People v. House

12 Cal. App. 3d 756, 90 Cal. Rptr. 831, 1970 Cal. App. LEXIS 1666

• Court: California Court of Appeal
• Decided: November 6, 1970
• Docket: Docket Nos. 17842, 18093
• Status: Published

Opinions

Opinion

AISO, J.

Defendant in superior court No. A056766 was found guilty by a jury of voluntary manslaughter (after being charged with murder in count I and assault with a deadly weapon in count II). He admitted three prior felonies and was sentenced to state prison with the sentence on count II ordered to run concurrently with the sentence on count I. He appeals from the judgment.

Prior to the occurrence of the events charged in A056766, defendant had been found guilty of assault with a deadly weapon in superior court No. A227715. Probation had been granted and no appeal had been taken from the appealable order granting probation (Pen. Code, § 1237). After sentence with appropriate reservations in A056766, but before determination of whether the sentence on the two counts would be consecutive or concurrent, a different judge presiding in a different department revoked probation in A227715 and sentenced defendant to state prison with sentence to run consecutive to any other sentence being served. Thereafter the previous sentence in AO56766 ordering sentences on the two counts to run concurrent to each other was ordered to stand. Defendant appeals from this judgment.

In addition defendant has filed a petition for habeas corpus in the Supreme Court (Crim. No. 14502) which was transferred to this court “for consideration in connection with the pending appeal.” The points raised in the petition all deal with errors alleged to have occurred at the trial in A056766; therefore, the petition will be treated as a supplemental brief in that action.

I.

Since some points in defendant’s petition may be construed as an attack on the sufficiency of the evidence, a short review is required.

As to count I, defendant admitted firing the fatal shot at the victim, Jack DeVane. The testimony of James Moyers, the victim in count II, was as follows: He and DeVane had been drinking on the Sunset Strip in the early morning hours and left the bar shortly before two in the morning. As they were walking along Sunset somebody yelled “Hey you.” They turned around and defendant was standing there with a shotgun pointed at Moyers. Defendant asked if they were Death Riders (a motorcycle club) and when they replied “yes” he said “My name is House. I hear you are looking for me in connection with Pamela.” Moyers and DeVane turned and started walking toward defendant. DeVane said something to defendant and defendant looked at him and shot him. After DeVane was shot, Moyers tried to tackle defendant, but was himself tackled by defendant’s companion before he could reach defendant. While Moyers and defendant’s companion were struggling, defendant hit Moyers with the barrel of the shotgun. Defendant and his companion then left. Both Moyers and DeVane had chains although only DeVane’s was heavy enough to be used as a weapon. DeVane’s remained over his shoulder and under his jacket where it was found by the investigating officer.

Defendant’s testimony was the same except that he claimed the two victims approached him and his companion with their chains out and “cocked”; that he intended only to scare the two victims with the shotgun, and shot the victim because he feared his life was in danger. However, when defendant was arrested after a hot pursuit from the scene of the killing, he spontaneously told a deputy sheriff patting him down for weapons, “I had to do it. The job had to be done. I had to do it. I just got back from Tijuana, the guy has been bugging me for a long time. I had to do it.”¹

Defendant discharged the shotgun from a distance of only 2 to 4 feet, or at most 5 feet, according to the testimony of two other witnesses. According to Moyers, the shot caused a large hole in DeVane’s chest.

The verdicts were amply supported by the evidence. (Manslaughter: People v. Alfreds (1967) 251 Cal.App.2d 666, 672 [59 Cal.Rptr. 647]; People v. Jackson (1962) 202 Cal.App.2d 179, 183 [20 Cal.Rptr. 592]; People v. Doyle (1958) 162 Cal.App.2d 158, 160 [328 P.2d 7]; People v. Toliver (1949) 90 Cal.App.2d 58, 60-61 [202 P.2d 301]. Assault with deadly weapon: People v. Herrera (1970) 6 Cal.App.3d 846, 851 [86 Cal.Rptr. 165]; People v. Thompson (1949) 93 Cal.App.2d 780 [209 P.2d 819]; cf. People v. McCoy (1944) 25 Cal.2d 177, 189 [153 P.2d 315].)

II.

