*1 26, 1967.] Apr. In Bank. No. 9977. [Crim. PEOPLE, Respondent, Plaintiff and JOE THE GON ALARCON, and DANIEL Defendants ZALES Appellants. *3 Long Kovacs, appoint- and James H. under
Leighton G. Court, Supreme Appellants. for Defendants and by the ment Attorney General, Lynch, William James, E. Thomas C. General, Ringer, and Attorney Gordon Deputy Assistant Respondent. General, for Plaintiff and Attorney jury SULLIVAN, J. found A defendants Joe Gonzales guilty degree (Pen. of murder the Alarcon first Daniel and robbery degree (§§ and of in the first 189) 211, Code, §§ penalty on the murder count, jury a trial a After fixed 211a). at death. Alarcon Gonzales punishment waived a punishment and the court fixed his penalty at as to life trial imprisonment. was sentenced on the Gonzales murder count to robbery prison count to state and on term death prison Alarcon was sentenced law. state prescribed prescribed and for term murder count on the law life appeals robbery judgment from count. (Pen. appeal The of Gonzales is Code, automatic. conviction. (b).) subd. § question sufficiency do not Since defendants the evi- convictions, to sustain the our recital of the dence facts will unimportant extend matters to a to those consideration of
485 us. raised before We first forth the issues set certain uncon- facts record tradicted which relate to Gonzales’ main extrajudi- admission contention cial codefendant’s prejudicial constituted error. statements We also set forth having bearing a point at this facts on additional contentions or either of discuss, made defendants them. We infra, separate questions our appeal, consideration of still other raised on pertinent to the facts each. question place The events here in took in Oxnard on Friday, July 30, During evening 1965. preceding hours p.m. defendants Joe and Alarcon, together (the younger with David Alarcon brother Daniel) Bobby Barkley (a friend of David Alarcon), Joe riding “cruising” around or in Daniel Alarcon’s automobile. Of group aged 24, Gonzales, Joe was the eldest; Daniel years age, Alarcon was years brother David was 15 age, years age. David driving Alarcon was the automobile because Daniel had been drinking day feeling “high” earlier and was quite jovial. drinking, also been but he had not as much as Daniel and consumed manifested no effects. group The “cruised” for some time in and around La Colonia, which is Mexican-Ameriean section of Oxnard near depot. approximately p.m. the railroad At their car ran out point gasoline yard at a near the railroad and a short residence, distance from the Alarcon which was located at the yard. suggested other side of Daniel Alarcon get money buy his house to gas. walk to thereupon some yard set on foot across the railroad on their way to home. Alarcon’s walking yard they sighted While across the three older men crossing yard, who were also but from different direc- Ontiveros, aged 35; tion: Jesus Juan Baca Lujano, aged 54; Servin, aged Perez Felix 35. These men had been drink- ing yard beer several bars near and were headed toward vicinity. another bar Ontiveros, drinking who been afternoon, quite since late beer intoxicated. The two groups together, erupted. fight fled, came and a Servin but the Gonzales, Ontiveros, conflict continued *4 participants. produced,1 parties chief Knives were and all undisputed 1It was that Gonzales and had knives and wielded them; although knife, that Ontiveros had a whether he used was in dispute; Alarcon, Alarcon, Barkley, and that Daniel David Joe and Felix Servin neither had nor used knives. Barkley, excepting knife wounds. involved, received Gonzales upon Lujano. very severe wounds Ontiveros In a inflicted Lujano’s very space of time the conflict was ended. short fled, group youths leaving him. The taken from wallet was severely Lujano lying yard in the Ontiveros and wounded. police 10 :30p.m., arrived about found Ontiveros and The Lujano lying ground, hospital. and took on the both to the bleeding had a number of knife wounds were Both men profusely. Ontiveros, hospital, admission to the state of irreversible shock due to loss to be found blood, morning. although Lujano, the next in a died subsequently from condition, recovered critical wounds. by police Among items found at the scene of the alter- glass cutter. cation was degree prosecution defendants2 first murder The felony-murder robbery. proceeded theory Accordingly, on a (cid:127) bearing question on sides introduced evidence both whether, confrontation, his associ- someone, and, so, formed an to rob if intention whether ates the fatal clash attempt carry was the of an result prosecution