THE PEOPLE, Plaintiff and Respondent, v. FERNANDO ESCARCEGA, Defendant and Appellant.
Crim. No. 13845
Second Dist., Div. Five.
June 11, 1969.
273 Cal. App. 2d 853
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark L. Christiansen, Deputy Attorney General, for Plaintiff and Respondent.
Only the fundamental facts are set forth. Defendant Escarcega, the two codefendants, and one Cuenca were members of a gang. The victims of counts I and II and their companions were members of a rival gang. The two gangs fought frequently. On October 15, 1966, defendant and Cuenca in defendant‘s car, and the two codefendants in another car, drove into the rival gang‘s neighborhood and parked across the street from a house where numerous members of the rival gang were congregated on the lawn. There was conflicting evidence as to why and in what manner the ensuing altercation between the two groups started, but when it was over, one Ochoa, a member of the rival gang, lay wounded with a bullet lodged in his abdomen. Ochoa subsequently died from this injury, and was the victim named in count I. A ballistics expert testified that the bullet which killed Ochoa did not come from a pistol. Two witnesses testified that they saw defendant with a rifle. Defendant and a member of the rival gang testified that it was Cuenca who had possession of the rifle and that defendant was armed with what appeared to be a crowbar or a pipe. This testimony was corroborated by the two codefendants. Cuenca was not apprehended until the conclusion of the trial. Defendant admitted that there was a rifle under the hood of his car. How or in what circumstance the rifle was fired at the time Ochoa lost his life is uncertain. Negligent handling of the gun or the commission of a misdemeanor1 with death resulting therefrom is within a reasonable construction of the evidence. There was testimony by the victim named in count II that defendant fired the rifle at him.
Defendant‘s first contention is that his conviction of a violation of
The case as it relates to count I and the conviction of a lesser included offense therein is reversed because a necessary instruction defining misdemeanor was not given (People v. Failla, 64 Cal.2d 560, 564 [51 Cal.Rptr. 103, 414 P.2d 39]) and the jury was not advised as to which acts would amount to misdemeanors, though such an instruction was requested, albeit belatedly. At the close of the judge‘s delivery of the jury instructions, except as to the final instruction sending the jury to the jury room, the following colloquy took place:
“MR. WALTON [attorney for Escarcega]: Your Honor, I have a question on instructions.
“THE COURT: All right, what is it?
“MR. WALTON: May we approach the bench?
“THE COURT: Is there any necessity for that?
“MR. WALTON: Well, I think that the Court should read 417 of the Penal Code to the jury.
“THE COURT: Did you offer an instruction on that?
“MR. WALTON: No, I did not. And I want to assume responsibility for not having done that. This is the problem. The jury has been told that a manslaughter can be the unlawful killing of a human being during the commission of a misdemeanor. The jury has not been told what a misdemeanor is, either generally, or what specific misdemeanor might be involved.
“THE COURT: Your request will be denied.”
Thereupon the concluding instruction was given and the jury retired to deliberate.
The court instructed the jury that “manslaughter” was a lesser included offense necessarily included in a charge of “murder.” (People v. Jackson, 202 Cal.App.2d 179 [20 Cal.Rptr. 592].) Within the instructions on manslaughter, the court stated: “There are two classes of involuntary manslaughter. Involuntary manslaughter is the unlawful killing of a human being without malice aforethought during the commission of a misdemeanor which is inherently dangerous to human life or safety; . . . .”
That the failure of the court to grant the request to instruct on a definition of misdemeanor was error is now without ques-
In drafting instructions upon retrial, the attention of the trial court is directed to People v. Wynn, 257 Cal.App.2d 664, 675-676 [65 Cal.Rptr. 210]; People v. Alfreds, 251 Cal.App.2d 666 [59 Cal.Rptr. 647]; People v. Bross, 240 Cal.App.2d 157 [49 Cal.Rptr. 402].
