*1 Dist., No. 28111. Second Div. Four. Dec. [Crim. 1976.] PEOPLE, THE v. Plaintiff Respondent, ALLEN, ROBERT Defendant and Appellant.
Counsel the Court under Thomas M. Appeal, Hagler, appointment Defendant and Appellant. *4 General, Winkler, J. Jack R. Chief Assistant
Evelle Younger, Attorney General, General, Moore, S. Clark Assistant Norman Attorney Attorney General, Kline, H. Sokolow and James H. for Plaintiff Attorneys and Respondent.
Opinion By information, (Bernard), defendant Robert Allen JEFFERSON J. 487, with violation of Penal Code section subdivision 1 was a charged 25, The date of offense was March 1975. theft). alleged (grand Defendant entered a of not Trial was Defendant was jury. plea guilty. was denied and he to found as Probation was sentenced guilty charged. the term law. in the state imprisonment prison prescribed Defendant from the judgment. appeals 2, Parker resided at
On March Mrs. Vivienne apartment Avenué, to her Mrs. in Los Horn testimony, County. According Angeles 22, 1975. On this date with him on March first met defendant on a Parker at date, which she valued she was first approximately wearing jeweliy diamond $10,000. wrist watch and four This included gold jewelry on discussed this that she and defendant Mrs. Parker said jewelry rings. did not have on date; defendant that she insurance she informed this first in the this but was jewelry appraised. having jewelry process 24, 1975, and defendant went Mrs. Parker On March the evening and had dinner went first to a restaurant out on their second date. They defendant consumed then visited a bar. Both Mrs. Parker and substantial amounts of the course of the with liquor during evening, defendant amount. returned to Mrs. Parker’s drinking greater They 2:15 about a.m. on the of March 1975. apartment morning According Parker, to Mrs. after defendant made an indication that he in no drive, to condition Mrs. Parker said him: Look. Instead of you “Okay. home—which was don’t here. I driving quite long stay ways—why you late, have to work in the It’s and I’m tired.” get up go morning. Mrs. Parker was aware of the fact resided in that already Laguna.
Mrs. Parker testified that she and defendant then retired in slept bed in same but without sexual engaging any activity. bed, Before Mrs. Parker her watch and between going placed rings two boxes on a dresser near the bed. Defendant also his jewelry placed next to hers on the dresser. jewelry her,
After Mrs. Parker fell defendant awakened asleep, stating intruder, had been that he had chased somebody apartment; who over the that was from the escaped by going balcony separated room doors. Mrs. Parker then discovered that her living by sliding glass *5 watch, were Mrs. Parker testified that defen- purse rings missing. dant’s was still on the dresser but that the defendant said intruder jeweliy had taken of some his money.
The case Mrs. Parker’s prosecution’s against stealing consisted of circumstantial evidence. jewelry entirely Mrs. Parker testified that the doors between the sliding glass living room and the and those between the bedroom and were balcony balcony that, She locked. also said before she had locked the two locks retiring, on the entrance door the into and had the fastened chain. One apartment locks, lock, lock, of the a dead-bolt the use of a while the key required stated, other in a the knob of lock. Mrs. Parker required pushing however, that her about the door entrance locks was locking based her on habit of this—not on recollection doing any specific done so the on having night question. officers, were called. Two Russell and Sheriffs police Deputy
Davis, defendant; came out and talked with Mrs. Parker and the officers observed that the doors to the from the room glass sliding balcony living were The two officers testified that saw no partially open. they signs the entrance to the at the forced at door or any entry apartment sliding from the or doors to the bedroom room. balcony living glass feet, of the was nine evidence established that the floor balcony inches the from the and that on eight ground, railing balcony two feet approximately high. Reeve,
Pursuant to Russell’s Russell then request, manager house, removed one locks from Mrs. Parker’s apartment entrance door and delivered it to the sheriff’s crime Reeve laboratory. testified tenants of Mrs. Parker’s consisted of prior apartment males; three that when vacated the one failed to return they apartment, however, his set of entrance door. The locks keys apartment, not were changed. Plumtree, criminalist,
On March examined the Wayne front door lock that had been removed Reeve and delivered to the sheriff’s crime Plumtree an that there had laboratory. expressed opinion an been neutralization or of this lock to two one attempted picking years before he it. examined Plumtree stated that also some types sliding doors’ locks could be without marks. opened leaving
