People v. James

GRIFFIN, J.

Appellant was charged with the crime of grand theft of $21, taken from the person of one Tosh Jackson. No prior conviction of a felony was charged. A verdict of guilty was found by the jury. A motion for new trial was argued and denied and judgment pronounced. This appeal is from the judgment and order denying the motion for new trial'.

On February 22, 1940, in the forenoon, Tosh Jackson was walking on a street in the city of San Diego when the appellant, who was walking very fast in the same direction, passed him by for a distance of about 40 feet and suddenly turned around. As he was opposite Mr. Jackson the appellant spit on the person of Mr. Jackson and then with profuse apology brushed him off with a handkerchief, with which he also rubbed the outside of his trousers near the hip pocket. When Mr. Jackson arrived at his hotel he reached into his pocket for his key and discovered that his wallet containing his money was gone. During the episode hereinabove referred to Mr. Jackson claimed that he obtained a good look at the appellant. Several days later he selected the appellant out of a line-up of men and also identified him in the courtroom as the man who accosted him on the street.

A motion was made to strike the last answer. The trial court denied the motion. The photographs which the witness was examining in court were not the pictures previously shown the victim but were pictures taken of appellant at a later date. The record does not indicate that these particular photographs were received in evidence. The witness only referred to them while testifying.

After the people rested their case appellant endeavored to establish an alibi. Several witnesses corroborated his statement that he was in Los Angeles on both February 10th and February 22d, at the times of the claimed thefts. Appellant was asked on cross-examination by way of impeachment if he had been convicted of a felony. He denied such a conviction. The prosecution then offered in evidence, over objection, a certified copy of an information charging appellant with the offense of grand theft in Los Angeles County, the judgment of conviction, and an order terminating felony probation under section 1203.3 of the Penal Code.

Appellant now argues first that the trial court committed prejudicial error in permitting the introduction of the testimony of Rosendo G. Montijo tending to show that the defendant had committed an offense independent of and not

Second, it is contended that the trial court committed prejudicial error in admitting, over defendant’s objection, testimony relating to the extrajudicial identification of a picture which was not presented in court or identified as being a photograph of the defendant, citing People v. Goltra, 115 Cal. App. 539 , 551 [ 2 Pac. (2d) 35 ],

Third, appellant contends that the trial court committed prejudicial error in permitting the district attorney to impeach the testimony of the defendant by proof that he had previously been convicted of a felony, granted probation, served his term of probation, and received a discharge therefrom and dismissal of the case, citing People v. Bannon, 59 Cal. App. 50 , 61 [ 209 Pac. 1029 ], People v. Mackey, 58 Cal. App. 123 [ 208 Pac. 135 ], Pen. Code, sec. 1203.4, and People v. Hainline, 219 Cal. 532 , 534, 535 [ 28 Pac. (2d) 16 ].

It is conceded that the general rule is that evidence of other crimes is not admissible to prove the charges for which the defendant stands charged, but there are limitations and exceptions to the rule allowing introduction of evidence of other offenses and it is the contention of respondent that the evidence pertaining to the commission of a similar offense by appellant as here described brings the instant ease within the exception and limitation of the rule, citing People v. Cosby, 137 Cal. App. 332 , 334 [ 31 Pac. (2d) 218 ], People v. Northcott, 209 Cal. 639 [ 289 Pac. 634 , 70 A. L. R 806 ], People v. Knight, 62 Cal. App. 143 [ 216 Pac. 96 ], People v. King, 4 Cal. App. (2d) 727 [ 41 Pac. (2d) 593 ], and People v. Lisenba, 14 Cal. (2d) 403 [ 94 Pac. (2d) 569 ], The general rule and many of its exceptions are set forth in People v. Lapierre, 205 Cal. 462 , 469, 470 [ 271 Pac. 497 ], to the effect that it is not competent for the prosecution to prove the commission of independent crimes by the defendant, the evidence of which has no tendency to prove some material fact in connection with the particular crime charged,

“While it is the general rule that a defendant in a criminal case cannot be tried for any other offense than that with which he is charged in the information, and that evidence of other and distinct offenses is not admissible, still there are exceptions to this general rule, one of which is that where several crimes are committed as part of one scheme or plan, all of the same general character, tending to the same common end, they may be given in evidence to show the process or motive and design leading up to the particular crime for which the prisoner is being tried, as tending to show logically that the crime in question was part of such common scheme, ’ ’ citing cases.

