. misunderstood he then tried exit because through portion Finally entrance of the locked door. ‘‘ walked glancing you toward the other back, know, door over ’’ his shoulder. slowly. He walked rather Blake was observed the car. One the food clerks testi fied as which he tried to way out, follows: "... I saw Mr. on his go out in a door which we have it locked locked.’[1] night, him, and I ‘This door told you please ‘Would door,’ use the other and then when he went outside Mr. was in the ear. Then he ducked down and Mr. they took wheel, drove off. Soon after left market, pur- both defendants were *3 police. sued Thompson Officers and Finch heard about the case on They their intercept radio. tried to defendants and were doing successful in they ear, so. When saw the Finch who had sitting been passenger on the side, car, left the pistol pointed drew his it at oncoming defendants’ ve- hicle. When defendants were about 30 away, feet Finch saw Fanning’s left arm out of the window and by- as the ear went puff saw pop. smoke and heard a didHe not hear the whine of a Thompson bullet. Officer actually gun saw a Fanning’s hand. He pop. too heard a One officer estimated pursuit that the lasted eight seven or minutes and covered 10 to 15 miles! When the finally chase ended and both defendants were pistol arrested, a was found in the automobile. Four loose rounds of ammunition Fanning’s right were in pocket. coat jammed by expended an cartridge. After given arrest he was required constitu- tional warnings. He said gone that he had into the market, 1The record is not attempting clear whether this witness was to de manager. scribe the same incident as the purchases money.
made some and discovered that he had no immediately apprehended. He then left store and was money When asked about on his at the time of the “Well, money arrest he belonged said: most of that to Safe- way.” expended cartridge Asked about the and the shot that ‘1 nonresponsively: was fired he said Oh, I am not innocent. Panning’s shortly entering was that defense before market he had taken ping.” entering, “trip- after started “thinking thoughts.” way He was all kinds of In a doing, he does not what way knew he was another he did not. He drink, yet buy bought he wanted to alcohol: “. . . I cigarettes. —I anyway. had some I had cigars, got up some I got—went my there and then I went and to take out wallet. Then I I money, remembered don’t I—well, have so then I—I said, remembered the so then I me ‘Give ’ money. So, up money. I ended with the bag Then I took the got and went on outside and in the driving car. started away going and I remember police, started chasing everything, us and it, generally.” that was very vaguely. chase itself he remembered He did not any shooting. recall simpler Blake’s defense was a lot easily but more refuted he and testimony eyewitnesses of the in the store: Panning simply testified that Panning while inwas the store automobile, Blake remained in the the chase was asleep, and when he awoke already something on. Prom Panning said knew that trouble, there was but nevertheless he went sleep. back to Panning’s Appeal Panning contends that the support evidence does not verdict of robbery, gave trial court inadequate instructions to cover the issues raised the evidence of Pan- ning ’s intoxication, support evidence does not deadly verdict assault with a weapon, and—in oblique fashion—2 he also raises the capacity respect to the assault counts. obviously The evidence is adequate support more than all argument the verdicts on counts. The that it is not is based assumption on the Panning’s of hav- ing accepted. Clearly, taken LSD must be that is not so. *4 ‘2‘ In it is also addition, submitted that have failed to People estab harboring lish that the defendant was of capable an intent to harm an ’ ’ alleged at the time of the assault.
