People v. Calpito

Opinion

The defendant, Paulette Anne Calpito, was charged with two offenses arising out of a single incident; (1) robbery of lawful money (Pen. Code, § 211), and (2) conspiracy to commit robbery (Pen. Code, § 182.1); an act of sexual intercourse between the defendant and the victim, Phillip G. Waterman, was charged as an overt act in pursuance of the conspiracy. Defendant plead not guilty as to each count. She was convicted by jury of attempted robbery, a lesser offense included within the charge of robbery, and found not guilty of the charged offenses of robbery and conspiracy. Her motion for a new trial was denied and she was granted probation for a period of three years on condition she serve eight months in the county jail. Defendant appeals from the order denying the motion for a new trial and the judgment. We will regard the appeal as being from the order granting probation as such an order is deemed a judgment for the purpose of appeal. (People v. Johnson, 258 Cal.App.2d 165 , 166 [ 65 Cal.Rptr. 441 ].) The order denying the motion for a new trial is not appealable and the purported appeal therefrom must be dismissed. (People v. Alfreds, 251 Cal.App.2d 666 , 668 [ 59 Cal.Rptr. 647 ].)

Defendant’s appeal takes the following form: (1) The jury verdicts of not guilty of conspiracy and guilty of attempted robbery are inconsistent; (2) it was error for the trial court to instruct the jury on the lesser offense of attempted robbery over the defendant’s objection; (3) the trial court should have instructed the jury sua sponte on the lesser offenses of assault with a deadly weapon and simple assault; (4) insufficiency of the evidence to support the conviction of attempted robbery; and (5) misconduct of the district attorney.

The victim, Phillip G. Waterman, rendered the following testimony: About 9 p.m. on December 1, 1967, he arrived at the Biltmore Hotel in Palm Springs to spend the weekend; after checking in, he visited the bar where he enjoyed drinks and dinner with the hotel owner; following dinner,

The defendant rendered the following testimony in her own defense: On December 1, 1967, she was staying with Darlene Southerland [Linda] at the San Gabriel Circle residence owned by Darlene’s father; she and Darlene were the only ones living in the house; she knew Weldon Hathcock, but he left Palm Springs five (5) days before the crime; when Hathcock came to Palm Springs, he frequently stayed at the same house; she and Darlene visited the Saltón Sea on December 1, 1967; when they returned, she and Darlene went to the Biltmore about 9:45 p.m.; no one was in the San Gabriel Circle residence when they left; Darlene drove to the Biltmore; Waterman first approached them about 10:30 p.m. when they were still having their first drink; he asked to sit down and she agreed that he could; he introduced himself; she could not recall the name he used, but it was not Phillip; Waterman bought several drinks for them through the course of the evening; Waterman was “smashed” and she felt “a little bit tight”; Waterman initiated the conversation about an act of prostitution;' he first propositioned Darlene, but when she quoted a $100 fee, the two reached an impasse; he then asked her how much she charged and she replied, “$100”; Waterman said that that was too high, and she said, “Well, that’s the price, and I would rather not talk about it. If you are interested, fine, if not . . . just forget it”; she had seven drinks during the course of the evening; Waterman continued talking to her about going to his room; he asked her again if she would reduce her price and she said, “No”; finally, about a half-hour before closing time, Waterman said he would pay $100; before going to his room, she asked Darlene if she would wait and give her a ride home; she and Waterman went to his room; he started to undress but she demanded her money first; when the money was not forthcoming, she picked up her purse and started to leave but he grabbed her, slapped her face, and ordered her to take off her clothes; when she refused, he slapped her again; he then yanked off her underclothing and commenced an act of sexual intercourse; somewhat later Darlene knocked on the door and Waterman answered it; he asked Darlene if she wanted a drink but she declined; Darlene asked her if she was ready to leave and she replied that she was; Waterman told Darlene he was not finished and that he would take her home and Darlene left; they engaged in more sexual activity for an hour; he never paid her at that time or later; Waterman was in a drunken

In rebuttal, Waterman testified there appeared to be three persons who came to the car after defendant honked the horn; one of the three was short in stature; the short one had no shirt on and had a tattoo on his chest; he denied having slapped or having physically abused the defendant.

