Opinion
Cr. 6235
12-2-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Jack H. CHAPMAN, Emily Chapman, Avis Spears and Deo Cruz Obispo, Defendants, Jack H. Chapman and Avis Spears, Defendants and Appellants. *
Gerald J. Levie, Los Angeles, for appellants. Edmund G. Brown, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Jack H. CHAPMAN, Emily Chapman, Avis Spears and Deo Cruz Obispo, Defendants,
Jack H. Chapman and Avis Spears, Defendants and Appellants. *
Dec. 2, 1958.
Hearing Denied Dec. 22, 1958.
Hearing Granted Jan. 28, 1959.
Gerald J. Levie, Los Angeles, for appellants.
Edmund G. Brown, Atty. Gen., Jack E. Goertzen, Deputy Atty. Gen., for respondent.
ASHBURN, Justice.
Defendants Jack H. Chapman and Avis Spears appeal from judgment of conviction and order denying motion for new trial. These appellants were convicted of violation of § 288a, Penal Code, fellatio. Chapman was also convicted of pimping (Pen.Code, § 266h), in that he, knowing Gloria Jean Woods to be a prostitute, did live and derive support and maintenance from the earnings of her prostitution; also of contributing to the delinquency of said minor, Gloria Jean Woods (a lesser offense necessarily included in a charge of statutory rape, Penal Code, § 261, subd. 1). Chapman and his wife Emily were acquitted of two charges that they did jointly violate § 288a. Charges of pandering (Pen.Code, § 266i) with respect to said Gloria Jean Woods were made against Chapman and his wife separately, but both counts were set aside pursuant to motion made under § 995, Penal Code.
Appellants urge numerous grounds for reversal. Unfortunately it will be necessary for us to stain the pages of the reports by detailing to some extent the revolting evidence in the case.
During the cross-examination of Gloria Jean Woods (ordinarily referred to as Jean) it was developed that she had given to the juvenile authorities a signed written statement or statements covering the subject matters of her testimony; counsel for defendants demanded production of 'the statement' for purpose of impeachment and the court ruled that production could not be required.
The recently developed judicial philosophy of lawful enforcement of the criminal law accords to the defendant almost every weapon of defense which he calls for, even if he has to search the files of the prosecutor to find the same. Pertinent to this case is People v. Riser, 47 Cal.2d 566, 305 P.2d 1 (decided December 31, 1956). It is there held that a defendant in a criminal case can compel production of the statement of a prosecution witness for purpose of impeachment when it appears at the trial that the prosecution has the same in its possession and defendant's counsel has reasonable ground to believe that it may impeach the witness' testimony. It is not necessary to establish its impeaching nature in advance of production; but more than a possibility of impeachment is necessary; it must appear that there is good reason to believe that the document when produced would be admissible in evidence for some purpose.
The Riser case arose upon motion to vacate a subpoena requiring the production of statements given to the police. An order granting the motion was held erroneous, but the method of raising the question of production of the statements was not considered important, as the fact of their making and delivery to prosecution officials was confirmed during the trial upon cross-examination of the witnesses and the documents were desired for impeachment purposes. The prosecutor had told the newspaper reporters about the statements and their contents and defense counsel in this manner had learned of probable conflict with the testimony he adduced on cross-examination. The court differentiated this situation from an attempt at pre-trial discovery and said, in part: 'The question then is * * * whether he will be allowed any disclosure of evidence that the prosecution does not intend to produce in court at all' (47 Cal.2d at page 585, 305 P.2d at page 13); '[t]he decisions of this court have always impliedly recognized that on a proper showing a defendant in a criminal case can compel production when it becomes clear during the course of trial that the prosecution has in its possession relevant and material evidence. Production has been denied, not on the ground that there was never any right to it, but because the requirements justifying production had not been met in the particular case. (People v. Gallardo, 41 Cal.2d 57, 67 ; People v. Bermijo, 2 Cal.2d 270, 276 ; People v. Glaze, 139 Cal. 154 .)' 47 Cal.2d at pages 585-586, 305 P.2d at page 13. 'The proper test for determining whether production must be granted is not whether the evidence has been conclusively proved admissible but whether, as stated in People v. Glaze, supra, 139 Cal. at page 158, 72 P. at page 967, 'there is good reason to believe that the document, when produced, would be admissible in evidence for some purpose in the case. * * *' There must be more than a mere possibility that the statements when produced will contain contradictory matter and be in such a form that they can be used to impeach, but the chance that it may turn out eventually that they cannot be used for this purpose should not block production at the threshold. * * *' 47 Cal.2d at page 587, 305 P.2d at page 14. 'That the statements of Mrs. Burgess and Mr. Pantel existed and were in the possession of the prosecution or the police was never denied; that it was probable that they were inconsistent with the witnesses' testimony was shown by the newspaper accounts. * * * Defendant was not exploring for generally useful information, but demanded particular documents reasonably thought to be useable for the specific purpose of impeachment.' 47 Cal.2d at page 588, 305 P.2d at page 14.
