Opinion
Benjamin M. Davis, San Francisco, for appellant; George Franklyn Duke, San Francisco, of counsel.
Stanley Mosk, Atty. Gen. of the State of California, Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.
MOLINARI, Justice.
On this appeal from a judgment after conviction by a jury of armed robbery, unlawful possession of narcotics, and theft of an automobile, all of which offenses were allegedly connected in their commission, defendant raises a number of questions. In the separate discussion of each question we shall allude to the particular facts pertinent thereto. Preliminarily, however, we set out the following basic background facts.
On February 13, 1962, shortly before noon, two men wearing stocking masks over their heads, entered the College Pharmacy in San Francisco. One of these men, who was holding a revolver, stated "This is a holdup * * *. Get the narcotics," and directed one Reay, a customer, to crouch behind a wrapping counter. This man remained with Reay, while the other man, who did not exhibit any gun, ushered McMichael, the owner of the drugstore, into the prescription room in the rear of the store. McMichael opened a drawer containing Appellant, Samuel R. Quinn, Jr., and Richard Montero, who is not a party to this appeal, were accused of the aforesaid robbery by an indictment which charged them with violating Penal Code, section 211 (robbery), Health and Safety Code, section 11500 (possession of narcotics), and Vehicle Code, section 10851 (automobile theft). Appellant was arrested, and upon his arraignment pleaded not guilty to each of the offenses charged in the indictment. Thereafter, and by permission of the trial court, appellant withdrew his plea of not guilty to the robbery charge and entered a plea of guilty thereto. Pursuant to stipulation, the court set the degree at first degree, and thereupon the other two counts of the indictment were dismissed on motion of the district attorney. Appellant was arraigned for judgment at which time he interposed a motion for probation which was continued for hearing and determination. Thereafter, appellant, by permission of the trial court, withdrew his guilty plea to the charge of robbery. The trial court thereupon reinstated the narcotics possession and automobile theft charges which had theretofore been dismissed. Appellant entered a plea of not guilty to all three charges, and thereafter the cause proceeded to trial before a jury. Upon the conclusion of the trial, the jury returned a verdict of guilty against appellant on all three counts of the indictment and fixed the degree of the robbery as first degree. This appeal ensues upon the judgment entered upon said verdict.
Did the Trial Court Err in Admitting Into Evidence Appellant's Withdrawn Plea of Guilty?
No. The trial court admitted into evidence, over objection, appellant's withdrawn plea of guilty to the robbery charge. Appellant claims that it was prejudicial error for the trial court to overrule his objection. It is the rule in California that, in the absence of statute, a plea of guilty, later withdrawn, or an offer to plead guilty, is admissible upon the theory that such a plea or offer is an admission of guilt. (People v. Hamilton, 60 A.C. 51, 59, 32 Cal.Rptr. 4, 383, P.2d 412; People v. Wilson, 60 A.C. 85, 101, 32 Cal.Rptr. 44, 383 P.2d 452; People v. Boyd, 67 Cal.App. 292, 303, 227 P. 783 (opinion of Supreme Court on denial of hearing); People v. Ivy, 163 Cal.App.2d App.2d 436, 438-440, 329 P.2d 505; People v. Clay, 208 Cal.App.2d 773, 777-779, 25 Cal.Rptr. 464; People v. Cooper, 81 Cal.App.2d 110, 117-118, 183 P.2d 67; People v. Sanderson, 129 Cal.App. 531, 532-533, 18 P.2d 982; People v. Russell, 77 Cal.App. 113, 120, 246 P. 110; People v. Snell, 96 Cal.App. 657, 663, 274 P. 560.) This rule was first declared in Boyd, where it was held that an offer to plead guilty to an offense charged in the information was an admission on the part of the defendant of the truth of the charge and was therefore admissible at the trial, the weight and sufficiency Appellant urges that in view of the enactment of sections 1192.1 to 1192.4 of the Penal Code (in 1955 and 1957), and in the light of the interpretations placed upon those sections by Himilton and Wilson, the rule has been changed in California so as to make a plea of guilty, later withdrawn, inadmissible. Section 1192.1 provides that if a defendant is charged with a crime divided into degrees, upon a plea of guilty, when consented to by the prosecutor in open court and approved by the court, the plea may specify the degree and the defendant cannot thereafter be punished for a higher degree. The same principle is made applicable to pleas of guilty before a committing magistrate by section 1192.2. In section 1192.3 it is provided that a plea of guilty may specify the punishment to the same extent as it may be specified by the jury in cases where the jury has the power to recommend, the discretion to impose, or the option to impose a certain punishment. Section 1192.4 supplements the foregoing three sections and provides: 'If the defendant's plea of guilty pursuant to section 1192.1, 1192.2, or 1192.3 of this code be not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil or special action or proceeding of any nature, including proceedings before agencies, commissions, boards and tribunals.' As stated in both Hamilton and Wilson: 'The obvious purpose of the section is to promote the public interest by encouraging the settlement of criminal cases without the necessity of a trial.' (Pp. 60 and 102, respectively of 60 A.C., pp. 8 and 55 of 32 Cal.Rptr., pp. 416 and 463 of 383 P.2d.) Both Hamilton and Wilson were called upon to interpret and apply section 1192.4. In Hamilton the defendant, who was charged with murder, had offered to plead guilty if arrangements could be made to assure him of a life sentence. In Wilson the defendant had first offered to enter a plea of guilty to manslaughter and later to second degree murder, if the same were acceptable to the prosecution. In each of the cases, the offers were rejected by