People v. Ashford

• Decision Date: 16 September 1968
• Docket Number: Cr. 6324
• Citation: 71 Cal.Rptr. 619,265 Cal.App.2d 673
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew Lee ASHFORD, Defendant and Appellant.

Page 619

71 Cal.Rptr. 619

265 Cal.App.2d 673

PEOPLE of the State of California, Plaintiff and Respondent, v. Andrew Lee ASHFORD, Defendant and Appellant.

Cr. 6324.

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

Sept. 16, 1968.

Rehearing Denied Oct. 1, 1968.

Gordon E. Reynolds, Oakland, by appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Derald E. Granberg, San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison, with an admitted prior conviction for burglary, after a jury found him guilty of robbery in the second degree. He contends that he was denied his rights under the Sixth Amendment of the United States Constitution because the court, over his objection, admitted in evidence the testimony of the victim as it was reported in a prior trial which had resulted in a jury disagreement. He also asserts that prejudicial error resulted when the court permitted a bailiff to testify to a damaging admission made by the defendant during a recess at the prior trial, over the defendant's objections that there was no foundation laid to show that he had been apprised of his legal rights, that there was no foundation laid to use his declaration for impeachment, and that the testimony was improper rebuttal evidence.

The evidence

The testimony of the victim, Clarence Gordon, given at the first trial, was that at about 2 a.m. on April 22, 1966, he had driven his car into a filling station, located in the area of Goss and Wood Streets in Oakland, planning to park his car there while he went to a restaurant located off Wood, on 7th Street. Earlier that evening he had gone to a bar on San Pablo Avenue in the vicinity of 19th and 20th Streets and stayed there until the last show which was about 1:30 a.m. As he drove into the filling station, a young man approached, told him his car would block other parked cars, and asked him to drive around the corner. He drove around the corner and parked his car on Goss Street.

While parking, defendant Ashford came over and engaged Gordon in conversation. Defendant wanted to know if he could 'fix him up with a girl.' The conversation lasted between five and ten minutes. Gordon told defendant he had 'no use' for a girl. Gordon then got out of the car and started toward the sidewalk.

At this point, defendant appeared to speak to someone Gordon could not see. When Gordon turned to look defendant struck him on the right cheek and knocked him to the ground. He continued to beat Gordon on the shoulders and back and he held his arm while another man removed his wristwatch, ring and wallet. Defendant's accomplice was the same person who at the filling station had told Gordon to drive around the corner and park.

After defendant and his accomplice had finished removing Gordon's possessions, they ran toward Wood Street where they were joined by a third man who began to run with them. He had some $20 in his wallet. After they left him, Gordon got into his car and drove to a Standard station at 7th and Cypress Streets where he spoke with Officer Peirson of the Oakland police department.

Gordon told the officer about the robbery and gave him a description of the persons involved. He described defendant as wearing a white or grey sweater. Officer Peirson had four photographs with him which he showed to Gordon. Gordon selected a photograph of defendant and identified him as one of the robbers. ¹

Officer Peirson testified that Gordon had an odor of alcohol about him but that he walked without difficulty and that his speech was clear. He also testified that Gordon told him he was down there looking for a girl. Officer Peirson testified that during the evening of April 21, 1966 or in the early morning hours of April 22, 1966, before the incident was reported, he had seen defendant in the vicinity of 7th and Willow Streets.

Officer Beccaccio of the Oakland police, called to the gasoline station by Officer Pierson, took the report of the robbery and a description of the persons involved from Gordon. Officer Beccaccio testified that Officer Peirson had some photographs with him which included one of defendant. After Officer Beccaccio took the report, Peirson left the scene. Officer Beccaccio also testified that sometime between 12:45 and 2 a.m., he had observed defendant on 7th Street between Campbell and Wood Streets. When he saw defendant he was with some Negro males. He indicated defendant had been wearing a 'greenish color sweater.'

On June 28, 1966, Gordon viewed a lineup in which defendant was one of five or six people exhibited. Prior to the lineup, Gordon was shown photographs of various man, and again identified a photo of defendant as the robber. After the lineup defendant was taken to a room where Gordon confronted him and made a positive identification. ² Based upon the identification, the Oakland police department secured a complaint from the district attorney's office charging defendant with robbery.