The Riser decision was applied in People v. Carter, 48 Cal.2d 737, 752, 312 P.2d 665; Vance V. Superior Court, 51 Cal.2d 92, 330 P.2d 773; and Powell v. Superior Court, 48 Cal.2d 704, 312 P.2d 698.
This court discussed the Riser decision in People v. Kostal, 159 Cal.App.2d 444, 323 P.2d 1020, and concluded that the foundational requirements mentioned in People v. Glaze, 139 Cal. 154, 157, 72 P. 965, have not been disturbed by Riser; the Supreme Court denied a hearing. The situation at bar emphasizes another foundational requirement which is made plain in the Riser opinion,--'[t]here must be more than a mere possibility that the statements when produced will contain contradictory matter.' 47 Cal.2d at page 587, 305 P.2d at page 14. This case turns upon the presence or absence "is good reason to believe that the document when produced would be admissible in evidence for some purpose in the case." 47 Cal.2d at page 587, 305 P.2d at page 14.
The question of right to production of the statement given by the witness Jean Woods arose upon her cross-examination, as follows:
'Q. Let me ask you this question: Did you ever sign any written statement for the Juvenile Authorities? A. About what?
'Q. About your activities? A. I believe I did.
'Q. How many statements did you sign? A. I don't recall.
'Q. And how did it come about that this statement was signed by you; was it prepared by them? A. I think so.
'Q. Was that prepared before you gave them your version of the--was that prepared before you admitted these various things? A. No, I don't believe it was.
'Mr. Laven: At this time, your Honor, in view of the cross examination on this statement here, we request that we be allowed to see the written statement signed by this witness for the purpose of impeachment.'
The motion was denied.
'Mr. Laven: That statement is, in view of these inconsistencies
'The Court: Well, I have ruled.'
The question of whether defense counsel had reasonable ground to believe the statement to be of an impeaching nature requires some discussion of the facts; in that connection we confine ourselves to the situation as presented by the evidence up to the time of the request for production and its denial; the question of error must be determined as of that moment, for the request was not renewed.
Jean Woods, a mulatto and ward of the local juvenile court, was brought to California from her home in Florida, with her mother's consent, by defendant Jack H. Chapman, his wife and mother. They apparently are white people. The avowed purpose of bringing her to California was to have Jean care for the elder Mrs. Chapman and help with the housework in the Chapman home, which was at La Puente in Los Angeles County. In that home, a one-story building, lived Jack Chapman, his wife Emily, their three children aged 7, 10 and 11 years, Jack Chapman's mother, his daughter-in-law Margie Kelly, defendant Avis Spears, her 16-year-old brother Charles, a houseboy, and Jean Woods. She claimed to be 17 years old, or maybe 16, for she was not sure whether she was born in 1940 or 1941 (the trial was in January, 1958). The conviction of appellants rests entirely upon the testimony of Jean, which is corroborated somewhat as to the conviction of pimping and not at all as to the conviction of fellatio.
The over-all picture painted by the witness Jean was a most sordid one. She testified that Jack Chapman began to have intercourse with her the night of arrival in La Puente and this continued at the rate of four times a week, in the bedroom of Jack and his wife; and that Avis Spears was present; also Jack's own wife on two occasions. These things were said to have been done in the Chapmans' bedroom, across the hall from the children; in the case of Avis Spears' fellatio, across the hall from Mrs. Chapman. Jean said that she was in the room and watched these last mentioned activities.