the prosecution. Upon the trial of the causes, however, the offers to plead guilty were admitted into evidence. The Supreme Court held, in both cases, that it was error to admit these offers into evidence. Although there is language in Hamilton that '[b]y virtue of the provisions of section 1192.4 the earlier cases treating such offers to plea and pleas as admissions of guilt are no longer controlling' (60 A.C. p. 60, 32 Cal.Rptr. p. 8, 383 P.2d p. 416), it is obvious from a reading of the case that the reference is to pleas made pursuant to sections 1192.1, 1192.2 and 1192.3. In Hamilton we note the following language: 'By this section [1192.4], the Legislature has decided, just as it did many years ago in civil cases by prohibiting the introduction into evidence of offers to compromise (Code Civ.Proc. § 2078), that it is in the public interest that pleas of guilty to a lesser degree of crime shall not be admissible.' (P. 60 of 60 A.C., p. 8 of 32 Cal.Rptr., p. 416 of 383 P.2d; emphasis added.) It is noteworthy, moreover, that in both Hamilton and Wilson, the Supreme Court recognized that it is the rule in California that, in the absence of statute, an offer to plead guilty (citing People v. Boyd, supra, and People v. Cooper, supra), and a plea of guilty later withdrawn, are admissible. (Citing People v. Ivy, supra; (and People v. Snell, supra, in Wilson only).) It is also of particular significance that Ivy and Clay, which were decided after the enactment of the foregoing sections, both involved cases of a withdrawn plea of guilty to a specific crime charged without reference to a lesser degree or lesser punishment. In Ivy, the defendant pleaded guilty to Court I of an information which charged him with two counts of selling heroin (violation of Health & Saf. Code, § 11500). The disposition of Count II was continued. Later the defendant withdrew his plea of guilty to Count I and pleaded not guilty thereto. The trial was had, and the defendant was found guilty as charged in both counts. During the trial the court below permitted evidence of the defendant's withdrawn plea of guilty to Count I. This was held not to be error by the reviewing court under the authority of Boyd, Sanderson and Snell. Similarly, in Clay, the trial court, at the request of the prosecution, took judicial notice, and so advised the jury, that the defendant had previously entered a plea of guilty to Count I, to wit, violating section 470, a felony; that the remaining counts were continued to a future date for proceedings of disposition; that the court had granted the defendant's motion to vacate and set aside the plea of guilty to Count I for the reason that the defendant stated he inadvertently had entered a plea of guilty; that he felt he was not guilty and he wanted a trial. The appellate court held that any claim of error was foreclosed in this state by the rule declared by the Supreme Court in Boyd, and consistently followed by the reviewing courts in Snell, Russell, Cooper, and Ivy. Neither Ivy nor Clay made any reference to section 1192.4 or the sections it supplements.
All statutory references hereinafter are to the Penal Code unless otherwise indicated.
In both Hamilton and Wilson it was held that the error did not result in a 'miscarriage of justice' as those words are used in art. VI, § 4 1/2, of the Calif.Const.
Substantially the same language is found in Wilson.
Ivy in Sept. 1958 and Clay in Oct. 1962.
The defendant was convicted of three counts charging him with forgery in violation of § 470.
Although we are impressed with the rule declared in the early Supreme Court case of People v. Ryan, 82 Cal. 617, 23 P. 121, that a withdrawn plea of guilty under section 1018 becomes functus officio, and cannot be proved upon the trial as an admission or confession of the defendant, we are constrained to hold that the rule of the Boyd case, which disapproved Ryan, is still the California rule, excepting insofar as it had been modified by sections 1192.1, 1192.2, 1192.3 and 1192.4. As we view the present state of the law in California, the rule consistently followed by our appellate courts has been modified and tempered by the Legislature to the extent of making inadmissible in evidence an offer to plead guilty (§ 1192.4) to a crime divided into degrees where the proposed plea specifies the degree thereof (§§ 1192.1 and 1192.2), or an offer to plead guilty to a crime where the proposed plea specifies the punishment to be imposed (§ 1192.3). It should be here noted that sections 1192.1, 1192.2 and 1192.3 permit pleas of guilty to be entered as in said sections provided, with the consent of the prosecuting attorney and the approval of the court, and that when so entered the defendant cannot be punished for a higher degree of crime than that specified in the plea. Section 1192.4, however, does not have reference to a plea entered but only to an offer to plead in the manner provided for in sections 1192.1, 1192.2 and 1192.3. A reading of section 1192.4 clearly shows that it has reference to a plea of guilty not accepted by the prosecuting attorney and approved by the court. A plea of guilty under the pertinent sections cannot be entered until it is so accepted and approved. Until it is accepted and approved it is no more than an offer to plead guilty. The plain meaning of section 1192.4, accordingly, is that an offer to plead guilty in the manner provided in sections 1192.1, 1192.2, and 1192.3, not so accepted and approved, In the case at bench it is apparent that appellant offered to plead guilty to robbery in the first degree provided the other two counts of the information were dismissed. This offer was accepted by the district attorney, was approved by the court, and a plea of guilty pursuant to the offer was thereafter entered. Accordingly, such plea, although later withdrawn, was admissible in evidence at the trial under the rule hereinabove discussed.
§ 1018, in pertinent part, reads: 'On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.'
Were Appellant's Statements to the Probatin Officer Admissible in Evidence?
