229 Cal. App. 3d 1620 | Cal. Ct. App. | 1991
Opinion
Appellant Frank Robinson was convicted of first degree robbery pursuant to California Penal Code section 211 on May 29, 1975. The jury found that he had acted as an aider and abettor to the crime. Because he had fled from the jurisdiction during the course of trial, sentencing did not take place in this matter until appellant was apprehended more than 14 years later. On October 20, 1989, he was sentenced to a term of five years to life imprisonment.
Appellant appeals from the judgment contending the court prejudicially erred in instructing the jury regarding the definition of aiding and abetting, and that the trial court erred in not admitting an exculpatory hearsay statement under the exception for declarations against interest.
Factual Background
On November 14, 1973, at approximately 10 p.m., Stephan Hayashi, a grocery manager, was preparing to close the Foods Company Market located at 11020 South Vermont Avenue in Los Angeles. There appeared to be no customers in the store at this time. At approximately 10:15 p.m., James Hawkins,
At approximately 10:30 p.m. Los Angeles County Deputy Sheriffs Barnes and Lamascus were travelling eastbound on 110th Street, about one and one-half to two blocks from the location of the robbery. The two deputies
The deputies began to question appellant about his whereabouts that evening. Appellant told them that he had been at the Foods Company Market to pick up the security guard to whom he gave a ride home every night. Appellant said that Hawkins had jumped into the car with a gun and told him to drive off.
A subsequent search of the car recovered a ski mask, a keyring containing 19 keys, a blue apron, a hat, a pair of gloves, and a leather pouch.
Procedural History
An information was filed on March 22, 1974, by the Los Angeles County District Attorney charging appellant, Hawkins and Collins with robbery in violation of section 211 of the California Penal Code.
On May 22, 1975, following an unsuccessful Penal Codé section 1538.5 motion to suppress the evidence, a jury was impaneled, and the trial was continued to May 27, 1975.
On May 27, appellant and Hawkins failed to appear for trial. The court found them to be voluntarily absent and proceeded in their absence.
Appellant was apprehended on or about September 22, 1989. He filed a motion for a new trial on October 20, 1989, on various due process grounds. This motion was denied. Appellant was sentenced to a term of 5 years to life, with credit for 48 days time served, which included 32 days good time/work time. Appellant’s notice of appeal from entry of this judgment was timely filed.
Beeman Error
Appellant contends the court committed reversible error by failing to instruct the jury that it must find appellant intended to aid and abet the robbery perpetrated by codefendant Hawkins, rather than merely finding that appellant acted with knowledge of the defendant’s crime. The jury was instructed pursuant to CALJIC Nos. 3.00 and 3.01 (1974 rev.).
While respondent concedes that the instruction was erroneous under Beeman, respondent persuasively argues that it would be unfair and bad policy to apply the ordinary assumption of retroactive application and reward appellant for his wrongdoing. (See Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 983[258 Cal.Rptr. 592, 772 P.2d 1059].) Respondent notes that “the only reason appellant’s case did not become final in the nearly nine years between his conviction and the decision in Beeman [was] because appellant absconded.” These unusual facts appear to present an issue of first impression not considered in Croy and justify a departure from the traditional rule of retroactivity. We therefore hold under the facts of this case, appellant should not be permitted to gain the benefit of the ruling in Beeman as it would be “inherently offensive to the judicial process.” (See People v. Brych (1988) 203 Cal.App.3d 1068, 1077 [250 Cal.Rptr. 402].)
Exclusion of Hawkins’s Statement
After ordering appellant to stop his car and while questioning him about his whereabouts that evening, Hawkins was asked to get out of the car. When asked to do so, Hawkins stated that appellant “had nothing to do with it.” The prosecution objected to the introduction of this statement as hearsay and argued that Hawkins was referring to an argument that he had had with his girlfriend, that Hawkins admitted hitting his girlfriend and was claiming appellant had nothing to do with that incident. Appellant’s counsel argued that the statement constituted a declaration against penal interest and was admissible as an exception to the hearsay rule. The court excluded the statement ruling that the “statement against penal interest must be a statement involving the defendant in the crime charged and not some other crime.”
Appellant’s contention that the court erred in excluding the statement is without merit. Apart from whether the court’s decision was based on an erroneous rule of law, the statement was inadmissible as untrustworthy. The statement was self-serving as an attempt by Hawkins to exculpate himself from the robbery and admit guilt to a less serious crime and there was no error in refusing to allow the testimony. (See In re Gregory S. (1980) 112 Cal.App.3d 764, 780 [169 Cal.Rptr. 540]; People v. Shipe (1975) 49 Cal.App.3d 343, 353 [122 Cal.Rptr. 701].)
The judgment is affirmed.
Woods (A. M.), P. J., and Epstein, J., concurred.
Appellant’s petition for review by the Supreme Court was denied August 15, 1991.
James Hawkins is not a party to this appeal.
When later questioned about this, appellant told the deputies that he was hitting his dimmer switch and that his lights “must be screwed up someplace.”
As Hawkins and appellant had fled the jurisdiction before trial, these identifications were accomplished by referring to the identification at the preliminary hearing.
There is no record of proceedings against Mr. Collins as part of this appeal.
California Penal Code section 1043, subdivision (b)(2) provides that when a felony defendant voluntarily absents himself, a trial may proceed in his absence.
This section provides a trial judge with discretion to postpone sentencing until a defendant is present.
CALJIC No. 3.00 then provided that: “All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who with knowledge of the unlawful purpose of the perpetrator of the crime aid and abet in its commission or, whether present or not, who advise and encourage its commission, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.”
CALJIC No. 3.01 then provided that: “A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.”