In support of the pimping count she testified that on several occasions she and Margie Kelly were taken by Jack Chapman to Filipino labor camps near Oxnard and Venice, and to the servants' quarters of one of our institutes of higher learning, she being furnished by Jack with contraceptives and customers, thus enabling her to earn $35 to $45 at a session, being paid $5 per customer. The money, so she said, was turned over to Jack, who kept the same, returning none of it to her except 'odd money,' such as two dollars out of $57. Jack also gave her frequent hypodermic injections of penicillin, 'in case you get any disease.'
About three months after he arrival at La Puente she ran away from the Chapman home, representing to a woman who gave her a ride to Los Angeles that she was 21 years of age. In a few weeks she and one of her lovers were arrested. The officers had been informed of the activities within the Chapman household by a Mrs. Billie Mackey whose husband had been enjoying the favors of Jean. When they told Jean the reasons for her apprehension she denied everything and gave her age as 23.
She testified that the officers persisted in telling her everything she had done at Chapman's in spite of her denials, so she finally confessed everything. The officers then prepared a statement which she signed. They would tell her what she and others had done, she would confirm the fact, and they would write it down. 'They told me and then I told them.' She said, in effect, that the statement conformed to her testimony.
Although later cross-examination of the witness disclosed that she has been careless with the truth at all times, using it or rejecting it as seemed to fit the occasion, we cannot consider that later testimony when examining the question presently under consideration. The motion for production of the statement was never renewed and the question of error in the ruling necessarily turns upon the state of the record at that time. We are constrained to hold that adequate foundation for the requested inspection was not laid, in that appellant did not establish more than a possibility that the statement or statements when produced would contain contradictory matter.
If it were assumed that there was error in the ruling the question of miscarriage of justice would arise. The Riser case, supra, says, 47 Cal.2d at page 588, 305 P.2d at page 15: 'In deciding whether this error was prejudicial we must determine whether there was a reasonable probability that the jury would have reached a different verdict had defendant been allowed to obtain and introduce in evidence prior inconsistent statements of the eye-witnesses. (People v. Waston, 46 Cal.2d 818, 836 .)' In order to reach a probability of a different verdict at bar it would be necessary to compound possibilities and then call the result a reasonable probability. We would have to assume, upon the basis of mere speculation, that the statement would be contradictory of the witness' testimony and then to speculate upon what the jury would have done when weighing this assumed contradiction of a witness whose veracity had been considerably impeached by her own cross-examination. We cannot embrace the view that a miscarriage of justice can be predicated upon any such compounding of possibilities.
On this phase of the case we conclude that there was no reversible error in denying production of the statement or statements in question.
The claim of insufficiency of the evidence to sustain the conviction of Jack Chapman and Avis Spears of violation of § 288a, Penal Code, is without substance. It is the testimony of an eyewitness and cannot be rejected on appeal unless inherently improbable. 'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758, 759.
The claim that there was wrongful search and seizure of objects which were improperly received in evidence cannot be sustained. Emily Chapman was arrested in her home. There was ample ground for the arrest--information supplied to officer Traphagen by Billie Mackey, followed by apprehension of Jean Woods and her ultimate confirmation of the Mackey statements; the arrest followed both of these interviews. The officer identified himself to said defendant, she admitted her own identity, was told she was under arrest, then opened the door for the officer, who entered. There were two safes in the house, each of which was operated by a key. Defendant gave the keys to the officers; they searched the safes. There they found pornographic photographs of defendants Emily Chapman and Avis Spears, a box containing 144 contraceptives, another box with 14 or 15 of the same devices, commonly known as rubbers. There were also fifteen hypodermic needles, two or three syringes, and various types of pills and other medicines. The photographs were excluded upon defendants' objection. When the other items were offered in evidence objection was made on the ground 'that they are not related to any of the Counts in the Information, and no proper foundation was laid for their introduction.' The search, though made without a warrant, was a valid one and it produced evidence directly related to the offenses forming the basis of the arrest and the subsequent prosecution. The objection to their receipt in evidence did not mention search or seizure or wrongful arrest. The trial occurred long after the Cahan decision, People v. Cahan, 150 Cal.App.2d 786, 310 P.2d 661. Failure to make the specific objection waived it (Robison v. Superior Court, 49 Cal.2d 186, 187, 316 P.2d 1; People v. Hyde, 51 Cal.2d 152, 331 P.2d 42).
