THE PEOPLE, Plаintiff and Respondent, v. JUAN LOYA SALAS, Defendant and Appellant.
Crim. No. 27608
Second Dist., Div. Four.
May 18, 1976.
June 4, 1976
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Kent L. Richland and Gerald T. Shea, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
JEFFERSON (Bernard), J.—In a first amended information defendant Juan Loya Salas was charged with robbery of Guadalupe Garcia Escobar in violation of
On April 25, 1975, at approximately 11 p.m., the victim Escobar entered the Tijuana Cafe located in Oxnard, sat at the bar and drank
Shortly thereafter, Escobar went to the restroom. When he entered there was no one else in the restroom. Escobar testified that a few seconds later, defendant entered the restroom, struck Escobar in the face and knocked him to the floor. According to Escobar, defendant continued to strike him and kicked him in the side. Escobar testified that defendant ripped his pants pocket, removed from his person the $100 bill and also approximately $13 additional money which he had. After seizing the money defendant also took Escobar‘s jacket and then left the restroom. Defendant then hurried out of the cafe.
A few seconds later, Escobar came out of the restroom; his face was in a bloody condition. Escobar was taken to the hospital where stitches were required for the cuts on his face. X-rays revealed that Escobar had suffered a fractured nose from the blows delivered by defendant; in addition, Escobar had a tooth knocked out.
Defendаnt‘s defense was an alibi. Although defendant did not take the stand and testify, a witness called by him placed defendant at a dance at the time of the alleged robbery.
At defendant‘s preliminary hearing, after the prosecution had rested its case, defense counsel called as a witness, George Trina, who was employed as a security guard at the Tijuana Cafe on the night of April 25, the date of the Escobar robbery. Trina testified that he saw Escobar at the bar that evening and that he also saw defendant at the bar at the same time, seated near Escobar. Trina testified that he saw Escobar get up from the bar and gо into the restroom and that the defendant walked in right behind him. It was Trina‘s testimony that there were no other persons in the restroom when Escobar went in followed by defendant; that after a few minutes defendant came out of the restroom carrying a cream-colored jacket under his arm and rushed out of the cafe door.
At the trial, Trina‘s preliminary hearing testimony was admitted in evidence and read into the record after the trial judge had made a finding that Trina was unavailable as a witness and that the prosecution had used due diligence in an effort to produce him as a witness.
Defendant contends that it was reversible error for the trial judge to admit in evidence the preliminary hearing testimony of Trina on the dual grounds that (1) there was an insufficient showing of Trina‘s unavailability as a witness; and (2) that the admissibility of such testimony violated defendant‘s witness-confrontation rights under the Sixth Amendment to the United States Constitution. Defendant asserts that Trina‘s preliminary hearing testimony—admittedly hearsay evidence—was not properly admissible under the former-testimony exception to the hearsay rule, established by
The prosecution relies for admissibility on
Defendant contends, however, that evidence of Trina‘s preliminary hearing testimony ought not to have been admissible against him under
Defendant also urges the argument that the admission in evidence of Trina‘s preliminary hearing testimony deprived defendant of his constitutional witness-confrontation rights. Defendant points out that had the prosecution called Trina as a witness at the preliminary hearing, the hearsay evidence of Trina‘s preliminary hearing testimony would have been admissible at trial only by meeting the requirements of the former-testimony exception to the hearsay rule as set forth in
Defendant‘s constitutional witness-confrontation argument is without merit. The law is well settled that a defendant‘s constitutional right of witness confrontation does not preclude the admission against him of hearsay evidence which comes within a recognized exception to the hearsay rule. In California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], the United States Supreme Court announced the principle that the confrontation clause of the United States Constitution is not to be interpreted as precluding state law from creating new exceptions to the hearsay rule, i.e., hearsay evidence which would have been inadmissible as not satisfying the requirements of any exception to the hearsay rule in existence at the time of the adoption of the United States Constitution. In Green, the prior-inconsistent-statement exception to the exclusionary hearsay rule, created by
Had Trina been called as a witness by the prosecution at the defendant‘s preliminary hearing in the instant case, defendant could make no valid claim against admissibility of evidence of Trina‘s preliminary hearing testimony pursuant to
Even though the issue at a preliminary hearing involves probable cause to commit a defendant for trial, as distinguished from the issue at trial of guilt beyond a reasonable doubt, the interest and motive for cross-examination at the preliminary hearing are deemed sufficiently similar to the interest and motive for cross-examination of the same witness at the guilt trial so as to preclude application of the witness-confrontation constitutional right. (People v. Benjamin (1970) 3 Cal.App.3d 687 [83 Cal.Rptr. 764]; People v. King (1969) 269 Cal.App.2d 40 [74 Cal. Rptr. 679].)
In the case at bench, defendant claims that in calling Trina as a witness at the рreliminary examination, defendant‘s motive and interest were to provide material for the subsequent impeachment of Trina as a witness adverse to defendant at the trial, and that such motive and interest for the direct examination of Trina at the preliminary hearing should not be considered as similar to the motive and interest for examination of this witness at the guilt trial.