produced intention. The jury properly support considered could have been finding following issue falls into the three cate- its gories (1) Lujano’s (2) pertaining wallet; : Evidence evi- pertaining bar; (3) to Ocho’s dence Barkley. Bobby Joe noted, was evidence to the effect that As above there Lujano’s person at the was taken from conclusion wallet3 had sustained wounds. fight and after mortal Ontiveros undisputed by defense, essentially This evidence was knowledge any though denied wallet or of that, prosecution and Daniel Alarcon claimed fact destroyed by burning admitted, when the the wallet had been fight. residence after the returned the Alarcon properly instructed intent to rob infliction of mortal wounds was not subsequent to the formed degree felony finding support a of first murder. sufficient 384, 388 People (1953) 41 Cal.2d (See v. [260 Carnine Cal. (1964) 60 Cal.2d 676-677 Jeter 16]; being years Alarcon, 2Bobby than 16 each less and David subject prosecu offense, age to criminal at the time of Code, (See 707.) §§ Welf. & Inst. tion. money, identifica but it contained wallet contained 3The papers. cards and tion *5 ; (1965) cf. Rptr. 323, 388 P.2d v. Clark 62 Cal.2d 355] Cal.Rptr. 784, 856].) 887 [44 produced that, was to the "effect Evidence about two yard, conflict in railroad Joe hours Gonzales present at a in La known Ocho’s, bar Colonia was that also there at that time and paying was was Ontiveros evidence, however, 20-dollar bills. This of beer with rounds testimony of all four was contradicted members of the' including Bobby group, Barkley, Joe for their Gonzales testi- mony “cruising” was that Gonzales the other three question. group at the time in of the members (3) By significant produced by far the most prosecution of intent the issue was found in Barkley, youngest Joe defendants’ minor night question. Barkley associates on the first related up which events led certain unfortunate walk across the yard. He testified railroad that arrived at the Alarcon p.m. in the July residence about afternoon of 30; that both boys were there that Alarcon talking Gonzales was Alarcon; that he (Barkley) with Daniel and his friend David nearby pool went to a hall Alarcon for a short time and that they when uncle, he overheard returned Daniel asking also lived at Alarcon residence, who to lend him a glass gave after cutter; glass that the uncle cutter, Barkley Daniel and overheard speaking Gonzales using about purpose “gettin’ place it into some get some- thing shortly it in town”; that out thereafter the four youths began left in Daniel Alarcon’s car and “cruising”; they stopped that after time back a certain store build- ing4 yard, got railroad near the out car, and began to walk around to the front of building; that Gonzales then Barkley and David to return to the car bring building; Barkley around to the front of the that and David car, returned but it they would not run and determined Barkley gas; that it was that and David then walked to front of the store and the car was out of to his told Gonzales and Daniel that the gas; suggested that Daniel they then walk get money house some that he had there; and that group pursuant suggestion to this set out toward the Alarcon residence. portion The vital Barkley’s testimony involved 4Barkley’s testimony as to actions undertaken relative to the store building vancy vigorous objection grounds was received over on the of irrele prejudicial and undue effect. thereafter occurred. testified that as the
events proceeding street, they down the before group was entered the suggested they yard, “roll” someone; railroad by the suggestion was received other members group group joke; as a continued down the street of a cafe and suggested come out saw man suggestion that this him; “roll” was also received another and the man turned down street and joke, as a yard entered again; that when the railroad not seen someone, roll roll if said “Let’s someone we ’em see Gonzales over here *6 ’ Lujano, and Servin Ontiveros, that when ’; guys “Let’s roll these here instead of sighted said gas money getting anything and some like going home many Alarcon answered “There too that”; that David are “They’re probably anyway, drunk said them,” but Gonzales he ’em”; (Barkley) that then became probably take could stayed separated group (“I just the temporarily from that through fight going bushes”); the that the trail little momentary absence, during and he erupted his was drawn by only men; attacked one of the three he was when into brandishing at him came during the conflict that the group members of came to his knife, the other three but superficially