Evidence was also that three latent presented prints—two palm middle defendant were found on one of the right finger—of jewelry boxes which was on the dresser in Mrs. Parker’s bedroom. There was some in defendant’s statements to the officers with inconsistency respect to whether he saw the intruder vault over or whether he had balcony seen the intruder run from the bedroom and that the just assumed just intruder had exited over the No apartment by jumping balcony. *6 was the defendant. testimony presented by
Defendant contends that several errors were committed the trial court—errors of sufficient and effect to magnitude prejudicial require reversal of the of conviction. judgment
One contention of defendant relates to the offer of prosecutor’s and introduced in thereto. testimony conformity proof Out of the of the the made the presence juiy, prosecutor following in offer of Mrs. the Parker and proof: presence deputy sheriffs, after the latters’ arrival at the Parker apartment, connections; stated: that he had some that he had very good ways out where the it; stolen was if to sell finding jewelry anybody attempted that defendant’s connections were better than the sheriff’s department; that defendant was to on the then and the word going get phone right put out that if these items are discovered he wanted to know by anybody it. about The offer of included the fact that defendant made a proof theft, call and told of the described the telephone then jewelry, stated to the he was that he to be informed if person wanted calling was sold. jewelry was that defendant’s prosecutor’s state- theory admissibility constituted,
ments effect, admission, in an that defendant had namely, theft; second after the that defendant had taken thoughts the jewelry; that he had it to a confederate outside the given waiting apartment, then, after the officers, arrival of the had decided to contact his police confederate in an to of the so that it attempt regain possession jewelry could be returned to the victim. Defendant to the offer of objected proof on the that such evidence was irrelevant and that grounds any probative value was of immense substantially outweighed by danger prejudice, since the evidence would establish that defendant was a who person knew and associated with who dealt in stolen merchandise. The persons trial overruled this judge objection permitted prosecutor introduce the evidence. Mrs. Parker and Sheriff Davis testified in Deputy substantial with the offer of conformity prosecutor’s proof.
In statements, defendant’s Mrs. Parker said that testifying she assumed that defendant called over the from her person phone was “a fence.” The term apartment “fence” is the nomenclature used to describe a dealer in stolen This of the property. portion stricken, but the fact cannot be overlooked that heard this jury to whom defendant made description person call telephone about the theft. seek the trial uphold judge’s ruling admitting of Mrs. Parker and Sheriff Davis with conformity offer of on the that evidence of prosecutor’s defendant’s proof theory
statements was admissible under the to the rule for a exception hearsay admission, and, that the value of such evidence was party’s probative not of undue so as to certainly outweighed by any danger prejudice exclusion of such evidence to Evidence Code section require pursuant 352.
433 Evidence Code section creates an to the rule exception hearsay for the admission of a The section states party. simply “[e]vidence a statement is not made inadmissible rule when offered by hearsay the declarant in an action to which he is a . . . .” Section against party 1220 assumes that evidence of a statement is party-declarant’s hearsay evidence because is offered to the truth of the matter being prove stated in such statement. This is the definition of evidence. hearsay Code, 1200, subd. (Evid. (a).) §
It is to be noted that Evidence Code section 1220 does not define when a statement becomes rele declarant-party’s extrajudicial hearsay vant to be admissible such under the admission against party personal obvious, however, to the rule. It that, is exception such a hearsay statement to be admissible admission, as an the statement against party must assert facts which would have a in reason either (1) tendency some of the action, cause of or prove rebut portion (2) proponent’s some declarant’s defense. portion party bench,
In the case at
evidence of defendant’s statements to Mrs.
Parker and
Sheriff Davis
not
is
offered to
the truth
being
prove
of the matter stated
in such statements
since
statements do
expressly
not assert facts
that defendant took Mrs. Parker’s
indicating
jewelry.
words used
defendant were
in nature. But
express
by
exculpatory
evidence of an
statement of a declarant is nevertheless
express
hearsay
evidence if such evidence is offered to
the truth of the matter
prove—not
that is stated in such statement
the truth of a matter that
expressly—but
is stated in such statement
v.
Los
(Dillenbeck
by implication.
City of
472,
69 Cal.2d
(1968)
446 P.2d
Angeles
129];
Cal.Rptr.
[72
Gas & E. Co. v. G. W. Thomas
etc. Co.