Defendant testified that he did not see Gordon on the evening of April 22, 1966, and that he did not rob him. He testified that from about 11 p.m. on April 21,1966, to about 2:15 a.m. on April 22, 1966, he was working at the Continental Club; that while at the club he met his fiancee, Geneva Babbitt, and his cousin, Corinne Owens; that when he left the club at 2:15, he was with both girls and that they went to a place known as 'Georgie's Doggies'; that from there he and Geneva walked Corinne home; that they then took a bus to Geneva's home; and that from there he walked to the Lakeside Hotel where he lived.

Defendant's cousin, Corinne Owens, testified that she was with defendant from about 11 p.m. on April 21, 1966, until 3 a.m. the following morning; that they stayed at the Continental Club until about 2 a.m., left together when it closed and walked to the eating place; that defendant was appearing at the Continental Club, where he was singing under the name Lee Sensation; and that after leaving the restaurant, defendant and Geneva walked her to her home where they arrived about 3 a.m. She indicated she recalled the occasion because she had recorded it in her diary.

The remaining pertinent facts are referred to below.

Prior testimony

Gordon originally testified at a preliminary hearing on July 20, 1966, and subsequently at a trial on September 28 and 29, 1966, which ended in a mistrial. The defendant, whose motions for reduction of bail, and to be released on his own recognizance were denied, was entitled to be retried on or before November 28th, the day on which the second trial commenced. (Pen.Code, § 1382, subd. 2.) Both counsel were aware of the directive to commence the new trial within 60 days. At the commencement of the trial the prosecution produced evidence which showed that Gordon had left the state on November 10, 1966, and that he would not return until December 12th. It appeared that the witness had gone as a delegate to a national convention of real estate brokers in Florida, and had made plans which included a Caribbean cruise and travel in the western United States.

The trial date was apparently fixed at a hearing on November 14th after the victim had left. The information concerning his departure was secured about one week later. This is not a case where the prosecution negligently, or purposely, permitted a witness to leave the jurisdiction before he could be called to give his testimony personally. (Cf. Motes v. United States (1900) 178 U.S. 458, 471--474, 20 S.Ct. 993, 44 L.Ed. 1150.)

The prosecution relied upon the provisions of section 686 of the Penal Code which read as follows: 'In a criminal action the defendant is entitled: * * * 3. To * * * be confronted with the witnesses against him, in the presence of the court, except * * * that in the case of offenses hereafter committed the testimony on behalf of the People or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence, be found within the state, given on a former trial of the action in the presence of the defendant who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, may be admitted.' (Stats.1911, c. 187, § 1, p. 364. Amended effective January 1, 1967, by Stats.1965, c. 299, § 1, p. 1297 by deleting the latter provisions. See also Evid.Code, §§ 240 and 1291.) No objection was made to the adequacy of the showing that the witness was out of the state. It was sufficient foundation for the admission of the prior testimony under precedents existing at the time of trial. (People v. Carswell (1959) 51 Cal.2d 602, 605--606, 335 P.2d 99; People v. Dinkins (1966) 242 Cal.App.2d 892, 901, 52 Cal.Rptr. 134; People v. Banks (1966) 242 Cal.App.2d 373, 376--377, 51 Cal.Rptr. 398; People v. Dozier (1965) 236 Cal.App.2d 94, 102--104, 45 Cal.Rptr. 770; and see People v. Berger (1968) 258 A.C.A. 721, 726, 66 Cal.Rptr. 213; People v. Gibbs (1967) 255 A.C.A. 864, 867, 63 Cal.Rptr. 471; People v. Haney (1967) 249 Cal.App.2d 810, 816, 58 Cal.Rptr. 36; and People v. Washington (1967) 248 Cal.App.2d 470, 475, 57 Cal.Rptr. 487.)

Defendant relies upon Pointer v. State of Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 and Douglas v. State of Alabama (1965) 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 for the proposition that it is a violation of a defendant's Sixth Amendment rights to use a witness' prior testimony unless the opportunity for cross-examination in the prior proceedings was 'complete and adequate.' (380 U.S. at pp. 407 and 410, 85 S.Ct. 1065.) He contends that a certain matter ultimately brought out at the first trial evoked a new lead for cross-examination which could not be pursued because of the absence of the witness. (Cf. People v. Redston (1956) 139 Cal.App.2d 485, 494--496, 293 P.2d 880; and see People v. Johnson (1968) 68 A.C. 674, 680--682, 68 Cal.Rptr. 599, ...