wounding Lujano, Gonzales and and after aid finally repeated a result of Alarcons, succumbed as two the stab wounds by Gonzales; that Daniel Alarcon administered Lujano's wallet, Barkley and Barkley to take when then wallet; they himself the that respond Daniel took then did not group the arrived at the Alarcon residence fled; that when that to his had tried to admitted mother David gave Alarcon then his mother men; that Daniel some rob destroyed burning. subsequently wallet, was vigorously challenged by testimony Barkley’s Barkley was that the cross-examination thrust of defense. The prior differing the incident versions of given several had example, that he had testified before shown, for It was trial. car had run out that the Alarcon the effect grand boys pushed four had motion, that the in it was gas while of it into building and that the store parking area behind Alarcon resi- immediately on foot set out they had yard they had dis- entering upon the railroad dence;5 that they did not intend robbing there but someone cussed big were too friends because and his Ontiveros rob the trial. to this at testified effect David Alarcon 5Both defendants and got impres- the Ontiveros somehow many; too youths intended to rob them took sion Barkley companions his against ; that after offensive fight, upon return of the four to the Alarcon resi- Barkley dence, mother, no admissions Alarcons’ heard to the wallet, he was in the or discussions because other room watching When television. confronted on cross-examination incident, well with with this version of the other ver- given prior police to trial to defense counsel and certain sions Barkley represented officers, he lied all his “just he pretrial wanted to.” statements because He con- testimony cluded that courtroom was “the truth—more Jury.” Barkley truth than it was On Grand redirect pretrial he had lied testified that statements order to protect his friends. brought It was also cross-examination that involving glass had first related the incident cutter to a juvenile police officer hall about a week and a half shortly trial, and that thereafter released from up” or restricted “lock confinement at the hall—though was not testimony David Alarcon so released. produced Other glass cast doubt the defense cutter story. The uncle, allegedly given glass Alarcons' Daniel who cutter to Alarcon, having denied done so and also denied that glass cutter found at fight belonged the scene of the him. This was substantiated a criminalist from compared the sheriff’s officewho question the cutter in *7 by others claimed the uncle three to be his own. crimi- The paint that there nalist testified was no transfer between the produced by three cutters found uncle and the cutter that was at the scene. Cross-examination also revealed a possible source of bias against Daniel Alarcon. prior It was shown that to the evening fight caught of the Daniel had Barkley, David Alar- boy and con, throwing another at rocks an old man and had and physical rebuked them threatened violence if repeated the incident. Finally, Barkley’s two teachers at school testified that his reputation truth, and honesty, integrity in his school and community was not good; that he was “somewhat of an habitual and liar”; that would not believe him under prosecutor’s oath. The cross-examination of the teachers implied that other at teachers the school had a different were Barkley’s reputation, but these teachers
opinion as to produced at the trial. crucial issue of intent to rob evidence on the defense primarily unequivocal defendants’ denials that consisted confrontation. Defendant any intent existed such part that on afternoon Alarcon testified relevant Daniel cans beer and two drank six 16-ounee of glasses altercation he juice quite orange and that he was vodka with “cruising” during group was when intoxicated evening; evening any during that did he hear that at no time group after “rolling” anyone; that entered mention of hopped slow-moving train rode yard a and the railroad he on jumped he he off train distance; that when it for a certain then heard call- see the but that he could not others proceeded saw a ing “Dan!”; voice, he toward the that cursing Span- persons together, and heard some group of fight progress, aid ; that a ran to ish he concluded conflict; that he brother, and involved his became thus Lujano’s wallet nor Barkley take took neither told group was headed toward his house himself; that as wallet gave Barkley fight Barkley wallet, him the which after the during Lujano’s pocket fight; from had fallen then said gave group he the wallet returned to house