People v. Davaney (7 Cal. App. 3d 736, 1970)

Opinion

WHELAN, J.

Delbert Eugene Davaney appeals from a judgment of conviction of first degree robbery (Pen. Code, § 211) in a non-jury trial.

Statement of Facts

At approximately 8:20 p.m., Davaney, on October 16, 1968, entered a liquor store in San Diego where Marvin Rosen was working as a clerk, approached Rosen, standing behind the cash register counter, raised a shotgun he carried to a level position about waist-high, and said, “Don’t do anything.”

A customer named “Red” was in the store when Davaney entered. Red started to leave the store but stopped when Davaney pointed the gun at him and said, “Don’t move.”

Davaney was near the cash register counter and again pointed the gun at Rosen, demanding the money in the register.

Roger Clarkson, another clerk, from the rear of the store, he^rd a rather loud voice and walked into the store area to see what was -going on. He saw a man with a gun pointed at Rosen and heard him demanding money from Rosen. The man turned toward Clarkson for a second and Clarkson returned to the back area of the store and remained there until the man left. Clarkson was unable to say that Davaney was the man he had seen in the store.

Rosen withdrew an undetermined number of one-dollar and five-dollar bills from the register and placed them on the counter. Davaney picked up the money, placed it in one of his pockets, and left, saying, “Don’t move or you are dead.” Rosen immediately telephoned the police while Red followed Davaney out the door and saw him get into a car. Red got the license number and gave it to Rosen, who relayed the number to the police.

Rosen testified that during the holdup Davaney’s speech was slightly slurred and his facial expression was blank. Rosen was not able to smell alcohol about Davaney and, because Davaney remained four to five feet away from him at all times, would not have been able to detect an odor unless it had been very strong. Clarkson also said Davaney’s voice was not clearly distinct but he could determine what he was saying.

At 8:20 p.m. Officers Clain and Jacobs of the San Diego Police Department received a report of the robbery and were given the license number, which was found to belong to a 1963 Chevrolet registered to Blanche Davaney of 6359 Scimitar Street.

Clain and Jacobs arrived at the Scimitar address at about 9:15 p.m. and observed two cars: a 1963 Chevrolet, bearing the license number given them, parked under a carport; and a 1957 Chevrolet, parked nearby. The hood of the 1963 Chevrolet was warm. In the 1957 Chevrolet, whose doors were locked, a shotgun was lying on the back seat.

Officer Ringkamp also arrived at the Scimitar address. At the residence Davaney’s mother gave the police a key to the 1957 Chevrolet. The shotgun was removed and was found to be unloaded. No shells were found in either vehicle.

The mother told Ringkamp she thought her son might be at the Encanto recreation center, which was a few blocks away. At the recreation center Ringkamp observed a man sitting on the floor whose appearance matched the description he had received over the radio. Ringkamp approached and said, “Davaney?” The man replied, “Yes.” Ringkamp gave him the Miranda warning and placed him under arrest for the robbery. Ringkamp testified: “I asked him if he understood the questions intelligently, and he said ‘Yes.’ And then I asked him if having understood what I had told him, was he willing to talk with us; and he said, no, he didn’t want to talk. He said he wanted to talk to a lawyer.” Ringkamp nevertheless asked Davaney if he had used his mother’s car that night and if he owned a gun. Davaney replied “no” to both questions.

At the time of the arrest, Ringkamp did not notice an odor of alcohol about Davaney. He did notice, however, that Davaney spoke very slowly and did not appear to be nervous. Ringkamp, during the trip to the police station, asked Davaney if he had been in the Lomita Village area that night. Davaney said he had not.

Officer James Sing had known Davaney casually for some time prior to the incident and was assigned to do the follow-up in the case. At approximately 11:30 the following morning he saw Davaney in the jail’s interrogation room. Sing gave Davaney the Miranda warning which Davaney said he understood. Sing was unaware that Davaney had requested to see an attorney the previous night and asked if he was willing to talk. Davaney replied that he would answer some questions. No attorney was present. During the interrogation a full confession was obtained, the content of which was admitted at trial over objection.

The nature of the defense was diminished capacity.

Davaney’s mother stated he had drunk increasing amounts of alcohol in the past few years and had been drinking daily from October 11, 1968, until October 16, the day of the robbery. On October 16 she came home from work about 5 p.m. and found Davaney asleep. He awoke around 7 p.m. and demanded dinner. When he found the food was cold, Davaney became loud and abusive and began knocking over furniture. Someone called the police and, upon their arrival, Davaney told them he had been drinking vodka and that was all he had been taking; the police shined a flashlight into defendant’s eyes; after the police left she fixed defendant a sandwich, he went outside, and pretty soon she heard her car starting.

Sophia Boniface, a family friend, testified that she knew Devaney had been a heavy drinker “for the last six months.” She had last been in touch with him on October 11 when she had spoken to him over the telephone, and he seemed very drunk.

Officer Strey, a defense witness, who had been at the Davaney home shortly after Davaney’s argument with his mother, testified he had observed overturned furniture. Strey was able to smell a stale odor of alcohol about Davaney and said he appeared “half drunk” but not “stone drunk.” “He would or could understand what we were saying to him, and he could talk about to us. He answered our questions. He was crotchety. H