People v. Bennett

• Decision Date: 15 July 1976
• Docket Number: Cr. 14545
• Citation: 60 Cal.App.3d 112,131 Cal.Rptr. 305
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie Louis BENNETT, Defendant and Appellant.

Page 305

131 Cal.Rptr. 305

60 Cal.App.3d 112

PEOPLE of the State of California, Plaintiff and Respondent, v. Freddie Louis BENNETT, Defendant and Appellant.

Cr. 14545.

Court of Appeal, First District, Division 1, California.

July 15, 1976.

As Modified on Denial of Rehearing Aug. 11, 1976.

James E. Stevens (court-appointed), San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Morris Lenk, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

ELKINGTON, Associate Justice.

By a jury's verdicts defendant Bennett was convicted of first degree murder, and found to have been armed with a deadly weapon and to have used a firearm in the commission of the offense. He appeals from the judgment which was thereafter entered on he verdicts. Four contentions of error are made.

Bennett made no denial of the commission of the act of homicide; his defense was self-defense and 'diminished capacity' which he describes as 'his state of mind at the time.' The jury's verdicts were beyond any doubt supported by substantial evidence according to the standards of People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321, and Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc., 66 Cal.2d 782, 784--785, 59 Cal.Rptr. 141, 427 P.2d 805.

For the reasons which we now state, it is concluded that the judgment, subject to a certain modification, must be affirmed. I. It is first contended by Bennett that the 'testimony of . . ., the prosecution's psychiatrist, was admitted into evidence in violation of appellant's Miranda rights (and) in violation of appellant's physician-patient privilege, Evidence Code section 994.'

The Miranda contention is raised for the first time on appeal, and is accordingly found to be invalid. 'There is abundant authority in this state that if there is no objection at the trial to the admission of a confession or of statements obtained in violation of Miranda, the objection cannot be raised for the first time on appeal.' (People v. Peters, 23 Cal.App.3d 522, 530, 101 Cal.Rptr. 403, 407, cert. den., 409 U.S. 1064, 93 S.Ct. 563, 34 L.Ed.2d 517 and see authority there collected.)

Further, the record establishes that at least twice before he was interviewed by the psychiatrist, Miranda admonitions were read to Bennett. '(O)ne warning of the Miranda rights adequately given is sufficient for subsequent interrogations.' (People v. Brockman, 2 Cal.App.3d 1002, 1006, 83 Cal.Rptr. 70, 73 and see authority there collected; see also People v. Johnson, 32 Cal.App.3d 988, 997, 109 Cal.Rptr. 118.) And we note that the silent record fails to establish that no Miranda warning was given by the doctor; had timely objection been made an inquiry may have disclosed yet another such admonition. An accused may not by withholding an objection prevent correction of a trial omission and thus assure himself of a reversal, if convicted. Such speculation on a favorable verdict followed by a tardy claim of error is not permitted. (People v. Tappan, 266 Cal.App.2d 812, 817, 72 Cal.Rptr. 585; People v. Doerr, 266 Cal.App.2d 36, 40, 71 Cal.Rptr. 889.)

We have considered the application to this issue of the recent case of People v. Bennett (not the defendant in the present case), 58 Cal.App.3d 230, 129 Cal.Rptr. 679, which involved a similar claim of lack of Miranda admonition by a prosecution psychiatrist. There, unlike the case at bench, proper and timely objection had been made by the defendant. The case is of no aid to us on the instant appeal. (See People v. Peters, supra, 23 Cal.App.3d 522, 530, 101 Cal.Rptr. 403.)

An incidental contention is that allowance of the psychiatrist's testimony 'as to appellant's extensive drug history' was prejudicially erroneous. It is based upon the following proceedings: 'Q. (By deputy district attorney, Mr. Van Sicklen): Did you ask him about specific narcotics or drugs of any kind? A. Yes, I did. Q. Did he answer positively to any of those questions? A. Yes, he did. He has a rather extensive drug history here. (Examining records.) Q. Did he indicate whether or not he had drugs--MR. DIAMOND (defense attorney): I'll object to that, Your Honor. MR. VAN SICKLEN: Q.--the night in question? THE COURT: Excuse me just a minute. The prior answer, you mean? MR. DIAMOND: Yes, Your Honor, ask it be stricken. THE COURT: The answer will be stricken; the jury will disregard it. You may question him as to what the defendant said regarding the period immediately before the incident in question. MR. DIAMOND: I would approach the bench, Your Honor. THE COURT: All right. (Off-record conference at bench.) THE COURT: Just one minute. I want to make clear to the jury we're not dealing here at all with any prior history that anybody might have had; the only relevant information here relates to what occurred immediately before the incident in question and what influence it might have had one way or the other in connection with that incident; that's all we're concerned with.'

