People v. Propp

— After jury trial, defendant Propp wss convicted of the crimes of armed robbery in the first degree, conspiracy to commit robbery, possession of a sawed-off shotgun, and possession of concealed weapons. Defendant Wright was convicted of armed robbery in the first degree, conspiracy to commit robbery, and possession of certain firearms

A. Appeal of Both, Defendants.

1. Due Process.

Under a separate heading “Due Process of Law” defendants refer to United States Constitution, Amendment XIV, California Constitution, article I, section 13; and People v. Hamilton (1963) 60 Cal.2d 105 [ 32 Cal.Rptr. 4 , 383 P.2d 412 ] without designating in what way it is contended that defendants were deprived of due process. Perhaps they refer to all of the contentions thereafter raised by them. In any event, as will hereinafter appear, defendants were not deprived of due process.

2. Lack of Separate Trials.

Section 1098, Penal Code, provides, “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. ...”

Both defendants contend that the court erred in denying defendant Wright’s motion for a separate trial. The trial court has a broad discretion in determining whether to order joint or separate trials. (People v. Lamb (1962) 204 Cal.App.2d 255 , 264 [ 22 Cal.Rptr. 284 ], hearing denied by Supreme Court.) Defendant Wright contends that the evidence supporting his connection with defendant Propp is indirect and that being joined with Propp in the trial created the appearance of their being associated. Propp, who did not take the stand, contends that he was entitled to a separate trial because his codefendant Wright testified. The claims of both defendants that they were entitled to a separation of the trials is well answered in Lamb, supra, quoting from People v. King (1938) 30 Cal.App.2d 185 , 206

9. Emphasis on Bobbery Charge.

We find no emphasis in the 11 instructions to which defendants refer in their contention that the court unduly emphasized the robbery charge. Those instructions cover not only the robbery charges but also the conspiracy charges. Each instruction is a correct statement of the law and was necessary to clarify for the jury the legal tests the jury must use in evaluating the evidence. There was no unnecessary repetition and no prejudice to the defendants in these instructions.

10. The Prior Convictions.

The jury returned to the courtroom from their deliberations and asked that certain portions of the testimony of Wright be read, including portions of the cross-examination. The cross-examination brought out the fact of Wright’s prior felony convictions and Ms association in prison with Poulter. Defendants contend that permitting this portion of the cross-examination of Wright to be read to the jury unnecessarily emphasized these prior convictions. At the time of the jury’s request that the cross-examination of Wright be read, the court stated that that cross-examination originally took about an hour, that it would have the cross-examination read until the jury indicated that it was satisfied. The reading then started. At no time did either defendant object to this procedure nor suggest that any portion of the cross-examination be eliminated. At the end of the reading the court asked “Is everybody satisfied with the reading now?” the jury foreman replied “Yes.” Neither defendant expressed any dissatisfaction. Defendants having failed to object may not object now.

11. Acts of the Prosecutor.

Defendants contend that the prosecutor overly emphasized the prior convictions by charging in the information “prior offenses which have no bearing on the case and are not enumerated in the habitual criminal law. ” Defendants cite no authority to the effect that in charging prior convictions only those convictions enumerated in the habitual criminal law may be charged. There is no such restriction. On the contrary, section 969 Penal Code requires that “all known previous convictions, whether in this State or elsewhere, must

As hereinbefore shown the prosecutor on cross-examination of Wright brought out the fact of his prior convictions and referred to them in argument. This he was entitled to do for impeachment purposes. (Code Civ. Proc., § 2051.) “It may be shown by the examination of a witness that he has been convicted of a felony, the number of felonies, and the names of them. [Citations.]” (People v. Renteria (1960) 181 Cal.App.2d 214 , 218 [ 5 Cal.Rptr. 119 , 78 A.L.R.2d 1275 ].) “ ‘This rule applies to a defendant who testified in his own behalf in a criminal trial despite the fact that such evidence may tend to prejudice him in the eyes of the jury.’ [Citation.]” (People v. Bagley (1962) 208 Cal.App.2d 482 , 488 [ 25 Cal.Rptr. 340 ].)

