People v. Atwood

the ground. He found the office of the garage “pretty much a shambles.” Missing from the office were two adding machines, a cheek-writing machine, payroll and other checks, several automobile certificates of ownership, and certain tools. The safe had been pulled away from the corner of the office and was out about 4 feet into the room. A case of masking tape of substantial size which had been on top of the safe the night before, was on a chair alongside the safe. Fradenburg called the police.

San Francisco Police Inspector Walter Ihle, assigned to the police crime laboratory and a qualified fingerprint analyst, arrived at the garage at about 9 a.m. on January 17. He developed a latent palmprint on the right top edge of the safe approximately 14 inches from the front. Ihle testified that he believed the print was no more than three to five days old and that it was made by the left palm of the defendant. He also found other latent prints on the safe which were not defendant’s and could not be otherwise identified.

San Francisco Police Inspector Edward McLaughlin, assigned to the burglary detail, testified that on May 9, 1962,^[1] he had a conversation with defendant at the city prison. Defendant and the inspector were the only persons present. The inspector testified that after identifying himself by name and occupation, he told defendant that he was assigned to the case of the Park Auto Reconstruction Company at 624 Stanyan Street and asked him if he knew anything about it, and that defendant said “No”; that he then asked defendant if he had ever been there and defendant said “No”; that he then described the premises and location of the garage in more detail and asked defendant if such further information enabled him to recollect if he had ever been on the premises and that defendant said “No.” McLaughlin further testified: “And I then informed Mr. Atwood that from the office of these, of this location, a palmprint had been taken from the top of the safe, which subsequently was identified as belonging to him. And Mr. Atwood made no answer to that, and I terminated the interview and left him.”

Defendant took the stand on his own behalf. He testified on direct examination that he had first been in the garage

about a week after Ms birthday, January 2, or in other words about January 9, to purchase an article to keep the fan belt of a friend’s car from slipping; that he talked to a man in the office; that he saw the safe there; that he^[1] ‘could have” touched the safe but that he didn’t remember doing so; and that he remembered that he had dropped Ms ring “over by the safe” and that he “might have touched the safe” when he reached over to pick up the ring.

Defendant further testified on direct examination that about three or four days later (or in other words January 12 or 13) he went to the garage again with a friend, one Hichard Shaw, to speak to the garage mechanic about some difficulty with the drive shaft on Shaw’s car; that they were on the premises only 5 or 10 minutes; that they had stopped by the office to ask the person there where the mechanic was; that he did not recall that he at any time touched “any of the articles” located in the office; and that he had never been on the garage premises on any other occasion. Defendant could not recall his whereabouts on the morning of January 17 but was positive he was not at the garage.

On direct examination, defendant gave his version of the conversation which he had with Inspector McLaughlin on May 9, 1962, as follows: that the inspector told him that he was going to be charged with burglary and that he, McLaughlin, had defendant’s fingerprints, not a palmprint, “found at this burglary”; and “if I cared to make any statements to him. And that was about all of the conversation. I told him that I didn’t know anything about any burglary.” According to defendant, McLaugMin mentioned the garage by name but not its address or location and defendant did not at any time tell the inspector that he had never been on the garage premises. On cross-examination, defendant denied that he had ever told the inspector that he had never been on the premises; denied that the inspector had informed him that his palmprint had been found on the safe; and denied that he had remained silent upon being informed of such fact.

Defendant was the only witness for the defense. His friend Shaw was never produced.

Defendant contends before us (1) that the information fails to state a public offense; (2) the evidence is insufficient to support the verdict; and (3) certain instructions to the jury were prejudicially erroneous.

The information in the instant case accuses defendant “of the crime of felony, to-wit: Violation op seo

82 , 87 [ 6 P.2d 114 , 970], In accord: People v. Pierce (1939) 14 Cal.2d 639 , 644-646 [ 96 P.2d 784 ]; People v. Codina (1947) 30 Cal.2d 356 , 359 [ 181 P.2d 881 ]; People v. Gordon (1945) 71 Cal.App.2d 606 , 611 [ 163 P.2d 110 ]; People v. Schoeller (1950) 96 Cal.App.2d 61 , 64-65 [ 214 P.2d 565 ]; see also People v. Hinshaw (1924) 194 Cal. 1 , 23 [ 227 P. 156 ]; People v. Bonfanti (1919) 40 Cal.App. 614 , 615-617 [ 181 P. 80 ].)

