People v. Kostal

Defendant was convicted of armed robbery. He was charged with and admitted three prior convictions, which resulted in his imprisonment. Defendant’s motion for a new trial was denied and he was sentenced to the state penitentiary, the prior and present sentences to run consecutively. Defendant has appealed from the order denying his motion for a new trial and from the judgment.

Defendant escaped from Folsom Penitentiary on November

George H. Hardy was in the café, and while approaching the cash register to buy dinner tickets, observed defendant in front of the register speaking to Hood. When Hardy was 3 or 4 feet from the two men defendant turned toward him, pointed a gun at him, and told him to step back. He obeyed and raised his eyes to the ceiling. He did not see defendant leave the restaurant. Hardy’s observation of defendant covered a period of from 10 to 15 seconds. He described defendant as approximately 6 feet tall, weighing 180 pounds, dressed in olive drab fatigue clothes, and wearing a cap of the same color. Both Hood and Hardy identified defendant from photographs that were shown them by the police officers.

Defendant was apprehended in Kansas City, Missouri, about the middle of January, 1957. The property custodian of the Kansas City police department turned over to Deputy Sheriff Lightner of Los Angeles a .45 caliber automatic which had been found in the possession of the defendant when he was arrested. Officer Lightner observed that “The safety, which is on the left rear portion of the gun lever, had been wired down with real small wire.” He asked defendant why the wire was on the safety. The defendant took the gun and stated: 14 This safety will fall out if it is not wired down, so I had to wire it down to keep it from falling out.” Defendant “demonstrated it by taking the revolver and shaking it and

Defendant was arraigned on the charge herein on February 11, 1957, in Department 41 of the superior court. Immediately following arraignment defendant and some other prisoners forced their way out of the detention tank and defendant escaped. Some days later he was located at a home in Whittier, California, and was rearrested.

Defendant denied any connection with the robbery of Rand’s Round-Up. According to his testimony, he spent the evening in question at a theater in Los Angeles which was showing foreign films. lie claimed to have been with a friend, Arthur Watson, who was confined in the county jail at the time of the trial. Defendant also denied any connection with the breaking into and entering of Barkley’s gunshop. He refused to answer questions relative to his possession of a Colt .45 automatic at the time of his arrest in Kansas City on the ground that his answer might tend to incriminate him. Defendant is 5 feet 11 inches in height; his normal weight varies from 170 to 180 pounds.

William Meyer, an inmate of San Quentin Prison, was at liberty in Los Angeles on November 26, 1956. Meyer testified that at approximately 9 p.m. on that date he entered Rand’s Round-Up on Wilshire Boulevard wearing a green, army fatigue jacket, trousers and a cap, and that he had in his possession a .45 caliber automatic which he later disposed of in Tijuana. He further testified that he approached the counter where the cash register was located and asked the manager for the money from the register, but he refused to state whether he exposed his gun on the ground that his answer might tend to incriminate him. He further stated that some people had told him he had “sleepy eyes” and others that he had ‘ ‘ marijuana eyes. ’ ’ His weight was approximately 185 pounds, and he was 6 feet 2 inches in height. He further stated that he had been convicted six times.

Defendant “does not question the sufficiency or weight of the evidence” to sustain his judgment of conviction. His position is that ‘ ‘ if the errors complained of had not occurred it is reasonable to believe that the jury could have accepted the facts favorable to defendant and returned a verdict of not guilty.”

Prom these authorities it is clear that the police report of the robbery by Hood could not be used for purposes of impeaching his testimony in the absence of a prima facie showing that he had either written or signed the statement, or that he had adopted or approved it, or otherwise acknowledged its correctness. In the absence of a proper foundation having been laid therefor, it was neither error nor an abuse of discre

Defendant’s second contention is that “The court was without jurisdiction in that the information was fatally defective.” He argues that “the facts stated did not constitute a public offense in that the Information failed to allege ownership or possession of the property taken was in someone other than the defendant.” Section 211 of the Penal Code defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accompanied by means of force or fear.” This same point was raised in People v. Wade, 71 Cal.App.2d 646 [ 163 P.2d 59 ]. In rejecting the defendant’s contention, the court stated (p. 658) : “It is perfectly clear under numerous recent authorities that the information is amply sufficient in this respect, particularly in view of the 1927 amendment to Penal Code, sections 951 and 952, liberalizing the rules of pleading, and in the light of the fact that the gravamen of the offense of robbery is the deprivation of possession and not ownership. [Citations.]” To the same effect, see People v. Covington, 1 Cal.2d 316 , 318-320 [ 34 P.2d 1019 ] ; People v. Voiler, 2 Cal.App.2d 724 , 726 [ 38 P.2d 833 ].)

The information herein as amended alleged that defendant “did willfully, unlawfully, feloniously and by force and fear take from the person, possession and immediate presence of John Hood” certain described property.

From the foregoing, it is clear that the amended information stated a public offense. The cases relied upon by defendant no longer state the law in light of the 1927 amendment to Penal Code, sections 951 and 952.

