People v. Vacca

Appellant was charged with and convicted of burglary in the first degree. His motion for a new trial was denied and he appeals from the judgment and from the order denying him a new trial.

Since appellant does not challenge the sufficiency of the evidence to support the verdict against him, we will state the facts briefly. In the early morning of September 1, 1959, appellant was seen drinking in a bar in Woodland, close to the Hotel Aggie. About 1:30 a.m. he was observed walking along the street, looking in the shop windows. The officer who observed him questioned him as to what he was doing and was told that he was in the process of taking a bus to Sacramento. About 2:30 a.m., the same officer saw him again and questioned him further. The same officer saw him a third time at nearly 3 a.m. He was then near the bus stop. He had a brown paper bag in his arms. One Hassan Mohammedi was a tenant in the Aggie Hotel. He left his room about 4 p.m. on the afternoon of August 31st and when he returned about 3 a.m. he found his key missing from a rack in the hotel lobby where it was kept during his absence. On going to his room he found the door unlocked and various items of personal property were missing. He called the police. About 3:25 a.m. the same officer who had seen and questioned appellant responded to the call and on his way observed a man about 75 yards from

Respondent contends that the court erred in permitting the introduction into evidence of a conversation between the prosecuting attorney and the appellant which was held on the day after appellant’s arrest. The statement was as follows: “I asked the—I stated to the defendant that he was under arrest relative to a burglary that took place at the Aggie Hotel the night before, and asked him if he did it, and he said he didn’t want to talk about it. I asked him if he would admit doing this burglary, and he said no, he wouldn’t admit it; and I asked him if he would deny carrying off this burglary, and he said no, he would not deny it. And I asked him if he wanted to talk, and he said, ‘No. The last time I talked they sent me to State Prison. ’ . . . And then I asked him if he wished to talk any further about it, and he said no, he would rather talk to a lawyer before he discussed that incident any further. And that was the extent of the conversation with the defendant at that time. ’ ’

The admissibility of the defendant’s responses to accusatory statements, as well as the manner in which admissibility is to be determined, are well described in People v. Davis, 43 Cal.2d 661 , 670, et seq. [ 276 P.2d 801 ], and in People v. Simmons, 28 Cal.2d 699 , 712, et seq. [ 172 P.2d 18 ]. While the procedure suggested therein was not followed in the instant case, the reason appears to be found in the lack of objection to the introduction of the statement when it was proffered. The rec

Appellant argues that the court erred in admitting the conversation, contending that there was nothing therein to indicate guilt and that on the contrary all that happened was a refusal of the defendant to discuss the matter in reliance upon his constitutional right to remain silent when questioned by officers after arrest. We find ourselves unable to properly discuss these contentions in view of the lack of objections made at the trial. The only objection made was to that part of the conversation which contained the reference to a prior conviction and that was made after the reported conversation reached the point where the defendant’s statement concerning his prior imprisonment was in. No motion was made to strike. No objection had been made that the proper foundation for the introduction of admissions had not been laid. No instruction was requested that the court instruct the jury relative to inferences that might be drawn from the conversation. On this record we are unable to say that the admission of the conversation between the prosecuting attorney and the defendant was error.

“It is a general rule that any misconduct on the part of the participants in a trial, from which it may rightfully be deduced that the jury was influenced in rendering its verdict, constitutes prejudicial error. Such error, however, cannot be taken advantage of on appeal by the injured party unless an assignment thereof is made at the time of the misconduct or at some time thereafter before the close of the trial. And, unless the harmful result of the misconduct is such that it could not be obviated by an appropriate instruction, there must be, in addition to an assignment of error, a request to instruct the jury to disregard the conduct complained of.” (3 Cal.Jur.2d, Appeal and Error, § 162, pp. 646-647.)

