People v. Howard

Defendant was charged and convicted of two first degree burglaries. From the judgment entered on this verdict he appeals.

The attorney general contends that this court lacks jurisdiction to consider the appeal because, so it is urged, the appeal was filed beyond the 10-day period permitted by rule 31 of the Rules on Appeal. That rule requires that, in

The attorney general argues that these cases should be overruled. Attention is called to the fact that, according to the affidavits of the prison officials, the notice was delivered to them on October 27th, and, although if then mailed it would have been received in time on the 28th, the 27th was a Sunday, and, under prison procedures, no mail is processed if received after 4:30 p. m. on Friday, until the following Monday. Thus, so it is urged, the defendant was negligent in not delivering his notice before 4:30 p. m. on Friday, October 25th, and the delay was chargeable to him and not to the prison officials. Aside from the fact that defendant avers that he first delivered the notice for mailing on October 23rd, and assuming that it was not delivered for mailing until Sunday the 27th, the argument of respondent misinterprets the basic theory of the Slobodion case, and of those cases following it. Those cases recognize that a person in custody is hampered in protecting his legal and constitutional rights. As long as he acts promptly and the delay in mailing is not his fault, the notice will be deemed to have been constructively delivered. The rule is not predicated upon a showing that the prison officials were fraudulent or negligent in not mailing the notice sooner. As long as the defendant has not caused the delay and has acted within time, the notice will be deemed to have been constructively delivered whatever was the cause of the delay. However reasonable it may be to adopt a rule that notices of appeal must be typed, or a rule that no mail will be processed from Friday after 4:30 p. m. until Monday, such rules cannot be used to cut down the defendant’s very limited time in which to appeal. As long as he acts promptly and in time, the prison rules cannot be used to deprive the defendant of his constitutional right of appeal. Thus, the rule of the Tenney and Griffin cases is sound and is reaffirmed. Under that rule the notice of appeal here involved was filed in time.

We turn to a consideration of the appeal on its merits. On .the evening of July 12, 1957, the home of the Wolfsohns on

On the evening of July 19, 1957, or the early morning hours of July 20th, the apartment of the Bernsteins on Montgomery Street in San Francisco was burglarized. Among the property taken, all of which was subsequently found in the possession of defendant and identified by the Bernsteins, was a grey cabinet containing a strong box filled with papers, and a woman’s raincoat. The Bernsteins also identified a tan corduroy jacket found by them in their apartment after the burglary and which did not belong to them.

There were no eyewitnesses to the above crimes. No one saw defendant make the unlawful entries, nor did anyone see him near or about the burglarized premises on the nights in question. The evidence first connecting defendant with these crimes came from one Marlene, a 21-year-old married woman, who had been living with defendant as his mistress for some time prior to the burglaries. She testified that on the evening of July 12, 1957, defendant, accompanied by a man named Paul, came to the apartment she occupied with defendant sometime between 10 and 11 p. m.; that they were then carrying certain items of property which they proceeded to divide; that among the property were the matching compact and cigarette case, the pearls, the gold earrings and the dress, all later identified by the Wolfsohns. Marlene also stated that defendant had the suit stolen from the Wolfsohns and identified by them, which defendant took to a tailor for alterations and from whom it was later recovered.

Marlene also testified that around 5 a. m. of July 20, 1957, defendant returned to their apartment carrying a grey cabinet wrapped in a woman’s raincoat. These items were later identified by the Bernsteins as articles stolen from their apartment. Marlene also testified that defendant then told her he had stolen the property “up on Telegraph Hill” from a house where he had seen a boy sleeping with the covers over his face and where the occupants must have had a party because the place was messed up. Mrs. Bernstein testified that her son frequently slept with the covers over his head, and that on July 19, 1957, there had been a wedding and reception at their home.

Marlene also testified that defendant searched the grey

Marlene also testified that about two weeks after defendant was arrested he telephoned to her. Marlene was then staying at the home of her father. Her father listened in on the conversation. Marlene testified that the conversation was as follows: “He said, ‘Why do you want to do this to met’.. . He said—He says, ‘Don’t you know I can get five to life for this ?’ And I said, ‘Well, you did it.’ And he said: ‘Sure, I did it.’ And he said, ‘Did you go before the Grand Jury last night?’ I said, ‘I did.’ And he said, ‘Well, don’t you know I am out on bail and,’ he said, ‘I’m going to kill you.’ ”

The father of Marlene, who had answered the telephone and then listened in on the same phone while defendant was talking, testified that he heard the conversation and that he had taken notes of it. Using the notes to refresh his recollection, he recounted the conversation as follows: “Well, this is what he said. He said, ‘Why do you want to do this to me ? Don’t you know I can get five to life?’ ‘Well, you know,’—this is what she said—‘Well, you know you did it.’ He said, ‘Sure, I did,’ and, he said, ‘Don’t you know I’m out on bail and you better not come out of the house, because I’m going to kill you.’ ”

A police officer at the city hall testified that at the time in question he had permitted defendant to make a telephone call and saw him do it, but did not hear the conversation. Defendant, on cross-examination, admitted telephoning to Marlene on the day in question, admitted some of the conversation as testified to by Marlene and her father, but denied admitting that he had committed the crimes, and denied making the threat to kill Marlene.