Defendant initially maintains that there is an inconsistency in the jury verdicts of not guilty of conspiracy and guilty of attempted robbery. While it is well settled that inconsistent verdicts cannot be allowed to stand, it is also fundamental that verdicts are not inconsistent unless they are rendered upon charges wherein the elements of the offenses alleged are identical. (People v. Doxie, 34 Cal.App.2d 511 , 512-513 [ 93 P.2d 1068 ]; People v. Hight, 94 Cal.App.2d 100 , 107 [ 210 P.2d 270 ].) Section 954 of the Penal Code provides that different offenses arising out of the same circumstances may be charged, and that “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” Each count in a multiple count information stands on its own merit and the disposition of one count therein has no effect on the other counts.” (People v. Amick, 20 Cal.2d 247 , 252 [ 125 P.2d 25 ]; People v. Gant, 252 Cal.App.2d 101 , 119 [ 60 Cal.Rptr. 154 ].)

The defendant was convicted of attempted robbery. The elements necessary to sustain a conviction of conspiracy to commit robbery are not identical with those involved in an attempted robbery. A conspiracy requires proof of some type of criminal agreement, which is not required in either robbery or attempted robbery. “One may aid or abet in the commission of a crime without having previously entered into a conspiracy to commit it.” (People v. Durham, 70 Cal.2d 171 , 181 [ 74 Cal.Rptr. 262 , 449 P.2d 198 ]; People v. Madison, 242 Cal.App.2d 820 , 825 [ 51 Cal.Rptr.

Moreover, the same argument advanced by defendant has been made before. In People v. Jones, 274 Cal.App.2d 614 , 621 [ 79 Cal.Rptr. 251 ], the court rejected defendant’s contention “that the jury should have found defendant guilty of attempted robbery since he was an aider or abettor if guilty at all, unless they found him also guilty of conspiracy.” (See also People v. Lyons, 50 Cal.2d 245 , 260 [ 324 P.2d 556 ].)

Defendant next contends that the court erred in instructing the jury on the crime of attempted robbery over her objection. In support of her argument, she maintains that the facts reflect that there was either a conspiracy or not a conspiracy, and no possible lesser offense; consequently, her counsel was misled, in that had he known that the prosecution sought a conviction for attempted robbery, he could then have cross-examined on material matters relative to the lesser offense. However, the record indicates that defense counsel was not misled. Waterman was cross-examined extensively on the issue as to whether any money was actually taken from him. His testimony was indecisive and conflicting. There is a serious question whether he had any money in his wallet at the time of the crime or whether he had spent it all on liquor. This was a material issue raised by the evidence, and the court was required to instruct on it. (People v. Hood, 1 Cal.3d 444 , 450 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ].)

An attempt to commit robbery is for all intents and purposes treated as a lesser included offense in the crime of robbery; where there is evidence which would absolve the defendant from guilt of the greater offense, but would support a finding of guilt of the lesser offense, an instruction on the lesser offense is mandatory and must be given sua sponte. (People v. Crary, 265 Cal.App.2d 534 , 540 [ 71 Cal.Rptr. 457 ].)

Defendant also asserts that it was incumbent on the trial court to instruct on the lesser included offenses of assault with a deadly weapon, a felony, and simple assault, a misdemeanor.

Hood, supra, involved a prosecution for assault with a deadly weapon on a police officer. At trial, defendant offered evidence to the effect that the officer had exceeded the scope of his authority. The court held that, from this evidence, the jury could have found defendant guilty of the' lesser included offense of assault with a deadly weapon, and that the issue was “closely and openly connected with the facts” (ibid., at p. 450), making it incumbent upon the trial court to offer the instruction on assault with a deadly weapon on its own motion. In the case before us, the evidence of assault and assault with a deadly weapon was insignificant, consisting only of the testimony of Waterman in his narrative of the events of the evening. It was not, therefore, an issue raised by the evidence and was not closely or openly connected with the facts before the court. The trial court is not charged with the responsibility of discovering possible theories which, in the abstract, would support a finding of a lesser included offense (People v. Wade, 53 Cal.2d 322 , 335 [ 1 Cal.Rptr. 683 , 348 P.2d 116 ]), especially in view of defendant’s denial of any complicity in the crime. (See People v. Morrison, 228 Cal.App.2d 707 , 712 [ 39 Cal.Rptr. 874 ].) There was no error in the failure of the court to instruct on its own motion on assault and assault with a deadly weapon.