that when and happened; that the and told her what to mother burning. Alar- Daniel subsequently destroyed wallet knowledge glass any cutter or the events con denied Barkley’s with it. connected part testified in relevant Defendant “rolling” anyone atwas matter of time discussed on the question; group that after the evening in had entered the hopped yard Daniel on train, and (Gon- railroad he walking Barkley behind and David zales) Alarcon, continued him; a distance who him short ahead of that he saw were ahead of moving three men around for Barkley the silhouettes of toward Daniel, he David; that looked then turned to see a fight going between the men and youths; three the two up Daniel, then Barkley he moved aid called he then David; Ontiveros, that was confronted who struck only did knife; at him with then he draw his knife Lujano Ontiveros; that he later attacked attack order to being Alarcon, aid who attacked knife; that he did anyone say armed not hear get wallet; that, the arrival of the residence, heard the Alarcon no mention *8 any denied Joe Gonzales it burned. did not see wallet knowledge which Bark- the events glass cutter or of it. testimony with connected ley’s upon bearing piece of defense final The testimony of David Barkley was the Bobby Joe account of made Barkley, testified that Gonzales like David, Alarcon. “rolling” somebody before about statements some statements were the yard and that these railroad entered testified, however, that joking. also playful He subject of stage, beyond this and that no mention never went discussion yard. group entered David made after robbery was Lujano arguing began began fight when further said go Lujano him home because he him; that argument, further struck then, after kid” and “just a little fight and the (David) retaliated with a blow he him; that nothing about wallet. commenced; and that knew glass knowledge any cutter or of denied David testimony Barkley’s it. connected with the events completeness, and for the sake should be Finally, Lujano though Servin, noted respects conflicting many testimony, with defense contained upon bearing issue intent. The directly burden nothing simply testimony was that Gonzales their associates aggressors conflict. Neither in the nor Servin money a demand for remotely intimated that was made even upon them. light factual context that of the above we turn It is ’ primary defendant contention, to a consideration prejudicial him resulted from error introduction extrajudicial prosecution certain and use made statements This his eodefendant Alarcon. contention People squarely our decision Aranda (1965)
rests
Cal.Rptr. 353, 407
63 Cal.2d
265].6
extrajudicial statements to which Gonzales has refer-
Defendant Alarcon’s
ence were two
number.
pages
first state-
covering
reporter’s transcript,
ment,
was intro-
objection by
part
prosecu-
aas
over
duced
case-in-ehief; it was conditioned
instructions and
tion’s
limiting
application
its
declarant
admonitions
Alarcon.
longer
Alarcon’s second statement was
Defendant
more
ante, p.
recently
v. Charles
330 [57
held
6As we
545],
Cal.Rptr.
in Aranda
are
425 P.2d
the rules established
judgments
applicable
pending
to cases wherein the
of conviction are still
upon appeal. This is such a ease.
*9
portion
covering
pages
reporter’s
55
A
of
detailed.
objection
transcript
introduced
was also
over Gonzales’
as a
prosecution’s case-in-chief;
part
it was also
conditioned
limiting
and
by
instructions
admonitions.
careful
Another
portion
used, along
excerpts
the second statement was
with
portion
statement, by way
impeach-
first
of that
from the
during the cross-examination of Daniel Alarcon.
ment
given during an
statement was
interview of
The first
Daniel
police
by a
lieutenant named Hawkins. In this inter
Alarcon
fully
rights
being
advised
Daniel, after
of his
to remain
view
counsel,7
to
stated inter alia that after the
and
have
ear
silent
gas
had
and
four
started across the rail
run out
they
guess
and his
that "I
group;
met Ontiveros
I
yard,
road
something
asked
for a match or
and
asked—we
them
something
and then one
to cuss
took out the
started
them
my hand”;
that
this
and cut
here
incident
me
knife
him
fight; that Joe
later told
that
commenced the
he
fight
“had
(Gonzales) had used
knife in the
and
knifed
of the other members of the
guys”;
that none
those
nothing about
knives;
wallet;
that
knew
that
he
keep quiet
him to
about the encounter;
told
that
Joe Gonzales
fight
home
group returned to his
after the
he
when the
by
they had been attacked
some men;
that
mother
anyone;
report
and
did
rob
that he
no intent to
there was
‘‘
’’
he was too
police
because
scared.
