*1 Sept. No. 21841. [Crim. 1981.] PEOPLE, Respondent,
THE Plaintiff and REDMOND, and Appellant. ROBERT STEWART Defendant *4 Counsel Denvir, Defender, the Court State Public under
Quin appointment by Defender, Shane, De- and State Public for Appeal, Deputy Wendy and fendant Appellant. General, Philibosian, Chief Robert H.
George Deukmejian, Attorney O'Brien, General, Assistant Attorney Assistant Edward P. Attorney Kaster, Kirk and General, Charles R. B. John T. W. Murphy, Eugene General, Helfman, Plaintiff and Re for Deputy Attorneys Stan M. spondent.
Opinion RICHARDSON, J. his conviction assault appeals from Defendant (Pen. Code, (a)). He was sentenced with subd. deadly weapon § Fifth in that his Fourth and Amend- and asserts years prison four occurred and that errors multiple procedural ment were violated rights will find error and sustain his trial. We no reversible during conviction. in incident that occurred
The offense in involved a question stabbing and an ac- 1978. Defendant May after a.m. on Berkeley shortly Shubert, and heavy drinking an extended quaintance, indulged beer, garage wine were consumed bout which during whiskey Shubert was At some point to defendant’s mother’s residence. adjacent toward the abdo- cut rib in a downward direction below left lower it he the knife when entered that held deny men and defendant does the blow was intentional People charge victim’s body. Shubert’s version it was accidental. while defendant insists reason, while in the defendant stabbed garage, no disclosed that for defendant to kitch- him; accompanied by he left garage residence; of a three-quarters he then walked en the mother’s nearby *5 incident. Defendant said that and the reported block to a pay telephone Shubert stumbled against in kitchen when the occurred the stabbing his the knife defendant, hand and reflexively, raised acting him and victim; to in order obtain “went into the holding up” which he had been to the defendant hospital, to the victim taking his car keys preparatory knife, time during and and his deposited went into his bedroom locate him. was unable to Shubert left and defendant scene, the defendant told mother summoned to When were police However, she the without warrant. not let them residence to search the key them the to the and entry gave officers voluntarily permitted floor blood on the and the revealed inspection An garage garage. a counter. error consider, two assertions constitutional the sequentially,
We trial. flaws in defendant’s evidentiary and certain claims of Amendment Fourth residence, defendant to his mother’s came When the officers a warrant. search without entry the and her not urged permit police to times suggested several prosecutor the his closing argument, During consciousness evidenced a his mother to warning that defendant’s the that: jury to instruct a defense request court refused The trial guilt. the to to voice citizen every constitutional right “It any not draw and must you her warrantless search of his or residence warrant- objected from fact defendant inference of guilt be by you fact discussed nor should this less search of his residence any in way.” enter deliberations your combination, comments that, the prosecutor’s
Defendant contends infringed impermissibly of the instruction cautionary refusal be free from an right of his Fourth Amendment the exercise upon search and seizure. unreasonable in fact had assert- we it is not clear that defendant note that
Initially, from unreasonable search ed his constitutional free it is more of the residence entry generally, seizure. As to the and search her his mother to assert accurate to that defendant was say urging Be- and indirect. His interest was vicarious Fourth Amendment right. her entry consent cause she owned residence occupied whose were rights trial to determine was sufficient. It for the court defendant, is support- asserted and its adverse being implied finding, ed substantial evidence.
Moreover, the did constitutional claim was waived because defendant As we re object prosecutor’s during to the comments argument. *6 1, in Cal. cently observed v. Green People in Rptr. 609 P.2d initial to be decided all cases 468], question “[T]he in for first prosecutorial which a defendant misconduct complains time on is and admonition would appeal timely whether a objection would, have rejected cured harm. If it the contention must be [cita ” . ... tion] We are persuaded a review of argument the entire that the by pros- ecutor’s references to defendant’s admonition to his mother were moderate in tone and when import. They significance lacked considered within the context of defendant’s admission he held weapon question. harm have Any arising by therefrom could been cured a time- ly objection and under admonition our Green rationale.