This argument of defendant overlooks several factors of consequence. One is that the former-testimony exception to the hearsay rule, created by
The case at bench is in complete accord with the theory that undergirds and justifies the admissibility of evidence of the former testimony of an unavailable declarant against a party to the current trial who, as a party to the former proceeding, offered such testimony in evidence in his own behalf on the former occasion. Under
We hold, therefore, that the former-testimony exception to the hearsay rule, created by
Defendant also attacks the finding of the trial court that Trina was unavailable as a witness and that the prosecution had used due diligence in an effort to secure his presence at the trial.
The record indicates that attempts to serve a subpoena on Trina started approximately six weeks prior to trial. During that period of time Officer Finn of the Ventura County sheriff‘s office visited Trina‘s residence eight to ten times without success and talked, without success, with Trina‘s wife on several occasions; on one such occasion Trina‘s wife told Finn that her husband had gone to Los Angeles looking for employment and she did not know when he would rеturn. Finn also made attempts to locate Trina through the seller of a motor vehicle to Trina and also by making inquiry at his place of former employment. The prosecution called as a witness, Julia Trina, the wife of George Trina, the declarant. Julia testified that she had informed her husband that an effort was being made to subpoena him as a witness for defendant‘s trial, but that he expressed fear for his own safety and said he was moving to Prescott, Arizona; she had no additional details of his whereabouts.
In addition, an investigator for the Ventura County district attorney‘s office testified as to his efforts to locate Trina. His efforts included checking with Trina‘s wife, his mother and her husband. The investigator also sent a teletype check to an investigating agency in Prescott, Arizona. The investigator also made checks with the Department of Motor Vehicles, the California Criminal Records Department, the Federal Bureau of Investigation, a local unemployment office, a medical clinic and the sheriff‘s office. The investigator also attempted to contact one of Trina‘s former fellow employees. The date of trial was continued for six days in order for the district attorney‘s office to continue to make efforts to locate Trina.
The evidence indicated that the attempts to serve the subpoena on Trina were all made during the daytime at Trina‘s home. Defendant makes the contention that since it was made to appear that Trina was deliberately avoiding service of the subpoena, due diligence required the
We consider that the evidence presented on the issue of declarant Trina‘s unavailability as a witness amply supported the trial court‘s finding that Trina was unavailable as a witness and that the prosecution had used good faith efforts and due diligence to produce him as a witness at the trial. As stated in People v. Williams (1973) 9 Cal.3d 24, 35 [106 Cal.Rptr. 622, 506 P.2d 998], ” ‘[w]hether due diligence has been shown is a factual question to be determined according to the circumstances of each case. [Citation.] Unless there has been an abuse of discretion, the ruling of the trial judge will not be disturbed. [Citations.]’ ” We find no abuse of discretion in the instant case.
Defendant makes the contention that the evidence was insufficient to sustain the jury‘s finding that, during the robbery (1) defendant inflicted “great bodily injury” on the victim, and (2) that defendant did so with the intent to inflict such injury. It is clear that the term, “great bodily injury,” as used in
It is undisputed that although there was no evidence that defendant used any kind of weapon on Escobar, Escobar did receive a broken nose, had a tooth knocked out and cuts that required suturing. The injuries were serious enough for the police to have Escobar taken to a hospital for treatment. Defendant argues that a broken nose, a minor cut requiring a couple of stitches and a knocked out tooth must be considered moderate injuries and insufficient to satisfy the definition of “great bodily injury” refеrred to in
In People v. Richardson (1972) 23 Cal.App.3d 403 [100 Cal.Rptr. 251], a victim of a robbery was struck, knocked down and pulled out into the street and her purse taken from her. Her injuries consisted of large areas of deep black which lasted for about three weeks, and an arm which was so sore that she thought it had been “pulled out of the socket” and which she could not use to any advantage for several days. The Richardson court found it unnecessary to decide whether these injuries constituted “great bodily injury” to sustain the increased punishment for robbery because of the deficiency in the instructions to the jury.
The case at bench is not unlike Richardson insofar as the matter of instructions is concerned. Hence, we find it unnecessary to determine whether the evidence is sufficient to sustain the increased punishment prescribed by
Defendant‘s quarrel with the instructions in the instant case is that the trial judge failed to instruct the jury properly with respect to the effect of circumstantial evidence. Defendant‘s position is that the court should have specifically instructed the jury that it could not find the defendant guilty of inflicting great bodily injury upon the victim unless the proved circumstances not only were consistent with the hypothesis that defendant had the specific intent, but were irreconcilable with any other rational conclusion. This contention is well taken.
It is a well reсognized principle of our criminal law that where the evidence offered to establish an element of a crime consists principally of circumstantial evidence, it is essential to justify a conviction that “the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.’ It cannot be too strongly emphasized that such quoted statement enunciates a most important rule governing the use of circumstantial evidence. In unequivocal language it should be declared to the jury in every criminal case wherein circumstantial evidence is received.” (People v. Bender (1945) 27 Cal.2d 164, 175 [163 P.2d 8].)