The police found defendant in possession of the stolen property and arrested him as the result of Marlene coming to them and complaining about how defendant had treated her. She testified that she had lived with defendant since May of 1957; that she grew to dislike the relationship because she did

On redirect, this officer testified that, from his observation, Marlene appeared to have been beaten.

After the officer had been told that defendant had beaten Marlene, had tried to force her into prostitution, had committed sodomy on her person, had committed robberies and that some of the stolen property was in their apartment, and

Defendant, at the trial, denied any connection with either of the crimes. He admitted that he had been living with Marlene, and testified that on July 12, 1957, he and Marlene were out together until after midnight, but he could not remember where. He denied seeing a man by the name of “Paul” that night, and denied knowing such a person. He testified that some of the stolen property belonged to Marlene and that some of the rest of it he had either purchased from a man named “Les,” or “Les” had left it in the apartment. He denied that he had ever possessed the tan corduroy coat found at the Bernsteins. He denied most of the telephone conversation testified to by Marlene and her father. On cross-examination he admitted having committed the unnatural sex acts of which Marlene complained, testifying that she had consented thereto.

No attack is made on the sufficiency of the evidence. The appellant first complains that the prosecutor committed prejudicial error in questioning him about a prior felony conviction. The examination on this point was as follows: “Q. Incidentally, you have been previously convicted of a felony, haven’t you, Mr. Howard! A. Have I? Q. Haven’t you? I am asking you. A. No. Q. No ? Weren’t you, in 1953, convicted of forging a government check? A. That was no felony. I was a minor during that time. Q. In 1953? You were born in 1934, weren’t you? A. Correct. Q. And 1953, you would have been 19 ? A. No, I had just- Q. Or, 18, going on 19-• A. During that time, when that check was cashed- The Court : Wait a minute, wait a minute. Wait

No objection was made at the trial to these questions, but it now is contended that once the defendant denied committing a felony the only way he could be impeached was by the introduction of the record of his conviction. The point is without merit. Under section 2051 of the Code of Civil Procedure the defendant may be impeached by showing that he has been convicted of a felony by “examination of the witness, or the record of the judgment.” Thus the section recognizes that the defendant may be impeached by questions as well as by introduction of the record. In asking the questions the prosecutor should not inquire into the details and circumstances of the offense (People v. Chin Hane, 108 Cal. 597 [ 41 P. 697 ]; People v. Darcy, 101 Cal.App.2d 665 [ 226 P.2d 53 ]) nor should he constantly reiterate questions concerning the denied felony, but if the witness equivocates, the prosecutor may properly ask such questions as may be reasonably necessary to develop the fact of the conviction. (People v. Chenault, 74 Cal.App.2d 487 [ 169 P.2d 29 ].)

The cross-examination here involved was well within permitted limits. The witness equivocated and bickered about his age. The further questions were necessary in order to show that the offense was “punishable . . . for a term exceeding one year” and so was a felony under federal law. ( 18 U.S.C.A. §1 .)

It should also be noted that the defense did not interpose an objection to the questions. Such an objection is normally required before the error can be raised on appeal (see cases collected 3 Cal.Jur.2d 634, § 156) unless it is so flagrant that prejudice necessarily resulted. (People v. Wynn, 44 Cal.App.2d 723 [ 112 P.2d 979 ].) Certainly, no such error appears here.

The next contention of defendant is that several references by the prosecuting attorney to defendant having committed

As already pointed out, in cross-examining Officer Marionetti defense counsel pressed the witness for details of the conversation he had with Marlene when she first came to the police station. The officer replied that Marlene, among other things, told him that defendant had “forced his attentions on her.” The prosecutor interrupted the examination and asked the witness to relate the facts as to what Marlene had stated defendant had done. Marionetti replied: .“Well, she told me the Defendant had committed an immoral act, sodomy was one.”

During the cross-examination of defendant, the prosecutor asked defendant if he had heard the officer testify of Marlene’s complaints. The defendant stated that he had heard the testimony, whereupon the prosecutor asked: “Did you commit those acts?”, to which defendant replied: “Yes, I did and if I am guilty of it, she is as guilty as I am.”

Then in his opening argument to the jury the prosecutor made the following statement:

“He admitted committing improper sexual acts upon her. He seems to think it is all right, because his testimony was that that was all right with her. Maybe Mr. Howard doesn’t Imow it, but he admitted the commission of a serious felony on the witness stand and he admits having done that, because the law provides it doesn’t make any difference whether the person is a willing victim or not. You do not commit acts such as Mr. Howard was talking about and he knew what he was talking about, the act of sodomy she told the police officer about, either willing or unwilling victim.