In argument the deputy district attorney stated, “. . . there were, from the facts you heard in this ease, there were other crimes committed but the People have charged four counts.” Defendants contend this statement was without support. The evidence showed that witness Bryan, assistant manager of LoRay’s, whom defendant Propp forced at the point of the gun to open the safe, followed Propp out of the market. As Propp was running away Bryan hollered “Hey” at him. Propp “just discharged the gun he was carrying in the general direction — not actually towards me but he turned and fired the weapon.” There was, therefore, another possible charge available. Under all the circumstances of the case the remark of the deputy district attorney could not have been prejudicial.

In argument the prosecutor stated that Wright had admitted that he was guilty of Count Four. (This, charged the defendants as ex-convicts of having in their possession an automatic pistol and a sawed-off shotgun.) The prosecutor stated that he was referring to Wright’s testimony that he had the gun found under the seat in the ear and that on one occasion he was practicing with it. Defendant’s counsel made an ambiguous objection, apparently to the effect that Wright was not charged with practicing with the gun. The court then admonished the jury to decide the case purely on the facts and to disregard counsel’s argument unless it was based on the facts the jury heard from the witness stand. In view of the rule that a prosecutor “ ‘is permitted wide latitude in discussing the merits of the case and may state his views as to what the evidence shows as long as he stays within

Defendants cite three statements made by the district attorney in argument as attempts to play on the passions and prejudices of the jury. We have examined the instances referred to and find that they all were fair comment on the evidence. That defendants did not consider them otherwise at the trial is shown by the fact that defendants made no objection to them.

12. Habitual Criminals.

Section 644, Penal Code provides, “(a) Every person convicted in this State of the crime of robbery . . . who shall have been previously twice convicted upon charges separately brought and tried, and who shall have served separate terms therefor in any state prison and/or federal penal institution either in this State or elsewhere, of the crime of robbery, burglary, . . . grand theft, . . . escape from a state prison, . . . shall be adjudged a habitual criminal. ...”

Propp was convicted in this case of the crime of robbery. Among the prior convictions he admitted were (1) conviction of burglary September 18, 1934, and (2) conviction of robbery July 27, 1942. He served terms in the state prison for each of those crimes.

Wright also was convicted here of robbery. Among the six prior convictions he admitted were (1) conviction of burglary on March 21, 1944, (2) conviction of grand theft May 14, 1947, and (3) conviction of escape from state prison on March 4, 1953. He served prison terms for all three although he contended that his sentence for escape had not been completely served. There is no merit in his contention that his conviction of escape could not be considered because of that fact. As stated in People v. Dunlop (1951) 102 Cal.App.2d 314 , 317 [ 227 P.2d 281 ] . . it is not essential [to warrant conviction as an habitual criminal] that the defendant must have served the full term of his sentence under the prior conviction. [Citations.]” In Spivey v. McGilvray (1938) 29 Cal.App.2d 357 , 360 [ 84 P.2d 256 ], one of the cases cited in Dunlop, supra, the court said, “Petitioner contends that before a prior conviction could be charged against him the sentence pronounced therein must have been fully served. In his case at the time of his last arrest he was still on parole. The section does not so require, and such a contention is

Defendants’ main contention is that it was not alleged and proved that the terms for the prior convictions were separately served. That is, that in Propp’s case the term for the robbery conviction was served separately from that for the burglary conviction, and that in Wright's case the term for the burglary conviction was served separately from the term for the grand theft conviction. The dates of the various convictions show that the charges were separately brought and tried, and that the terms of imprisonment for the offenses relied upon for the finding of habitual criminals necessarily must have been separately served. No contention is made on appeal that as a matter of fact the terms were not separately served.