It is proper to say, however, that when the quoted remarks of the prosecuting attorney are read in context it becomes extremely doubtful that he thereby intended to or did make any reference to his own testimony. Certainly, there was no express reference thereto. The prosecutor had been discussing the explanation given by defendant and, concluding that part of his argument, had said, “The story just doesn’t hold any water, ladies and gentlemen, and you’ve got

Appellant next charges the trial judge with prejudicial misconduct. It appears that after the case was submitted the jury was returned to the courtroom and the following took place: “A Juror: We would like to know what happened to the clock that was stolen and—the clock and the light meter and the cigarettes. The Court: Well, the court can’t tell you because the court doesn’t know. The court doesn’t hold the preliminary hearing. All that I can say to you is they weren’t offered in evidence here and they weren’t admitted. As to the reasons why they weren’t, the court doesn’t know. You will just have to go by the evidence that’s before you. Some things, you know, you can’t identify. A pack of cigarettes is a pack of cigarettes, an alarm clock is an alarm clock. As to the other gadget, I don’t think I have ever seen one. I don’t know what they are talking about. I can’t tell you. If you can’t identify them you can’t identify them in evidence, I know that, don’t you?” It appears that the articles claimed to have been stolen had not been put in evidence as exhibits. Appellant argues that by what the judge said he prevented or hindered the drawing by the jury of an inference that the reason the prosecution had not placed the stolen articles in evidence was because they had, in fact, not all been found in the possession of appellant, thus making it highly probable that the appellant was not the burglar and that his explanation was true, inasmuch as it had not been shown he had had any opportunity

Appellant also assigns as misconduct a statement by the court during the period when the jurors had returned as above stated, which statement was as follows: “No, I can’t argue with the jury, all I can do is tell you what the law is. He doesn’t have to have it on his person. If it is in his presence that can be considered possession.” This, argues appellant, was a clear misstatement of the law in a case where proof of possession was being relied upon by the prosecution as proof of guilt. The statement assigned as misconduct, and as a misstatement of the law is taken out of context. A juror had asked this question: “Tour Honor, what weight should the jury give to possession of stolen property in determining the crime of burglary? The Court: Well, I will just have to read you those instructions, Mr. Cooper . . . The court then read instructions previously given to the effect that mere possession of stolen property, however soon after the taking, unexplained by the person having possession was not sufficient to justify conviction, but was a circumstance to be considered in connection with other evidence in determining the question of guilt or innocence. The court had further stated that in addition to proof of possession there must be proof of corroborating circumstances tending of themselves to establish guilt, and that such corroboration must consist of circumstances, such as acts, conduct, falsehoods, etc., and that one found in the possession of property stolen was bound to explain such possession in order to remove the effect of that fact as a circumstance to be considered with all the other evidence pointing to his guilt. Having reread these instructions, the court continued with the statement assigned as misconduct and as a misstatement of the law. The court then said further: “If he had dominion and control over it or immediate access to it and his explanation as to why it was there and why he was so close to it, the jury has the right to consider the truthfulness of the defendant’s statements in regard to why he was in the immediate proximity of that stolen goods, if it was stolen.” We think there was neither misconduct nor misstatement of

Finally, appellant contends that the court erred in permitting the prosecutor to read into evidence the transcripts of testimony given by Mohammedi at the preliminary hearing. In this instance proper objections had been made to the reading of the deposition of Mohammedi, the owner of the goods alleged to have been stolen. Proof had been made that the witness was out of the jurisdiction and had been for some time, in fact from a time prior to the setting of the case for trial. He had returned to his native country in Africa. Penal Code, section 686, paragraph 3, provides:

“In a criminal action the defendant is entitled:

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“3. To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness . . . the deposition of such witness may be read, upon its being satisfactorily shown to the court that he . . . .can not with due diligence be found within the state; . . . .”

Appellant argues that due diligence was not shown and relies upon the following admitted facts. The crime was committed sometime between 4 p. m. on August 31, 1959, and 3 a. m. on September 1, 1959. Appellant was arrested during the early morning hours of September 1st. A preliminary hearing before a magistrate was held September 3d, and appellant was committed to the Superior Court for further proceedings. Almost immediately the prosecution was informed that Mohammedi would leave California within a short period and proceed to his home in the Sudan. In spite of this knowledge, the prosecution neither required security for his presence at the trial, nor took his deposition conditionally before he left. He left before a date of trial had been set. Since that time he had not been present in this country. Appellant argues that having neither secured the presence of Mohammedi for the trial, nor having conditionally taken his testimony before his departure, due diligence to present him at the trial to confront the defendant thereat was not shown. His objections based on these grounds were overruled

“The question as to what will constitute due diligence to secure the presence of a witness which will authorize the reading of such witness’ testimony taken at the preliminary hearing when such witness is shown to be unavailable, is largely within the discretion of the trial court and depends on the facts of each particular case. [Citing cases.]

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“There appears to have been no abuse of discretion in the present case in permitting the reading into the record of the testimony of Mr. Friedland at the preliminary hearing as his