The main claim on appeal is that evidence of prior convictions should not have been presented to the jury. The priors were: (1) murder without malice (Texas, 1950); (2) assault with a deadly weapon (Los Angeles County, 1957); (3) assault with a deadly weapon (Los Angeles County, 1968). Defendant admitted these prior convictions before trial after his counsel had examined the records and found that there had been adequate representation by counsel in each of these cases. They were admitted into evidence as impeachment when defendant testified. Defendant’s argument may be summarized as follows: Although under section 788 of the Evidence Code² a prior felony conviction may be used for impeachment, Evidence Code section 352³ also applies and it must be shown that the probative value of the impeaching evidence does not outweigh its prejudicial value. The issue was fully argued before the trial judge who stated that he felt the cases precluded an exercise of discretion as provided by section 352 with regard to evidence of prior felony convictions. This conclusion was correct. The precise issue raised here was decided in this district adversely to defendant in People v. Romero (1969) 272 Cal.App.2d 39, 45-46 [77 Cal.Rptr. 175], hearing denied; followed in People v. Sneed (1970) 8 Cal.App.3d 963, 966 [88 Cal.Rptr. 32]. (Cf. Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 590-591 [86 Cal.Rptr. 465, 468 P.2d 825].)

The court in People v. Kelly (1968) 261 Cal.App.2d 708, 712 [68 Cal. Rptr. 337], explained why such cases as Gordon v. United States (1967) 383 F.2d 936 [127 App. D.C. 343], cert, denied 390 U.S. 1029 [20 L.Ed.2d 287, 88 S.Ct. 1421], and Luck v. United States (1965) 348 F.2d 763 [121 App. D.C. 151], cited by defendant are not controlling in California. It also explained: “When our Evidence Code was in process of enactment, the California Law Revision Commission proposed limiting impeachment to proof of a crime in which ‘an essential element’ is ‘dishonesty or false statement.’ [Citations.] But the commission’s recommendations did not meet with legislative approval, and section 788 as enacted simply restates the rule expressed by former Code of Civil Procedure section 2051, under which any felony conviction is admissible to impeach the defendant’s credibility if he takes the stand.”

III

Defendant further attacks the validity of Evidence Code section 788 on constitutional grounds, which is left unanswered in the Attorney General’s brief. The first facet of this constitutional attack is that the section permits the introduction of non-relevant matters not probative of whether the truth is being spoken and highly prejudicial, thus violating fundamental standards of fair trial. The second facet is that a rule permitting the introduction of prior felony convictions on the issue of credibility places too great a penalty upon his right to testify in his own behalf, citing Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] in support.

At issue in Spencer v. Texas (1967) 385 U.S. 554 [17 L.Ed.2d 606, 87 S.Ct. 648] was the question whether a state procedure permitting the introduction of evidence of prior felony convictions for purposes of enhancing punishment under a recidivist penal provision, at the same time as the trial on the issue of guilt or innocence on a current charge, violated fundamental fairness under the Fourteenth Amendment. In holding no violation, the court stated on pp. 563-564 [17 L.Ed.2d at p. 614]: “Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. See, e.g., Tumey v. Ohio, 273 U.S. 510 . . . ; Betts v. Brady, 316 U.S. 455 . . . ; cf. Gideon v. Wainwright, 372 U.S. 335 , . . ; see Estes v. Texas, 381 U.S. 532 . . . ; Sheppard v. Maxwell, 384 U.S. 333 . . . ; cf. Griffin v. Illinois, 351 U.S. 12. . . . But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the . . . procedure is rendered unconstitutional under the Due Process Clause. . . .” Distinguishing Jackson v. Denno (1964) 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205] the court continued (385 U.S. at p. 565 [17 L.Ed.2d at p. 615]): “It would be extravagant in the extreme to take Jackson as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that limitating instructions can never . . . limit evidence to its rightful purpose.” Citing Kalven & Zeisel, The American Jury (1966) in footnote 8, page 565 [17 L.Ed.2d at p. 615] the court stated: “Indeed the most recent scholarly study of jury behavior does not sustain the premise that juries are especially prone to prejudice when prior-crime evidence is admitted as to credibility.”

In the instant case, the court instructed the jury in the language of what is now CALJIC (3d revised ed.) No. 2.23: “The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness’ credibility. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.” This instruction adequately protected defendant’s rights. (Cf. People v. Smith (1966) 63 Cal.2d 779, 791 [48 Cal.Rptr. 382, 409 P.2d 222].)