69 Cal.2d
Dray age
Pacific
33,
42-43
In the case before is not reasonable to conclude either that defendant in fact intended to make an statement that he implied Mrs. Parker’s or had taken that a of defendant’s jewelry, recipient statements would believe that defendant intended reasonably express his statements to make the statement that he had express implied committed the theft. jewelry
On the an inference that defendant was contrary, impliedly asserting his theft from statements made to the victim and guilt Sheriff Davis and the call to an unidentified telephone person clearly and lacks trustworthiness or based either speculative reliability upon or reason. inferences that are derived from a declar- logic Speculative ant’s words cannot be be deemed to relevant under the definition of relevant evidence set forth in Evidence Code section which requires that evidence offered to or fact must have a prove disprove disputed in reason” for such The inference “tendency purpose. sought by drawn from to be evidence defendant’s statements is even People more in character than the inference to be drawn speculative sought from evidence a defendant to establish his innocence in presented v. Doran (overruled Cal.App.3d 886] 617, 625, on other Evans v. Court Cal.3d fn. 6 grounds, Superior Doran, In defendant 681]). proffered that, evidence while in he had an to flee and did not custody, opportunity Defendant made the that such flee. evidence led to an argument innocence, inference of a consciousness of which would be relevant to did not establish that he commit offense The Doran court charged. this on the that the inference rejected argument relevancy theory to be drawn was too and unreasonable to sought entirely speculative meet the test of relevancy. situation
Such is the the case at bench. The presented only drawn reasonable inferences be from defendant’s are statements knew and associated with in stolen persons dealing property. inferences are These victim’s that she magnified by with assumed that the whom the defendant was on the person talking “a fence.” this of the victim’s was phone Although portion
435 stricken, still it. heard relevant use of the of jury only the victim and was to Sheriif Davis establish that defendant a character trait for with known or thieves receivers associating possessed that, trait, of and stolen with such character conformity property, on defendant had stolen Mrs. Parker’s and them to one of jewels passed his associates. 1102,
Under 1101 Evidence Code sections is prosecution from evidence a defendant’s of character trait to precluded introducing conduct in with trait defendant’s such character conformity prove except trait rebut character evidence first offered the defendant in his by favor.
Even if it be assumed that inference sought by from evidence of defendant’s statements—that defendant was prosecutor an assertion of inference, a reasonable it is making guilt—was clearly tenuous at inference best. The of the use this evidence danger by as character-trait evidence was so jury that constitut highly prejudicial ed an abuse of discretion for the trial to refuse to exclude the judge evidence under Evidence Code section 352. We proffered must be ever mindful that discretion is no “judicial means a without by power rational bounds” Rist v. (1976) Cal.3d (People Cal.Rptr. [127 “ 457, 545 P.2d 833]), that the exercise discretion judicial ‘implies determination, absence of arbitrary or whimsical capricious disposition It the exercise of thinking. within the imports discriminating judgment bounds reason. To exercise the discretion all judicial power [Par.] considered, material facts in evidence be must both known and also with the informed, essential to an together intelli- legal principles ” decision.’ re Cortez just (In 6 Cal.3d 85-86 gent 307, 490 P.2d (Italics 819].) added.) The California Court made it clear in v. Supreme quite Guerrero Cal.3d 719 366], character-trait or evidence offered propensity-trait prosecution establish that defendant committed the crime for which he is on trial is inadmissible under Evidence Code section 1101 because of its highly nature. The is clear even such evidence is prejudicial prejudice though relevant because the to use such evidence to juiy apt justify finding that defendant committed the offense charged. for for the character-trait evidence potential prejudice
introduced in the case at bench is not prosecution significantly that flows from the use of from the
different
potential
prejudice
a defendant who testifies as a
evidence of
convictions
felony
impeach
*10
Rist,
v. Antick
Defendant judge permit Parker, victim, the made of Mrs. the the regarding testimony experiment the trial in which she the use of her the course of sought, through during outside, hands, from the unlatch the chain on the entrance door to the district who was that she observed attorney deputy prosecuting an unsuccessful to the chain defendant likewise make attempt disengage his hand in a small with the door This by inserting space slightly opened. evidence was in character and was introduced speculative experimental for the of to have seeking jury accept testimony purpose victim, Parker, Mrs. that she had chained door to her hallway before to bed. apartment going