the matter to
given during
an
statement
interview
The second
deputy
attorney
district
named
Kosmo
In
being
after
police
Daniel,
officers.
interview
and some
rights
remain
and
fully
of his
silent
to have
advised
greater
story
detail
related to
counsel,8 recounted
In addition,
Hawkins at
earlier interview.
Lieutenant
during
only
he had
two beers
had,
however, he stated
knowledge,
July
30
that Gonzales
afternoon
evening.
He
men-
nothing
drink that afternoon
also
immediately prior
had,
time that he
the first
tioned for
freight
slow-moving
ride on a
train
a short
fight, taken
requirements
fully
complied
administered
7The admonition
169,
Cal.Rptr.
People
(1965)
The some mis understanding as to inquiry. Any of meaning nature our prejudice proceed of light ful assessment record, must of the entire must only and we therefore consider not the direct effect the statements what say, of because of but any also they might indirect effect have had way of because If, searching which this were used. after a examination of appears nature, reasonably probable to us that a result more to favorable defendant Gonzales would have been extrajudicial reached had the statements Daniel Alarcon admitted, judgment. not been we (People must reverse the v. Charles, supra, ante, p. 330; v. Watson 243].) Further, Cal.2d the state [299 applicable in this the evidence case renders here a funda corollary general mental rule: evidence, Where the though verdict, sustain extremely is sufficient close, tending error “any defense, discredit the substantial or to prosecution, prejudi must corroborate be considered as Briggs (1962) (People v. 58 Cal.2d cial.” Cal. Here, Rptr. 417, 257].) Briggs, 374 P.2d as the character of requires scrutiny. is as (Peo “such close the evidence ...” p. 404.) Briggs, supra, at ple extrajudicial above, the statements stated of defend As part were introduced as a prosecu Daniel Alarcon ant and were also used as a case-in-chief ’s basis for tor testimony impeachment the courtroom said defendant. pointing use was limited to impeachment discrepan pretrial statements and his Alarcon’s cies between courtroom points collateral to the central testimony on issue of intent. In prosecutor however, attempted argument, to relate by maintaining that, issue to the central impeachment since points lied minor as to the which had subject impeachment, his testimony courtroom on been worthy In addition, intent was not of belief. issue of the prosecutor sought argument impeachment in his to extend this to both Alarcon and Alarcon alone theory Gonzales—to from agreed upon story defendants had the two to tell imply that story had been discredited that the court, of Daniel Alarcon. statements inconsistent course, attempt argue was, of Gonzales’ There impeached specific testimony points courtroom extrajudicial statements, those statements had Alarcon’s applicable only However, to Alarcon. introduced been accomplished argument much the same effect. thrust point argument prosecutor in his instance, at one For discrepancy apparent an between Daniel’s court reference extrajudicial one statements room groups the immediate area when was in the two whether initially *11 following discrepancy the this conclusions met. From prosecutor’s argument: in upon jury the urged were talking he was to Lieutenant obviously, when Hawkins “Now, up kind story to cook of he a chance was hadn’t he to and he hadn’t had chance in court going to tell confer they to what would tell in in detail as court. Joe Obviously together before, they talked but either had agreed say and he what Joe remember didn’t up Lieu he came out got mixed because he had together of them all when four Hawkins tenant argu in (Italics added.) Later men.” three they met the in idea these words: expressed the same prosecutor ment " talking right these men powerful value of shows This story they have a getting a they are arrested after before going system lies are to tell what decide chance (Italics added.) argu This line of court.” get in when extrajudicial statements of was to as it ment, oriented prosecutor’s heightened in effect Alarcon, was statements, upon that Alarcon those based intimation, also testimony conforming his to that of Gonzales motive had a subject to his domina of Gonzales afraid he was because tion. of this case the erroneous in the circumstances holdWe extrajudicial of Daniel Alarcon, statements admission prosecutor argu subsequent utilization and their prejudice the defendant Joe Gonzales. ment, resulted People Gilbert, supra, Cal.2d unlike Here, degree guilty first was