Assuming that the indictment should have alleged that the prison terms mentioned therein were separately served (People v. Dunlop, supra, page 317 seems to so hold), defendants may not raise this objection for the first time on appeal. At no time in the proceedings below did defendants call the attention of the trial court to the lack of such allegation in the indictment. At the time of determination by the court that defendants were habitual criminals, defendant Wright objected to his conviction for escape being considered because he had not then finished serving the term therefor. Neither defendant raised any question concerning the suificiency of the indictment.

In People v. Smoot (1950) 97 Cal.App.2d 306 [ 217 P.2d 732 ], the defendant contended that the information charging him with a prior conviction was “faulty and vitally so” (p. 307) because it merely charged him with violation of section 647a of the Penal Code, without stating which subdivision thereof. At that time there were two subdivisions. Subdivision 1 carried a penalty for a subsequent violation of it, while subdivision 2 did not. The court (a jury trial was waived) found the defendant guilty of violation of subdivision 1. On appeal the court pointed out that the defendant had not raised the question in the trial court, and that “No substantial right of the defendant was prejudiced by reason of the form of the information.” (P. 308.)

Applicable here is the language in People v. Guernsey (1947) 80 Cal.App.2d 463 , 466 [ 180 P.2d 27 ] concerning an objection on appeal to an information which was uncertain as

B. Appeal of Defendant Wright.

1. Sufficiency of the Evidence.

Wright not only contends that the evidence is insufficient to connect him with the robbery of the LoRay Market but that the prosecution’s evidence clearly establishes his innocence. The evidence he refers to is the testimony of Officer Hamil who stated that at the police station after his arrest Propp when asked if he had any money on his person said, “No. Why do you think I was robbing?” (italics added) and to the testimony of Sergeant Rodden concerning a conversation in which Propp stated that “he had pulled the robbery alone.” Defendant contends that the prosecution is bound by the statements of Propp. Defendant quotes from People v. Mercer (1962) 210 Cal.App.2d 153 , 159 [ 26 Cal.Rptr. 502 ] where the court quoted from People v. Collins (1961) 189 Cal.App.2d 575 , 591 [ 11 Cal.Rptr. 504 ], “ ‘The prosecution, having presented as a part of its case the statement of defendant as to how the killing occurred, is bound by that evidence in the absence of proof to the contrary.’ ” It will be observed that the quotation refers to a statement by the defendant, not to that of a eodefendant, and also that the rule applies only “in the absence of proof to the contrary.” The rule above expressed is qualified as stated in People v. Lopez (1962) 205 Cal.App.2d 807 , 812 [ 23 Cal.Rptr. 532 ], “But the rule is thus qualified in its correct statement found in People v. Acosta, 45 Cal.2d 538 , 542 [ 290 P.2d 1 ] : ‘The courts may sometimes say that the prosecution is “bound by” extrajudicial statements of defendant which are introduced by the prosecution and which are irreconcilable with guilt, but this concept is applicable only where there is no other competent and substantial evidence which could establish guilt.’” (See also People v. Scorza (1959) 172 Cal.App.2d 571 , 573 [ 342 P.2d 295 ].)

There was ample evidence to justify the finding of guilt. Wright in his testimony on the stand admitted having

Bryan, the assistant manager, saw Wright and Poulter talking together and saw Poulter leave the store and Wright enter the door leading to the warehouse. Bryan instructed two employees to see what Wright was doing. He was discovered part way up the stairs leading to a second level. He was told to go to the service station across the street when he asked for the restroom. One of the employees escorted Wright to the front of the store and let him out. Anderson, one of the store employees, returned to the warehouse. He heard a noise upstairs in the warehouse portion which Wright had just left. After taking a few steps he was

Thus the evidence so far showed that Wright, himself an ex-convict, came to Richmond with two friends whose criminal records he well knew; the peculiar circumstance of their delaying their dinner trip to San Francisco and then leaving the three women in the bar while the three men drove to the market, all three entering allegedly to purchase beer, but none of them going near the area where the beer was sold; the discussion between Poulter and Wright (Poulter at this time wearing two suits of clothes); Wright then went to the warehouse where Propp and his sawed-off shotgun were concealed; Wright and Poulter then left the store and got into Propp’s car. (Was it to have a getaway car in readiness?) They left the parking area in the car without waiting for Propp. Wright claimed that they were driving around looking for Propp, but why leave the parking lot to which Propp ordinarily would be expected to return? When they heard the shotgun shot they started to leave the vicinity. When the patrol car following them turned its spotlight on the rear of their car, Wright turned and looked at the patrol car, and the Rambler then pulled away. When the car was stopped, there was found a gun lying on the floor in front of the portion of the seat Wright had just vacated.