This rule stated in Bender was reiterated in People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1], in which the court stated the general principle to be “that the court on its own motion should have given an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.” But Yrigoyen did not stop with this statement of the principle. Yrigoyen proceeded to emphasize the
However, the Bender and Yrigoyen cases are not to be interpreted to require the giving of the special circumstantial evidence instruction in every case where some circumstantial evidence is offered on the issue of guilt. “[T]he instruction need not be given, even upon request, where circumstantial evidence is only incidental or corroborative. . . .” (Yrigoyen, supra, 45 Cal.2d 46, at p. 50.) But if the basic proof of an essential element of a crime consists of сircumstantial evidence, it is unequivocally essential that such an instruction be given.
In Yrigoyen, the crime charged was issuing a check without sufficient funds with intent to defraud. Specific intent, as an element of a crime, is established almost invariably by circumstantial evidence. The Yrigoyen court concluded, with respect to the issue of defendant‘s intent to defraud, that “[h]ad the instruction in question been given [the special circumstantial evidence instruction], the jury might have concluded that the circumstantial evidence, while entirely consistent with defendant‘s guilt, was also consistent with a rational conclusion that he was innocent.” (Yrigoyen, supra, 45 Cal.2d 46, at p. 50.)
The prosecution cоntends that the instructions given by the court properly presented the law as to how circumstantial evidence must be considered by the jury. The prosecution points out that the court gave CALJIC instruction No. 2.011 and CALJIC instruction No. 2.02.2 Both of
these instructions that were given included the principle that guilt can be predicated on circumstantial evidence only if the proved circumstances are not only consistent with the theory of guilt but cannot be reconciled with any other rational conclusion. It is to be noted, however, that this principle as set forth in CALJIC instruction No. 2.02, which was given, dealt only with the specific intent required in the crime of robbery. Thus, one portion of CALJIC instruction No. 2.02 stated to the jury: “But you may not find the defendant guilty of the offense charged in [this case] unless the proved circumstances not only are consistent with the hypothesis that he had the specific intent to permanently deprive the owner of his property but are irreconcilable with any other rational conclusion.” (Italics added.)
With respect to the additional element charged of robbery with the specific intent to inflict great bodily injury on the victim (
We consider that the giving of CALJIC instruction No. 2.02 with respect to the effect of circumstantial evidence in its relation to proof of the specific intent for the crime of robbery itself, without giving the same instruction with respect to the effect of circumstantial evidence in its relation to proof of the specific intent to commit great bodily injury (charged under
The importance of pin-pointing the special circumstantial evidence instruction with reference to the specific intent to inflict great bodily injury on the victim in a robbery case arises out of the severe consequences which result from this added element. In the absence of the elements of infliction upon the victim of great bodily injury with the intent to inflict such injury, second degree robbery (
In addition to the instructions being deficient in the case at bench with respect to the effect of circumstantial evidence on the issues of the intent to inflict great bodily injury and the infliction of great bodily injury on the victim of the robbery, the first amended information is itself fatally defective insofar as it sought to comply with
In view of the deficiencies in the allegations of the information and in the instructions, the record in the instant case establishes that there has been a miscarriage of justice.
The judgment appealed from is reversed.
Kingsley, Acting P. J., concurred.
DUNN, J.—I dissent.
The majority mentions that appropriate instructions on circumstantial evidence were given, but declares they should have been given twice, once with respect to the elements of robbery and once with respect to proof of the intent to inflict great bodily injury. As to the latter, the majority states that a failure to instruct, might have misled the jury. I do not agree that this is so. The giving of аn instruction once is sufficient, since instructions, even if correct, should not be unduly emphasized by repetition. (4 Witkin, Cal. Procedure (2d ed.) Trial, §§ 209, 210, pp. 3027-3028.) The majority then launches into a discussion of the penalties imposed for first degree robbery, which discussion would be more appropriate to a discussion of cruel and unusual punishments and has nothing to do with points raised by defendant in this case.
The majority also states that the amended information was defective in failing to allege “intent” properly. I disagree with the majority that this is so. The amended information states, as to this: “With intent to inflict injury, the said Juan L. Salas inflicted great bodily injury on Guadalupe Garcia Escobar during the commission of the offense alleged herein.” Contrasted with this charge is the language of
I do not concede that the information should allege an intention to inflict great bodily injury and that the amended information is deficient in failing so to allege. The majority cites no authority for its statement and, indeed, there is none in the criminal field. However, in the civil field there is ample authority that an intent tо inflict injury is sufficient.
A petition for a rehearing was denied June 4, 1976. On the record in this case, the court feels that the People should not be foreclosed from amending the information if they so desire. Dunn, J., was of the opinion that the petition should be granted for the reasons set forth in his dissent. Respondent‘s petition for a hearing by the Supreme Court was denied July 15, 1976. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.