murder—in that Gonzales robbery—was far from “overwhelm felony-murder case concerning contrary, the evidence the issue On the ing.” wholly depends, upon which the conviction rob, intent to very ques hand were the closely On the one very balanced. accomplice Barkley, Joe tionable Bar, Ocho’s evidence as to the evidence very questionable wallet—which, though essentially undisputed, supportive interpretation subject least to at one of a formed intent to rob been finding that the other hand were defendants’ consistent confrontation. On Alarcon, any prior as of David denials, well those circumstances, In these and in had been formed. intent to rob erroneously extrajudi admitted to which the of the use view put by prosecu Alarcon were of Daniel cial statements probable opinion reasonably that it is tion, are of the we defendant Gonzales would more favorable to have a result had not if statements been admitted. We reached those been judgment (murder) as to count reverse the one therefore respect defendant Gonzales. that the are further convinced circumstances of We judgment require a as to count this case reversal one (murder) respect to defendant Daniel Alarcon. The liability coconspira was here instructed as to the vicarious finding abettors, tors, as that of aiders and well might guilt as to Daniel Alarcon therefore have been based However, either or both of these theories. under cir liability cumstances of this ease neither of these bases would *12 finding supportable pre-existing a of absent intent be to rob being part Gonzales, figure of Joe the on the dominant group. that, We have concluded in a trial new not infected reasonably error, probable it is jury Aranda a would had no intent. Therefore, find that Gonzales finding such since the guilt may as to Alarcon of have been derived from finding questioned Gonzales, as to we must reverse the convicting of degree Alarcon first judgment murder. The conclusions which we regard have reached in to to compel as the murder count a defendants reversal both the against as to judgments robbery them count. While prior anof intent to rob the existence the confrontation indispensable murder, to conviction was existence of taking Lujano’s at the time intent such wallet would requisite adequate to establish element of the be robbery. offenseof It will be recalled that under the evidence either Bobby Barkley or Alarcon Joe took the Daniel wallet from Lujano latter Ontiveros had after been rendered evidence, knife This however, although defenseless seemingly wounds. supportive robbery convictions, does not against prejudicial them taint of the immunize Aranda error. theory underlying prosecution robbery as to conspiracy. murder was one of as to The conviction well wholly was robbery against Gonzales based such theory undisputed is evidence part Gonzales no because in the actual taking of the wallet. There is evidence show- reasonably it can be inferred that ing fromor between were hors de combat and the time Ontiveros taken, conspiracy was wallet was formed time the so as to guilt taking for the Gonzales fasten wallet Bobby Barkley. Joe It Alarcon is therefore clear guilty find robbery, that, in order exclusively required resort evidence of intent was, infliction of mortal wounds—which evidence we to have above, by prejudicial infected Aranda pointed error. reasonably probable conclude a result We therefore robbery to defendant as to count more favorable against him have been charged would reached absent the Aranda error. taking Defendant was connected to the only by tending wallet show con Barkley also spiracy, but personally (Alarcon) that he took wallet from effect Lujano’s body. testimony, Alarcon’s own it will be remem- bered, actually effect that it was to the who took nothing (Alarcon) the wallet and that he knew of it until the fight. back group was headed toward home after the It is *13 jury might that have clear, however, the disbelieved against yet robbery to and conspiracy found Alarcon as the count on a theory. above, we have As observed the evidence supportive theory a such was tainted Aranda error of probable reasonably is that such absent jury conspiracy error the would not have determined that a jury the confrontation. rob was formed Since the finding guilt its might robbery of Alarcon’s have based on the upon finding conspiracy, of rather than count its its belief of took Barkley’s that the wallet, judg- ment on that must count be reversed. judgments Although grounds our reversal of the on the unnecessary above discussed renders a treatment raised, we