The cases of People v. Frost (1932) 125 Cal.App.Supp. 794 [ 12 P.2d 1096 ], People v. Kloss (1933) 130 Cal.App. 194 [ 19 P.2d 822 ] and In re Digiuro (1950) 100 Cal.App.2d 260 [ 223 P.2d 263 ] cited by defendant are distinguishable from the case before us, all holding that under the particular circumstances of each ease, the respective defendant had not been notified of the offense with which he was charged. In both Frost and Eloss there was an absolute failure to state in the information one of the constituent elements of the offense. In Digiuro, because of the use of only conelusionary language, the defendant was nowhere notified of the gravamen of the purported offense.

We turn to defendant’s claim that the evidence does not support his conviction. Our inquiry on this point must be governed by the settled rule stated in People v. Newland (1940) 15 Cal.2d 678 , 681 [ 104 P.2d 778 ] that “ ‘before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground’ of insufficiency of the evidence, ‘it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.... We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict. ’ If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.” (See also People v. Daugherty (1953) 40 Cal.2d 876 , 885 [ 256 P.2d 911 ], cert, denied 346 U.S. 827 [ 74 S.Ct. 47 , 98 L.Ed. 352 ].)

In the instant case, the prosecution’s evidence^[2]

pertinent to the problem at hand boils down to two items: (1) defendant’s palmprint found on top of the safe; and (2) defendant's denial, when questioned by Inspector McLaughlin, that he had ever been in the garage and his subsequent silence when informed by the inspector that his palmprint had been found on the safe. We must determine whether the above evidence reasonably justifies the jury’s verdict.

“Fingerprint evidence is the strongest evidence of identity, and is ordinarily sufficient alone to identify the defendant.” (People v. Riser (1956) 47 Cal.2d 566 , 589 [ 305 P.2d 1 ]; People v. Adamson (1946) 27 Cal.2d 478 , 495 [ 165 P.2d 3 ]; People v. Ang (1962) 204 Cal.App.2d 553 , 555 [ 22 Cal.Rptr. 455 ]; People v. Wise (1962) 199 Cal.App.2d 57 , 60 [ 18 Cal.Rptr. 343 ]; People v. Beem (1961) 192 Cal.App.2d 207 , 211 [ 13 Cal.Rptr. 238 ].) Palmprint evidence is of equal force and sufficiency.^[3] (See People v. Buckowski (1951) 37 Cal.2d 629 , 631-632 [ 233 P.2d 912 ], cert, denied 342 U.S. 928 [ 72 S.Ct. 369 , 96 L.Ed. 692 ]; 3 A.L.R. 1694 , 1706.) Generally speaking whether fingerprints or palmprints of the accused are alone sufficient to identify the defendant as the criminal must depend on the particular circumstances of the case. (People v. Adamson, supra; People v. Wise, supra.) Where such prints are found at the place of forced entry, particularly where such location is normally inaccessible to others, there is a reasonable basis for the inference that the prints were made there at the time of the commission of the offense and under such circumstances may alone be sufficient to identify the accused. (People v. Ramirez (1931) 113 Cal.App. 204 , 205-206 [ 298 P. 60 ] (fingerprints on dusty suitcase piled on top of show window and beneath hole cut in ceiling where entry made); People v. Rodis (1956) 145 Cal.App.2d 44 , 45-46 [ 301 P.2d 886 ] (fingerprints on outside of window which was nine feet above the ground and through which entry made); People v. Beem, supra, 192 Cal.App.2d 207 , 209 (fingerprint on storeroom side of door connecting storeroom and men’s room in a bar); People v. Massey (1961) 196 Cal.App.2d 230 , 232 [ 16 Cal.Rptr. 402 ] (fingerprint on inside of open bedroom window through which burglar fled).) Fingerprints under other proper circumstances may alone be sufficient to identify the accused, as for example

Assuming arguendo that the jury had believed defendant’s account of his two previous visits to the garage, they could still have reasonably inferred that the palmprint was made at the time of the commission of the crime. In the light of Inspector Ihle’s testimony that the print was no more than three to five days old, it could not have been made before January 12, 1962, and the jury could have reasonably concluded that defendant did not make it on his first visit to the garage on January 9, 1962. Defendant’s testimony concerning his second purported visit on January 12 or January 13, fairly read according to the rules governing our review, amounts to no more than this: that he and a friend went to the garage to see a mechanic about some car trouble; that he “believed” that they “stopped in the office” to ask who the mechanic was; that someone in the office pointed out the mechanic (obviously somewhere else in the garage) and they then proceeded over to the mechanic; and that defendant did not recall touching anything in the office. Notably defendant did not testify that he was anywhere near the safe on this occasion. The jury therefore could still reasonably infer that he left his palmprint on the safe at the time of the commission of the crime (cf. People v. Ang, supra, 204 Cal.App.2d 553 ) and considered defendant’s two previous visits as evidence of his familiarity with the premises. (People v. Mercer (1951) 103 Cal.App.2d 782 , 790 [ 230 P.2d 4 ]; People v. Lanza (1960) 186 Cal.App.2d 860 , 863 [ 9 Cal.Rptr. 161 ].)