Yes. On the day appellant entered his plea of guilty to the charge of robbery he was arraigned for judgment, whereupon he interposed a motion for probation which was continued for hearing. At the subsequent trial, said plea of guilty having been withdrawn, Warren Jenkins, a probation officer, was called as a witness for the People. Jenkins testified that he was present in court when appellant entered a plea of guilty to the charge of robbery, and that approximately one-half hour later he conversed with appellant in the county jail for the purpose of obtaining information for the probation report. Jenkins stated that, in response to a question as to why he had participated in the robbery, appellant told him he went into the drugstore to get some drugs; that he had the gun; that it was a 'phony gun' which he purchased from a friend for $5.00; that the car that was used had been stolen the night before just for transportation and that he had 'hot-wired' it. Jenkins also testified that these statements were freely and voluntarily made and given.
Appellant objected to the admissibility of these statements on the following grounds: incompetency, irrelevancy, immateriality, lack of foundation, hearsay, privilege, unconstitutionality, and upon the ground that such statements were not free and voluntary. These objections were overruled. Prejudicial error is accordingly claimed by appellant. Unless it can be said that the statements were not freely and voluntarily given (which question we shall hereinafter treat separately), there is no merit in appellant's assertion of error. In the instant case the probation officer was preforming a duty imposed upon him by law pursuant to section 1203, which requires that, after a conviction by a plea of guilty and upon reference by the trial court, the probation officer must investigate and report to the court in writing the circumstances surrounding the crime and the prior record and history of the defendant.
In People v. Solis, 193 Cal.App.2d 68, 13 Cal.Rptr. 813, it was held that there is no merit in the assertion that the appellant could claim a privilege with respect to communications made by him to the probation officer because no statute so provides; and that, consequently, evidence of such communications was admissible if it was relevant to any issue before the court. (See People v. Kessler, 221 A.C.A. 225, 34 Cal.Rptr. 433.) Similarly, in People v. Curry, 97 Cal.App.2d 537, 218 P.2d 153, this court held that statements of a defendant in a criminal case to a juvenile probation officer were not rendered inadmissible by subdivision 5 of Code of Civil Procedure section 1881 because that section Appellant's statements to the probation officer, considered as a whole, if voluntarily made, amounted to a confession of the crimes of robbery and car theft, two of the crimes with which he was charged. 'A confession is a voluntary statement that was made by one who is a defendant in a criminal trial, at a time when he was not testifying in that trial, by which he acknowledged certain conduct of his own that constituted a crime for which he is on trial, a statement which, if true, discloses his guilt of that crime and excludes the possibility of a reasonable inference to the contrary.' (People v. Speaks, 156 Cal.App.2d 25, 34, 319 P.2d 709, 715; People v. Ferdinand, 194 Cal. 555, 568-569, 229 P. 341.) A confession is an admission of guilt. (People v. Koening, 29 Cal.2d 87, 91, 173 P.2d 1; People v. Connelly, 195 Cal. 584, 597, 234 P. 374.) 'A confession, freely and voluntarily made and without offer or promise of leniency in regard to punishment, or as the result of threats or intimidation, may be used as evidence against the defendant in a criminal case.' (People v. Rogers, 22 Cal.2d 787, 804, 141 P.2d 722, 730; People v. Ditson, 57 Cal.2d 415, 434, 20 Cal.Rptr. 165, 369 P.2d 714; People v. Price, 175 Cal.App.2d 857, 859, 1 Cal.Rptr. 57.) It is admissible within long-established exceptions to the hearsay rule. (Witkin, Cal.Evidence, § 242, p. 275.) A confession is admissible to establish the truth of what was admitted. (People v. Koening, supra, 29 Cal.2d p. 91, 173 P.2d p. 3; People v. Speaks, supra, 156 Cal.App.2d p. 35, 319 P.2d pp. 715-716; People v. Gould, 170 Cal.App.2d 489, 492, 338 P.2d 938.) In the instant case, appellant's statements to the probation officer, if freely and voluntarily made, were clearly competent and relevant evidence to be considered, with other evidence, on the question of whether or not appellant committed the crimes charged in the information. Such statements have a direct bearing on the issues raised by the pleas of not guilty because such statements, if found by the jury to be true and to have been freely and voluntarily made, constituted an admission of guilt.
§ 1881, subd. 5, provides as follows: 'A public officer can not be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure.'
Was Appellant's Confession Voluntary?
Yes. Appellant contends that the confession made to the probation officer was not free and voluntary because it was coerced, the specific assertion, in this respect, being that the probation officer induced appellant to confess on the pretext that probation would be recommended. Jenkins' testimony elicited by appellant's counsel on voir dire is the basis for this contention. The pertinent portions of this testimony are quoted in footnote . The admissibility of a confession depends entirely People v. Rogers,
'Q. And so you tell them that you have to take this report and furnish it to the Court, and if they cooperate with you and tell you everything that they know that it certainly is to their benefit? A. We don't use the term 'cooperate with us' so much as we tell them to tell the truth, because it helps everybody to be honest and sincere in their statements. Q. And isn't there more or less an implied, rather not implied, an implication on your part that if they tell you all the factors that then, and relate everything that they do know, that they stand a better chance of getting probation or better chance of getting a lighter sentence? A. Well, we tell them that by telling the truth they stand a better chance of having us recommend probation, because if they tell us statements that we find out through our investigation are not true, then we will not recommend probation for them.'
In the case at bench, the trial court admitted appellant's statements to Jenkins into evidence, and, upon the conclusion of the case, instructed the jury on the subject of admissions and confessions. The record discloses that appellant did not deny making the statements attributed to him by Jenkins. His testimony was that he did not speak the truth when he spoke to Jenkins because he was 'looking to obtain probation by cooperating with them * * *.' In admitting such statements People v. Atchley,
On direct examination appellant testified as follows: 'Q. Now, you saw Mr. Warren Jenkins here in court yesterday? A. The probation officer? Q. Yes. A. Yes, sir. Q. Had you met him before? A. Yes, I met him up in the County Jail. Q. And did you have occasion to have a conversation with him? A. Yes, I did. Q. Where did that conversation take place? A. In the County Jail. Q. Just you and he were present? A. Yes. Q. Now, would you tell us: Did you at that time tell him that you had a gun? A. I told him, I think, the nearest that I can remember, I told him I had bought a gun from somebody for $5 and it was some phony gun or something like that. I told him that.'
