Opinion
Cr. 6715
8-28-1961
PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Christopher GARNER, Defendant and Appellant.
Gregory S. Stout, San Francisco, Cal., under appointment by the Supreme Court, for defendant and appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Lawrence Christopher GARNER, Defendant and Appellant.
Aug. 28, 1961.
Rehearing Granted Sept. 20, 1961.
Opinion vacated 18 Cal.Rptr. 40, 367 P.2d 680.
Gregory S. Stout, San Francisco, Cal., under appointment by the Supreme Court, for defendant and appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.
McCOMB, Justice.
This is an automatic appeal from a judgment of guilty of murder in the first degree on two counts after trial before a jury. The jury fixed the punishment at death.
Viewed in the light most favorable to the People, the record discloses the following facts:
On September 4, 1959, defendant, who subsequently on September 15, 1959, married his codefendant, Sandra Garner, attended a drunken party at Clifford Red's apartment in Inglewood, California. At the party Richard (Rick) Nowlen had brandished a .45 caliber weapon and bragged about robberies he was going to commit.
Defendant stayed with Rick Nowlen and Patricia (Pat) Hurley at a motel after the party. The next day he went shopping, and returned about 5 p. m. to Clifford Red's apartment. There was then an argument between Red and Rick as to who owned the .45 caliber weapon.
Defendant and Sandra left the apartment about 6 p. m. and returned about 8:30 p. m. Defendant had taken Rick and Pat's .45 and .32 caliber weapons with him. He replaced the weapons when he and Sandra returned to the apartment.
Defendant had had an argument at the motel with Rick that morning, and Rick had threatened to involve defendant in some sort of an escapade or to involve his mother and his girl friend. Defendant then decided that there was no way out of his relationship with Rick except to kill him and Pat.
That afternoon, September 5, 1959, he talked Rick into agreeing to accompany him to Las Vegas with Pat and Sandra. When they left later that evening, defendant drove the car, Sandra was in the front seat, and Rick and Pat were in the back seat.
They drove in a desert area toward Las Vegas. En route, they stopped at Adelanto, in San Bernardino County. Defendant told Rick and Pat to get some sleep, and he wanted to get acquainted with Sandra. After a while, defendant and Sandra got out of the car and walked around the area. They later took another walk so that defendant could look over the highway and traffic conditions. When they returned to the car, defendant remembered there were bottles in the back seat on the floorboard and decided on a plan to get possession of Rick and Pat's pistols.
After defendant coaxed him awhile, Rick gave him a pistol fully loaded. Defendant then set up the bottles and commenced firing the weapon. He missed purposely, because he knew Rick was watching and would get out of the car to show him how to shoot. After emptying the pistol, defendant went back to the car and got another clip, and Rick followed him with the .32 caliber weapon in his possession.
Defendant continued firing the .45 caliber, and Rick fired the .32. Both men reloaded, and defendant fired two shots, breaking one bottle and nicking another. Defendant set up more bottles, and Rick was standing behind him. After placing the bottles, defendant walked toward Rick, brought up the weapon, and fired, shooting him in the stomach. Rick fell over backwards and dropped the weapon he had been holding. Defendant told Rick he was sorry but there was no other way. Rick pleaded with defendant, but defendant shot him through the top of the head.
Defendant then awakened Pat and told her there had been an accident and Rick had been hurt. When she ran over to Rick, defendant followed her and shot her in the back of the head.
A few days later defendant and Sandra fled to Mexico. The day after they reached Mexico the automobile in which they were driving was wrecked in an accident. Defendant reported the matter to the federal authorities and was subsequently called in for questioning. Later two officers from the San Bernardino Sheriff's Office, Inspector Oxnevad and Lt. Mathewson, flew to Mexico in an investigation of the murders. After these officers contacted the Obregon Police Department in Mexico, agents of the department arrested defendant, ostensibly for investigation regarding his identification documents and the automobile accident in which he had been involved.
During defendant's detention in Mexico, Inspector Oxnevad advised him that he was going to ask the Mexican authorities to hold him pending extradition and that he would call his office and ask for issuance of a warrant of arrest, at which time defendant stated, 'Well, I will go back with you freely and voluntarily, I don't want to lay around in any Mexican jails.'
