People v. Williams

These defendants were jointly charged with robbery. In the first count it was charged that on April 9, 1953, they took $90 from Jesus Carrillo by force and fear. The second count charged them with taking $50.50 from Demetrio A vina by force and fear. As to each count it was charged that they were armed with a deadly weapon, a .22 rifle and a 20-gauge shotgun. A jury found each defendant guilty of first degree robbery on each count, and further found that two of them had been armed with a deadly weapon. A motion for a new trial was denied and all five defendants have appealed from that order and from the judgment.

The five defendants were represented by four attorneys at the trial, and the one who represented the defendant Leon was appointed by this court to represent him on this appeal. While some of the appellants raise points which are not raised by others, it will be unnecessary to differentiate between them in this regard.

On April 10, a deputy sheriff went to the location pointed out by Carrillo as the scene of the first robbery and there found a .22 caliber cartridge. Later, the officers found a .22 rifle which Krom admitted was the one he had used on the night of the robberies. A ballistics expert compared six cartridges fired from this gun with the one found by the officers, and testified that all seven were fired from the same gun. A jacket with peculiar markings, testified to as having been worn by one of the robbers, was found in the possession of Williams and admitted by him to be his. Shortly after the robberies an officer, Isbell, talked to all five of the appellants. Leon denied knowing anything about the robberies. The other four told in detail how the robberies were planned and executed, their statements corresponding fully with the statements made by the victims with respect to how the robberies were committed. None of the appellants took the witness stand, except on voir dire on the one issue as to whether or not their statements had been given voluntarily.

Some of the appellants further contend that the court erred in admitting into evidence the testimony of the officer Isbell, as to the admissions or confessions made by four of the appellants, since it was not sufficiently shown that these admissions were voluntarily made; that the direct testimony of the appellants showing that promises of reward and immunity were made were not denied; and that the only evidence to the contrary was the conclusions and opinions of the officer. Isbell first testified, with respect to his talk with the individual appellants, that no threats were made and that

In connection with these confessions several other contentions are made. One appellant argues that the court erred in not permitting his counsel to lay a foundation for, and to examine, the notes which Isbell said he had made while taking the confessions of the appellants. Isbell had admitted that in one instance he had been confused and had said that a certain statement was made by one of the appellants when it was actually made by another. Counsel tried to bring in these notes which had not been used by Isbell in his testimony, and an objection was sustained. Counsel said he would like to make an offer of proof and the judge told him he ■could make this offer in the absence of the jury, and he would then permit counsel to reopen if the offer of proof appeared to be material. It does not appear that any such offer of proof was ever made. Not only was the offer of proof not followed through but no error appears since the witness had not used these notes on the stand. (People v. Gallardo, 41 Cal.2d 57 [ 257 P.2d 29 ].) This same appellant also urges that the court erred in excluding any reference to the penalty as being immaterial. While this appellant was being examined on voir dire, with respect to the voluntariness of the confession, the court insisted that no mention of what had been said regarding the penalty be brought out unless it was

Error is assigned in the refusal to instruct the jury that if it found from the evidence that the officers had told one of the defendants that if he would cooperate and answer their questions things would be better for him and it would go easier on him, and if it found that this defendant relied on said promises and by reason thereof made a confession, that as a matter of law said confession was not free and voluntary and must be disregarded. This instruction was refused as covered. Neither error nor prejudice appears as the matter was fully and adequately covered in the written instructions given.

It is further contended that the court misdirected the jury and erred in giving several instructions, as hereafter noted. At the beginning of his instructions the court said: “Now, I want to make a preliminary statement before I give you the actual instructions in this case which are in writing. . . . What I say at this time as to this offense, and so forth, I want you consider that in the light of the instructions which I will give you and it is given to conform” therewith. The court then went on to make a long statement pointing out