“Mrs. Garcia told you that—The officer told you, rather, that Mrs. Garcia said she was an unwilling victim and that was her original complaint when she came down to complain to him about that. She told him about the stolen property. She told him about how he had been beating her up and he wouldn’t let her out of the premises.”

So far as the examination of Officer Marionetti is concerned there was certainly no error. It is settled law that where a conversation is inquired into it is not error to elicit the entire conversation even though, in this fashion, such conversation incidentally reveals the commission of another offense. (18 Cal.Jur.2d 585, § 137; People v. Masters, 133 Cal.App. 167 [ 23 P.2d 774 ].) It was the defendant’s counsel who

As to the cross-examination of defendant, and the argument to the jury, a different problem is presented. It is clearly the law that evidence of the commission of prior, independent, unrelated offenses, having no tendency to prove any material fact in the prosecution’s case, may not be admitted. (See cases collected 18 Cal.Jur.2d 583, § 136; People v. Albertson, 23 Cal.2d 550 [ 145 P.2d 7 ]; People v. Channell, 136 Cal.App.2d 99 [ 288 P.2d 326 ]; People v. Baylor, 47 Cal.App.2d 34 [ 117 P.2d 425 ].) However, the converse of the rule is also true, that is, “whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no g'round for its exclusion.” (People v. Lyon, 135 Cal.App.2d 558 , 578 [ 288 P.2d 57 ].)

The evidence here involved falls within the exception. During the trial many articles of property were introduced into evidence. The prosecution contended that such articles had been stolen, and that they had been found in defendant’s possession. The manner in which that property came into possession of the police was before the jury. The jury had been properly told that Marlene had complained to the police about defendant’s conduct toward her, had told them of the alleged thefts, and had led the officers to the apartment she occupied with defendant, and admitted them. The officers found the property and arrested defendant. They had neither a search nor an arrest warrant. One of the reasons the police went to the apartment with Marlene was because she had complained of defendant’s felonious sexual conduct toward her. Thus, this fact was relevant to explain the entry on the premises and defendant’s subsequent arrest without warrants. Evidence to explain the arrest of the defendant and the circumstances surrounding it, even if other prior crimes are disclosed, is admissible. (People v. Brite, 9 Cal.2d 666 [ 72 P.2d 122 ]; People v. Craig, 152 Cal. 42 [ 91 P. 997 ].) Since the validity of the arrest and entry were relevant, the defendant’s prior misconduct was also relevant. If relevant, the reference to it in the argument was also proper.

It should also be noted that defense counsel made no objections to any of this evidence, or to the argument. While this fact is not conclusive (People v. Newson, 37 Cal.2d 34 [ 230 P.2d 618 ]; People v. Dabb, 32 Cal.2d 491 [ 197 P.2d 1 ];

The last major contention of defendant is that the items of property found in the apartment were not admissible in evidence because they were secured as a result of an illegal search and seizure, it being urged that Marlene had no legal right to admit the officers to the apartment.

It is, of course, the law that evidence secured in an illegal search is not admissible. (People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ].) However, it is also the law that if the defendant or someone with apparent authority, consents to the entry, and the entry is made in good faith, it is not unlawful. Thus, defendant’s mother can give consent to the entry (People v. Michael, 45 Cal.2d 751 [ 290 P.2d 852 ]); as can the owner of a house in which defendant rents a room (People v. Gorg, 45 Cal.2d 776 [ 291 P.2d 469 ]; People v. Caritativo, 46 Cal.2d 68 [ 292 P.2d 513 ]); or the wife of defendant (People v. Dominquez, 144 Cal.App.2d 63 [ 300 P.2d 194 ]). In People v. Silva, 140 Cal.App.2d 791 [ 295 P.2d 942 ], it was held that the brother of defendant’s mistress, who lived at the house, could grant consent to an entry. Under these cases, anyone in joint occupancy of the house has authority to permit an entry without a warrant. In the present case, Marlene had told the officers that she was living at the premises with defendant and had been so living for several months. This is admitted by defendant. Marlene told the officers that defendant had beaten her, proposed that she enter a life of prostitution, committed a felonious act upon her, and had stolen property at the apartment. She asked protection while she removed her belongings. She led the officers to the apartment, and, after finding the front door bolted, climbed through the window and admitted the officers. There was no evidence that any duress was practiced upon her—in fact, it was at her insistence that the officers were there. Under such circumstances the entry was lawful. Once in the apartment some of the stolen property was in plain sight. This aroused the reasonable suspicions of the officers, a further search was made, and other property and the defendant were found. Thus, the search was legal. (People v. Roberts, 47 Cal.2d 374 [ 303 P.2d 721 ].) The information from Marlene that defendant had committed a felony, the corroboration of part of her story from the bruises on her body, and the discovery of the stolen property in de-^

The judgment appealed from is affirmed.

Bray, J., and Wood (Fred B.), J., concurred.

A petition for a rehearing was denied January 30, 1959, and appellant’s petition for a hearing by the Supreme Court was denied February 25, 1959.