The next day defendant and Sandra were escorted by the Mexican immigration officers across the border into Arizona. Inspector Oxnevad and Lt. Mathewson, who had previously been informed that defendant and Sandra were going to be put out of Mexico, were waiting for them there. They then placed the two under arrest and took them to a courthouse in Arizona. From there they were returned to California.
Defendant contends: First: That the trial court was without the power to try him for the alleged murders because of the method used by the arresting officers in bringing him to California.
1] This contention is devoid of merit. It is immaterial whether there was a compliance with the Mexican extradition laws or Arizona laws on arrest and extradition. California follows that federal rule relative to the trial of a defendant who has been obtained from outside the jurisdiction of this state. The rule is that it is immaterial whether a defendant has been forcibly seized in another country or state and transferred to this state by violence, force, or fraud for trial for an offense alleged to have committed in this state, there being no provision in the Constitution, laws or treaties of the United States which guarantees him any protection in such transaction. (Ker v. People of State of Illinois, 119 U.S. 436, 443, 7 S.Ct. 225, 30 L.Ed. 421 et seq.; Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541; In re Jones, 54 Cal.App. 423, 426, 201 P. 944; 35 C.J.S. Extradition (1960) § 47, 'Effect of Illegal Extradition,' p. 477 et seq.)
In Frisbie v. Collins, supra, the Supreme Court of the United States said, at page 522, of 342 U.S. at page 511 of 72 S.Ct. 'This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.' No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.' Second: That he was not promptly arraigned and that during the interval he made certain confessions which should not have been received in evidence.
2] This contention is devoid of merit. Defendant was arrested on Friday, September 18, 1959, in Arizona. He was arraigned in municipal court on Tuesday, September 22, 1959. Thereafter, on October 6, 1959, an indictment was returned against him, and he was arraigned thereunder on October 9, 1959, with court-appointed counsel representing him.
3] It is settled in this state that where, as in the instant case, a pretrial confession is voluntarily made, it is admissible in evidence so far as due process is concerned. (Rogers v. Superior Court, 46 Cal.2d 3, 9(9), 291 P.2d 929 et seq.) In Rogers v. Superior Court, supra, the defendant had not been taken before a magistrate until eight days after his arrest, well beyond the 48-hour statutory maximum; but his voluntarily made pretrial confession was nevertheless held properly received.
4] The record here discloses that each confession given by defendant was freely and voluntarily given, without threats or promises by law enforcement officers. Therefore, they were properly received in evidence by the trial court. Third: That there was a failure upon the part of the prosecution to comply with certain of the pretrial discovery orders.
This contention is also devoid of merit. Defendant argues that a handwritten confession given by him on October 5, 1959, and a tape-recorded joint confession given by him and his codefendant, Sandra, on October 6, 1959, 'burst upon defense counsel as a complete and utter surprise.' *
5] Defendant's trial counsel was entitled to inspect, view, hear, or copy any and all statements of defendant, and such was the order of the trial judge in discovery proceedings had before the trial.
This right extended to the joint confession given by defendant and his codefendant. (Cash v. Superior Court, 53 Cal.2d 72, 72(1), 346 P.2d 407 et seq.; cf. Vance v. Superior Court, 51 Cal.2d 92, 93(1), 330 P.2d 773.) Any inference to the contrary in Schindler v. Superior Court, 161 Cal.App.2d 513, 327 P.2d 68, is disapproved.
The district attorney, however, was not required to seek out defendant's trial counsel and present the statements to him for inspection. Rather, it was the duty of defendant's trial counsel to go to the office of the district attorney and inspect the statements available to him there.
6] The record shows that defendant's trial counsel did not perform this duty with respect to the handwritten confession. It shows the following statement by Mr. Turner, the assistant district attorney: 'Mr. Bailin (defendant's trial counsel) came to my office on perhaps two or three occasions, very briefly, in connection with this case. Mr. Bailin asked me at one time to furnish him with copies of the documents which were not also on tape. I advised Mr. Bailin that my office did not have the facilities for copying these very lengthy documents, and made to him the same offer that I had made to Mr. Hartley (counsel for Sandra Garner), that Mr. Bailin would bring his Stenorette machine and tape, and I understood that he also used the Stenorette dictation machine; that I would furnish him a room and lend him my Stenorette dictation machine, and he could copy all of the statements which we have.