The next question is that of alleged error in the court's refusal to grant separate trials to appellants. The motion was that the court grant a separate trial to each defendant upon each count. It was granted as to Emily Chapman and Deo Cruz Obispo (who were charged with fellatio in Count I) and denied in all other respects.
Appellants' argument proceeds as if the question were one of proper joinder of offenses. But that is not the case. One of the grounds for demurrer to an indictment or information is: 'That more than one offense is charged, except as provided in Section 954.' Pen.Code, § 1004, subd. 3. The pertinent portion of § 954 reads: 'An indictment, information, or complaint may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more indictments or informations are filed in such cases the court may order them to be consolidated.' No demurrer was interposed in this case and the objection to joinder was thereby waived. Pen.Code, § 1012; 26 Cal.Jur.2d § 88, p. 579; § 89, p. 583; People v. Gonzales, 72 Cal.App. 626, 629, 237 P. 812; People v. Palumbo, 127 Cal.App. 703, 705-706, 16 P.2d 316; People v. Pearson, 41 Cal.App.2d 614, 619, 107 P.2d 463.
The matter of separate trial is one lying within the sound discretion of the trial judge (Fricke on California Criminal Procedure (4th Ed.) page 225). The granting or denial of such a motion does not depend upon the propriety of the original joinder of offenses. However, the fact that they belong to the same class is persuasive of the propriety of denial of a severance. People v. Jordan, 24 Cal.App.2d 39, 55-56, 74 P.2d 519; People v. Garcia, 2 Cal.2d 673, 680, 42 P.2d 1013. The offenses alleged at bar undoubtedly belong to the same class. 'The Legislature, it seems to us, meant by the use of the words, 'the same class of crimes or offenses,' in such section, offenses possessing common characteristics or attributes, and it would seem that the different offenses set out in the information here do have many attributes in common.' People v. Duane, 21 Cal.2d 71, 77, 130 P.2d 123, 126. We find no error in the denial of appellants' motion for separate trial.
Appellants assert reversible error as a result of cross-examination of character witnesses. Their brief says that the questions posed to the character witnesses, and here asserted as error, are of two types. The first is the question 'At the time that you formed your opinion that Miss Avis Spears' reputation for morality was good, had you heard that she had had her picture taken' while engaged in an act of fellatio. The second type of question is 'Would it change your opinion of the reputation of Avis Spears as to morality if you heard that she had posed for indecent pictures,' and was then engaged in fellatio.
These questions involved the same trait of character as that of the offense charged against the defendant and it does not appear that they were asked in bad faith; hence they were, under the authorities, permissible cross-examination. 'Complaint is made that the trial judge allowed the district attorney in cross-examining the defendant's character witnesses to ask them whether their opinion of her reputation for truth, honesty and integrity in the community in which she lives would be changed if they had heard her character questioned because of certain acts done or statements made by her. In the absence of a showing of bad faith it is always within the scope of legitimate cross-examination to ask a character witness whether he has heard the person whose reputation is under investigation accused of conduct inconsistent with the character attributed to him by the witness. (People v. Stevens, 5 Cal.2d 92, 99 .) The court properly allowed the questions asked by the district attorney.' People v. McKenna, 11 Cal.2d 327, 335-336, 79 P.2d 1065, 1069. See, also, People v. Boone, 126 Cal.App.2d 746, 751, 273 P.2d 350; People v. Burwell, 44 Cal.2d 16, 35, 279 P.2d 744; People v. Logan, 41 Cal.2d 279, 286-287, 260 P.2d 20. Fricke on California Criminal Evidence (3rd Ed.), 102, pertinently says that 'such questions may be asked only when the inquiry is made in good faith; (People v. Young, 25 Cal.App.2d 148 ; People v. Gin Shue, 58 Cal.App.2d 625 ) but, as stated in the case last cited, the cross-examiner is not allowed to show his good faith by offering evidence of the truth of the subject of the question, for such proof is inadmissible and the same case also holds that failure to prove the collateral charge is no proof of a lack of good faith (see also People v. McDaniel, 59 Cal.App.2d 672 ). A question must be held to have been put in good faith in the absence of proof by the adversary that it was asked in bad faith (People v. Steele, 100 Cal.App. 639 .)' This sort of evidence does not impinge upon the general rule against proof of other crimes; at best it constitutes an exception.