The contention that the introduction of prior felony convictions unduly penalizes the defendant in testifying as a witness on his own behalf was considered in People v. Modesto (1965) 62 Cal.2d 436, 454 [42 Cal.Rptr. 417, 398 P.2d 753], The court there stated: “The defendant must weigh the danger of impeachment by the introduction of prior convictions for every witness he calls for the defense. ‘The fact that the witness may also be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.’ (Adamson v. California, 332 U.S. 46, 57-58 [91 L.Ed. 1903, 1912, 67 S.Ct. 1672, 171 A.L.R. 1223].” (Accord: People v. Roberts (1966) 65 Cal.2d 514, 522 [55 Cal.Rptr. 412, 421 P.2d 420].) This portion of the Modesto holding was not rejected in Griffin v. California (1965) supra, 380 U.S. 609, 615 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229, 1233], where the court appears to tacitly assume that the deterrent effect upon defendant’s testifying where evidence of prior convictions may be adduced violates neither due process nor the right of defendant to call witnesses on his own behalf under the Sixth Amendment.

We, therefore, hold that the use of prior felony convictions for the purposes of impeachment with an instruction that the evidence is to be considered only for the limited purposes of impeachment meet the requirements of the Sixth and Fourteenth Amendments of the federal Constitution and of section 13, article I, of the state Constitution.

IV.

The appellant bases two claims of error on Penal Code section 1138: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”

The first incident arose when the jury addressed (to the judge by note) the question: “If we find him guilty of murder in the second degree, will you give a lenient sentence, or if we find him guilty of voluntary manslaughter will you give the maximum sentence?” The judge sent a note back to the jury telling them to look at the instructions (he had instructed them not to be concerned with possible penalty) and that they should not be concerned with this matter. (See Pen. Code, §§ 12, 13, 1168, 5077.)

Subsequently the jury asked the judge if he could give them any further definitions of “base anti social motive” as it applied. The judge replied that he couldn’t but that he would provide them with a dictionary if they desired.

In neither instance did the court call the jury and attorneys into the courtroom. He did advise counsel later as to what had transpired in their absence. However, no assignment of error or motion for a mistrial was made.

A similar situation was presented in People v. Alcalde (1944) 24 Cal. 2d 177, 188-189 [148 P.2d 627]. The jury delivered a note to the judge asking, “May we render a decision of life imprisonment and not eligible for parole?” The court returned the note with the reply, “No.” Although the court stated that this was improper in that all communications between court and jury should be made in open court, the court stated (p. 189): “But in this instance the court could not have responded by any other answer than ‘No’ or its equivalent, namely, that the jury was to be guided solely by the instructions already given. The answer of the trial judge could properly have been made over the objection of the defendant or his counsel if the ordinary procedure had been followed.” Consequently, the “episode may not be deemed to be prejudicial” necessitating a reversal.

The failure of defendant’s counsel to object or move for a mistrial upon the court frankly informing him of the court’s action might also be construed to be a tacit approval. Approval of the court’s action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error. (People v. Winkelspecht (1965) 237 Cal.App.2d 227, 231 [46 Cal.Rptr. 697].)⁴

Violations of section 1138 Penal Code do not warrant a reversal of a judgment of conviction unless prejudice is shown. (People v. Woods (1950) 35 Cal.2d 504, 512 [218 P.2d 981]; People v. Aguilar (1963) 217 Cal.App.2d 260, 264 [31 Cal.Rptr. 893]; Cal. Const., art. VI, § 13; Pen. Code, § 1258.) We note that in this case, the jury returned a verdict of voluntary manslaughter rather than one for second degree murder, which is an indicium of lack of prejudice.

V.

We finally take up several points which defendant in his pro se petition for writ of habeas corpus has raised in addition to those which his appointed counsel has ably and thoroughly presented to the court. We have considered these additional points, but they are readily answered.

1. The record is devoid of any evidence that the factor of racial discrimination played any part in actions of judge, jury, or counsel. (Cf. People v. Rideaux (1964) 61 Cal.2d 537, 540 [39 Cal.Rptr. 391, 393 P.2d 703].)

2. Defendant contends that his trial counsel failed to impeach witnesses on several occasions. Such action falls within the area of trial tactics within the discretion of the attorney who has the right of controlling the proceedings. (Cf. People v. Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008].) The manner in which a defense counsel conducts the trial of his case is not ground for reversal unless the trial is reduced to a farce and a sham by withdrawing a crucial defense. (People v. Ibarra (1963) 60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487]; People v. Garrison (1966) 246 Cal.App.2d 343, 356 [54 Cal.Rptr. 731], cert, denied 389 U.S. 915 [19 L.Ed.2d 266, 88 S.Ct. 248].)