'This was never done. Mr. Bailin requested that because of his lack of time that he had been furnished with copies of those matters which were on tape, that he was asked to furnish the tapes, the large tapes to be used by the Sheriff's office for making copies, and I believe he did, and I understood, and I allege on that basis that because the tapes which he furnished were not in the best condition, the Sheriff's office made copies of some of the statements relating to his client on Sheriff's office tapes which they furnished to him. I do not know, of my own knowledge, exactly what Mr. Bailin did get copies of, since I was not present at any of the occasions on which he received copies. I do know of my own knowledge that he at no time came to my office and copied anything out of my file.
'* * * At no time has Mr. Bailin asked me whether he had copied all of the statements; at no time has he advised me what statements he did, in fact, have, and at no time has he asked me whether there were other statements which he had not seen. Our office has been ready at any and all times suiting his convenience to permit him to copy any statements made by his client.'
Defendant refers to the fact that at one time Sandra's counsel asked the district attorney's office for a list of statements, by dates, made by both defendant and Sandra, and that the list given him contained no reference to any material of October 5 or October 6, 1959. Actually, the list did refer to the tape of October 6, 1959. It is evident, however, that any omission on the list could not have prejudiced defendant, since his attorney had not asked for the list.
No objection was made in the trial court to the introduction in evidence of the tape-recorded joint confession on the ground that defendant's counsel had not been afforded an opportunity to hear it before the trial, and it is clear from the record that there is no basis for contending that the tape was a surprise to defendant's trial counsel.
In the first place, the list which the district attorney's office furnished counsel for Sandra contained a notation that a tape was made on October 6 between 3:30 and 5:20, and counsel for Sandra testified that he notified defendant's trial counsel of the list.
Furthermore, over two weeks before the commencement of the trial, while counsel were arguing a motion for separate trials, the assistant district attorney, in support of his argument against separate trials, stated: 'I feel that particularly in view of the fact that their confessions which I still pay are in all major points in agreement, in addition to those they have made one joint confession which they both join in it and in which they describe what happened * * *.'
In addition, it appears that defendant's trial counsel actually heard the tape before the trial. During the discussion which followed the objection of defendant's trial counsel to the introduction of the handwritten confession, the assistant district attorney, after relating the failure of defendant's trial counsel to inspect defendant's written statements, said: 'Mr. Bailin and Mr. Hartley came to the Sheriff's Office, I am told, on Saturday or Sunday, when I wasn't here, but with my blessings, of course, and heard a tape recording which is yet to be offered.'
The tape-recorded joint confession was the only tape thereafter introduced in evidence, and, as stated above, when it was introduced no contention was made that defendant's trial counsel had not been given an opportunity to hear it in advance of the trial. It seems clear, therefore, that it was the tape which defendant's trial counsel had heard some time beforehand.
It should also be noted that defendant's handwritten confession contained the same matter as the joint confession, which defendant's trial counsel had heard, as appears from the following statement which he made at the time he objected to the introduction in evidence of the handwritten confesion: 'I do believe, however, as a result of the order of Judge Fogg (the discovery order) and in all fairness in connection with this case, that the item which has been marked 48 (defendant's handwritten confession) should be suppressed; it is cumulative in nature with the other materials that have been presented, and I doubt that its suppression could hurt his (the district attorney's) case.'
It thus appears that the course pursued did not result in any prejudicial error to defendant. Fourth: That various confessions of defendant were 'obtained in return for favors granted or withheld at the discretion of law enforcement officials.'
7] This contention is not well taken. The record discloses that each of the confessions received in evidence was freely and voluntarily made, without duress, inducement, or promise of reward. (People v. Crooker, 47 Cal.2d 348, 352(1), 303 P.2d 753 et seq.; People v. Nagle, 25 Cal.2d 216, 223, 153 P.2d 344 et seq.; People v. Grace, 166 Cal.App.2d 68, 71(2a), 332 P.2d 811 et seq.)
Rogers v. Richmond, 365 U.S. 534, 81 Sup.Ct. 735, 5 L.Ed.2d 760, relied on by defendant, is not applicable to the present case. The defendant in that case was, by a ruse, led to believe that his wife, who suffered from arthritis, was about to be taken into custody, and he confessed in order to spare her from being transported to the scene of the questioning.