several other contentions set forth our views on guidance for three of those contentions of the court retrial. Defendant Gonzales that error, upon contends it was prosecution’s challenge cause, for to exclude from the jurors jury prospective response who, questions objection prosecutor asked over voir dire, expressed on une quivocal opposition penalty. to the death recognizes He that permits 1074 Penal challenge implied section Code a for charged punishable bias if the offense is with death and it is "en prospective juror shown tertain . . . such [s] opinions preclude finding conscientious would liis guilty.” (Italics added.) recognizes He also defendant this court has that, held expressly while section does not juror compel prospective aof exclusion whose “conscientious incapable opinions’’ him exercising proper render discre (Pen. punishment Code, 190), purpose tion as to still § its persons if such would violated allowed be to serve on the jury. (People v. Riser 47 Cal.2d (1956) 566, 575-576 [305 contention, however, 1].) subsequent It is that the adoption (Stats. 190.1 of of section Penal Code in p. 1957, 2, providing 3509) separate penalty ch. a §
trial, reasoning presently inapposite. renders Riser He particular significance portion attaches 190.1 section authorizing jury new penalty good issue “for separate jury Since a can try
cause shown.”9
he chosen to
penalty,
argued,
jury
it is
trying guilt
the issue of
issues
contingent penalty
with reference to
should
be chosen
only
considerations, but should be selected
on the basis of its
guilt
ability
issues. In this way,
to determine
defendants
plain
point out,
meaning
return
we would
of section
implied
challenges
only
allow
bias
when the
juror
opinions”
prospective
“conscientious
of a
would affect
ability.
guilt-determining
Cal.Rptr. 382,
In
500 probation officer, testify County would Ventura Bucci, a (the duties, had in performance his official 1958 he, in Lujano) assault conviction of con- a misdemeanor date of Lujano’s reputation inquiry violence, for an into ducted determination, based conversations then made Lujano’s Lujano’s people community, “ person type aggres- of an reputation assaultive . . . drinking." sive, especially when he was The offer was re- jected significant proba- remote have (1) because was too present character, and (2) reputation value because tive only through persons living community can be in the shown having knowledge reputation. direct of such proffered argued clearly It is evidence was relevant theory to the issues herein because it was the defense that the death of Jesus resulted from Ontiveros blows struck in self- against aggression compan defense of Ontiveros and his rely upon ions. Defendants therefore the well-known rule that when produced evidence of self-defense has been “the accused may reputation introduce evidence of the deceased (McCormick, turbulence violence." (1954) Evidence § 160, p. v. see Davis 339; 63 Cal.2d Cal.Rptr. 801, 129]; People 408 P.2d [47 Yokum (1956) Cal.App.2d 245, 259 P.2d 406].) However, even as suming that a rational extension permit of this rule would reputation introduction evidence as to one deceased, not the assuming that, further as defendants argue, a determina reputation by tion of one require whose duties objectivity of him is at least as reliable as an by assessment made a member community—still defendants argument offer against the trial court’s determination, in the exercise of its discre tion, years relating Lujano’s that evidence reputation seven question the acts in was too remote to have before present probative significant value. It is that the court, prosecution’s time it sustained the objection, told defendants that if produce could a witness “who would testify as to reputation in the community of Mr. within a time much more recent as to the events we are concerned with, a very approach different would by be taken the Court." How ever, no other witnesses as reputation pro duced the defense. We find no error in ruling. Defendants’ final meriting present contention discus sion concerns the cross-examination prosecution of produced witness the defense for purpose showing reputation the bad truth, honesty,