The reversal of the judgment as to count I does not dispose of the other contentions raised by defendant. We therefore consider those additional contentions which are equally applicable to the judgment in count II, or are of such a nature that an adverse effect as to that judgment may have resulted.
Defendant urges that a reversal is required because of technical noncompliance with that part of
The reporter‘s transcript and the clerk‘s transcript each contains the statement that the jury was instructed. The court declared it was orally instructing the jury, as distinct from the reading of prepared written instructions. This procedure is in compliance with
Defendant next contends that the prosecution was guilty of flagrant misconduct in cross-examining defendant, and in its opening and closing statements. Specifically, defendant urges that it was improper to question him about being brought into court handcuffed to a member of the rival gang who was also in custody and turned out to be a witness for defendant. However, no objection to this line of questioning was made by defendant, and it clearly appears that the prosecution asked such questions in an attempt to impeach the testimony of a previous defense witness. For this limited purpose, the questions were not improper since it appeared that the previous witness might have been testifying falsely because of his fear of defendant.
Defendant also complains of a misstatement of fact in the prosecution‘s opening statement that the victim had been shot in the back. Defendant‘s motion for a mistrial on this ground was denied. It is difficult to perceive any prejudice to defendant since the state‘s doctor testified unequivocally that the victim was shot in the stomach, with the bullet lodging in the back. Opening statements are supposed to be an outline of what the prosecution intends to prove, and failure to do so does not necessarily indicate prejudice. (People v. Granados, 49 Cal.2d 490, 495 [319 P.2d 346].) Furthermore, the record
Of greater significance, however, is defendant‘s claim that he was prejudiced by the closing argument of the deputy district attorney. A defense motion for a mistrial on this basis was denied. Among other remarks assigned as misconduct, defendant strongly urges that he was prejudiced by the deputy‘s statement that he “committed open perjury here on the stand.” The vice of such comment is that it raises “the spectre of jury reliance on prosecutorial access to information outside the record. . . .” (People v. Ellis, 65 Cal.2d 529, 540 [55 Cal.Rptr. 385, 421 P.2d 393].) Since perjury is a felony, such comment may connote that the defendant has previously been convicted, or charges are pending against him for such crime. However, a single reference to a witness as having perjured himself, based on an analysis of the evidence before the jury, may be unobjectionable. (People v. Ellis, supra; People v. Muir, 244 Cal.App.2d 598, 601-602 [53 Cal.Rptr. 398].) In the present case, the comment was fairly based on the evidence. During cross-examination by the deputy district attorney in which he sought to pin defendant down as to the source of the rifle which was in his car, defendant answered very evasively. At this point, the trial judge asked the defendant whether he was telling the truth, to which the defendant unequivocally replied that he was not. Under these circumstances, we cannot say that the allusion to defendant‘s perjury was prejudicial misconduct.
Defendant also complains of the prosecution‘s exhortation to the jury to make an example of defendant and his codefendants to younger boys in the area, and to reverse a purported trend in the direction of a “permissive society.” Whether a prosecutor has been guilty of prejudicial misconduct must be determined in the light of the particular factual situation involved. (People v. Lyons, 50 Cal.2d 245, 262 [324 P.2d 556].) An examination of the record reveals that there was substantial evidence of widespread and recurrent juvenile gang warfare in the area where the present offense took place. Under these circumstances and the fact that the prevalence of crime is a matter of common knowledge, we find no prejudice resulting from the prosecutor‘s remarks. (See People v. Head, 108 Cal.App.2d 734, 738 [239 P.2d 506] and People v. Johnson, 99 Cal.App.2d 717, 730 [222 P.2d 335].) It is permissible to comment on the serious and increasing menace of criminal conduct and the necessity of a strong sense of duty on the part of jurors. (Witkin,
Defendant next contends that the trial judge was biased against him and overly solicitous in his concern for the prosecutor. This contention is wholly without merit. We have carefully examined the record and are convinced that the isolated remarks of which defendant now complains in no way demonstrate bias or unfairness. (People v. Wrigley, 69 Cal.2d 149, 163-165 [70 Cal.Rptr. 116, 443 P.2d 580].) In any event, defendant did not assign any remark of the judge as misconduct at the trial, and may not now urge the point on appeal. (People v. Amaya, 40 Cal.2d 70, 78 [251 P.2d 324]; People v. Ralls, 21 Cal.App.2d 674, 679-680 [70 P.2d 265].)