It is clear that there was ample evidence to convict Wright without resort to his extrajudicial statements which will hereinafter be discussed.

2. Other Instructions.

People’s Instruction No. 14 given by the court, states: “It is charged in Count One of the Information that at the

1. Defendant Wright’s Statements.

We will first review the situation as to statements made by Wright. The robbery took place around 10 p.m. Shortly after midnight Wright was interviewed at the police station by Sergeant Rodden. It was established that defendant entered freely and voluntarily into the discussion. His statements were made in response to questions by the Sergeant. His pertinent statements were that he knew both Poulter and Propp; that the afternoon of the Sunday of the robbery, Poulter, Mrs. Poulter, and another woman, came to his apartment in Merced; that at Poulter’s request Wright went to the home of Raymond Jones, removed a pistol from underneath the front seat of Jones’ automobile; that Poulter, Mrs. Poulter, Wright and his girlfriend came to Richmond in Wright’s Falcon where they ended up in a bar with Propp and his girlfriend; that the three men then left in Propp’s car and went to the market. All three entered the store; Wright left, however, before anything occurred.

The next day, in the presence of Sergeant Rodden, and a shorthand reporter, Wright was questioned by Inspector Davis and Sergeant Rodden, and a recording of the interview was made. This recording was played to the jury and the reporter’s transcript of it admitted in evidence. In addition to the matters mentioned in the statements as to which Sergeant Rodden testified, are the following: Propp had said that he wanted to buy “some stuff” and so he went into the store. After Wright got in the store, he saw what Propp had in mind, namely, that Propp. was going to rob it, so Wright got out as he wanted no part in any robbery. Wright did not know whether or not Propp was armed. When they

Assuming that Wright’s statements were not admissible as being in violation of Dorado, it becomes necessary to determine whether they were “confessions” or merely “admissions. ’ ’ “A confession is a voluntary statement that was made by one who is a defendant in a criminal trial, at a time when he was not testifying in that trial, by which he acknowledged certain conduct of his own that constituted a crime for which he is on trial, a statement which, if true, discloses his guilt of that crime and excludes the possibility of a reasonable inference to the contrary. [Citations.] As said in Ferdinand, a confession ‘leaves nothing to be determined, in that it is a declaration of his [defendant’s] intentional participation in a criminal act . . .’ [Citation.]” (People v. Swayze (1963) 220 Cal.App.2d 476 , 492 [ 34 Cal.Rptr. 5 ].) A confession “ ‘is not equivalent to statements, declarations, or admissions of facts criminating in their nature or tending to prove guilt. It is limited in its meaning to the criminal act, and is an acknowledgment or admission of participation in it.’ ” (People v. Ferdinand (1924) 194 Cal. 555 , 569 [ 229 P. 341 ].) “An admission as applied to criminal law is something less than a

In People v. Wilkins (1910) 158 Cal. 530 , 534 [ 111 P. 612 ], it was held that the admission by the defendant that he buried the body of the murdered woman was not a confession that he committed the murder, even though it might be a confession of the crime of secret burying of a human body.

While there were a number of incriminating elements in Wright’s statements they do not amount to a confession of the robbery. The statements were intended to be exculpatory. Wright admitted being with defendant Propp who actually committed the robbery, denied knowing that Propp entered the market to rob it, yet admitted that Propp and Poulter had asked him to join them in a robbery. He had obtained a pistol for them. (There is no evidence that this pistol was ever carried into the market by any of the participants.) As to the robbery and conspiracy charges — he was denying that he had any part in it, so none of his statements were, or are tantamount to, a confession.