The Fifth Amendment and while then con- stabbing, months after the two Approximately that the fined, weapon revealed to his counsel defendant voluntarily to his fellow also disclosed this information in his bedroom. Defendant trial, At defense counsel asked de- Rita facility. inmates at the Santa it, the knife and she produced testifying fendant’s mother to locate of the knife. discovery the circumstances of direct examination as to the prosecu- was stressed delay In the two-month argument closing in accordance jury The court instructed tion as evidence of guilt. (CALJIC) 2.62 that be- Criminal No. with California Instructions Jury he failed to “If find that testify, you cause defendant had elected to him which he can reason- evidence or facts against or explain deny any because of facts within his expected deny explain be ably as tending take that failure into consideration knowledge, you may in- and as indicating among indicate the truth of such evidence therefrom, drawn those unfavorable ferences that bemay reasonably probable.” the defendant are the more that, the prosecutor’s argument
Defendant argues together, against his Fifth Amendment and the instruction violated jury’s (Cf., 380 U.S. self-incrimination. Griffin California 106, 109-110, for 85 S.Ct. We are unable to agree L.Ed.2d several reasons. comments, at trial to the prosecutor’s defendant did not
Again, object it is when an admonition appropriate objection and under Green must then and then only would have cured the harm that “the court the whole record the harm resulted a mis reach the issue whether on within the of the Constitution.” meaning carriage justice course, Green, rule, 34.) this 27 Cal. 3d “The reason for supra, an to correct the abuse given opportunity that ‘the trial court should thus, instructions the harmful effect if suitable possible, prevent by (Id., We are per the minds of upon jury.’ [Citations.]” admonition would have prompt repaired suaded that an from the brief comments. resulting any damage *7 in his defense a comment defendant elects to own testify When a violate his necessarily privilege against on his muteness does not prior 231, (Jenkins (1980) 447 U.S. 238 v. Anderson self-incrimination. [65 (1926) 271 86, 94-95, el v. United States 2124]; L.Ed.2d 100 S.Ct. Raff 1057-1059, 494, 496, 1054, v. 566]; People L.Ed. S.Ct. U.S. 499 [70 300, 300]; 508 P.2d Cal.Rptr. (1973) 9 Cal.3d Preston [107 909, 422 P.2d Cal.Rptr. Cal.2d Perez v. People to the location with reference Moreover, conduct defendant’s was revealed information “silence.” The knife reflects his hardly the Defendant’s Santa Rita. mother, inmates at and fellow his attorney, exami on direct mother, witness to a question as a defense responding of the circumstances nation, first time the at trial for the presented issue, the presumably raised having of the knife. The defense discovery thereby door was evidentiary the guilt, consciousness negate cross-examination were entitled reasonable People by opened infer reasonable argue more develop fully circumstances ences therefrom. that be merit in defendant’s contention we find no
Similarly, evidence the adverse explain deny cause at trial he was not asked to or him, and violat improper instruction was the CALJIC No. 2.62 against self- privileges against ed both his federal and state constitutional trial was a tactical of his direct examination scope incrimination. for the support contained evidentiary choice of his counsel. The record disclosing for two months delay instruction defendant’s including knife, an ambulance or assist location of the his failure to summon assistance, and the variance between Shubert for medical transport inward” and defen wound as “downward and description Shubert’s on the thrust caused Shubert’s fall “upward” by dant’s version of an view, matters, of discussion proper subject knife. These in our were the by prosecutor during closing argument. he in his own behalf testifies said that when a defendant
We have both federal and under privilege his self-incrimination waives thereby cross- scope permissible matters within Constitutions as to state Perez, 620-622; at pp. People 65 Cal.2d supra, examination (People 902, 422 P.2d CaLRptr. 610-611 Ing defendant the crime a commission of that when he denies 590]) of his cross-exam- scope wide” the permissible renders thereby “very during jury, for entirely proper It is ination. (Ing, supra, case, and the the defense deliberations, gaps consider logical its issue. instruction at fact is reminded of this jury a result. Fifth does not such prevent Amendment *8 of Defense Evidence Exclusion his counsel following stabbing, After his actions describing “find” asked defendant he did not make further efforts to why irrele victim. was sustained on the prosecutor’s objection ground error, that his answer have vancy. Defendant claims could arguing was and that denied ruling established that the accidental stabbing him his and evidence. present testify al- relevance, however, Defendant had was marginal. question’s following stabbing, his activities testified ready length regarding reasonably victim. The trial court his efforts to assist the including defendant’s efforts testimony could that further as to have concluded remote, cumulative, or confusing misleading. locate Shubert would be Code, its (See making trial court in Evid. We conclude § Moreover, if an error did its discretion. such ruling evaluation not abuse occurred, appear because it-does not had it would not warrant reversal substance, of the excluded evidence that “The and relevance purpose, asked, proof, an offer of known to the court questions made (Evid. Code, (a); subd. see People other means.” by any § Cal.Rptr. 590]; People Cal.App.3d Demond Cal.Rptr. 879].) 