Defendant‘s next contention on this appeal is that it was an abuse of discretion for the trial court to refuse to permit him a continuance on his motion for new trial in order to permit him to “develop evidence” from Cuenca, who had been taken into custody between the end of trial and the time for sentencing. The new evidence which defendant sought to develop as a basis for his motion for new trial was a possible confession by Cuenca that he was the one who wielded the rifle which caused the homicide. Notwithstanding the unlikelihood that such a confession would develop, there was no showing before the trial judge that defendant “could not with reasonable diligence have discovered and produced” the “newly discovered” evidence at the time of trial. (People v. Williams, 57 Cal.2d 263, 270 [18 Cal.Rptr. 729, 368 P.2d 353].) It is well settled that one who relies upon the ground of newly discovered evidence to sustain his motion for a new trial must have made a reasonable effort to produce such evidence at trial. (People v. Owens, 252 Cal.App.2d 548, 553 [60 Cal.Rptr. 687].) The record strongly indicates that defendant knew the whereabouts of Cuenca during the trial. On cross-examination by the deputy district attorney, defendant testified as follows:
“Q. Where does he [Cuenca] live?
“A. I don‘t want to jeopardize him.
“Q. Where does he live?
“A. I refuse to answer that question.
“THE COURT: You will answer the question.
“THE WITNESS: I don‘t know where he lives.
“[PROSECUTION]: “Well, what street was it on?
“A. I don‘t know what street it was on.
“THE COURT: You are telling us the truth now, aren‘t you?
“THE WITNESS: No, sir.
“THE COURT: Tell us what street it was on.
“THE WITNESS: I can‘t tell you what street it was on.”
Furthermore, only the most informal statement was made by defense counsel in connection with the purported “newly discovered” evidence. His references to what he had learned were vague, inconclusive, and wholly unsupported by either affidavit or declaration, as required by statute. (
We have examined the entire record, and we are persuaded that defendant was fairly and justly convicted as to count II.
The judgment is reversed as to count I and affirmed as to count II.
Aiso, J., concurred.
KAUS, P. J.-I concur in the result, but believe that there should be some elaboration on the court‘s reference to People v. Wynn, 257 Cal.App.2d 664 [65 Cal.Rptr. 210]; People v. Alfreds, 251 Cal.App.2d 666 [59 Cal.Rptr. 647]; and People v. Bross, 240 Cal.App.2d 157 [49 Cal.Rptr. 402].
In People v. Huntington, 8 Cal.App. 612, 616 [97 P. 760] it was said: “... If the killing was manslaughter, it is not important that it be classified. The statute does not distinguish the kinds of manslaughter in prescribing the punishment, but, on the contrary, makes the punishment not exceeding ten years’ imprisonment for manslaughter; and the question as to whether any case falls under the one head or the other does not appear to be material. . . .”
In People v. Jackson, 202 Cal.App.2d 179, 182 [20 Cal.Rptr. 592]; People v. Freudenberg, 121 Cal.App.2d 564, 594 [263 P.2d 875]; and People v. Bones, 35 Cal.App. 429, 433-434 [170 P. 166], it was held unnecessary that a verdict or judgment specify whether a defendant was guilty of voluntary or involuntary manslaughter.