It is asserted that there was reversible error in the receipt of certain rebuttal evidence. This relates to count V which charges Jack Chapman with pimping. Relying upon the testimony of Jean Woods the prosecutor had made a complete case before resting. He showed that Chapman had taken her to labor camps at or near Oxnard and Venice and had taken her elsewhere for purposes of prostitution; supplied her with protective devices and medicines; furnished customers and then received and kept the moneys earned by her on those occasions. The witness Jean said that Avis Spears and Margie Kelly went to Oxnard with Jack Chapman and herself; that Avis Spears was along when she was taken to Venice. In defense, Chapman, his wife, and defendant Spears testified upon direct examination that they had not been parties to taking Jean to labor camps or elsewhere for prostitution purposes. On cross-examination Jack Chapman testified that he had never been to a labor camp in Oxnard 'with the girls,' did not take Jean, Avis and Emily to a labor camp at Venice, and 'Q. Have you ever been down to such a labor camp? A. No, ma'am.' Emily Chapman on cross-examination testified that she had never taken Jean to a labor camp at Oxnard or at Venice or elsewhere for any purpose, and that she had never seen her at one in Oxnard. Avis Spears said on cross-examination that she had never gone to a Venice or an Oxnard labor camp for purpose of prostitution. The claim that this was improper cross-examination cannot be sustained. It tended directly to impeach or lay the ground for impeachment of the witness' direct testimony. See, People v. Jackson, 152 Cal.App.2d 397, 403, 313 P.2d 931.
By way of rebuttal the prosecution called Peter A. Fronzo and Francisco Ines who testified to being workers at labor camps in or near Venice and Oxnard, and that they had seen Jack Chapman at both of those places with Emily and Avis. Ines said he had intercourse with both of those women. Neither man said he had seen Jean at those places. These two laborers were first interviewed near the close of the trial, at night between two sessions of court, and were produced as witnesses the next morning. Appellants' brief observes that '[s]ince the rebuttal testimony did not prove that Jack H. Chapman or Mrs. Emily Chapman had taken the prosecuting witness to any of the labor camps, this evidence is not admissible as part of the prosecution's case in chief. There is little doubt that had it been offered in evidence as part of the prosecution's case in chief, it would not have been admitted.' This seems to be correct. It is also plain that the evidence was impeaching of defendants' testimony and hence receivable in rebuttal. 'In criminal cases, as in civil, the order of proof lies in the discretion of the trial judge. [Citations.] But the practice of permitting the prosecution to withhold a part of its case for use on rebuttal has been severely condemned.' People v. Newton, 139 Cal.App.2d 289, 291, 293 P.2d 476, 477. 'The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent's case is suddenly confronted at the end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution's possession that tends to establish the defendant's commission of the crime. It is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' People v. Carter, 48 Cal.2d 737, 753, 312 P.2d 665, 675.
It cannot be said at bar that there was any impropriety in the prosecutor's procedure. He had made a clear case before resting. It was not necessary for him to anticipate and disprove every possible defense or alibi of the defendant. See, People v. Jackson, supra, 152 Cal.App.2d 397, 404, 313 P.2d 931; People v. Lindsey, 90 Cal.App.2d 558, 565, 203 P.2d 572.
There was no error in the denial of defendants' respective motions for new trial.
Judgment and order denying motion for new trial affirmed as to each appellant.
FOX, P. J., and HERNDON, J., concur. --------------- * Opinion vacated 338 P.2d 428.