3 Cal.App.3d Thomas on Cross-examination Limitation he limited in that in two respects improperly Defendant contends victim, his of the Shubert. cross-examination the past from Shubert to establish Defendant sought recall of out” and no drank he “blacked frequently when Shubert pre of Shubert’s included records proof events. Defendant’s offer arrest for prior a record of his alcoholism and vious commitments for based of Shubert Cross-examination exposure. and indecent intoxication because of the psychotherapist-pa records was denied on medical medical arrest (Evid. Code, 1012) both the tient privilege § were too remote recorded excluded because the events records were outweighed the jury” ... misleading or of prejudice the risk “of undue 352). (Evid. Code, permitted, Defendant was value probative any § al with problems extensively Shubert however, cross-examine cohol and blackouts. *9 had
Defendant also to establish Shubert for sought applied “victim’s of this compensation.” apparent purpose testimony defendant, establish for but a false motive also to only identifying a develop between Shubert’s failure to his assailant discrepancy identify after the and his identification of defendant shortly stabbing subsequent However, as his attacker. the defendant’s as the holder of the identity knife was not disputed and the court barred the cross-examina properly tion as irrelevant. “While cross-examination to test the of a credibility latitude, prosecution witness is to be wide its given control within the court, discretion of the trial and the trial court’s exclusion of collateral matter impeachment offered for has been purposes consistently upheld.” v. Flores 71 Cal.App.3d Cal.Rptr. 546]; omitted.) Here, Flores, citations as in “Defendant was not denied the the witness in opportunity place proper perspective. His credibility was thoroughly questioned, and the of his weight to a testimony put test. The proper was afforded full jury the wit opportunity appraise (Id., ness and his testimony.” Evidentiary Rulings
Additional We find no abuse of the trial court’s in its discretion rul- evidentiary ings pertaining to Shubert’s statements as to the conflicting identity his assailant. It was undisputed knife, at trial that defendant held the the only issue being whether the contact with the victim was intentional or accidental. Sentencing
Claim of Error Defendant argues following conviction the court erred in con- sidering defendant’s as a reason perjury for him to the sentencing upper term of four years for violation (a). of section subdivision In im- term, posing upper the court gave following specific reasons for its action: Shubert, defendant inflicted serious injuries on a lengthy arrest record and poor adjustment past lied probation, to the jury, had failed to control his problem, alcohol expressed no remorse for his conduct, factors, asserted no and was a mitigating potentially dangerous person.
A trial court’s conclusion that a defendant has committed perju ry may considered as one fact to be considered in fixing punishment as it bears on defendant’s character and prospects for rehabilitation. (See In re Perez 84 Cal.App.3d Cal.Rptr. 302].) 171 [148
In an a defendant’s character “‘a fact like defen appraise effort to *10 before the who will sentence judge dant’s readiness lie under oath the concrete of the him would to be more among precise seem Hendrix, 1233, available indicia.’ United States v. 505 F.2d 1236 (United 41, 51 L.Ed.2d States Grayson (1974).” v. 438 U.S. [57 582, 590, in explanation specific 98 The trial court’s was S.Ct. sentence, and the court’s conclusion that defendant gave its reasons for in both defen assessing considered perjured testimony properly and his rehabilitation. prospects dant’s character for in him failing give the trial court erred Defendant claims that in county jail prior accumulated work-time and credit good-time commitment, Penal Code sections 2900.5 contemplated by as prison all 498, (1980) 26 People Sage Cal.3d 507-508 and 4019. in Recently it 280, in similar P.2d we concluded that cases Cal.Rptr. 874], 611 [165 trial re- defendants to the court for return such unnecessary Rather, that of Corrections Department we sentencing. anticipate procedures administrative to ascertain will implement appropriate entitlement to such credits. defendant’s us in the light the whole record before
Having carefully reviewed errors, claims, persuaded any singly we are that defendant’s doubt (Chapman combination, a reasonable beyond were harmless 710-711, 18, 705, S.Ct. L.Ed.2d 386 U.S. California 824, probable that it is not reasonably because 1065]) A.L.R.3d “would have been reached defendant that a result more favorable (1956) v. Watson of the error" the absence (Cal. has occurred no miscarriage justice P.2d 243]), Const., VI, 13). art. § is affirmed.
