People v. PruittPeople v. Pruitt
This appeal is from a judgment of conviction of robbery in the second degree (
Prosecution evidence elicited on both direct and .cross-examination of the witnesses showed the following-circumstances: Between 9 and 9:15 p.m. on 8 January .1967 one Peter Carlson, then 71 years old, was walking on Alvarado Street in the City of Los Angeles. Carlson had a wallet, which had no money in it, in his inner left coat pocket, and he had a .single one-dollar bill and some change in his right-hand pants pocket. At the place and time mentioned defendant came nip
At the time of the offense, although the lighting was very good, neither Carlson nor Eadoieich noticed anything unusual about defendant’s face. However, the shirt which defendant was wearing struck Eadoieich as unusual because it was striped silk, and he identified it at the scene when defendant was brought there by the officers.
Defendant denied categorically that he had attacked Carlson, had taken money from him, or even had seen him previously. In the course of direct and cross-examination, he also testified to these circumstances: He had been working at a produce market where he had earned $16 and he had been given a ride by a co-worker to a point near the scene of the occurrence. This was some distance from both his place of employment and his home. He had been in the alley for the purpose of urinating. At the time, in one pants pocket he had $18.or $19 in currency folded up. In the other'pants pocket he
After all of the evidence had been received outside of the presence of the jury, counsel for defendant requested the court to give CALJIC instructions Numbers 24 and 26 on circumstantial evidence. Counsel for the People objected on the ground that only a small portion of the People’s evidence was circumstantial. The request of defendant’s counsel was denied by the trial judge without explanation. Part of the record on appeal consists of three CALJIC instructions refused by the court, being Number 24 and two versions of Number 26.
CALJIC instruction Number 24 defines the two types of evidence, direct and circumstantial, and explains that either or both may be used by the trier of fact. CALJIC instruction Number 26 is a composite of the rules that where the People’s case rests substantially on circumstantial evidence, a jury cannot find guilt unless the proved circumstances are not only consistent with guilt but cannot be reconciled with any other rational conclusion; that if the evidence is susceptible of two reasonable interpretations, one pointing to guilt and the other to innocence, the jury must adopt the latter; and that each fact essential to complete a set of circumstances necessary to establish guilt must be proved beyond a reasonable doubt.
Defendant’s primary contention is that the trial court committed prejudicial error in failing to give the proffered instructions on circumstantial evidence. We reanalyze the facts to determine how much of the case of the People was direct evidence and how much was circumstantial and if the latter should be characterized as substantial.
We note that there were two episodes of taking when Carlson was assailed on the sidewalk which constituted the robbery, one involving the wallet and one involving the one-dollar bill. Because there was a general verdict of the jury
The actual taking of the wallet by defendant was demonstrated by
direct evidence,
that is, visual observation, and probably a tactile appreciation, by Carlson. Of course, the taking of the wallet from the person of Carlson, even though it was promptly handed back, constituted a robbery.
(People
v.
Salcido,
In connection with the one-dollar bill episode both sides appear to take for granted that the original presence of the one-dollar bill in the pants pocket of Carlson and its nonpresenee in that pocket after the encounter were shown by direct evidence. Doubtless it was considered that Carlson, by saying that it was there beforehand and not afterwards, was testifying, in effect, that he saw and felt himself placing it there beforehand and that he saw and felt it was not there after-wards. The use of force by the assailant was clearly demonstrated by direct evidence; Carlson saw and felt it. The discovery of the wrinkled dollar-bill in defendant’s pocket was also shown by direct evidence—the observation of the officer.
Accepting the
direct evidence
that there was a one-dollar bill in Carlson's pocket before the encounter and the direct evidence that it was not there after the encounter, and taking the
direct evidence
that defendant tore open Carlson’s pocket with the key, there are no other inferences possible than that defendant, by his action, intended to take anything of value in the pocket and that the one-dollar bill was caused to be ejected from the pocket by the ripping action of defendant. This momentary exercise of dominion over Carlson’s one-dollar bill by defendant, even though it might have fallen to the ground immediately and become lost, constituted a robbery. The “interference with the owner’s possession
We feel that the prompt personal identification of defendant by Carlson and Radoicich was in the nature of direct evidence. The testimony is directly establishing the fact that the witness recognized defendant. The witness is testifying to what his memory faculties are registering, which is like telling about an outward observation.
Although not alluded to by defendant, we feel constrained to mention an aspect of the case where circumstantial evidence was involved. As to each of the episodes, circumstantial evidence was a factor in relation to the matter of identity of the assailant, which would have some significance because the defense was that defendant was not the perpetrator of the robbery, if one had occurred, and because defendant made an effort to weaken the People’s identification evidence by testifying that neither Radoicich nor Carlson were positive in their identification and by establishing that each had failed to notice the stitches and scar on his face. A finding by the jurors that the crumpled one-dollar -bill discovered in the pocket of defendant was the one-dollar bill taken from Carlson (an inference and therefore circumstantial evidence) would carry with it the finding that defendant was indeed the person who had robbed Carlson. The apprehension of defendant in the immediate vicinity in a matter of a few minutes also was circumstantial evidence with respect to identity. In addition, the defendant’s testimony accounting for his presence in the alley, in one sense, could be characterized as circumstantial evidence because it could have been considered improbable, and from this it could have been inferred that defendant’s alibi that he had not robbed, nor ever even seen, Carlson was false.
Conceding the aspects of circumstantial evidence above
In a Supreme Court decision wherein the recited facts are strikingly similar to those in our case (unseen removal of currency from the victim’s pocket but inferred from discovery of a wad of crumpled currency in the defendant's pocket) 1 the opinion's author said that the trial judge did not err in failing to instruct the jury on circumstantial evidence, stating: “ It is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence. [Citations.] ii
“It is clear that the evidence in the present case was pri
Moreover, “. . . [T]he fact that instructions on circumstantial evidence were not given is prejudicial only when it is improbable that the jury would have reached the same result had the instruction been given.”
(People
v.
Contreras,
The second point urged by defendant is that the trial judge erred in refusing to give three instructions relating to lesser included offenses—(1) the instruction that stealing personal property from the person of another is grand theft (CALJIC No. 233-C); (2) the instruction that theft of property (or money) of a value of less than $200 is petty theft (defendant’s special instruction); and (3) the instruction that defendant could be found guilty of grand theft (theft from the person) or petty theft as lesser included offenses of robbery (CALJIC No. 115-Revised).
Very substantial evidence, not contradicted by defendant (because he simply claimed he was not there) and obviously believed by the jurors, established that the taking of either the wallet or the one-dollar bill, or both, from the victim Carlson was a taking from his person, against his will, accomplished by means of force and fear. (
The judgment is affirmed. The purported appeal from the order denying motion for new trial is dismissed.
Stephens, Acting P. J., and Aiso, J., concurred.