In reversing the judgment of conviction, the United States Supreme Court said, at page 741(4-6) of 81 Sup.Ct.: 'From a fair reading of these expressions (the trial court's instructions to the jury), we cannot but conclude that the question whether Rogers' confessions were admissible into evidence was answered by reference to a legal standard which took into account the circumstance of probable truth or falsity. And this is not a permissible standard under the Due Process Clause of the Fourteenth Amendment. The attention of the trial judge should have been focused, for purposes of the Federal Constitution, on the question whether the behavior or the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined a question to be answered with complete disregard of whether or not petitioner in fact spoke the truth. The employment * * * of a standard infected by the inclusion of references to probable reliability resulted in a constitutionally invalid conviction, pursuant to which Rogers is now detained 'in violation of the Constitution."
The instructions in the present case, on the other hand, contain no suggestion that the probable reliability of the confessions was a factor to be considered in determining their voluntariness.
Defendant contends that the delay in his arraignment beyond the legally prescribed time, an alleged failure to grant his request to contact an attorney, and permission given him to see his wife allegedly with the understanding that he would make a statement were all factors tending to establish 'implied coercion.' He then argues that the instruction given setting out the factors to be considered in determining whether a confession is involuntary was erroneous in that it did not cover the subject of implied coercion as such coercion might be found from any or all of the facts enumerated.
The trial court had instructed the jury as follows: 'The law absolutely forbids you to consider a confession in determining the innocence or guilt of a defendant unless the confession was voluntarily made, and although the court has admitted evidence tending to show that defendant made a confession, you must disregard the asserted confession entirely unless you, yourselves, by your own weighing of all the evidence, your own judging of the credibility of witnesses, and your own reasonable deductions, conclude that the alleged confession not only was made, but was voluntary.
'A confession or an admission is involuntary when it is obtained by any sort of violence or threats, or by any direct or implied promises of immunity or benefit, or by any improper influence which might induce in the mind of the defendant the belief or hope that he would gain or benefit or be better off by making a statement, and when the defendant makes such confession or admission as the result of any such inducement originating with a law enforcement officer. But, even though a confession or an admission is made under a hope or belief of benefit, it will not be involuntary if such hope or benefit originated in the mind of the defendant solely, or was induced solely by the advice or counsel of a relative, attorney, or other person not connected with law enforcement.'
Even if we assume that the above instruction would be inadequate if there was evidence that a confession was given as a result of 'implied coercion' not constituting the type of action specified by the instruction as rendering a confession involuntary, this would be of no avail to defendant, as the record does not support his contention that any such coercion existed.
As hereinabove pointed out, the rule is settled in this state that a pretrial confession given during a period of illegal detention is admissible in evidence, so far as due process is concerned, if it was voluntarily made. (Rogers v. Superior Court, supra, 46 Cal.2d 3, 9(9), 291 P.2d 929 et seq.) As was said in the Rogers case, at page 10, of 46 Cal.2d at page 933 of 291 P.2d, 'The voluntary admission is not a necessary product of the illegal detention * * *.' But even if the earlier confession might have been found involuntary by the jury because of delay in the arraignment, the record discloses that defendant was arraigned before the committing magistrate on September 22, 1959, and at that time counsel was appointed to represent him. On October 5 and 6, 1959, he made three confessions, one in the presence of his wife, and there is nothing in the record that would support a finding that these confessions were influenced by the earlier delay in bringing him before a magistrate and the appointment of counsel to represent him.
With respect to defendant's alleged request that an attorney be contacted for him, defendant testified that as Inspector Oxnevad, Lt. Waite, and he were walking upstairs after his interrogation on September 18 at a substation of the sheriff's office at Victorville, another officer informed them that defendant's mother (to whom a telephone call had been placed at defendant's request) was on the telephone. Although defendant was not allowed to speak with her, Inspector Oxnevad told him that he would give her whatever information defendant desired. According to defendant's testimony, he requested that she be told to have Gladys Root, of Los Angeles, his attorney, come out there. When asked whether or not the message was ever communicated to his mother, defendant replied, 'My mother said no.'