The judgment J.,* J., Fainer,
Tobriner, J., Mosk, concurred. I aims though, NEWMAN, suggest, I concur.Once more J. would have 29(a)(1) more Court, efficiently rule of California Rules of the Court depublishing been handled by had this matter furthered been of Appeal opinion.
* Council by the Judicial Assigned Chairperson of December General on filed here petition Attorney can opinion so that an granted “We submit that hearing states: Court, See, Rules of Appel- with the facts. Cal. squares be issued that believe, That, reflects a view 29(b).” myopic I late Rule (Page what rule 29 read as a whole requires. did not as
BIRD, J., appellant find Dissenting. The majority C. his mother to urged Amendment but right, merely sert his own Fourth conclusion, 909, ante.) To bolster this assert her right. (Maj. opn. to search sought the fact that the house which the officers they stress *11 (Ibid.) The that majority thereby imply to mother. belonged appellant’s fact, interest in the In appellant a house. appellant only tangential the 11 months previous had been in the house with his mother for living and had also lived there at various times in was past years. Appellant His to be free from unreasonable an of the house. occupant right of was to that of his mother. equal searches his home at one stated to directly The record also shows that appellant point a the officers that could not search the house without warrant. they Thus, asserted his own Fourth Amendment He did not appellant right. tell his mother to assert her as the find. merely right majority Appellant point at one told his mother not to the search. How- permit ever, he to his mother because the officers had addressed their spoke her, not to him. He was not called to di- questions only upon speak Therefore, to the it rectly officers. is unreasonable to draw the conclusion that his remarks to his mother evidenced his advice merely Rather, that she assert her Fourth Amendment as a right. co-occupant he advised his mother assert their joint to be free from unrea- right sonable searches of their home.
One consent to a search of shared occupant may validly premises (United States v. Matlock 415 U.S. co-occupant. 171 [39 242, 249-250, Therefore, L.Ed.2d 94 S.Ct. had to con appellant vince his mother not to consent in order to his own Fourth protect Amendment His to so convince her cannot be the right. attempts given erroneous that failed to assert his own reading appellant rights.
Next, that waived his Fourth conclude majority appellant Amendment claim on because he did not to the appeal object prosecu- tor’s comments his home refusal to consent to the search of his 909, ante.)
showed his consciousness at This guilt. (Maj. opn. p. con- First, clusion is just wrong. the error which occurred at trial was plain not but that of the court since it only prosecutor, permitted appellant’s assertion Amendment right Fourth used against Second, him guilt. to establish it is at best for disingenuous this court ignore facts which show that the claim of error trial indisputably by the court was preserved appeal. evidence, record reveals that after the close immediately to discuss met with trial parties judge excused and the jury ev- an instruction that requested instructions. counsel
jury Appellant’s voice an to a ery objection citizen has constitutional home, evi- of his or her that such an warrantless search it enter into the deliberations jury’s dence of and that should not guilt, instruction.) (See ante for text of opn. any way. maj. since necessary counsel stated that the instruction Appellant’s to the war- appellant’s objection otherwise conclude that might jury *12 to “was of that he had guilt, something rantless search consciousness “Well, it to else it couldn’t have replied, got- hide.” The had be or judge a stated that the exercise of ten the rule.” Counsel past hearsay again be as of consciousness of should not used evidence right constitutional the requested to the instruction. The refused guilt. judge give After instructions, to the prosecutor proceeded on this and other ruled judge to the appellant’s argument objection six times in his repeat closing guilt. of consciousness of was evidence his warrantless search claim to failing Fourth Amendment by did not waive his Appellant the He had previously preserved the comments.1 to object prosecutor’s Moreover, clearly the trial judge claim the instruction. requesting by to the warrantless search refusal to