Defendant’s third contention is that the trial court erroneously permitted the prosecution to introduce evidence of other crimes committed by him which were unrelated to the crime for which he was being tried. He first complains of the evidence tending to show that he burglarized Barkley’s gunshop and stole a .45 caliber automatic the night before the robbery for which he was on trial. Defendant had the gun in his possession when he was arrested in Kansas City. While it is true that evidence of other crimes is ordinarily inadmissible in a criminal case, it is well settled that such evidence is admissible if it is relevant to prove the commission of the crime charged. (People v. Dabb, 32 Cal.2d 491 , 499 [ 197 P.2d 1 ].) “The general test of relevancy is whether the evidence tends logically, naturally, and by reason

Secondly, defendant complains of the evidence showing his escape from custody immediately after his arraignment on the robbery charge. This evidence of flight was clearly admissible as tending to show defendant’s consciousness of guilt. (People v. Ellis, 188 Cal. 682 , 692-693 [ 206 P. 753 ]; see also People v. Santo, 43 Cal.2d 319 , 330 [ 273 P.2d 249 ]; People v. Hoyt, 20 Cal.2d 306 , 313 [ 125 P.2d 29 ].) Defendant asserts that his escape from custody was too remote because it occurred some two months after the commission of the robbery. This argument was properly rejected in the Ellis case. Defendant also asserts that evidence of his escape was immaterial because it was his second flight in connection with this same robbery charge; he had fled to Kansas City shortly after the commission of the robbery and before he was taken into custody. But the fact that the escape from custody was defendant’s second flight makes it doubly indicative of his consciousness of guilt.

Defendant’s next contention is that the judgment of conviction is void and unconstitutional. He presents four arguments in support of this claim. He first argues that the portion of the indeterminate sentence law which prohibits the court in imposing sentence from fixing the “terms or duration of the period of imprisonment” (Pen. Code, § 1168) is unconstitutional because it deprives the superior court of its constitutional grant of jurisdiction to proceed to a final determination of the rights of the party before it. He also argues in this connection that the indeterminate sentence law

There is clearly no merit in defendant’s argument that the indeterminate sentence law violates the due process and equal protection clauses of the United States Constitution. A judgment pursuant to that law is both definite and certain, and meets the requirements of due process and equal protection. ( In re Larsen, supra, p. 648; In re Lee, supra, p. 693; People v. Leiva, supra, p. 103.)

Defendant’s fourth argument in relation to the validity of the judgment is that he is denied his constitutional right to a public trial since he will have to appear before the Adult Authority at a private meeting for the fixing of his term of imprisonment. This argument overlooks the fact that defendant’s appearance before the Adult Authority is in no sense a trial. Defendant’s trial terminated upon his being convicted and sentenced. His hearing before the Adult Authority will be simply an administrative proceeding to determine what sentence within the limits prescribed by law the defendant should be required to serve.

Defendant’s final contention is that the trial court erred in ordering his present sentence to run consecutive to his prior sentence. Defendant was already serving sentences at the time of his instant conviction. Since the Adult Authority in 1952 fixed his term of imprisonment for one of his robbery convictions at “life,” defendant argues that his present sentence is invalid in that it has been set to run consecutive to a life sentence. Penal Code, section 669, authorizes the trial court to direct that sentences shall run consecutively, with the provision that “if the punishment ... is expressly prescribed to be life imprisonment . . ., then the terms of imprisonment on the other convictions, whether prior or subsequent, shall be merged and run concurrently with such life term.” All of defendant’s prior convictions have been for robbery, and in all of them indeterminate sentences have been imposed. The punishment for robbery is not expressly prescribed to be life imprisonment: therefore, the pertinent exception in section 669 does not prevent any of

Defendant argues that the 1951 amendment to section 671 of the Penal Code “expressly prescribes” that indeterminate sentences without fixed máximums shall be the equivalent of life imprisonment. That section now reads: “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life subject to the provisions of Part 3 of this code.” Before the amendment in 1951 section 671 read as follows: “Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, the court authorized to pronounce judgment upon such conviction may, in its discretion, sentence such offender to imprisonment during his natural life, or for any number of years not less than that prescribed.” It seems obvious from a comparison of the two provisions that the purpose of the amendment was to remove from the trial court the discretion to fix the term of the defendant’s incarceration and to place such discretion in the Adult Authority (through the provisions of part 3 of the Penal Code). Although indeterminate sentences with no máximums are now deemed to be equivalent to a sentence of imprisonment for the natural life of the defendant, the Adult Authority is given the right to determine and redetermine the length of time he is to be imprisoned. (Pen. Code, § 3020.) It is thus clear that such sentences are to be considered life sentences for a limited purpose only and were not meant to come within the proviso in section 669. To apply defendant’s interpretation would prevent convictions from running consecutively when the first conviction was for one of the more serious crimes (i.e., one where there is no fixed maximum penalty), and would have the effect of overruling such eases as In re Quinn, supra; People v. Rivas, supra; and People v. Collins, 99 Cal.App.2d 780 [ 222 P.2d

The case upon which defendant relies, People v. Pearson, 150 Cal.App.2d 811 , 821-822 [ 311 P.2d 142 ], is not in point. There the defendant previously had been adjudged an habitual criminal under Penal Code, section 644, which expressly prescribes the punishment of life imprisonment. The proviso in Penal Code, section 669, was therefore applicable to his subsequent convictions.

The judgment and order are affirmed.

Ashburn, J., and Herndon, J., concurred.

A petition for a rehearing was denied May 7, 1958, and appellant’s petition for a hearing by the Supreme Court was denied June 11, 1958.