In People v. Brommel, supra, 56 Cal.2d 629, 15 Cal.Rptr. 909, 364 P.2d 845, after considerable interrogation, an officer stated to the defendant: "You either take it the hard way or you take it the easy way." (P. 633 of 56 Cal.2d, p. 911 of 15 Cal.Rptr., p. 847 of 364 P.2d.) The officer then explained that the "hard way" consisted Tested in the light of the foregoing authorities it would appear, at first blush, that appellant's confession was not free and voluntary. Jenkins' statements to appellant were more than mere exhortations to tell the truth. Coupled with such exhortation was the implied threat that if appellant did not tell the truth probation would not be recommended. Whether or not there were express threats that appellant could expect no leniency from the court unless he told the truth, i. e., if he made statements that the probation department found out through its own investigation were not true, or promises that he might expect leniency if he did, it appears that the statements of Jenkins above quoted show that such a threat or promise to appellant was at least clearly and unmistakably implied. Upon closer scrutiny, however, it is clear that the circumstances under which appellant's confession was made were markedly different than those present in the above cases wherein the statements were held to be involuntary as a matter of law. In these cases the confessions were obtained by sheriffs or police officers prior to trial and for the obvious purpose of obtaining evidence to be used against the defendants at trial. In none of these cases were the statements made to a probation officer in the discharge of his duties. In the case at bench the statements were made at a time when appellant stood convicted, by virtue of his plea of guilty, of the crime of robbery. It was certainly not in the contemplation of Jenkins that the information solicited by him was to be used in a subsequent prosecution. Jenkins was then acting in the performance of his duties as a probation officer charged by both the mandate of the judge and the law to investigate and report in writing to the court the circumstances surrounding the crime and to accompany said report with his recommendations, 'including his recommendations as to the granting or withholding of probation * * *.' (§ 1203.) Probation is a matter of clemency and not of right; it is granted to a deserving defendant whereby he may escape the extreme rigors of the penalties normally imposed. (People v. Cortez, 199 Cal.App.2d 839, 843, 19 Cal.Rptr. 50; People v. Loeber, 158 Cal.App.2d 730, 736, 323 P.2d 136.) The defendant's guilt is not an issue in a probation officer's report, the purpose of which is to assist the court in determining whether the defendant should be granted probation, and, if so, the terms thereof (People v. Validivia, 182 Cal.App.2d 145, 148, 5 Cal.Rptr. 832; People v. Cross, 213 A.C.A. 755, 760, 28 Cal.Rptr. 918); nor is a recommendation of the probation officer binding on the court. (People v. Johnson, 106 Cal.App.2d 815, 816, 236 P.2d 190; People v. Wahrmund, 91 Cal.App.2d 258, 262, 206 P.2d 56.) Moreover, the trial judge is not bound by any particular reason or reasons advanced by the probation officer recommending probation. (People v. Sullivan, 110 Cal.App.2d 4, 7, 242 P.2d 348.) We think it is beyond argument that under all the intendments of the probation procedures it is incumbent upon a defendant, seeking the clemency afforded, that he should at all times speak the truth. The granting of probation to a defendant who has been untruthful to the probation officer is repugnant to the fundamental concept of probation which seeks to rehabilitate People v. Cross,
People v. Overton,The predicament in which appellant finds himself, insofar as his confession is concerned, is of his own doing. It is not the result of the probation officer's interrogation, which was proper and within the scope of his duties, but stems, rather, from a change of appellant's plea of guilty to not guilty, thus setting aside the conviction pursuant to which the probation procedures were properly invoked. Accordingly, appellant cannot 'wash his hands' of his statements made to Jenkins. These statements were not, of course, conclusive evidence against appellant, but their weight and sufficiency, as well as whether they were true, were all proper subjects for the consideration of the jury. Whatever misgivings we may entertain as to the propriety of the admissibility of a plea of guilty, and the admissibility of any reports or conversations made to a probation officer acting pursuant to a reference as a result of a plea of guilty prior to its withdrawal, must succumb to the precedents which we are bound to follow. If a guilty plea withdrawn is admissible in evidence as an admission, we apprehend no basis upon which a voluntary admission or confession made to a probation officer in the course and scope of his duties should not likewise be admissible. We are not unmindful of the admonition in Solis and Kessler that the use of a probation officer as a witness ought not be encouraged, and that he should not be called as a witness where his testimony is unnecessary to the People's case. Both of these cases recognized, however, that a probation officer may be called as a witness where his testimony is relevant to any issue before the court. A confession is, of course, relevant to the issue of guilt; and if a defendant has confessed, proof of the confession is part of the case of the People. (See People v. Speaks, supra, 156 Cal.App.2d 25, 35, 319 P.2d 709.)
Was the Trial Court's Instruction as to When a Confession is Involuntary Proper?