consent stated that appellant’s testimony the failing request exclusion of by to his claim appellant 1Nor waive did waived his may He thus have his home. search of objected the warrantless he to right an evidence, thereby to later obtain waive his but did not he right to the exclude 1978) (9th v. Cir. (United States Prescott the evidence. limiting the use instruction Code, 3; People v. Hannon 1343, 1352, fn. see also Pen. § 581 F.2d Cal.Rptr. 564 P.2d Hannon, was object testimony at the time it to failure to the court As this stated propriety review of the right appellate waive defendant’s given “did not ... Legislature specifi- has testimony] because on that jury instruction court’s [based issues instruction required in to reserve order is not objection an cally provided that Code, 1259.)” (19 at (Pen. Cal.3d defendant. rights § a affecting substantial 600.) The to be” a consciousness of court guilt. erroneously “had evidence of Fourth Amendment could believed that assertion his appellant’s right An have been futile*. against objection used him. would Appellant to make required law one. Kitchens futile, would Cal.2d P.2d have been 17] [“an (Civ. Code, acts.’ and ‘The law does nor idle requires neither § 3532.)”].) instruction. proffered when it refused to give
The trial court erred when he ob- his Fourth Amendment right exercised merely Appellant home. The trial court search of his to the warrantless jected assertion burdened appellant’s its error and impermissibly compounded when it his assertion to be used constitutional allowed of his Prescott, (United 581 F.2d supra, States prove guilt. 1350-1353.) pp. Prescott, in a scheme to a allowed a mail fraud suspect
In defendant door, their her displayed her knocked on apartment. police enter defendant credentials, suspect. were for the and said they looking requested the police permission that she knew the When suspect. denied They had warrant. they her she asked whether apartment, to search not, two her door. The open police and she declined on occasions did inside. The defendant suspect the door and found broke down (18 an after fact. U.S.C. as accessory convicted § that the defendant jury counsel sought argue Defense *13 her re- search that to warrantless and was not to consent required The trial be used evidence of her guilt. consent not as fusal to could an in- declined to such give to this permit argument court refused held the instruction Court of that Appeals struction. The Ninth Circuit to permit prosecution it was error prejudicial correct as the warrantless search to consent to the defendant’s refusal to use evidence of guilt. a refused consent to to defendant point—a
Prescott is on directly refused to search; and the court counsel defense proposed, warrantless evi- used as to could not be a search an instruction that give, there is a presumption court explained, As Prescott of guilt. dence warrant. without a search enter home has to a right an officer no (1967) 387 Court (581 1350, Municipal Camara v. citing at p. F.2d “An occu- 930, 935, 1727].) 87 S.Ct. 523, 528-529 L.Ed.2d U.S. [18 try need not admission. He and refuse can act on that pant presumption 918 whether, case, ascertain a the absence of a warrant particular
to surrender required protec- excused. He is to his Fourth Amendment him a constitu- gives tion on so of officer. Amendment say (Prescott, refuse to consent to and search.” right entry supra, tional to 1350-1351.) 581 F.2d at pp. of Prescott is decisions of the federal courts supported by holding this A with a interfering court. cannot convicted person because
health officer’s warrantless her home she inspection merely the officer to enter and stated that would vio entry refused allow (District v. her Columbia Little 339 rights. late constitutional 599, 468].) 1 70 A has a constitutuional person U.S. L.Ed. S.Ct. [94 (Ca search to consent to a warrantless administrative right refuse Court, 523, 930, 387 540 mara v. U.S. L.Ed.2d supra, Municipal [18 541, (1967) 387 546 L.Ed.2d 941-942]; v. Seattle U.S. City See [18 943, 947-948, States permit 87 S.Ct. and to refuse a United 1737]), subpoena a her home to serve a entry Marshal make warrantless into (5th 1956) 486, (Miller F.2d another States Cir. 230 United (Ca 489-490). consent constitute a crime. Neither act of can refusing mara, See, pp. 941-942]; 540 L.Ed.2d at p. 387 U.S. at supra, [18 Miller, at su pp. pp. 947-948]; at 545-546 L.Ed.2d U.S. supra, [18 490.) at p. F.2d pra, has the to refuse to person this court has held that
