THE PEOPLE, Plaintiff and Respondent, v. SIDNEY RUSSELL NEESE, JR., Defendant and Appellant.
Crim. No. 15652
Court of Appeal of California, Second Appellate District, Division One
Apr. 23, 1969
272 Cal. App. 2d 235
So far as appears from the record, there remains for arbitration the question whether plaintiffs are legally entitled to recover damages from the uninsured motorist and if so the amount thereof. (See Costa v. St. Paul Ins. Co., supra, 228 Cal.App.2d 651, 654; and cf. Farmers Ins. Exchange v. Ruiz (1967) 250 Cal.App.2d 741, 744-745 [59 Cal. Rptr. 13]; and Voris v. Pacific Indem. Co., supra, 213 Cal.App.2d 29, 35.)
The judgment is reversed with directions to enter judgment in accordance with the views herein expressed.
Molinari, P. J., and Elkington, J., concurred.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and James H. Kline, Deputy Attorney General, for Plaintiff and Respondent.
LILLIE, J.-Defendant was acquitted by a jury of robbery (count I) and kidnaping (count II) and convicted of a violation of
Around 8:05 p.m. on February 26, 1968, Paul Krumhauer, who operates a restaurant in Pomona, was robbed of $80 by a man he four times identified as defendant who displayed a gun he identified as Exhibit 2 (.38 caliber revolver), and taken by defendant to a storeroom where he was ordered to remain. However, the jury, apparently accepting as true the testimony of defendant‘s alibi witnesses, acquitted him of both robbery and kidnaping.
Mrs. Bostic, who lived in a common law relationship with defendant, was the main prosecution witness. She testified that she never saw defendant with the gun (Exh. 2) in his possession and particularly on February 26 she did not see him with it in his waistband; however she admitted she told Officer Allexy that she saw the weapon at one time in the waistband area of defendant‘s trousers but that it was not true, explaining she was angry, upset, drunk, vindictive and wanted defendant arrested. Officers Haney, Hower and Allexy testified that on February 27, 1968, Mrs. Bostic said that around 8:30 p.m. on February 26 defendant displayed the gun in the waistband area of his trousers. Mrs. Bostic‘s son Mark, a second prosecution witness, testified that he saw something brown in the waistband of defendant‘s trousers around 8:20 p.m. on February 26 but did not know if it was a gun; he admitted he told the officer it was a .38 snub-nosed special but explained he was “mad right then,” the whole family was fighting and upset and defendant broke up the furniture. Officer Allexy testified that on February 27 Mark described the weapon to him as a .38 caliber snub-nosed revolver and said he had seen it in the waistband of defendant‘s trousers at 8:30 p.m. on February 26. Milan, Mrs. Bostic‘s daughter, a third prosecution witness, denied she saw defendant with the weapon at 8:30 p.m. on February 26, but admitted she told the officer she noticed a weapon to be located in the stomach area of defendant‘s body and explained she was angry and upset and knew that any connection with the gun would get defendant into trouble. Officer Allexy testified that on February 27 Milan told him that on the previous evening she had noticed a gun in the waistband area of defendant‘s trousers directly above the crotch.
The credibility of a witness may be attacked by evidence of “A statement made by him that is inconsistent with any part
While the prior inconsistent statements fall within
Unlike in Bradford the court in the instant case did not give a jury instruction that it could consider the prior inconsistent statements as evidence of the truth of the matters asserted therein as then allowed under
Loye Bostic lived in Pomona with defendant and her five children. She testified that her home had been broken into and, after discussing the purchase of a gun with defendant who reminded her he was on parole, she bought a .38 caliber revolver (Exh. 2) at Unimart on January 2, 1968, for which she received a receipt (Exh. 3). The gun was registered to her but she never fired or practiced with it although she learned to load it, and kept it on a shelf in the closet in a bedroom occupied by her and defendant; defendant was aware of its whereabouts. On February 26, 1968, she and defendant had been drinking and fighting and she became “concerned with whether or not he would be safe with the gun on the premises” and around 6:30 p.m. with her children drove defendant‘s car to the residence of defendant‘s sister, Mrs. Wyler; defendant remained at home; she arrived around 6:45 p.m. and for “safekeeping” gave the gun which was in a little red box to Mrs. Wyler who took it to her bedroom. Around 7:30 she returned home with Mrs. Wyler; they all argued a bit, fed the children and around 8 p.m. drove to Mrs. Wyler‘s leaving the children at home. Defendant continued the argument at Mrs. Wyler‘s where he talked to his mother for about ten minutes. Around 8:10 p.m. defendant left the Wyler residence alone and returned home to check on the children; he came back to the Wyler‘s around 8:40 or 8:45 p.m. They had stopped quarreling and Mrs. Bostic retrieved the gun; they returned home where she put it back on the shelf in the closet.