There was no testimony that Inspector Oxnevad told defendant he would not, or did not, relay the message, and from defendant's reply it may be assumed that it was not until he had contact with his mother at a later date that he learned his alleged request had not been communicated to her.
Continuing, defendant testified that he told Lts. Keene and Waite at the Victorville substation that he had the cards of two attorneys and asked that Mrs. Root be called, to which he received the reply, 'We will do that later.' He then testified: 'After Waite talked to me upstairs * * * about five or 10 minutes there at the door, I told him, 'All right, I will make a statement. " Defendant's willingness to confess so shortly after receiving, as he put it, 'a stall' on his request that Mrs. Root be called hardly shows that he was coerced into giving the confession as a result of the officers' alleged actions.
With respect to defendant's contention that he was coerced into giving his handwritten confession by a promise made by the sheriff that he could have a visit with his wife if he gave the statement, the sheriff denied making any such agreement. Defendant, however, testified that on October 5 he sent for the sheriff, told him that he would tell the truth and he wanted to see his wife, and reminded the sheriff that the latter had promised in Victorivlle that he could have a visit with his wife. Defendant then testified: 'He (the sheriff) said, 'Write the statement and I will let you see your wife.' I said, 'I want to see my wife.' I said, 'This statement, here, is started and I will finish it, but I want to see my wife.' He said, 'You go ahead back to the cell and finish it.' And he told the jailer I had that pad and pen, so he would know, and then I went back to the segregation unit and lay down on my bunk and tossed the pad on the floor along with the pen. He came back a couple of hours later and asked me if I was finished and I said, 'No, you can take the pad back if you want, but I want to visit my wife.' He said, 'In the morning. You go ahead and write it and I will let you visit your wife.' After chow in the morning they got me out of my cell and took me to the back and I had an hour and 20 minute visit with my wife.'
Thus, it will be seen that even under defendant's version of what occurred the sheriff agreed only that defendant could see his wife after he finished the statement. However, defendant was allowed to see her before finishing it, and it was four hours after his conference with his wife had ended before he completed the lengthy statement and gave it to the sheriff. This falls far short of proof that defendant gave the statement in return for permission to see his wife. Fifth: That denial of the right to counsel prior to the commencement of judicial process is a denial of due process.
8] This contention is devoid of merit. Section 987 of the Penal Code reads: 'If the defendant appears for arraignment without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the court must assign counsel to defend him.' In the present case the trial court complied with the foregoing provisions of the Penal Code. Sixth: That proof of collateral crimes under the guise of impeachment may constitute a miscarriage of justice.
The foregoing contention is unsound. Defendant testified that he was in Korea 'Fighting for his country in March of 1951.' It was defendant's testimony that he had gone to Korea in February 1951 and been wounded in action in Korea, and that he did not return to the States until January 21, 1952. On cross-examination defendant was asked if it were not a fact that in April 1951 he had been arrested by the Inglewood Police Department. Defendant denied the arrest. The prosecution established on rebuttal that defendant was arrested both on April 4, 1951, in Inglewood and on April 5, 1951, in Comption.
9] Apparently the sole purpose of defendant's testimony concerning his 'fighting for his country' was to create a sympathetic background and understanding between himself and the jury. It appears from the transcript that defendant's trial counsel was attempting to utilize defendant's extensive military background in this manner. Under these circumstances it was reasonable that the prosecution be allowed to show a fact totally incompatible with the picture defendant's counsel was attempting to draw. Instead of being in Korea as a wounded veteran, defendant was being booked in two jails in the United States as a suspected criminal.
10] It would seem that defendant's counsel was satisfied that he had invited such a line of cross-examination, for he did not object at the trial to the prosecutor's questions. Defendant may therefore not now for the first time, on appeal, raise objections to his cross-examination. (People v. Lindsey, 90 Cal.App.2d 558, 567(16), 203 P.2d 572; cf. People v. Westek, 31 Cal.2d 469, 476(5), 190 P.2d 9 et seq.) Seventh: That there were five instances of the exclusion of material evidence on behalf of defendant.
An examination of the record discloses that this contention is without merit. Even assuming that the evidence was improperly excluded, it was not prejudicial error, and under article VI, section 4 1/2, of the Constitution any such error would have to be disregarded by this court. Eighth: That the trial court erred in sustaining an objection to a question asked Lt. Barton Keene on cross-examination as to whether defendant was permitted to make any telephone calls from the sheriff's substation at Victorville to his attorney or his mother after he had been returned to California.