1. The first four relate to the finding of a knife. The appellants were charged with armed robbery in that they were armed with a rifle and shotgun. There was some evidence that they also had a knife but, while the rifle and shotgun were found and produced in evidence, no knife was found. In commenting on this phase of the case the judge stated that if the jury found that none of these articles were found this would be no reason for finding that the defendants were not armed “if you believe that the defendants were present at the time and place in question.” He also stated that the mere fact that a weapon was not found does not make any difference “so long as there is proof that the weapon such as has been described was used”; that the mere fact that a lmife was not produced would make no difference “if you feel from the evidence in this case that the knife was used”; and “If you find that there was a robbery perpetrated down there you will have to find whether or not these defendants, or any of them, were present at the time of the robbery. If they were, you will find them guilty, and if they weren’t, you will find them not guilty.” It is argued that the use of the words “think” and “feel” in some of these statements were improper because proof must be “beyond a reasonable donbt”; that the presence of a defendant at the scene of the crime would not be sufficient proof of guilt; and that erroneous statements of law thus clearly appear. Obviously, these were erroneous statements of law but they were made in connection with the discussion of certain incidents and in connection with other portions of the same general discussion showing that other things were necessary, the entire discussion being preceded by a statement that this was a preliminary discussion and was to be considered in the light of the specific instructions which were to be later given. While the matters complained of appear serious when taken out of the context, a reading of the entire preliminary

2. In connection with the long discussion of another matter which the judge thought might mislead the jury the judge said: “Your only purpose is to determine what the facts are in this case and if you think they are innocent under the evidence you will acquit them and if you think any or all of them are guilty, you will find them guilty.” The complaint here made is that the word “think” was used rather than language to the effect that there must be a finding beyond a reasonable doubt. This was thoroughly covered in other instructions. Some suggestion is also made that a part of this portion of the statement would tend to indicate to the jury the judge’s own view as to the matter of guilt or innocence. No such expression of opinion appears, and the judge fully instructed the jurors that they should disregard any expression he might have used which might seem to indicate any opinion held by him with respect to the facts, or which might have suggested that he was inclined to favor the claims of either party.

3. It is contended that the court trespassed on the province of the jury during this preliminary statement by saying that the appellants were not deceived by what Isbell told them about the punishment; that the only respect in which Isbell did not tell them the truth was what he told them with reference to probation, in that he made it worse than it was and that this"was done through inadvertence; that it was up to them to determine whether Isbell had told the truth; and that if there was any material discrepancy between the testimony at the preliminary hearing and at the trial, the jury should, of course, consider it. It is argued that these remarks showed the court’s approbation of the officer’s testimony, and was an interference with the jury’s exclusive province to determine the matter of Isbell’s credibility. These statements were made during the course of a long explanation of why the court had endeavored to keep the matter of what the penalty would be out of the testimony given by the appellants while being examined on voir dire, with respect to whether or not the confessions were voluntary or not. The statements objected to could hardly be prejudicial when taken in connection with the context, and were

4. Complaint is also made of the part of the preliminary statement in which the court told the jury that whether the appellants were represented by counsel at the time they made the confessions or whether they were in custody at the time would not, of itself, make their confessions voluntary or involuntary; that the mere fact that an officer tells a defendant in a particular case that they have the goods on him would not make it involuntary; and that regardless of the fact that Mr. Isbell may have told the appellants that he had certain information would not make a confession involuntary if, in fact, he did not have that information. It is argued that the court thus emphasized the various items that would make a confession voluntary, but refused to instruct the jury as to items which would make the confession involuntary. The jury was instructed fully and at great length on that element. Among other things, the jury was instructed that “A confession is involuntary when it is obtained by any sort of violence or threats, or by any direct or implied promises of immunity or benefit, or by any improper influence which might induce in the mind of the defendant the belief or hope that he would gain or benefit or be better off by making a statement. ...”

While some of the expressions used in this preliminary statement are erroneous, and while they should not have been used, it cannot reasonably be believed that the jury may have been misled thereby. The jury was clearly told in the beginning that this preliminary discussion was to be considered in the light of the specific instructions which followed, and it was then given full and definite instructions covering every element of the case, the correctness of which is not questioned. This is not a close case, the evidence of guilt was clear and convincing, and it would be unreasonable to believe that these errors could have affected the result. No miscarriage of justice appears, and the provisions of section 4% of article VI of the Constitution are applicable.

Griffin, J., and Mussell, J., concurred.