Wright was convicted of Count 1 (robbery); Count 2 (conspiracy) ; and Count 4. This last count charged Poulter and Propp and Wright with being felons in possession of “automatic pistol” (the one found on the floor in the car where Wright was sitting) and a sawed-off shotgun. The jury’s verdict on this count read “We, the Jury in this ease, find the defendant, Roland Wayne Wright, Guilty of the offense charged in Count Four of the Information (Possession of Concealed Weapons).” (Italics added.) Under this charge a finding of possession of either of these weapons would support the conviction. It did not require possession of both, although the jury found Wright guilty of possession of both. Although there was no evidence of physical possession of the shotgun by Wright, the finding by the jury of his participation in the robbery with Propp, who used the shotgun in it, supports Wright’s conviction of possession of the shotgun. Wright’s statements to the police concerning his obtaining the pistol in Merced, putting it in Propp’s car,

Dorado contemplates that the introduction in evidence of statements which are not confessions but merely admissions, as are the statements here, and which come under the Dorado rule, may not necessarily be prejudicial error. “[U]nder some circumstances the introduction into evidence of statements obtained from a defendant during police interrogation in violation of his right to counsel and his right to remain silent may constitute harmless error” if the statements are not confessions. (People v. Dorado, supra, 62 Cal.2d 338 , 356.) See also People v. Hillery (1965) 62 Cal.2d 692 , 712 [ 44 Cal.Rptr. 30 , 401 P.2d 382 ], holding that where statements which are not confessions are erroneously admitted the question of prejudice may be considered. Thus section 4% of article VI, California Constitution may be applied.

In People v. Finn (1965) 232 Cal.App.2d 422 , 428 [ 42 Cal.Rptr. 704 ], the court held that it is a question of fact to be determined in each case by the reviewing court whether or not the admission of a statement not amounting to a confession, which violates Dorado, prejudices the defendant and deprives him of a fair trial.

In the following cases the admission of statements violating the Dorado rule were held not to be prejudicial under the circumstances of the particular case: People v. Galloway (1965) 233 Cal.App.2d 369 , 374 [ 43 Cal.Rptr. 617 ] (where the defendant was asked after arrest concerning his possession of the stolen property) ; People v. Nelson (1965) 233 Cal.App.2d 440 , 445 [ 43 Cal.Rptr. 626 ] (where the defendant’s statements at three different police interrogations were admitted) ; People v. Ghimenti (1965) 232 Cal.App.2d 76 , 84 [ 42 Cal.Rptr. 504 ] (where the defendant after arrest was asked as to ownership of the clothes in which the contraband was found and he gave “a spontaneous reply to an

Wright’s statements, with the possible exception of his statement that he obtained the gun found on the floor of the car, added very little to the evidence the officers already had. Wright was identified by the clerk as having been in the market; the sales slip showing his purchase there that night was found on his person, and he was present in the automobile with Poulter who wore two pairs of trousers and had a folded paper bag in his waistband.

People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], gives the test for applying section 4% “That a ‘miscarriage of justice1 should be declared only when the court, ‘after an examination of the entire cause, including the evidence, ’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” Applying this test to the record before us we are of the opinion that it is not reasonably probable that a result more favorable to Wright would have been reached in the absence of the admission of Wright’s statements.

2. Defendant Propp’s Statements.

Apparently defendant Propp’s first statement to any officer occurred at the police station where he was being booked. The jailer asked him if he had any money on his person and he replied, “No, I have no money. Why do you think I was robbingf” (Italics added.) Obviously Dorado could not apply to this statement. The question asked was a proper one, as it is the duty of a jailer to take for safekeeping any money an arrested person may have. The incriminating answer was not sought nor called for by the question, and was a completely voluntary admission of guilt.