These holdings must be based on a theory that the definitions of voluntary and involuntary manslaughter in section 192 of the Penal Code merely describe the two ways in which the same crime can be committed. If voluntary and involuntary manslaughter are different crimes, it would logically fol-
In People v. Bross, supra, the two defendants were found guilty of voluntary manslaughter. On appeal they complained that the court had committed error in not instructing on involuntary manslaughter. It was held that there was evidence of involuntary manslaughter and that the court should have instructed on that theory. The court found People v. Jackson, supra, to be inapplicable and added: “... And while we are discussing the subject of degrees of manslaughter, can it be said in this case that it is not material whether the case falls under one head or the other? Is it not reasonable to assume that the Adult Authority, in determining the punishment, would fix the term of imprisonment for a shorter term when the crime was involuntary manslaughter than it would if the conviction were for voluntary manslaughter?” (240 Cal.App.2d at p. 171.)
While I agree that it surely must be material to the Adult Authority whether a defendant has been convicted of voluntary or involuntary manslaughter, it is obvious that if the Jackson-Freudenberg-Bones-Huntington line of cases is correct, it may never find out from the judgment. Therefore I do not understand how the court was able to brush Jackson aside quite so easily.
Further if the pre-Bross cases are still valid, it is puzzling why a defendant who has been convicted of voluntary manslaughter has standing to complain that an instruction on involuntary manslaughter, justified by the evidence, should have been given. Without such an instruction his attorney was free to argue that the facts did not show an intentional homicide. With no instruction covering an unintentional killing, he could ask for an acquittal.
Since, however the Bross court recognized the defendants’ standing to complain, I can only conclude that it did so on the unarticulated assumption that had an involuntary manslaughter instruction been given, the defendants would have been entitled to a further instruction that the jury must unanimously decide which of the two kinds of manslaughter they committed. This means, of course, that sections 192 subdivision 1 and 192 subdivision 2 of the Penal Code do not merely describe two ways of committing the same crime, but define two distinct felonies.
The same assumption must have been in the back of the
Finally, in People v. Wynn, supra, 257 Cal.App.2d 664 the defendant was also convicted of voluntary manslaughter. Trial had been to the court, rather than to a jury and therefore there was no question of instructions. On appeal Wynn claimed that he was entitled to a modification of the judgment to show a conviction of involuntary rather than voluntary manslaughter. The court brushed aside the Attorney General‘s reliance on Jackson-Freudenberg-Bones-Huntington. It mentioned that in People v. Forbs, 62 Cal.2d 847, 852 [44 Cal.Rptr. 753, 402 P.2d 825], the problem was noted but not decided. It referred to Bross and again pointed out that a defendant‘s eligibility for probation may depend on whether or not it was found that he used a loaded weapon with intent to kill or merely held it without due caution. It continued: “It is concluded from the latter cases that defendant is entitled to raise the question of the type of manslaughter of which he could properly be convicted. . . .” (257 Cal.App.2d at p. 676.) The judgment was, however, affirmed because the evidence supported the court‘s finding of voluntary manslaughter. (See also People v. Pilgrim, 73 Cal.App.2d 391, 398-399 [166 P.2d 636].)
If Bross, Alfreds and Wynn really do mean what they so
I entirely agree, however, that our reversal of the homicide count should be based on the court‘s failure to define any of the misdemeanors the commission of which could have served as a basis for an involuntary manslaughter verdict. The problem which I have discussed is a most fundamental one which undoubtedly will have to be decided by the Supreme Court sooner or later. It was not discussed by counsel in the briefs. We directed attention to it before the oral argument, but the presentation which followed was so inextricably interwoven with the defense‘s insistence that Escarcega had been erroneously convicted of vehicular manslaughter, that the issue was never really isolated. Additional authority may be available at the time of the retrial.1 It is better that the next trial court be the first to rule.
Aiso, J., concurred.
Petitions for a rehearing were denied July 2, 1969, and the petitions of the appellant and of the respondent for a hearing by the Supreme Court were denied August 6, 1969.
Notes
“1. Voluntary-upon a sudden quarrel or heat of passion.
“2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; provided that this subdivision shall not apply to acts committed in the driving of a vehicle.
“3. In the driving of a vehicle-
(a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act, which might produce death, in an unlawful manner, and with gross negligence.
(b) In the commission of an unlawful act, not amounting to felony, without gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.”