People v. Renchie

Appellant was convicted of four armed Appellant robberies, all committed in the City of Oakland on January 20, 1961, and January 22, 1961. Victim of the first robbery was an employee of a liquor store; victims of the second and third robberies were an employee of a hot dog stand and a customer; and victim of the fourth robbery was an employee of another liquor store. Defendant denied commission of the crimes and presented the defense of alibi, testifying himself as to his presence in San Francisco at the times of the robberies, and being supported in his testimony by one witness as to the times of all three instances of robbery (the second and third robberies, at the hot dog stand, are referred to as a single instance of robbery, so far as time is concerned, because the two victims were robbed at almost the same moment), and by two other witnesses as to the time of the third robbery. At least two of the witnesses had seen a picture of appellant in the police department’s “mug file.” Appellant

The defense took two courses: first, a testing by cross-examination of the identification made by the victims, and, second, a positive defense of alibi. It is appellant’s contention that he was prejudiced by two errors in the course of the trial, the first being the ruling of the court that he was not entitled to the production of notes made by the police relating to their conversations with the identifying witnesses, because the demand for such notes was not made until the time of trial • and the second, that the district attorney, in his argument to the jury, made use of the prior conviction of appellant of robbery, some three years earlier, not for the allowable purpose of impeachment only, but for the purpose of showing that the prior offense was committed, as were two of the present ones, at a liquor store, and that this was unallowable. We agree that there was error in both instances.

During cross-examination of the victim of the first robbery, Peterson, a witness who conceded that identification had been difficult because in his robbery the robber had worn dark glasses and a hat pulled low over his forehead, defense counsel requested notes made by the inspector and police officer at the time of the original interview with the witness or the report in which these notes were incorporated. The district attorney announced that he had a summary of what the inspector wrote down but did not have any original notes,

During the cross-examination of the other three victims, defense counsel demanded only the notes which the district attorney had in the courtroom, evidently in deference to the court’s ruling. Later, defense counsel referred to the “blue crime report” in cross-examining a police inspector, and the inspector testified that there is such a report, which is usually kept in the office of the police department, that the report contains the description given by the victim of the robbery to the interviewing officer, and that the district attorney’s office can get it, and usually does, but in this case had not asked for it. At this point, the court interjected that how the district attorney chooses to try his case is his business and that the defense should proceed with the issues in the case.

The court was in error in ruling that demand came late when made at trial. Production of notes or reports, such as those referred to here, may be demanded either at trial or before trial. (People v. Estrada, 54 Cal.2d 713 , 716 [ 7 Cal.Rptr. 897 , 355 P.2d 641 ]; Funk v. Superior Court, 52 Cal.2d 423 , 424, [ 340 P.2d 593 ]; People v. Riser, 47 Cal.2d 566 , 586 [ 305 P.2d 1 ].) Indeed, the holding that the accused may have certain, discovery before trial (Powell v. Superior Court, 48 Cal.2d 704 [ 312 P.2d 698 ]) was a consequence of the earlier

A brief consideration of the points made by the Attorney General on this subject is in order. He suggests that the situation is analogous to one wherein the defense moves for a continuance to secure evidence or to procure a witness, which the court may deny, in its discretion, upon the ground that such evidence could have been secured before trial (People v. Buckowski, 37 Cal.2d 629 , 631 [ 233 P.2d 912 ]). We do not regard the analogy valid in the ease before us. The reports were easily accessible to the district attorney. The distinction attempted between the documents in possession of the police and those which had been handed to the district attorney, a distinction which ran throughout the trial and which the court should have noticed was the effect of its first ruling, is not sound. The district attorney represents the People during the course of the trial, and, although it is not his duty to engage in active discovery for the benefit of the defense, the burden of disclosure as distinguished from discovery, at least where such disclosure, as in this case, requires a minimum of effort, rests upon the prosecution as represented by the district attorney. The distinction between disclosure and discovery, in this regard, has been made in People v. McShann, 177 Cal.App.2d 195 , 198 [ 2 Cal.Rptr. 71 ]; and in People v. Render, 181 Cal.App.2d 190 , 195 [ 5 Cal.Rptr. 236 ].