The next thing that occurred, Sergeant Rodden and Inspector Davis went to Propp’s cell at the jail early Monday morning. Propp was asleep and they woke him up. He was indignant and told them that if they wanted any information to check with the booking officer, that he had told him all about the robbery, “how he had done it and everything. ’ ’

Later that day, Sergeant Rodden and Inspector

Obviously, all three of Propp’s statements are confessions. The first two being unsolicited and spontaneous would not come within the Dorado rule. (People v. Dorado, supra, 62 Cal.2d 338 , 354.) The third, however, would come within the exclusionary rule if it was the result of a process of interrogations that was intended to elicit incriminating statements, were it not for the peculiar circumstances of this case which afford, we conclude, clear evidence that the fourth factor set forth in People v. Dorado, supra, at pages, 353-354, was not present.

The Supreme Court has indicated that when there is clear evidence of waiver of either the right to counsel or the right to remain silent, the exclusionary rule does not apply to statements made thereafter. The court states in Dorado, supra, at page 352: “Escobedo also holds that the accused has the right not to incriminate himself and to remain silent, and that, if any self-incriminating statements are to be admissible, he must waive that right. ..." Again, at page 353: “ [T]he prosecution could not introduce into evidence defendant’s confession unless that right of silence were waived; . . .’’ (Italics added.) And at pages 353-354: “(4) [T]he authorities had not effectively informed defendant of his right to counsel or of his absolute right to remain silent, and no evidence establishes that he had waived these rights (Italics added.) In People v. Modesto (1965) 62 Cal.2d 436 at page 447 [ 42 Cal.Rptr. 417 , 398 P.2d 753 ], the court states: “[T]hese statements are inadmissible unless as to them defendant waived his right to counsel and his right to remain silent. In view of his reference to his attorney’s advice with respect to making these statements, it is possible that defendant waived his rights as to them.’’

Any confession of guilt has naturally an explosive effect upon a defendant’s case and upon the presumption of innocence. If a defendant has not yet caused such an explosion before the critical stage at which his right to counsel matures (People v. Dorado, supra, pp. 338, 349, 357 ; People v. Stewart (1965) 62 Cal.2d 571 , 577-579 [ 43 Cal.Rptr. 201 , 400 P.2d

In People v. Bostick (1965) 62 Cal.2d 820 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ], the California Supreme Court applied Griffin, supra, to the fact that the prosecutor commented on the failure of the defendants to testify and the court instructed the jury regarding the legal effect of that failure to testify, the instruction being similar to that condemned in Griffin and given in the ease at bench. Our Supreme Court, after referring to the fact that the United States Supreme Court in Griffin, supra, “recently held that our comment rule violated the Fifth Amendment privilege against self-incrimination” stated: “It follows, therefore, that the comment of the prosecutor and the trial court’s instruction herein each constituted error. That portion of section 13 of article I of the California Constitution which purports to authorize such comment must bow to the superior mandates of the Fifth and Fourteenth Amendments to the United States Constitution.

1 ‘ Such error, unless it resulted in a miscarriage of justice, does not, however, automatically require a reversal if article VI, section 4%, of our Constitution is applicable to it. We are of the opinion that such section is applicable.” (P. 823.) The court then discusses at considerable length both federal and California decisions which appear to have held that whenever error is predicated upon constitutional grounds, the judgment is reversible per se, and distinguishes them, pointing out that in both federal and California decisions, erroneous denials of constitutional guarantees “have consistently been held not to require reversal when not prejudicial.” (P. 826.) The court then determined “that the rule of article VI, section 4%, of the California Constitution is applicable to this situation [comment by prosecutor and instruction by the court on the defendant’s failure to testify], . . .” (P. 824.) The court then went on to say that “we would ordinarily pass

Judgments affirmed.

Sullivan, P. J., and Molinari, J., concurred.

A petition for a rehearing was denied July 28, 1965, and the opinion was modified to read as printed above. Appellants’ petition for a hearing by the Supreme Court was denied September 2, 1965.