The next day (February 27) they continued to drink and fight, defendant becoming violent breaking furniture and hitting Mrs. Bostic. In the afternoon she had reason to believe defendant took an overdose of tranquilizers and called an ambulance but defendant left before it and the police arrived. Later defendant returned and again became violent; the police came a second time and Mrs. Bostic asked the officers to take the gun “because again I was worried for him, since he had already taken the pills. I did not know what he might do next” and she was “worried about what he might do to [her] too“; she took the gun out of the closet and gave it to the
Mark is 12 years old and lived with his mother and defendant; on February 26 when he came home from school they were fighting; around 8:20 or 8:30 p.m. he saw something dark brown in defendant‘s waistband “but I‘m not sure it was a gun. I don‘t even know if it was a gun“; defendant came into the front room where he was watching television and “asked us if we were okay and he also pulled up his shirt and moved something around. I don‘t know what it was“; he knows what a gun looks like and had seen Exhibit 2 before; asked if he ever saw defendant with the gun, he answered yes, “two or three times” “when he [defendant] was cleaning it or something like that“; asked if the handle of Exhibit 2 was what he saw in defendant‘s waistband February 26 he answered, “I don‘t know. All I know something was in the waistband, but I‘m not sure“; asked to put Exhibit 2 in his waistband where he saw something that night, he stuck the barrel of the revolver in his waist leaving the handle exposed in the middle toward the right side; when he went with his mother to Mrs. Wyler‘s she had a red box and handed it to Mrs. Wyler; when his mother and defendant returned around 9 p.m. she carried the red box.
Defendant testified he lived with Mrs. Bostic in “more or less a common law relationship.” He had seen the gun and from his testimony it is apparent he also knew its serial number, identifying Exhibit 2. Shortly before Mrs. Bostic purchased the weapon someone tried to break in the house; they discussed getting a gun and that he was on parole and not supposed to have a gun around but as long as it was not taken out of the house or used he thought it would be “all right.” He took her to the store and went inside but did not stand at the counter with her at the time she bought the gun; a few days later she brought the weapon home. Defendant denied he had ever used the gun but admitted that he had cleaned it “I think I cleaned it three or four times before I was arrested“; he knew where the gun was kept—in “our bedroom closet.” Defendant admitted that he signed the bill of sale (Exh. 4) and explained, “Well, Mrs. Bostic was kind of concerned because I was on parole, and the weapon was in the house, and I felt it would protect her and relieve her mind, then, if she had this because if anything happened to the weapon concerning me, then she couldn‘t be held responsible for the weapon at all. She wouldn‘t be leaving the kids or arrested or anything of that type. I insisted that she take it.” He testified that at this time he knew he was a convicted felon, admitted conviction of three armed robberies and that possession of the gun by him is a felony; asked if he felt this was for the protection of Mrs. Bostic, defendant answered, “I did because—no—at no time would I have the weapon out of the house in my hands or to use it for any purpose other than for protection of the house“; “Sometimes I‘d load it at night when we‘d put it on the stand besides the bed. That would be all“; he admitted his parole papers state no firearms; asked concerning the alleged break into Mrs. Bostic‘s house prior to the pur-
From the foregoing the jury obviously concluded that defendant had sufficient possession of and control over the .38 caliber revolver to bring him within the provisions of
While defendant was charged with a violation “on or about February 26, 1968,” the evidence shows that from February 7 to February 27 he exercised dominion and control over the gun and on various occasions had it in his possession for
Penal Code section 12021 requires no specific criminal intent. (People v. McCullough, 222 Cal.App.2d 712, 718 [35 Cal.Rptr. 591]; People v. Vanderburg, 214 Cal.App.2d 455, 462 [29 Cal.Rptr. 553].) The elements of the instant offense are (1) conviction of a felony and (2) ownership, possession, custody or control of a firearm capable of being concealed on the person (People v. Nieto, 247 Cal.App.2d 364, 368 [55 Cal. Rptr. 546]; People v. Hilliard, 221 Cal.App.2d 719, 724 [34 Cal.Rptr. 809]; People v. Hunt, 221 Cal.App.2d 224, 227 [34 Cal.Rptr. 421]; People v. De Prima, 172 Cal.App.2d 109, 112 [341 P.2d 840]); and general intent to commit the proscribed act is all that is necessary. (People v. McCullough, 222 Cal.App.2d 712, 718 [35 Cal.Rptr. 591].) Defendant was convicted of robbery, a felony, on May 23, 1963; defendant admitted he was a convicted felon and a parolee and knew that he could not have a firearm; and Mark and the weapon itself demonstrated that Exhibit 2 was capable of being concealed on the person.