In Webb v. State, 27 Olk. Crim. 339 [ 227 Pac. 907 ], it was held that in a prosecution for grand larceny evidence of other thefts, explanatory of the system and manner of taking the things specifically charged was admissible.

Section 484 of the Penal Code merged the former offenses of larceny, embezzlement and obtaining money by false pretenses into one crime of theft, and proof of any one of them is sufficient to sustain the charge of theft.

In People v. Robinson, 107 Cal. App. 211 [ 290 Pac. 470 ], a case involving false pretenses, it was held that evidence of similar transactions was admissible to show guilty knowledge or intent where the transactions contained the material ele

In People v. Stutsman, 66 Cal. App. 134 [ 225 Pac. 477 ], evidence of similar transactions between the defendant and another about six months later than the one involved in the prosecution was held admissible for the purpose of showing system or design, and that it was not necessary that the two transactions be identical so long as they were similar and of comparatively recent commission.

Cases holding that other offenses are admissible to show scheme, design, plan and identity of offenses are People v. Francisco, 112 Cal. App. 442 [ 297 Pac. 34 ], and People v. Barnes, 111 Cal. App. 605 [ 295 Pac. 1045 ].

We have examined many authorities of other states and those cited by appellant with reference to the admissibility of other similar offenses. There is language in People v. Molineux, supra, relied on by appellant, based upon a different set of facts, which has a tendency to support his contention, but we must consider the identity of the novel scheme, plan or system employed by appellant in the instant case upon both victims to avail himself of the opportunity to take the money from them in the manner described. That such a plan or scheme is novel or unique is apparent and receives support in counsel’s inability to cite a case which is factually similar. We are unable to conclude from the cases cited and the evidence that the acts of appellant, particularly in reference to the approach and the extraction of the money from the persons of the victims, were not the result of a scheme, system, plan or design employed by him for that purpose, and were not so related both as to time - and character that proof of one did not tend to establish some material fact in connection with the other. From defendant’s statement at the time of his arrest, when confronted with the two accusations, it became apparent that appellant was endeavoring to establish an alibi for he said that he was not in San Diego on February 10 or February 22, 1940, or since the year 1935. Under the circumstances related the ruling of the trial court

In reference to appellant’s second contention, the court committed error in receiving certain testimony in reference to identification of photographs and in failing to strike the testimony in reference to “pictures of negro pickpockets’’. (People v. Thorp, 104 Cal. App. 379 [ 285 Pac. 916 ] ; People v. Goltra, supra.) However, this error, considered in the light of the positive identification of appellant in court and the circumstances related, cannot be held to be prejudicial under section 4½ of article YI of the Constitution. (People v. Britton, 6 Cal. (2d) 7 [ 56 Pac. (2d) 497 ].) The third question presented by this assignment of error is whether or not a dismissal of a felony criminal action upon the completion of the term of probation, pursuant to section 1203.4 of the Penal Code deprives the district attorney in a subsequent prosecution where the prior conviction is denied, from introducing evidence for the purpose of impeachment to prove that the defendant had suffered a prior felony conviction. Section 1203.4 of the Penal Code permits a defendant who has fulfilled the condition of his probation to withdraw his plea of guilty and enter a plea of not guilty, or, if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty and the court shall thereafter dismiss the accusation or information against said defendant, and further provides as follows: “ . . . provided, that in any subsequent prosecution of such defendant for any other offense such prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.’’ The last quoted portion of section 1203.4 of the Penal Code hereinabove referred to was added by amendment (Stats. 1927, chap. 770, pp. 1493-1496) subsequent t-o the decision in the case of People v. Mackey,

“Any benefit from the dismissal is wiped out by a subsequent conviction of a felony (People v. Hainline, supra), but we think the effect of the statute is not limited to a situation where a subsequent conviction of a felony has first been obtained. By its terms the statute applies not merely to a felony but to any subsequent prosecution for any other ‘offense’. Further, it does not provide that the former conviction is not to have a restored effect until after a subsequent conviction is obtained. It is specifically provided that in any subsequent prosecution the prior conviction may be ‘pleaded and proved and shall have the same effect’ as if the former accusation had not been dismissed. ...”

We therefore conclude that where a defendant who has been previously convicted of a felony and granted probation and a dismissal obtained as in the instant case, and is subsequently prosecuted for another offense, in becoming a witness in his own behalf, he subjects himself to impeachment upon the ground that he has been convicted of a felony.

For the reasons expressed and in view of the convincing evidence of appellant’s guilt, the judgment and order are affirmed.

Marks, Acting P. J., concurred.