It is to be noted that of Mrs. Parker relative to whether credibility the chain had been on the door was serious subject placed question because her to this effect was habit and not predicated upon with full that both she and the recollection and acknowledgement defendant had in substantial of alcoholic drinking engaged beverages the victim to the at 2:15 a.m. fact that prior returning apartment and the district were not able to use their hands attorney deputy no inference that the chain on the door establishes reasonable unlatch skill in not unlatched of the chain could be knowledge by persons to which the a chain. The matter the method subject unlatching which directed is one evidence was goes beyond certainly experimental not a and hence is that common subject proper lay experience 800. under Evidence Code section opinion had the an instruction that the Defendant prosecution requested not a doubt that was burden of reasonable possible beyond proving and that unaided from inside another to enter person apartment that entrance a reasonable doubt such must be satisfied beyond jury convicted. The trial defendant could be before judge impossible There was no error the refusal to refused to this instruction. give give
437 this instruction. The law defendant, is clear that “a upon proper therefor, has to an instruction that attention to directs request right evidence from consideration of which a reasonable doubt of his guilt be could A ... defendant is entitled to an engendered. instruction facts to issue.” v. Sears relating particular any legal (People Cal.3d 465 P.2d 847].) requested instruction, however, was not a correct statement law. (See People v. Whittaker 845].) The trial Cal.App.3d did an instruction judge give appropriate requested by focused on the evidence that would toward defendant’s particular point *11 instruction, innocence. The at defendant’s “The given request, provided: the floor of the Parker therein doors plan regarding apartment, thereon, the doors, locks and the of those should be locking carefully examined to determine whether the have established you by people credible evidence circumstances which a reasonable doubt prove beyond that there was a committed, theft and that the defendant or aided and abetted, the commission of the theft.” the
But of remains whether the errors question complained were sufficiently a reversal. The prejudicial evidence require against defendant was all circumstantial and not Our particularly compelling. examination the entire record convinces us that it is reasonably probable result more favorable to defendant would have been reached in the absence of the errors discussed herein. v. Duran 16Cal.3d (1976) (People 282, 618, 296 545 v. P.2d Watson 46 1322]; (1956) Cal.Rptr. People [127 Cal.2d 836 P.2d As court said in v. 243].) Guerrero People [299 16 Cal.3d (1976) 366], [129 “[h]e relevant, deserves a new trial on evidence.” nonprejudicial [defendant] added.) (Italics from is reversed. judgment appealed J.,P. concurred.
Kingsley, Acting DUNN, J., because concur in reversal Concurring Dissenting.—I However, trial error I court’s in defendant’s statements. admitting errqr from that it was for the trial dissent that holds opinion part of Mrs. Parker permit regarding judge experiments.
I also dissent from the of this because of rule publication opinion, California conc. v. Rules of Court 976(b), (see Reyes my opn. 848]). Cal.App.3d Parker’s, Mrs. witness permitted Regarding nonexpert testimony, Evidence Code section 800 to these matters: “(a) testify concerning witness; based on to a (b) Rationally perception Helpful clear of his Permission so to understanding testimony.” testify properly have been the trial court. v. Nolan 155 Cal. (Nolan may given by 476, 480-481 P. Mrs. 520].) Parker testified as follows: Well,
“A. I tried to—from the outside I tried reach around and take off, chain slide off hook. just And did to do this “Q. arm in as far as you try by getting your you could? possibly Yes,
“A. sir. It was because the door would not close impossible You don’t have to reach hand in. *12 enough. enough leeway your Did see me it? “Q. you attempt Yes,
“A. sir.
“Q. Where were when I did this? you
“A. I was also. watching Did see if entire
“Q. arm the door? inside you my got “A. It was because there’s—the narrow. impossible space very, very You can’t hand in.” get chains, been,
To a not familiar with door would this have juror was, evidence. helpful court, limitation, without cross-examination any permitted
regarding experiment. Furthermore, I cannot concur with the statement that “the majority’s Parker relative to whether the had been Mrs. chain credibility placed on the door was to serious because her . . . subject question testimony not; . . was habit. .” It was her about the upon predicated chain on door was based recollection. She direct upon gave to that effect.
I reverse stated, would but for the reasons and not judgment virtue of the evidence matters. regarding experimental
A denied rehearing petition January for a Court was denied petition respondent’s hearing by Supreme 23, 1977. February