11] This contention is also untenable. The court sustained an objection to such a question, apparently on the ground that the form and order of the question were improper. However, the record shows that thereafter Lt. Keene, in response to questions of defendant's counsel, testified that defendant did not request permission to make a telephone call and that he (Lt. Keene) was not given a card of an attorney by the name of Gladys Root and asked by defendant to call her.
It is clear that defendant's counsel was able to develop whether or not Lt. Keene had knowledge of defendant's requests or attempts to make any telephone calls. Ninth: That an unauthorized person, Mrs. Betty Crouch, was permitted in the courtroom during the trial, in violation of an exclusionary order.
This contention is not correct. Mrs. Crouch was called to the witness stand to testify as to statements she had taken in her capacity as a stenographer in the San Bernardino Sheriff's office, particularly with reference to statements taken from Sandra on Monday, September 21, 1959. She was asked to read the statement from her notes, because she was unable to recall the questions from memory. At this time Lt. Keene was recalled for a few questions before Mrs. Crouch commenced to read her statement.
Mrs. Crouch was then recalled to the stand, and counsel for Sandra asked the witness questions on voir dire concerning the statements she had taken from Sandra.
Lt. Keene was again recalled for voir dire examination concerning the taking of statements from both defendant and Sandra at the re-enactment of the crime at Adelanto on the morning of September 21, 1959.
Lt. Keene began testifying at this point, and prosecutor Turner asked if Mrs. Crouch could remain in the room. Counsel for Sandra stated, 'I have no objection to her remaining.' Defendant's counsel, who was present, and the trial judge made no statements at all.
After counsel finished questioning Lt. Keene, Mrs. Crouch resumed the stand and read into the record the interrogation of Sandra. Mrs. Crouch was then cross-examined. The court then adjourned at 2:47 p. m. on Monday, April 11, 1960.
The next day the court convened at 10:05 a. m. Sheriff Frank Bland was called as a witness and proceeded to testify. The afternoon recess was taken, and the court reconvened in chambers for argument.
Sheriff Bland was recalled to the stand and testified to defendant's handwritten confession. After Sheriff Bland was excused, the prosecution recalled Mrs. Crouch. For the first time, defendant's trial counsel objected to her taking the stand, on the ground that she had been a spectator during that morning in violation of the exclusionary order. The trial judge overruled the objection.
Mrs. Crouch took the stand and proceeded to testify from a transcript concerning the statements of defendant and Sandra during the re-enactment of the crime on September 21, 1959. After the statement was read into evidence, counsel for defendant asked no questions on cross-examination.
2, 13] Since a motion to exclude witnesses except the one testifying is within the discretion of the trial court (Code Civ.Proc. § 2043), it was within the discretion of the trial judge to permit Mrs. Crouch to remain in the courtroom as he did. (People v. Persky, 167 Cal.App.2d 134, 139(4), 334 P.2d 219; People v. Alaniz, 149 Cal.App.2d 560, 566(3), 309 P.2d 71; People v. White, 100 Cal.App.2d 836, 838(1), 224 P.2d 868.)
14] It is likewise settled that a court reporter can properly testify despite the fact that he has been in court contrary to an exclusionary order. (People v. Smith, 36 Cal.2d 444, 447(3), 224 P.2d 719.) In the present case, as in People v. Smith, supra, Mrs. Crouch's testimony consisted of reading notes previously recorded by her. Therefore, there was no reason to exclude her from the courtroom, and defendant has not shown that he was prejudiced in any way by this procedure. Tenth: That the jury was not properly instructed.
15] This contention is without merit. Defendant, without much argument or citation of authority, urges that the trial court erred in giving some instructions and not giving others. An examination of the record and the instructions given indicates that the jury was fully and fairly instructed upon all the material issues presented to it and that no prejudicial error was committed by the trial judge in instructing the jury.
The judgment is affirmed.
GIBSON, C. J., and TRAYNOR, SCHAUER, PETERS, WHITE and DOOLING, JJ., concur. --------------- * Defendant is represented on this appeal by different counsel from that in the trial court.