We next consider defendant’s claim that the court committed four separate errors, all of them prejudicial, in its instructions to the jury.

The first claim of error is predicated upon the giving of the following instruction: "The law of this State admonishes you to view with caution the testimony of any witness which purports to relate an oral admission of the defendant.”^[4]

Defendant urges that the above instruction should not have been given but that in its place the court should have given CALJIC No. 30^[5] and No. 30-A^[6] or “either” of them.

the truth of the statement is admitted, the statement may properly be introduced. A third situation is presented when the accused stands mute in the face of the accusation or responds with an evasive or equivocal reply. In that situation this court has held that under certain circumstances both the statement and the fact of the accused’s failure to deny are admissible on a criminal trial as evidence of the acquiescence of the accused in the truth of the statement or as indicative of a consciousness of guilt. ’ ’ (28 Cal.2d at p. 712.)

It is to be noted that the testimony in question was introduced without any attempt whatsoever to comply with the foundation requirements prescribed by Simmons, supra.^[7] No objection was made by defendant that such proper foundation had not been laid. No objection of any kind was made to the introduction of the testimony. No motion to strike was made. Understandably, defendant’s present counsel, who was not his counsel in the trial court, does not, as he cannot, now claim that the testimony of the inspector was erroneously admitted. (People v. Stepp (1947) 82 Cal.App.2d 49 , 51 [ 185 P.2d 417 ]; People v. Vacca (1960) 185 Cal.App.2d 125 , 128-129 [ 8 Cal.Rptr. 64 ].)

Defendant, instead, argues that the inspector made a mere “statement” and that defendant’s subsequent silence was merely “informative” in nature and did not constitute an admission. We disagree. In response to the inspector’s questions, defendant said that he knew nothing about the garage ease and had never been on the garage premises. When the inspector then told defendant about the discovery of his palmprint on the safe, the latter remained silent. We said in People v. Moore (1963) 211 Cal.App.2d 585 , 597 [ 27 Cal.Rptr. 526 ]: “An accusatory statement is a statement expressed directly to a person or in his presence accusing him of a crime or tending to connect him with its commission. [Citations.] It is ‘a statement ... made by another person in

the presence of a party to the action, containing assertions of fact which, if nntrne, the party would under all the circumstances naturally be expected to deny.... ’ (McCormick on Evidence, § 247, p. 528.) ” Clearly the inspector’s statement was accusatory. It was in effect an assertion that despite the fact that defendant claimed he had never been at the garage, his palmprint had been found at the scene of the crime. This certainly implied that the print was made at the time of the commission of the crime and tended to connect defendant with its commission. Defendant then had an opportunity to reply and explain, according to his later version, that the print had probably been made during a preceding and lawful visit to the premises.

Furthermore, defendant does not here claim, nor do we find anything in the record impelling the conclusion that, on the occasion of his conversation with the inspector, defendant was attempting to assert his constitutional privilege against self-incrimination. Thus defendant makes no contention before us that the admission of the inspector’s accusatory statement was reversible error despite defendant’s failure to object. (See People v. Simmons, supra, 28 Cal.2d 699 , 716.)

This brings us to the second part of defendant’s contention : namely that whether there was an implied admission of guilt was a question for the jury (see footnote 7, ante) and hence the trial court should have given CALJIC instructions No. 30 and No. 30-A or, as we apprehend the argument, instructions substantially similar thereto. Defendant makes no showing that he requested such instructions and that they were refused.^[8] It would appear that defendant's claim is that the court had a duty to give the above or similar instructions on its own motion.

It is the duty of the court in a criminal ease to give,

statement had been made, directed to him and tending to connect him with the commission of the offense; whether or not such statement was made under conditions fairly affording defendant an opportunity to reply; whether or not he failed to make a denial thereof; and whether or not he heard and understood the statement. Any appropriate instruction would, as CALJIC No. 30 does, tell the jury that if they should find unfavorably to defendant on the above matters, the circumstance of his silence might be considered as indicating that the accusation was true, that evidence of the accusatory statement was not received for the purpose of proving its truth but only to explain defendant’s conduct in the face of it, and that if his conduct did not indicate an admission, the accusatory statement was to be entirely disregarded by the jury.