Yes. The trial court instructed the jury as to the voluntariness of a confession in the form suggested in CALJIC instruction No. 29-B (Alternate-Revised 1962). Appellant's claim of error is predicated upon the use of the language 'originating with a law enforcement officer' as set out in the first paragraph of the instruction. It is appellant's contention that the court erred when it failed to make it clear to the jury whether a probation officer is a law enforcement officer. He does not contend that the instruction is not a correct statement of the law, but asserts that the instruction is misleading in that the jury should not consider the instruction with reference Nicholl v. Koster,
Said paragraph reads as follows: 'A statement of a defendant relative to the offense charged 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 a statement as a result of any such inducement originating with a law enforcement officer. But, even though a statement 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.'
We are satisfied that the phrase 'law enforcement officer' embraces a probation officer within its definition. Had appellant desired a more explicit instruction he should have requested the same. Having failed to do so, he cannot now complain. It is a well-settled rule, moreover, that '[w]here an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any, to it is that it is deficient or inadequate by reason of its generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or more complete, elaborate, comprehensive, definite, specific or explicit instructions on such point or points, he must properly request the same, otherwise error cannot be predicated upon the failure to give such additional instruction.' (People v. Carothers, 77 Cal.App.2d 252, 255, 175 P.2d 30, 32; People v. Reed, 38 Cal.2d 423, 430, 240 P.2d 590.)
Was There Sufficient Evidence to Warrant a Conviction as to any of the Offenses Charged?
Yes. Appellant contends that the evidence was insufficient to identify him as the perpetrator of any of the alleged of fenses or to connect him with their commission. Before proceeding to a discussion of appellant's contentions in these respects we would briefly reiterate the well-established principles applicable to appellate courts in criminal matters. Our authority is restricted to a consideration of questions of law alone. (People v. Rumph, 164 Cal.App.2d 262, 267, 330 P.2d 694; People v. Duchon, 165 Cal.App.2d 690, 694, 332 P.2d 373.) Matters of evidence do not constitute a subject of review by courts of appeal 'except where there necessarily arises from the evidence or is presented thereby, from its very nature, a question of law, such as where the evidence bears upon its face the brand of improbability, or which may be said to be unbelievable, per se, because it involves a claim that something has been done that it would not seem possible could be done under the circumstances described in the evidence.' (People v. Rumph, supra, 164 Cal.App.2d p. 267, 330 P.2d p. 697.) Accordingly, all that an appellate court can do is to ascertain from the record if there is any substantial evidence to support the verdict of the jury or the decision of the judge. (People v. Carr, 156 Cal.App.2d 462, 464, 319 P.2d 445; People v. Janisse, 162 Cal.App.2d 117, 122, 328 P.2d 11.) Therefore, in accord with the spirit and intent of these principles, the duly constituted triers of facts are the exclusive judges of the credibility of witnesses (Code Civ.Proc. § 1847), and are the judges of the effect and value of evidence addressed to them, except in those instances where it is declared by law that it shall be conclusive proof of the fact to which it relates. (Code Civ.Proc. § 2061; People v. Janisse, supra, 162 Cal.App.2d p. 122, 328 P.2d p. 14.)
Apropos the question of identity, to entitle a reviewing court to set aside a jury's finding of guilt the evidence of identity must be so weak as to constitute practically no evidence at all. (People v. Braun, 14 Cal.2d 1, 5, 92 P.2d 402; People v. Jackson, 183 Cal.App.2d 562, 567, 6 Cal.Rptr. 884.) Nor is it required that there be a positive identification free from doubt. People v. Jackson,
People v. Jackson,Turning to the record in the instant case, we find the following evidence. The witness Reay testified that he had identified appellant as one of the robbers at the police line up some six months prior to the trial. On cross-examination, Reay testified that he identified appellant by his 'rapid walk, short stepped' which Reay testified he noticed during the split second the robber without the gun and with the sack walked past him in the drugstore on the day of the robbery while he was crouched behind the wrapping counter. James Flanagan testified that shortly before noon on February 13, 1962, he parked his delivery truck in front of the College Pharmacy and immediately behind a 1952 or '53 green and white Pontiac; that he noticed a person leaving the drugstore, whose face appeared to be charred or burned; that he later realized that the person's face was covered by a stocking; that this man got into the Pontiac on the passenger side; and that the he entered the drugstore where he was informed of the robbery. Another witness, Eddie Shearer, testified that at approximately 11 o'clock a. m. on February 13, 1962, he observed a 1950 Plymouth parked outside his home which is located 10 to 12 blocks from the College Pharmacy; that about noon he heard a car drive up and saw two men alight from a green and white Pontiac and enter the Plymouth and that they drove away in the Plymouth leaving the Pontiac with the motor running, whereupon he had his wife notify the police. Shearer identified appellant as the man who got out of the Pontiac on the passenger side. On cross-examination Shearer admitted that two weeks after the robbery he had been unable to positively identify appellant when he testified before the Grand Jury, but stated he was now able to make a positive identification.
Officer Kurpinsky testified that in response to a call he went to the vicinity of Tara and Niagara Streets shortly after noon on February 13, 1962; that he observed a Pontiac with its motor running and the windshield wipers in operation; that he noticed the 'wires were crossed' under the dash; and that he checked his records and found that the Pontiac was on the 'hot sheet.' Mrs. Jarva Young testified that the Pontiac in question was owned by her; that on February 12, 1962, she parked it in front of her home, with the doors locked and the windows up; that on the following morning it was gone; that she had given no one permission to use the car; and that she did not place a .22 caliber cartridge or a grey nylon stocking in the vehicle. Inspector Roy Kramer of the police crime laboratory testified as follows: that on February 14, 1962, he examined the said Pontiac and discovered a grey nylon stocking and a .22 caliber cartridge on the floor of the automobile; that he found fingerprints of appellant's left little, ring and middle fingers on the steering wheel and of his right little finger on the rear view mirror; and that he found Richard Montero's fingerprints on the rear view mirror and on the dashboard. Officer O'Leary testified that when appellant was arrested he was questioned and asked to explain the presence of his fingerprints in the
The witness Reay testified that the revolver used by the robber with the gun was either a .38 or a .45 caliber, but did not look like a .22.