501 above, Barkley’s integrity. As noted two teachers and school, Wilson, Nicholas testified Robert Yonker reputation truth, honesty, and integ- a bad rity—and him During would not believe under oath. asked, strong Yonker was over objection, cross-examination Barkley’s reputation he had whether discussed each of specifically school, named other teachers at the three expressed an each of them to him assessment whether Barkley’s reputation expressed at variance with that Yonker on direct examination.12 None of the named teachers prosecution. subsequently called (1967) ante, p. In case of v. Eli 63 Cal. 356], Rptr. very recently 424 916, we observed that when through independent defendant, witnesses, a places reputation community in in issue his as to a certain scrupulous traits, trait character exercise discretion is " required prevent in of the trial court order to cross-examina fantasy” questions in tion based mere form test ing reputa the witness’ favorable assessment of defendant’s through alleged reference to events either tion have no inquiry in fact or in question, basis have relevance to the reputation. wit, indicated We there that such to tion presence cross-examina may prevented ‘‘by ascertaining, first best be outside the jury, target question ‘that the was an probably event, actual which would result some comment (cid:127)among acquaintances injury if reputa not to defendant’s ’ ” (People Eli, supra, ante, pp. 63, v. 79; tion. see 469, Michelson v. United States U.S. L.Ed. [93 ed. (2d 213]; Witkin, 69 S.Ct. Cal. 1966) Evidence (3d § 1214, pp. Wigmore, 1121-1123; 1940) Evidence ed. op. 988, pp. McCormick, 617-624; Evidence, cit., 158, p. § § 337.) held under bench, We the facts there at where at specific events two of raised cross-examination least general community such that could have caused were not procedure comment, the court’s failure to utilize the indicated discretion, though an constituted abuse one which of that in a miscarriage under the circumstances ease resulted example following inquiry 12The is kind an here involved: Now, you [Barkley’s] reputation honesty “Q. did discuss and in- tegrity Craig? with Coach Yes, “A. I have. ( i you Craig it “Q. Isn’t true that Coach that whenever part ' any facts, confronted with would admit his affair? ’’ Craig. any “A. I don’t recall such statement of Coach pp. justice. (People Eli, supra, ante, 63, 79.) closely instant an facts of the case raise issue related to are, however, in Eli. several There obvious considered reputation differences. Here is not the defendant’s factual reputation issue; rather it is the of the chief which is reputation prosecution. Secondly, the for the witness witness reputation person question, here testifies to the dad good reputation. Thirdly, than to his rather character reputation given is trait as to which does not propensity an act; to commit overt rather it relate to relates reputation question person whether whose is in *17 Finally, questions truth in asked issue has told the court. expressed seek alter the do not assess- on cross-examination implication reputation through raising the that cer- ment of tain acts of the reputation person is in whose issue are incon- assessment; challenge rather through raising seek with that sistent implication accuracy the assessment qualified reputation persons to assess have com- other that municated reputation witness assessments at variance expressed him. with that inapplicable prin- differences do not render the Eli These dangers sought to minimized Eli was ciple. be One paucity question, based or a total lack of that of hope is affirm- support, which asked little or no factual purpose response creating through with the and basic ative by proof. (Cf. cannot be established that which v. innuendo States, supra, 469, 481, 335 U.S. United L.Ed. Michelson cit., p. op. cit., Wigmore, op. 624; McCormick, at 168, 176; present 336.) danger is such as p. That circumstances Certainly, us. the denials of Mr. Yonker did little before those impression persons qualified that other as well dispel the Barkley’s reputation very judge entertained different tohe reputation—and may him so. This well views of proper case, defendants, through but the their have been timely objection, were entitled to have the fact ascer- presence before was used as a tained out for cross-examination. basis judgments are reversed. Peters, J., Tobriner, J, Burke, J.,
Traynor, J., C. con- curred. generally judgment, in the MOSK, J. I concur application However,
opinion.
on the issue of
retroactive
Cal.Rptr. 353,
my opinion, VI, ) (See Const., art. justice. Cal. riage § 13. rehearing petition denied June Respondent’s for a was printed opinion modified to read as above. and the opinion petition should be McComb, J., granted. Apr. 27, 1967.] In 28539. Bank. A. No.
[L. PETTIS, Appellant, Plaintiff D. GEN- WILLIAM OF TELEPHONE COMPANY CALIFORNIA ERAL Respondents. al., et Defendants