3. Defendant asserts that his right of confrontation was violated when he was not personally present during arguments in chambers concerning the admissibility of certain evidence and of the prior felony convictions. First, the privilege and requirement of presence must not be confused with the constitutional “privilege of confrontation which is limited to the stages of the trial when there are witnesses to be questioned.” (Snyder v. Massachusetts (1934) 291 U.S. 97, 107 [78 L.Ed. 674, 679, 54 S.Ct. 330, 333, 90 A.L.R. 575, 580].) Penal Code section 686 does not require otherwise. Even presence is required only “during those portions of the trial when evidence is taken before the trier of fact.” (Pen. Code, §§ 977, 1043.) Bench and chambers conferences held out of the personal presence of a defendant at which issues of law are mooted by his counsel are not a basis of error absent a showing that his absence thwarted a “fair and just hearing.” (People v. Teitelbaum (1958) 163 Cal.App.2d 184, 206, 207-208 [329 P.2d 157] [appeal dismissed, cert, denied 359 U.S. 206 (3 L.Ed.2d 759, 79 S.Ct. 738)].) The contention that a defendant has the “ ‘right to know what was transpiring or being said during his trial5 55 was rejected as inapplicable to such conferences in People v. Gillette (1959) 171 Cal.App.2d 497, 502-503 [341 P.2d 398]. (Cf. People v. Spencer (1959) 170 Cal.App.2d 145, 149-150 [338 P.2d 484], cert. denied 361 U.S. 949 [4 L.Ed.2d 382, 80 S.Ct. 405].) In any event, the burden of showing prejudice by his personal absence is upon the defendant. (People v. Isby (1947) 30 Cal.2d 879, 894 [186 P.2d 405]; People v. Gotham (1960) 185 Cal.App.2d 47, 57 [8 Cal.Rptr. 30]; People v. Spencer, supra.) This, defendant has failed to do in this case,

4. Defendant contends that his motion for a continuance to obtain a new attorney in place of the public defender made near the end of trial should have been granted. There was no abuse of discretion here where defendant’s only claim was the unsupported assertion that his family was coming with a lawyer. (Pen. Code, § 1050; People v. Bonville (1968) 267 Cal.App.2d 4 [72 Cal.Rptr. 592]; People v. Parks (1964) 230 Cal.App.2d 805, 810-811 [41 Cal.Rptr. 329]; People v. Lee (1967) 249 Cal.App.2d 234, 241 [57 Cal.Rptr. 281], cert, denied 389 U.S. 876 [19 L.Ed.2d 163, 88 S.Ct. 173].)

5. Defendant also complains of the judge’s act in scratching out that portion of the verdict finding defendant guilty of voluntary manslaughter, which read: “With a recommendation for the maximum penalty under the law." This procedure was agreed to by defendant’s trial counsel. There was no error even if defendant’s trial counsel had not consented. Except in those instances where the matter of penalty is delegated by statute to the jury, recommendations of the jury with reference to penalty may be disregarded as surplusage without sending the jury back out to correct the verdict (People v. Gidney (1937) 10 Cal.2d 138, 145 [73 P.2d 1186]; see Witkin, Cal. Criminal Procedure (1963) § 545, p. 556; Fricke-Alarcon, Cal. Criminal Procedure (7th ed., 1967) pp. 457-458.)

VI.

Since defendant was validly convicted of voluntary manslaughter in A056766, probation was correctly revoked and judgment imposed in A227715. (People v. Robinson (1954) 43 Cal.2d 143, 146 [271 P.2d 872].)

VII.

The judgment in A056766 is affirmed. The judgment in A227715 is affirmed. The writ of habeas corpus is denied.

Stephens, J., concurred.

1 No Miranda problem is involved.

2 Evidence Code section 788 reads in pertinent part: “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony. . . .”

3 Evidence Code section 352 reads in pertinent part: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of undue prejudice, of confusing the. issues, or of misleading the jury.”

4 Disapproved on another point in People v. Chacon (1968) 69 Cal.2d 765, 774 [73 Cal.Rptr. 10, 447 P.2d 106].