Tested by the foregoing rules, the evidence of the identification of appellant is sufficient to support the verdict of guilty on all counts. It should be here noted that fingerprints are the strongest evidence of identity of a person, and under the circumstances of a case may be alone sufficient to identify a defendant as a criminal. (People v. Adamson, 27 Cal.2d 478, 495, 165 P.2d 3; People v. Beem, 192 Cal.App.2d 207, 211, 13 Cal.Rptr. 238.) Appellant relies on People v. Flores, 58 Cal.App.2d 764, 137 P.2d 767, which holds that in a prosecution for grand theft of an automobile, evidence of the presence of the defendant's fingerprint on the back of the rear vision mirror of the stolen car established only the fact that he was in the car and fell short of the proof necessary to establish his guilt beyond a reasonable doubt. The Flores case is distinguishable on its facts. There another person not only admitted stealing the automobile in question, but this person and another (not the defendant) were identified as the persons who emerged from the automobile and took the purses of two victims shortly after the theft of the automobile. Moreover, if was not shown in Flores that the defendant was ever in possession of the stolen vehicle. In the instant case there is evidence of appellant's presence in the vehicle, and, although the jury was entitled to infer that the fingerprints could have been impressed on the Pontiac on the occasion of the pushing episode, the jury could also infer that appellant's fingerprints were placed thereon during the commission of the crimes charged. There is ample evidence afforded by Flanagan's and Shearer's testimony from which the jury could infer that appellant was in possession of the Pontiac and that it was used in connection with the commission of the robbery. The identification of appellant as a participant in the robbery is established by the evidence hereinbefore discussed. As to the narcotics count, the drugstore owner's testimony that he saw the man without the gun place demerol in the white sack would afford sufficient evidence for the inference that defendant was in possession of the narcotics taken from the store in the course of the robbery. As said in People v. Rodis, 145 Cal.App.2d 44, 47, 301 P.2d 886, 888; 'The right to draw proper inferences from the evidence is a function of the jury, and so long as its conclusions do not do violence to reason or challenge credulity, an appellate court is without power to substitute its finding of the ultimate fact.'
Appellant also points out several instances of claimed weakness in the People's case based on discrepancies and conflicts in the testimony of witnesses and, in particular, with regard to the identification testimony. We see in them nothing from which a reviewing court could justly conclude that the entire testimony of such witnesses is unbelievable per se. What we have herein stated with reference to conflicts in the evidence, the credibility of witnesses, and the jury's province with respect thereto, is equally applicable to appellant's alibi evidence presented through the testimony of his sister and mother whereby the former placed appellant at home on the day and time in question, and the latter placed him at home at 8:30 a. m. and at People v. Weathers,
Did the Trial Court err by Allowing Evidence of Other Offenses?
No. Appellant contends that it was error to allow the district attorney to cross-examine him concerning his use of methedrine. The basis of claimed error is that such evidence, introduced over his objection, constituted prejudicial error because it was evidence of the commission of an independent offense having no tendency to prove a material fact in connection with the particular crimes charged. Evidence of other crimes is generally inadmissible, unless it is relevant for some purpose other than to show disposition to commit crime. (People v. Cancimilla, 197 Cal.App.2d 242, 252, 17 Cal.Rptr. 498; People v. Whipple, 192 Cal.App.2d 179, 186, 13 Cal.Rptr. 378; Witkin, Cal.Evidence, § 135, p. 158.) Thus, evidence of other offenses is admissible to show motive, intent, knowledge, and to show a common plan or scheme. (People v. Ryerson, 199 Cal.App.2d 646, 651, 19 Cal.Rptr. 22; People v. Malloy, 199 Cal.App.2d 219, 230-231, 18 Cal.Rptr. 545.) Accordingly, evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. (People v. Peete, 28 Cal.2d 306, 314-315, 169 P.2d 924; People v. Malloy, supra, 199 Cal.App.2d pp. 230-231, 18 Cal.Rptr. pp. 551-552.) "The general tests of the admissibility of evidence in a criminal case are: * * * does it tend logically, naturally, and by reasonable inference to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single People v. Peete,
The cross-examination complained of and the circumstances under which it occurred are as follows: 'Q. [By district attorney] Didn't you tell him [Probation Officer Jenkins] that you had stolen the car the night before just for transportation, and that 'he and hot-wired it,' meaning yourself? Is that what you told him? A. I told him that I stole the car and I held the gun and that I did it for obtaining narcotics, and that's what I told him, and that I bought the gun from a guy for five bucks, it was a phony gun. Now, that is what I told him. Q. Why did you tell him you wanted to get narcotics? A. Because that's what the persons who held up the store was after, was narcotics. Q. Which persons? A. Whoever held it up. Q. Why did you state narcotics were needed? A. Because that's obvious that's what was taken from the store. Q. Obvious? A. Yes. Q. Are you familiar with narcotics? A. No. * * * Q. How about any drugs, dangerous drugs? A. I'm familiar with methedrine. Q. In what manner are you familiar with methedrine? A. Well, I've taken it before. Q. Is methedrine obtained at drug stores, also? A. Yes. It is obtained through doctors that prescribe for it. Q. Is that the way you got methedrine? A. Yes. * * * MR. RHINE: Q. How do you take methedrine, or did you take methedrine? I believe you testified that you had taken methedrine previously; is that correct? A. Yes. Q. How do you take methedrine? A. I inject it. Q. Into where? A. Into my arm. Q. Is this the way the doctor prescribes it for you? A. Well, it says right on the thing that you take it by drink, by intermuscularly, or intravenously, and I chose to take it intravenously. Q. Where did you get the needle? * * * THE COURT: Did you have a needle for that purpose? THE WITNESS: To take methedrine? THE COURT: Yes. THE WITNESS: Yes, I had a needle. THE COURT: All right; he said he had a needle. MR. RHINE: Q. Was that gotten through prescription? A. Yes. * * * MR. RHINE: Q. What was the doctor's name? A. Dr. Carpenter. He's across the bay. * * * MR. RHINE: Q. When was the last time you had taken any drugs? A. What? Methedrine? Q. Any drugs; methedrine or any drugs. A. Six, seven months ago. Q. Six or seven months ago prior to this date or prior to the 13th? A. No; six or seven months ago. Q. Prior to the---- A. Prior to today. Q. So, in other words, some time in December or January, I think that would make it, approximately; is that correct? A. Yes.'