We opine first that Bennett's extensive drug history may not reasonably be deemed wholly irrelevant to his diminished capacity defense. Even if it be considered irrelevant, and therefore inadmissible, substantial prejudice is not apparent for, without objection, the psychiatrist otherwise testified to Bennett's admitted Current or Recent drug usage; indeed proof of that drug usage was a part of Bennett's defense. And in any event, such prejudice as might have existed appears to have been cured by the trial court's prompt jury admonition.

Nor is a violation of the physician-patient privilege of Evidence Code section 994 to be found in the psychiatrist's testimony. Evidence Code section 998 expressly provides that the privilege does not apply in a criminal proceeding.

II. The People's theory at the trial was that the charged homicide was first degree murder since it was committed in the perpetration of or attempt to perpetrate robbery, And was a 'willful, deliberate, and premeditated killing, . . .' (See Pen.Code, § 189.) Bennett urges that the jury were permitted to, and probably did, disagree on which was the theory upon which they based their first degree murder verdict. This, he claims, was error.

A similar contention was made in People v. Milan, 9 Cal.3d 185, 195, 107 Cal.Rptr. 68, 74, 507 P.2d 956, 962, where the court said: '(I)n a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.' (See also People v. Nye, 63 Cal.2d 166, 173, 45 Cal.Rptr. 328, 403 P.2d 736, cert. den., 384 U.S. 1026, 86 S.Ct. 1960, 16 L.Ed.2d 1033; People v. Hardenbrook, 48 Cal.2d 345, 353--354, 309 P.2d 424; People v. Chavez, 37 Cal.2d 66, 670--672, 234 P.2d 632; People v. Seastone, 3 Cal.App.3d 60, 69, 82 Cal.Rptr. 907.

III. Error is charged in the admission at the trial of 'evidence obtained by the police during a warrantless search of the appellant's home and without probable cause . . .'

The subject homicide occurred May 31, 1974, and the police promptly obtained a warrant for Bennett's arrest therefor. A fruitless attempt was made to execute the warrant on June 1 at a residence where Bennett lived alone; the premises were found unoccupied. Several days later someone identifying himself as Bennett telephoned the police, but while they were trying to trace the call the person went off the line. Suspecting that Bennett may have returned to his home the police went there. It was observed that a window shade had been moved, and that an open back door had been closed since the last police visit to the premises. While in the backyard one of the officers heard 'kind of a shuffling noise . . . like something being moved or dragged across the floor,' which seemed to come from 'within the dwelling.' The officers knocked on the door and announced their presence and identity. Since no one answered within a reasonable time, with the assistance of a neighbor and friend of Bennett, the police entered. Within the dwelling and while searching for Bennett in a bedroom, an officer observed a .22-caliber rifle, which was 'consistent' with the weapon used in the homicide. The officer 'grabbed the rifle' and when he did, a jacket upon which it was resting started to fall to the floor. The jacket was 'extremely heavy' and an examination of it disclosed 99 bullets of .22 caliber. The gun, the jacket and the bullets were seized by the police and later became the evidence which is the subject of the instant assignment of error.

From the foregoing facts the superior court reasonably concluded that the police had good cause to believe that Bennett, for whom they held an arrest warrant, was present in the premises. They accordingly were permitted, upon compliance with the 'knock and notice' requirements of Penal Code section 844, to enter the building. (Horack v. Superior Court, 3 Cal.3d 720, 726, 91 Cal.Rptr. 569, 478 P.2d 1.) The record establishes substantial compliance with section 844. Upon entering the premises they were, of course, authorized to institute a search for Bennett. During the course of such a search they observed the gun in plain sight. This they were obviously allowed to seize and later use as evidence. (People v. Block, 6 Cal.3d 239, 243, 103 Cal.Rptr. 281, 499 P.2d 961.) We further opine that under the described facts and circumstances, examination of the heavy jacket and seizure of the bullets found therein were reasonable. (See People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577, cert. den., 364 U.S. 841, 81 S.Ct. 79, 5 L.Ed.2d 65.) Assuming Arguendo the contrary, the allowance of the bullets in evidence was obviously harmless; for since the gun was...