Similarly, right into her home. v. Wetzel consent to a warrantless entry 32, The mere 416].) 520 P.2d Cal.Rptr. 11 Cal.3d home cannot cause provide probable refusal of to enter one’s permission (1963) Court Superior to arrest or search. (Tompkins 889, 378 a refusal cannot constitute P.2d Such Cal.Rptr. of his duties officer obstructing performance the crime of an (Wetzel, (Pen. Code, 148). Cal.3d supra, § to the warrantless withhold his consent Appellant right had the a crime His of that cannot constitute search of his home. exercise *14 could not or It certainly to arrest search. provide cause probable of consent use refusal his The of appellant’s constitute evidence of guilt. of a him for the assertion penalized evidence his guilt improperly as of right. valid constitutional de- using to the prohibition analogy a persuasive
Prescott drew as evidence self-incrimination his against of privilege fendant’s assertion 106, 609 L.Ed.2d 380 U.S. (Griffin v. guilt [14 of California 919 1351-1353.) A defen- (Prescott, at pp. supra, F.2d 85 S.Ct. 1229]). probative it is of little “so ambiguous dant’s silence is generally L.Ed.2d (United Hale 422 U.S. States v. [45 force.” well as the guilty as 99, 104, Because the innocent 2133].) 95 S.Ct. from that silent, be inferred cannot guilt to remain assert may Thus, to use a defen- (Id., p. 105].) L.Ed.2d at silence. at p. [45 making the privilege by is to down on dant’s silence him against “cut[] at at L.Ed.2d p. 380 U.S. costly.” (Griffin, supra, its assertion 110].) p. warrant- consent to a to a refusal to
The same rationale is applicable of little and therefore is also ambiguous less search. Such refusal behavior. “There innocent completely It evidence value. probative may an an of occupant of a felony why are reasons other than many guilt the imme- present exposed himself or others not wish apartment may is a officer.” police if the stranger diate view of a even stranger, Court, at p. supra, (Tompkins Superior error, state federal constitutional Since the trial court committed a reasonable doubt. harmless beyond must show that the error was 18, 24 (1967) 386 L.Ed.2d U.S. (Chapman California 710-711, of impact appellant’s 87 S.Ct. A.L.R.3d prosecutor when the emphasized search was warrantless objection consciousness appellant’s showed that the repeatedly argued as “moder cannot be characterized of comments guilt. prosecutor’s 909, ante.) were inflam They opn. ate in tone and import.” (Maj. in tone and powerful impact.2 matory gave police offi prosecutor’s were as follows: “Mrs. Redmond 2The comments [the in, gave and then later them people the house for other permission to come search cers] saying, garbage. sitting is there 'Don’t let them permission to search the Mr. Redmond essentially say is particular a warrant.' Now that statement search the house without incriminating evidence within that ing that Mr. Redmond knew that there house.... mind, what he was again state “Essentially what that shows of defendant's conceal, about, light the de- that should be taken in thinking how he could hide and statement, without a warrant.’... ‘Don’t let them search the house
fendant’s says, ‘Don’t let them search the house again he that Mr. Redmond “Now testified you in Mr. Redmond’s shoes and yourselves, ask were without a warrant.’ Now if into a knife and severed just simply fallen for some unknown reason Mr. Shubert any you completely type innocent were his liver and that it was an accident conduct, Is that you say police officer, 'Don’t let them search the house?’ would to a is in consistent with someone who an innocent state mind or is that consistent with is in- to let search the house because there trying to convince the mother not them fact *15 the and the comments was prosecutorial of evidence significance that held the knife the fact admitted he mitigated appellant not 909, ante.) at That admission in (Maj. p. which the victim. injured opn. conviction, the crucial at trial was not no ensured his because issue way Rather, the whether he whether held the knife. issue was appellant that he The evidence accidentally intentionally. stabbed the victim home, the his the that prosecutor’s argument search of objected conscience, a his contention his he had refuted objection guilty showed wrong. devastating appellant’s he had This attack on nothing that done of case was theory prejudicial. basic the trial opinion.