In the case at bench we fail to see how appellant's use of methedrine was evidence of the commission of another offense. As we view it, the evidence adduced does not show a disposition to commit crime, nor does it show the appellant was of bad moral character. It merely shows that appellant used a drug known as methedrine pursuant to a doctor's prescription. Assuming, arguendo, that such evidence embraces the commission of another offense it was admissible upon principles of relevancy. The record discloses that appellant himself brought up the subject of narcotics in answer to a question put to him by the prosecutor. Under direct examination by his own counsel as to the statements made by appellant to Jenkins appellant testified that he told Jenkins that he had bought a 'phony gun' and that he had used the gun in a robbery, but he made no mention of having said anything about narcotics. It should be here noted that Jenkins had testified that appellant told him he had gone into the drugstore 'to get some drugs.' When appellant testified on cross-examination that he told Jenkins '* * * I did it for obtaining narcotics,' the prosecutor was entitled to pursue the subject within legitimate bounds of cross-examination, because the conversation with Jenkins had been gone into on direct examination and therefore the subject of said conversation was within the scope thereof. (§ 1323.) The prosecutor was within the bounds of legitimate cross-examination, moreover, because appellant had testified that his statements to Jenkins were a fabrication. The truthfulness of these statements was, therefore, an issue before the jury. Accordingly, the district attorney was entitled to inquire as to why he had mentioned narcotics to Jenkins and also as to appellant's knowledge of narcotics. When queried as to his knowledge of narcotics or 'dangerous drugs' it was appellant who mentioned methedrine. It was then that the extent of such knowledge was gone into. It should be further noted that among the fruits of the robbery in question were drugs and narcotics and that appellant was identified as the robber who obtained and placed the drugs and narcotics in the sack after the other robber had stated "This is a holdup * * *. Get the narcotics." Appellant's familiarity with methedrine was relevant to his knowledge of drugs, and also admissible to establish a motive for the robbery. In People v. O'Brand, 92 Cal.App.2d 752, 754, 207 P.2d 1083, the defendants were charged with the attempted burglary of a drugstore. It was there held that evidence of one of the appellant's use of and desire to obtain narcotics was admissible to establish motive for attempting to burglarize the drugstore. (See People v. Loeper, 167 Cal.App.2d 29, 35, 334 P.2d 93; People v. Conlon, 149 Cal.App.2d 525, 529, 308 P.2d 402.)
We are satisfied, moreover, from an examination of the entire record, that even if it were assumed that the admission of the above evidence were error, that no miscarriage of justice has occurred. If the evidence had been excluded there would have been no different result in the trial because there was substantial evidence in the record to sustain appellant's conviction without such evidence. (See People v. Watson, 46 Cal.2d 818, 834-838, 299 P.2d 243; Calif.Const. art. VI, § 4 1/2.)
In view of the conclusion herein reached by us relative to the admission of the evidence of the use by appellant of methedrine, we need not discuss appellant's claim of misconduct on the part of the district attorney predicated upon his asking the questions which produced this evidence. Suffice it to say, prejudicial misconduct does not arise from the asking of questions which are proper.
Did the Trial Court Commit Error in the Reading of the Former Testimony of a Witness?
No. During the cross-examination of the witness McMichael appellant's counsel attempted to impeach the witness by reading a portion of his testimony before the Code of Civil Procedure, section 2052 sets forth the statutory requirement as to the kind of impeachment attempted in this case, i. e., impeachment by prior inconsistent statements. When a cross-examiner seeks to impeach a witness by showing he made a prior inconsistent statement, the rule is that the impeaching question should include substantially all of the prior statement and should not omit any clause that is explanatory of the portion read. (Umemoto v. McDonald, 6 Cal.2d 587, 592, 58 P.2d 1274.) It is also well established that when the defense has endeavored to discredit a prosecution witness by calling attention to a part of a prior statement apparently inconsistent with the witness' testimony at the trial, the district attorney may properly question the witness as to the other parts of the statement for the purpose of explaining the apparent inconsistencies. (People v. Ferdinand, supra, 194 Cal. 555, 562-563, 229 P. 341; People v. Albert, 182 Cal.App.2d 729, 741, 6 Cal.Rptr. 473.)
§ 2052 provides: 'A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony; but before this can be done the statements must be related to him, with the circumstances of times, places, and persons present, and he must be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing, they must be shown to the witness before any question is put to him concerning them.'