Our preceding observations were confined to the inspector’s single statement concerning the palmprint and defendant’s failure to respond thereto. As we have pointed out, the inspector prior thereto had asked defendant three questions which were met with denials, two of which questions inquired as to whether defendant had ever been at the garage. At trial defendant testified that he had been at the garage on two occasions. The evidence on this portion of the inspector’s testimony was also in sharp conflict, defendant denying that he told the inspector that he had never been on the premises. All of this evidence was crucial to the case. To fully and fairly charge the jury on this aspect of defendant’s conduct, the court should have submitted to them for their determination under proper instructions the question whether defendant had made false or contradictory statements on the matter. An adequate instruction along the lines of CALJIC No. 30-A^[9] would have told the jury that they might have considered any such evidence of false or contradictory statements as a circumstance tending to prove a consciousness of guilt but not sufficient of itself to prove guilt, the weight and significance thereof to be a matter for their determination.

Instead of giving appropriate instructions on an implied admission of guilt and on conduct showing consciousness of guilt, the court gave only a cautionary instruction on oral admissions, which are express admissions, not implied admissions, and are predicated on words, not conduct. Its vice

consisted in the fact that there was no evidence of an oral admission in the inspector’s testimony or anywhere else in the record. Such an instruction was in no way an adequate substitute for an instruction on admission by conduct or an instruction on consciousness of guilt. We think that it would have a tendency to mislead the jury by permitting them to conclude that the inspector’s testimony related to oral admissions. As we have seen, such testimony was to be measured by other criteria.

It is therefore beyond argument that the court failed to instruct the jury on the law of implied admissions including that aspect bearing on the defendant’s consciousness of guilt. Such instructions appertain to the vital question whether the defendant admitted he was guilty of the offense. We must therefore conclude that under the particular evidentiary circumstances of the case, the failure of the court to give on its own motion appropriate instructions on the above subjects was error.

However after an examination of the entire cause, including the evidence, we are not persuaded that it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], cert, denied 355 U.S. 846 [ 78 S.Ct. 70 , 2 L.Ed.2d 55 ].) While the evidence on the palmprint conversation was in sharp conflict,^[10] an instruction along the lines of CALJIC No. 30 would have told the jury that defendant’s silence could be considered as an admission of the accusation. The accusation was that defendant’s print had been found at the scene of the crime and in its strongest implication that defendant left it there at the time of the burglary. Defendant however at no time denied that the palmprint was his but contended that he made it lawfully on a previous visit. The uncontradicted evidence was that the print was no more than three to five days old. As we have shown, the defendant could not have made the print on his first claimed visit nor even is his own testimony susceptible of the inference that he made the print on the second visit. The jury then could reasonably conclude that it was made at the time of the crime without relying at all on any implied admission. The failure to give an instrue

tion along the lines of CAL JIG No. 30 did not therefore prejudice defendant.

As to the instruction on consciousness of guilt (see CAL-JIC No. 30-A), since the record does show contradictory statements by defendant, the instruction in our view would only emphasize them and to this extent would not be favorable to him. While the statement in the instruction that evidence of falsehood would not of itself be sufficient to prove guilt might be favorable, it would appear that in this case the instruction as a whole would not be. We feel therefore that under the facts of the case, the defendant was not prejudiced by the court’s failure to so instruct.

Finally we feel that while the instruction on oral admissions should not have been given, under the facts of the ease and for the reasons indicated above, it is not reasonably probable that a result more favorable to defendant would have been reached, had it not been given.^[11]

The second claim of error with respect to instructions asserts that the court failed to instruct the jury regarding the significance of a number of witnesses as provided in Code of Civil Procedure section 2061, subdivision 2.^[12] Defendant makes no showing that he requested such an instruction. We have carefully examined the instructions given by the court and are of the opinion that when considered as a whole, they charged the jury that it was the conviction produced in their minds by the credibility of the witnesses rather than the mere number of witnesses which was to be the determinative factor in arriving at defendant’s guilt or innocence.

Thirdly, defendant complains that the court failed to instruct the jury that defendant was entitled to the individual opinion of each juror. In this instance also, defendant makes no showing that he requested such an instruction. In People v. Singh (1912) 20 Cal.App. 146 [ 128 P. 420 ] the court refused to give certain requested instructions to the effect that defendant was entitled to the individual opinion of each