There is serious flaw in the court majority another did in he not testimony why erred excluding appellant’s concerning further find the after the This evidence stabbing. make efforts to victim 912, ante.) It was not relevant. merely marginally (Maj. opn. prevented relevant the central issue in the case. This denial highly defense. from evidence in his Reeder appellant presenting Cal.Rptr. v. Mizer 275]; People Cal.App.3d Cal.Rptr. 195 Cal.App.2d was an contended that accident. The court stabbing Appellant occurred, stabbing limited After the tes- permitted testimony. appellant his tified that he went into bedroom to He told mother get keys. that he was to take the victim to the he hospital. Upon returning, going this not find At the court a could the victim. sustained point, relevancy counsel’s about had question why appellant defense further find the made efforts to victim. was relevant to show innocent state
Clearly, question appellant’s If he answer the he could permitted question, of mind. had been have you that criminating place? over the I submit to it is the latter.... evidence all innocent, hide, you you nothing to yourselves question: were “Now ask If if they you say, search the house unless have a search warrant’? would ‘Don’t let them important you—it this case shows is evidence because it "Now circumstantial Essentially only way you l someone's state mind.... what evidence can show is, search have to The second 'Don’t let them do we show state mind.... [H] they saying concealing He is he is the evidence unless have a search warrant.’ house involved, the .... knife to me to testimony appeared of all of the witnesses “Now Mrs. Redmond from act, hide, nothing so she let them acting just you 1 would that she has like particular statement is not Mr. Redmond’s Again, emphasizing that that search. am is, fact, exercising right, a constitutional him and accurate and honest true incriminating in that house and there is a lot evidence trying to hide fact (Italics added.) enough up.” essentially did time to clean it all he not have
921 testified about he did find why not the victim and try out his carry him intention to take to the His hospital. explanation was relevant to show his state of mind after the immediately occurred stabbing was consistent with his contention that the stabbing was an accident. (See (1958) 38, v. 51 Ogg Cal.App.2d P.2d Peo People 117]; [323 664, Brown P. The ple Cal.App. 727].) court sustained an at a critical appellant’s testimony point. The “remote, was not testimony or at confusing misleading.” (Maj. opn. 912, ante.) (Ibid.) Nor it p. was cumulative. Appellant had not pre been viously permitted to about he did testify why not make further to find the attempts victim. to the
Contrary 912, ante), conclusion majority’s opn. at (maj. p. relevance of this evidence was from the apparent question itself. On its face, the concerned question appellant’s state of mind after the just occurred. That state stabbing of mind was relevant because it would have shed on light appellant’s state of mind at the time of the stabbing. Therefore, no offer of or other proof explanation appellant’s proposed (Evid. Code, testimony required. (a).) subd. § The error in excluding appellant’s testimony prejudicial. Appel- lant’s state of mind was the central issue at trial. The prosecutor, by arguing repeatedly appellant had not called an ambulance or the victim helped after the relied stabbing, heavily evidence that ap- pellant’s excluded could testimony have rebutted or explained. The prejudicial impact of the exclusion was further emphasized by the giv- ing 2.62, CALJIC No. which states that inferences unfavorable to the defendant be drawn may from his failure to explain or evi- deny dence if facts within his him knowledge permit to do so. of CALJIC giving No. 2.62 was in itself based improperly on ap-
pellant’s failure to explain he did why not call an ambulance for the victim or drive him to the hospital. majority ignore the fact that the trial court denied appellant opportunity and find that explain, CALJIC No. 2.62 was supported failure to explain!3 (Maj. opn. 911, ante.) at p. The reason appellant failed to explain he did why find or aid the victim was that he had been from prevented so doing majority 3The also improperly support find for CALJIC No. 2.62 in the difference prosecution between appellant’s evidence and testimony regarding the direction of the (Maj. victim’s stab opn. wound. at This merely difference was a contradiction in the evidence. contradiction is not a explain deny.” failure to “[A] Saddler Cal.Rptr. 597 P.2d It does not support giving (Id., p. 683.) CALJIC No. 2.62. *17 evidence. prosecutor’s
when the court sustained a from an adverse inference uphold drawing this How can court was precluded defendant specifically a something to explain failure Cal.App.2d (See v. Randolph People explaining? from that prosecutor argue for P.2d [improper Supp. 98] brutality, officers’ police evidence produced have defendant should have shown such which might had excluded records where trial court brutality].)
Here, Fourth Amendment and his appellant’s right present these evidence in his own were violated. By casually dismissing defense errors, trap the Constitution. construct a They dishonor majority can that which who assert their Fourth Amendment have persons rights Then,- prevented by them. the accused are against assertion used conduct, a relevant state of establishing court from their explaining is then used them! explain against mind. The failure to subsequent Hatter created a more absurd set of rules. Mad could have trial at this were of constitutional the errors occurred Clearly, as dimension and obvious well as prejudicial. J.,* concurred.
Kingsley, for Appellant’s denied October 1981. petition rehearing Bird, J.,C. of the opinion petition granted. should
* Assigned by Chairperson the Judicial Council.