733 People adequately did court not concede that by resepct legal issues raised jury instruct to the he was under the influence of evidence that question. the crimes in when he committed of his was that because burden of defense specific Fanning did form the intent intoxicated state that robbery. of commit The vice the instructions specific essen intent to steal was an was not informed that a Butler, (People robbery. v. 65 tial element of the crime People 569, 421 P.2d 511, Cal.2d 572-574 [55 Cal.Rptr. 620, 892]), 772, v. 793 [36 intoxication nor was told that it consider his state of it should determining requisite if intent.3 that People People concede, citing Baker, also v. 42 550, People Arriola, Cal.2d 576 P.2d v. [268 705] Cal.App.2d 430, 683], 434-435 P.2d that is well “the law must, established that the trial court even on its own motion, instruct may negate intoxication the element of specific intent. course, It is, thoroughly settled that the intoxication may negate specific intent need not be induced Baker, (People supra, p. People 572; alcohol. v. Fair, cf. Cal.App.2d 890, Cal.Rptr. 632].) 893-896 [62 claimed, It is however, prejudi that the error is not People rely cial. On People Spencer, this on pages Arriola, supra, 87-89 and pages 435- (See 437. also Teale, Cal.2d Cal. Rptr. P.2d Miller, Cal.Rptr. 465, 297].) Teale, Spencer, Miller and Arriola it held the evidence intoxica tion was not agree We substantial. cannot that this is the case Quite apart here. testimony, defendant’s own his bizarre behavior after the attempt through exit two doors, locked through slow walk the market followed speed through city his suicidal miles streets Saturday morning peak phrased unusually traffic and his eon given (revised). 3The instruction which vital was not is CALJIC 78-B coupled This should have with an been instruction to the effect drugs resulting legal intoxication has the same effect as intoxication give induced is alcohol. The court did CALJIC but that instruction robbery (Pen. Code, 211) says nothing the code definition of gave about before intent. The court also CALJIC 78 it as read revision, given its most recent an instruction which should not be requires specific Spencer, where the crime intent. 86-87 retically alleviated, The error was not even theo Spencer, giving as was in of CALJIC 72-B. *5 story that enough to his fession to the lend substance had on the defense he the court’s failure to instruct prejudicial. must deemed be argument for made the conten- At oral counsel the brief, made his tion which he now admits he should have respect to namely that the error occurred with the two same weapon. deadly a was assault with The matter counts of argued prejudiced not satisfied that the are and we are raising late of the issue. the (Peo spite contrary the of occasional statements to Cal.Rptr. ; Cal.App.2d 141, ple Gaines, 283] [55 Cal.App.2d 38, Cal.Rptr. Claborn, [36 that is it now assault a 132]), we think settled Coffey, 204, 221-222 (People v. [60 intent crime. People Wilson, Cal.Rptr. 430 P.2d Carmen, People v. ; 757-760 820] Wheeler, People v. ; 775-776 Cal.2d Cal.Rptr. 246]; Cal.App.2d 522, 525 260 Corson, 584].)4 “One Cal.App.2d 581 [34 ‘attempt’ injury an on try to or ‘commit’ could not well injury any to cause of another if he had no intent the Carmen, p. persons. ...” to such 775.) compel con reversal of the The same reasons respect to the result with demand a like viction for robbery, assault counts. Appeal
Blake’s
Blake,
sufficiency of
is not attacked.
the evidence
court’s
that he too was the victim
however, claims
significance
intoxication
to instruct on
failure
LSD.
Blake’s
that there is
evidence
disagree with
counsel
We
already noted, his own testi-
LSD.
had taken
As
Blake
he
to
mony
he and
left what
believed
that when
was
immediately
point
of call before the
he
be
last
days.
slept
or
sleep,
for three
four
went
since he
up
Fanning and woke
went into
market with
He never
completely
Fan-
This was
corroborated
the chase.
portion
his
is as follows:
ning.
relevant
got
and we
car.
house,
went
a friend’s
“It—I
analyzed
in
Stephens,
concurred.
Fan
MOOR,
pro
I dissentfrom the reversal as to
tem.*
J.
ning.
upon
in-
mandatory
the trial
becomes
court
Before it
substantial
struct
must
evidence
on intoxication there
upon
and its
of the defendant's intoxication
effect
record
Cal.Rptr.
Spencer,
him.
Cal.2d 64 [31
Cal.App.2d
People Arriola, 164
;
Cal.Rptr.
Teale,
683];
If capacity arising from the use of LSD was to be the defendant’s charge defense to the it was encumbent upon supply necessary expert guide evidence to jury in their Failing this, determinations. to do the court was not in giving error the instruction on intoxication. imagination Finally, it taxes the severely to conclude that the bring could considering form of verdict admissions pointed of the defendant that at the cashier, demanded and money took the him, fleeing then high speed in a chase, and attempting stop police by shooting at them. While it was error for the court to fail to instruct the on the elements of the offense charged, error, however, prejudicial was not (Cal. here. Const., VI, art. 4½; Cal.Rptr. 620, 388 judgment
I would affirm the of conviction as to both defendants. petition rehearing for a A was denied 4, October
petitions appellant respondent Blake and the hearing for a Supreme Court were denied 13,1968. November