“Possession of [a gun] may be proved circumstantially and it is not necessary to show that the accused was in exclusive possession of the premises. (See People v. Flores, 155 Cal.App.2d 347, 349 [318 P.2d 65]; People v. Van Valkenburg, 111 Cal.App.2d 337, 340 [244 P.2d 750].)” (People v. Ortiz, 210 Cal.App.2d 489, 497 [26 Cal.Rptr. 677].) Possession of a firearm for even a limited time and purpose may be sufficient to bring defendant within the statute. (People v. Vanderburg, 214 Cal.App.2d 455, 460 [29 Cal.Rptr. 553].) Defendant and Mrs. Bostic had discussed the purchase of a gun and defendant took her into the store to buy it; he
The judgment is affirmed.
Wood, P. J., concurred.
THOMPSON, J.—I dissent. In my view, People v. Johnson, 68 Cal.2d 646 [68 Cal.Rptr. 599, 441 P.2d 111] and People v. Green, 70 Cal.2d 654 [75 Cal.Rptr. 782, 451 P.2d 422] require that the judgment of conviction be reversed. Comity to a decision of the Court of Appeal of the Third District in People v. Pierce, 269 Cal.App.2d 193 [75 Cal.Rptr. 257] indicates a similar result.
FACTS
Appellant was charged in a three-count information with robbery (count I), kidnaping for the purpose of robbery (count II), and possession of a concealable firearm, he having previously been convicted of a felony (count III).
All three counts of the information charge offenses occurring on or about February 26, 1968. On that day, Mr. Paul Krumhauer was present at the spaghetti restaurant owned and operated by him. At about 8 p.m., a man whom Krumhauer thought to be a customer came in. As Krumhauer approached, the man displayed a black, snub-nosed revolver and demanded the money in the cash register. Krumhauer opened the register and the robber took the bills from it. The robber forced Krumhauer at gunpoint to walk to the kitchen of the restaurant where he took the victim‘s wallet. Krumhauer identified appellant as the robber.
Mrs. Loye Bostic and her four children lived with appellant. At the trial she testified that she owned a .38-caliber revolver which she had purchased for her protection and of which appellant had knowledge. On February 26, 1968, Mrs. Bostic and appellant had an argument, and Mrs. Bostic, fearing the presence of the weapon, gave it to Mrs. Sharon Wyller, appellant‘s sister, for safekeeping. Later that evening appellant and Mrs. Bostic went to the Wyller residence. They stopped quarreling and Mrs. Bostic retrieved the revolver. Mrs. Bostic‘s testimony was that she had never seen the gun in appellant‘s possession. The prosecution then, without objection, introduced evidence of prior inconsistent statements by Mrs. Bostic on February 27 that on February 26, 1968, at
Mrs. Bostic‘s 12-year-old son, Mark, and 16-year-old daughter, Milan, both testified to seeing something brown in appellant‘s waistband on February 26 but that they could not identify it as a revolver or other weapon. The prosecution, also without objection, introduced prior inconsistent statements by Mark and Milan that the brown object was a revolver. Both also testified that they had made the prior statements because of their anger at appellant.
Other evidence introduced without objection disclosed a bill of sale dated February 18, 1968, from Mrs. Bostic to appellant for “One .38 caliber Miroku revolver, Serial Number 8001” (People‘s Exhibit No. 4) and that on occasions prior to February 26, appellant had cleaned the weapon. Mrs. Bostic explained that the purpose of the bill of sale was to protect her from any legal involvement concerning the revolver but that she had never delivered the gun to appellant.
The defense testimony, while admitting appellant had “cleaned” the gun, denied his possession of it. The testimony also included substantial alibi evidence with respect to the robbery. The jury, on May 17, 1968, acquitted appellant of the counts of robbery and kidnapping but convicted him of the count involving possession of the revolver. Appellant was sentenced to state prison and this appeal followed.
CONTENTIONS OF APPELLANT AND RESPONDENT
Appellant‘s grounds of appeal are: (1) that the trial court erred in admitting as substantive evidence the prior inconsistent statements regarding possession by appellant of the revolver; and (2) that the trial judge should have on his own motion instructed the jury to limit its consideration of those statements to impeachment.