The Attorney General makes the argument that certain differences between the actual appearance of the defendant in court, which was described for the record, and descriptions which the witnesses testified they had given to the police, so far as they could remember such descriptions, actually did appear at the trial and no doubt were considered by the jury, which, despite such differences, found defendant guilty. It is, indeed, a curious contention for the prosecution to say that because its witnesses were shown to have been partly in error, and nevertheless there was a conviction, we should draw the deduction that even had they been shown, by their original statements to the police, to have been chargeable with more discrepancies, conviction still would have been had. Moreover, as has been pointed out in some of the eases on compulsory production of witnesses’ statements of this nature, the statements may not only weaken or destroy an identification, but

Whether or not an error in failure to make proper disclosure is prejudicial is a singularly difficult task, because, unlike cases wherein improper evidence has been admitted, or improper remarks made or erroneous instructions given, and unlike cases wherein evidence has been excluded improperly after an offer of proof has been made, in the ease where disclosure has been withheld improperly we simply do not know what the withheld information was, and we cannot weigh it against the other factors in the case. In our case, there are other errors and we have considered these, so that our determination is not based upon any one of them alone.

The second error claimed by the appellant is this: During the cross-examination of defendant, the district attorney asked him if he had been convicted of the felony of robbery, if he had been armed with a deadly weapon, and if he had been sentenced to the State prison therefor, and defendant responded in the affirmative. The district attorney then asked if the robbery did not involve the Bradley Liquor Store in Turlock, California. There was no objection, and defendant again replied in the affirmative. The question was improper and an objection to it, if made, should have been sustained, because although conviction of a felony may be shown for the purpose of impeachment, the inquiry is limited to the fact of conviction of felony and the character of the felony, and the details or circumstances surrounding a crime may not be gone into. (People v. Braun, 14 Cal.2d 1 , 6 [ 92 P.2d 402 ].) No objection or motion to strike having been made, and no admonition asked, there was at that time no error of which appellant could now complain. However, during his argument, the district attorney attempted to convert the use of the prior felony conviction from that of impeachment only to substantive proof by arguing to the jury that when the identification was made in the line-up, each of the victims selected a man who had previously been involved in robbery of a liquor store. This was error not unlike that in People v. McCoy, 185 Cal.App.2d 98 , 105 [ 8 Cal.Rptr. 70 ], in which the district attorney examined defendant as to whether the place at which the robbery of which he had been convicted some years before was the same place at which

Here, again, in determining whether or not the error was prejudicial we are not obliged to take this incident alone. In examining the whole record to decide if there has been a miscarriage of justice, we have found another error which, while not raised by appellant in his briefs, is to be weighed in the scales; for, although we have not searched the record for the purpose of finding errors which were not pointed out by appellant, the court is at liberty to consider, and even to decide, a ease upon any points that its proper disposition may seem to require whether taken by counsel or not (Burns v. Ross, 190 Cal. 269 , 276 [ 212 P. 17 ]), and we are struck by the presence in the charge to the jury of an instruction which has been held flatly to constitute prejudicial error.

We refer to this sentence in the court’s instructions, which disparages the defense of alibi: “However, you should scrutinize the testimony in support of the alibi in order to satisfy yourselves that a fabricated defense is not being imposed upon you.” Almost 20 years ago, the Supreme Court held that in cases where the evidence raises a conflict as to the presence of the defendant at the scene of the crime, as it surely does here, an instruction in the form given in this ease is prejudicial error, even if the instruction otherwise informs the jury, as it does in our case, that it is sufficient if the evidence relating to alibi creates a reasonable doubt in the

In the case before us, the instruction on alibi was particularly pointed up by this incident: In his argument to the jury, the district attorney referred to the defense of alibi as being one in confession and avoidance, and this was objected to by defense counsel, whereupon the court stated that the law on the subject would be given in the court’s instructions. The plea of confession and avoidance, as its name implies, admits the cause of action and sets up some matter in avoidance of it (41 Am.Jur. § 158, p. 403). Nothing could be more opposed to confession and avoidance than the defense of alibi, especially when presented by a defendant who has been charged with personal participation in a crime, as distinguished from aiding or abetting from a distance. Indeed, there is no separate pleading of the defense of alibi, because the plea of not guilty puts in issue any allegation of the accusatory pleading, except those allegations regarding previous convictions of the defendant (Pen. Code, § 1019), including the issue of identity of the defendant with the person who committed the offense (People v. Wong Sang Lung, 3 Cal.App. 221 [ 84 P. 843 ]). The reference to confession and avoidance was a derogation of the defense of alibi, and although in itself it may not have been of great importance, it caused the court to tell the jury that the law on alibi would be forthcoming in the court’s charge, at which time, as appears above, the court gave the erroneous and prejudicial instruction.

The judgment and the order denying motion for new trial are reversed.

Draper, P. J., and Salsman, J., concurred.

A petition for a rehearing was denied March 22, 1962, and respondent’s petition for a hearing by the Supreme Court was denied May 2, 1962. Sehauer, J., was of the opinion that the petition should be granted.