It then becomes necessary to determine whether the evidence is sufficient to support the conviction of attempted robbery. In support of her argument as to the insufficiency of the evidence, the defendant attacks Waterman’s credibility, but the credibility of the witnesses is for the trial court’s determination. (People v. Lyons, 47 Cal.2d 311 , 320 [ 303 P.2d 329 ].) Similarly, the effect of a witness’ intoxication on his testimony, like any other factual matter, is a question for the consideration of the jury rather than the appellate court. (People v. Jackson, 88 Cal.App.2d 747 , 751 [ 199 P.2d 322 ].)

Actually, there was some evidence tending to sustain a robbery conviction as well as sufficient evidence to establish an attempt. It could reasonably be inferred that the defendant grabbed the victim’s keys and honked the horn with knowledge that Hathcock and the other two men were inside the residence, and with the intent to enlist their services in

However, in view of Waterman’s testimony that he was not certain that he had any money in his wallet, did not remember anyone taking money from him, and did not know what became' of his wallet, the jury properly convicted defendant of attempted robbery.

Finally, defendant maintains that the prosecutor was guilty of prejudicial misconduct in his argument to the jury. The alleged misconduct consisted of reading a portion of the instructions to the jury during final argument, lecturing the jury on the applicable law, and stating a personal belief to the effect that the prosecution had proved a fact or rendered an opinion as to the guilt of the defendant.

In his argument, the district attorney did read from portions of the instructions. Defense counsel objected to the partial reading of the instructions. The court stated that the prosecutor had a right to comment on the law to the extent that it would assist him in arguing the facts and the applicability of the facts to the law. A further reading of the instructions by the prosecutor resulted in additional objections. The court finally sustained the objection and stated, “. . . a court abuses its discretion if it permits counsel to read instructions. . . .”

While the practice of permitting attorneys during argument to read portions of the proposed instructions to the jury is to be discouraged, the practice is well within the discretion of the court. (People v. Conley, 134 Cal.App.2d 580 , 582 [ 285 P.2d 693 ].) Ño abuse of discretion has been shown, nor does it appear that any prejudice resulted from the reading of the instructions by the prosecutor. Assuming, arguendo, that the reading of the instructions constituted misconduct, no federal constitutional right' was violated, and appellant has failed to show that any prejudice resulted. (See People v. Watson, 46 Cal.2d 818 , 835-836 [ 299 P.2d 243 ].)

Furthermore, there is ample authority that it is permissible for counsel to state what the law is and apply the law to the facts of the case, providing his statement in the premises is correct. (People v. Jones, 205 Cal.App.2d 460 , 467 [ 23 Cal.Rptr. 418 ]; People v. Dykes, 107 Cal.App. 107 , 118 [ 290 P. 102 ].) A prosecutor is not guilty of misconduct merely because in his argument of the law before a jury he is wrong as to the law; to constitute misconduct, he must urge an erroneous proposition of law in bad faith. (People v. Jones, supra; People v. Gould, 170 Cal.App.2d 489 , 492 [ 338 P.2d 938 ].) Defendant does not argue that the prosecutor was incorrect in his statements of law.

The district attorney’s statement to the effect “that under the law,

In the case under review, the prosecutor who delivered the final argument was not the deputy district attorney who commenced the case. The original prosecutor had been excused from continuing with the presentation of the case during the course of trial by reason of a death in his family. The substitute district attorney was unfamiliar with most of the evidence and did not undertake representation on behalf of the People until after Waterman’s testimony had been concluded. His substitution was consented to by defense counsel. Consequently, the jury was well aware that the substitute deputy district attorney was not thoroughly familiar with all of the evidence introduced prior to his induction into the case. There is absolutely no evidence that the prosecutor acted in bad faith or that he overstepped the bounds of legitimate argument.

The judgment of conviction is affirmed; the purported appeal from the order denying motion for a new trial is dismissed.

Gardner, J., and Tamura, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 29, 1970. Peters, J., was of the opinion that the petition should be granted.