Respondent concedes that admission of the inconsistent statements as substantive evidence violates the rule of People v. Johnson, 68 Cal.2d 646 [68 Cal.Rptr. 599, 441 P.2d 111]. Respondent, however, argues that: (1) no objection to the evidence was made here nor limiting instruction requested, thereby making the Johnson rule inapplicable; and (2) any error in this regard is nonprejudicial.
Accepting respondent‘s well-founded concession that the evidence of prior inconsistent witness statements is rendered incompetent by Johnson, we must determine the consequences of the failure of appellant at trial either to object to the admissibility as substantive evidence of the prior statements or to request an instruction that the jury should consider those statements only for the purpose of impeachment. In view of the ostensibly unimpaired existence of
PREJUDICE
If the validity of the conviction which is now before us for review were to be tested by the standard of sufficiency of the evidence to support a guilty verdict or perhaps if the test of review were that of determination of a miscarriage of justice within the meaning of section 13, article VI of the state Constitution,1 there would be good reason to affirm the judgment. People v. Johnson, supra, 68 Cal.2d at page 660, however, requires that the prejudicial character of the admission as substantive evidence of inconsistent statements of the witnesses and the failure to instruct that the testimony could be considered only for impeachment be tested by the rule of Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. That rule requires that the judgment of conviction be reversed unless the respondent has succeeded in convincing the reviewing court beyond a reasonable doubt that the error
Chapman suggests two approaches in applying its rule. The court on review is required to ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction,” (17 L.Ed.2d at page 710) and whether, absent the error, “honest, fair-minded jurors might very well have brought in a not guilty verdict.” (17 L.Ed.2d at page 711.) The record is clear that the theory of the prosecution‘s case at trial was bottomed upon proof by the improperly admitted out-of-court statements that appellant was in sole possession of the proscribed weapon on February 26, 1968. The statements were corroborated by evidence of a bill of sale of the gun to appellant and testimony that on occasions other than on February 26 he had cleaned it. While the corroborating evidence could have been the basis of a prosecution upon the theory that appellant was a joint possessor of the gun with his paramour and thus guilty of the crime charged, I cannot accept the proposition that there is no reasonable possibility that the constitutionally improper evidence contributed to the conviction or that honest, fair-minded jurors might not have brought in a verdict of not guilty had that evidence been excluded.
Examination of the two decisions of our Supreme Court since Johnson, which have considered the Chapman rule in the context of evidence held improperly admitted by the rule of Johnson, supports the conclusion here reached. In People v. Bradford, 70 Cal.2d 333 [74 Cal.Rptr. 726, 450 P.2d 46], the error was determined to be harmless beyond a reasonable doubt where the tainted evidence was consistent with the theories of both the defense and the prosecution and hence damaging to neither. Bradford contrasts with People v. Green, 70 Cal.2d 654 [75 Cal.Rptr. 782, 451 P.2d 422]. In Green, error in admitting prior inconsistent statements as substantive evidence was found prejudicial in spite of other evidence tending to establish guilt. There the reluctant witness when confronted by his prior inconsistent statement implicating the defendant stated that he “guessed” he had told the truth at the time of the inconsistent statement. Additional evidence tended to prove that the defendant was guilty of the crime charged (furnishing marijuana to a minor) at a time other than that alleged in the information.
In my judgment the case before us is made analogous to Green and distinguishable from Bradford by the presence of
There is a further ground for finding a reasonable doubt of the effect of the improperly admitted evidence upon the conviction. Appellant testified in his defense. On cross-examination he exhibited a damaging familiarity with the serial number of the weapon and admitted cleaning it and that he might have used it to repel a prowler if the occasion had arisen. In the language of Division Four of this court: “[W]e can only speculate as to whether [he] would have testified at all if the evidence . . . had not been admitted.”3 (People v. Wilson, 268 Cal.App.2d 581, 587 [74 Cal.Rptr. 131].)
To hold that in the case at bench the error is nonprejudicial beyond a reasonable doubt is to apply that “overemphasis upon the courts’ view of ‘overwhelming evidence‘” that is condemned by the Supreme Court of the United States in Chapman v. California (386 U.S. 18, 23 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 827]).
I would reverse the judgment of conviction.
A petition for a rehearing was denied May 22, 1969. Thompson, J., was of the opinion that the petition should be granted. Appellant‘s petition for a hearing by the Supreme Court was denied June 18, 1969. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.