In the instant case the record discloses that the additional portion requested to be read by the district attorney was explanatory of the first part which defense counsel desired the witness to read. The few lines which the court required defense counsel to read indentified the person to whom the witness was referring in the first part of the statement. It would have been unfair to have omitted this portion of the statement as it was explantory of the first part. Accordingly, the trial court would have been entitled to sustain the prosecutor's objection because of the incomplete form in which the foundation for an impeaching question was framed. (Umemoto v. McDonald, supra, 6 Cal.2d p. 592, 58 P.2d p. 1276.) In attempting to be fair to both sides the trial court permitted the entire statement in its proper context. Has Appellant Been Subjected to Multiple Punishment for a Single Criminal Act in Violation of Penal Code, Section 654?
The portion to which defense counsel desired to limit his examination read as follows: "Q. Did either one of the robbers call the other one by any sort of name, that you recall? 'A. Do you want this from what I heard or from what generally has been known on this? 'Q. No, no, what you, yourself, heard. 'A. All I can remember hearing was, 'Go on, Jack.' 'Q. What? 'A. 'Go on, Jack,' was the nearest I can tell. 'Q. 'Go on Jack'? 'A. Yes."
Yes. The prohibition of section 654 against double punishment applies not only where one 'act' in the ordinary sense is involved, but also where there is a 'course of conduct' which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. The divisibility of a course of conduct depends upon the intent and objective of the defendant; and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. (People v. McFarland, 58 Cal.2d 748, 760, 26 Cal.Rptr. 473, 376 P.2d 449; Neal v. State of California, 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839.) In the instant case, it is clear that appellant entered the drugstore with the primary objective of stealing narcotics. None of the evidence indicates any purpose therefor other than the robbery. The consequent possession of the drugs was the fulfillment of the objective to rob. The possession of the narcotics and the theft of the $80 were incidental to the robbery. Accordingly, the robbery and the possession of narcotics stem from the same criminal act.
§ 654, in pertinent part, reads as follows: 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one.'
No contention is made by appellant that the conviction for automobile theft constitutes double punishment.
In People v. Griffin, 209 Cal.App.2d 125, 25 Cal.Rptr. 667, the appellant burglarized a drugstore and was arrested as he emerged therefrom. He had in his possession a number of items taken from the store, including narcotics. He was convicted of burglary and of possession of narcotics and was sentenced for both offenses. The appellate court held that the two sentences constituted double punishment for a single act, the court's rationale being that the stealing of the narcotics was a fulfillment of the object of appellant's burglarious intent. (See People v. Keller, 212 Cal.App.2d 210, 220, 27 Cal.Rptr. 805; and People v. Magee, 217 A.C.A. 491, 519, 31 Cal.Rptr. 658; also see Seiterle v. Superior Court, 57 Cal.2d 397, 399, 20 Cal.Rptr. 1, 369 P.2d 697.)
Where double punishment has been imposed, section 654 proscribes double punishment, not double conviction. Conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, one of which, the more serious offense, may be punished. Accordingly, the appropriate procedure is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty is concerned. (People v. McFarland, supra, 58 Cal.2d 748, 762-763, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Collins, 220 A.C.A. 568, 583-586, 33 Cal.Rptr. 638.) Of the two offenses involved in the present case, first degree robbery is the one subject to the greater punishment. The punishment for first degree robbery is not less than five years (§ 213), while that for possession of narcotics provides for a 10-year maximum. (Health & Saf.Code, § 11500.)
The judgment is reversed insofar as it imposes a sentence for possession of narcotics, and in all other respects it is affirmed.
BRAY, P.J., and SULLIVAN, J., concur.
'Q. Well, in your opinion, Mr. Jenkins, would it appear that Mr. Quinn was giving you a statement more or less thinking that the more he told you about this particular charge that the better he would be treated by you; in other words, that he would benefit from his statement? * * * THE WITNESS: I thought that Mr. Quinn was just being honest with me.' * * * Q. But prior to his being honest with you, did you represent in any way whatsoever that he would gain in any respect whatsoever by being honest with you? A. I probably did tell him that; I tell that to everybody, that by being honest with us they are helping themselves; if I can explain this properly, I tell them if they are not telling us the truth, then we most certainly would not recommend probation for them. I put it that way, it's in the negative. Q. In other words, you tell them--For instance, if somebody denied a crime, if they denied a crime then you would say they are not telling the truth, isn't that right? A. Not right then, no. * * * Q. You told him that if he didn't tell the truth that there would be no possible chance for probation, isn't that right? A. No, I wouldn't tell him that. I can't say whether he will get probation or not, Mr. Davis. I don't---- Q. But you have a right to make a recommendation? A. Oh, yes. Q. To the Superior---- A. I tell them if they don't tell us the truth, the probability--in fact it is almost certain we would not recommend probation for them if they don't tell us the truth. Q. What I mean is, when you say you want them to tell the truth in each and every case you want them to tell you that they committed the crime, isn't that right? A. No, I just want them to state the truth. We frequently get people who plead guilty and then tell us they didn't do it.'
On cross-examination appellant testified: 'MR. RHINE: Q. Did you tell the truth when you spoke to Probation Officer Jenkins? A. Definitely not. Q. You were lying then? A. Well, I had a reason to tell him that, because I was looking to obtain probation by cooperating with them, which I was told to do. Q. You were willing to cooperate and to take the beef for Rich Montero? A. Well, I had no other way of explaining my fingerprints on the stolen automobile.'
The portion requested by the district attorney, and which immediately followed the foregoing testimony, reads as follows: "Q. And do you remember which one said this? 'A. Well, he was the one at the register. 'Q. And who was he referring to at that time? 'A. The fellow standing at the front of the store who had taken the narcotics."