People v. Baeske, Cr. 27671

• Decision Date: 28 May 1976
• Docket Number: Cr. 27671
• Citation: 130 Cal.Rptr. 35,58 Cal.App.3d 775
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Claude W. BAESKE, Defendant and Appellant.

Page 35

130 Cal.Rptr. 35

58 Cal.App.3d 775

The PEOPLE of the State of California, Plaintiff and Respondent, v. Claude W. BAESKE, Defendant and Appellant.

Cr. 27671.

Court of Appeal, Second District, Division 4, California.

May 28, 1976.

Michael G. McGrath, Pasadena, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Michael Nash, Deputy Attys. Gen. for plaintiff and respondent.

JEFFERSON, Associate Justice.

By information defendant Baeske was charged with robbery in violation of Penal Code section 211. It was alleged that defendant was armed with a deadly weapon at the time of the commission of the offense within the meaning of Penal Code sections 3024 and 12022. It was also alleged that defendant used a firearm within the meaning of Penal Code section 12022.5.

Defendant, represented by a deputy public defender, entered a plea of not guilty. Trial was by jury. The jury found defendant guilty of robbery, ¹ and further found that defendant had used a firearm during the commission of the offense. Defendant's motion for a new trial was denied. Probation was denied; defendant was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment of conviction.

The record adduced below reveals that on October 14, 1974, between 2:00 p.m. and 2:30 p.m., Leon Martin, the owner of a Sylmar liquor store, was working in the refrigerator of the store. Two men walked into the store, and one of the men, the heaviest of the two, selected some cans of beer from the refrigerator; Martin walked to the cash register and began to pack these items. While he was doing this, the other man came behind the counter and, at a distance of about five feet from Martin, displayed a .45 caliber revolver. This man told Martin to lie down on the floor, and Martin complied. The man with the gun then took approximately $100 from the cash register. Meanwhile, the other man stayed in front of the counter.

The man with the gun pocketed the money, and told Martin to stay on the floor for five minutes. The two men then left the store. As soon as Martin heard the front door close, he grabbed his own gun, a .22 caliber automatic, and pursued the men outside. There were two cars parked outside; the robbers were preparing to make their escape in a blue-green vehicle. Martin positioned himself beside the other parked vehicle, using it as a shield, and told the men that '(i)f you make one move, I will blow your head off,' and tried to fire at the driver of the car. Martin pulled the trigger of his gun, but it misfired. The two robbers drove off. Martin ran after them while attempting to fire his weapon, and saw the license number of the vehicle. He said that the number was 468 ABC. He fired shots at the departing vehicle, and hit it, but was unsuccessful in stopping it.

Martin called the police, and gave them the license number of the car. He also described the suspect with the gun as a male Caucasian, blondish grey hair, 5 9 , 195, 40 to 45 years of age, with soft speech and a medium complexion. Several days after the robbery, Martin was shown six photographs, including one of defendant. He selected two of the photographs, including that of defendant, but stated he could not be sure of identification until he saw the subjects of the photographs personally. He never saw a line-up. However, at both the preliminary hearing and at the trial he identified defendant as the gunman.

Shortly before Midnight of October 14, 1974, Oxnard Police Officer Coates arrested defendant at an apartment in Oxnard and defendant's vehicle, a green 1966 Plymouth bearing the license plate 468 ABC, was impounded. At the time of arrest, the officer took car keys from defendant's pants. One of these keys fit the door of the Plymouth. While defendant was being transported from the Ventura County Jail to Los Angeles the next day, he told the transporting police officer, Dickey, that the 1966 Plymouth was his, a recent purchase.

Defendant, who testified on his own behalf, denied commission of the robbery. He stated that he had spent the early afternoon hours of October 14, 1974, in a bar in Oxnard known as 'The Bull Ring,' some fifty miles from Sylmar. Defendant stated that his car was either in his presence on the date of the robbery or parked in front of his apartment in the Oxnard area. Two witnesses, Mr. and Mrs. Blas Saucedo, testified that they saw defendant at this bar on that day during the early afternoon.

Defendant contends, on this appeal, that the trial court erred in excluding certain evidence on the ground that it was inadmissible hearsay. The evidence was a copy of a police report of a telephone call received by the police from Mary Nitto, a neighbor of the victim, Martin, shortly after the robbery. In the report, Mary Nitto was purported to have stated that the license number of the robbers' car was not 468 ABC, as reported by Martin, but either 416 or 614. Following an Evidence Code section 402 evidence admissibility hearing outside the presence of the jury, the trial court excluded the evidence. The defense counsel's argument for its admission was two-fold: first, that the evidence was nonhearsay since it was not being offered for the truth of the matter asserted, but simply to show that the report of another license number had been made; second, that even if hearsay, the police report was admissible under the Official-Record exception to the hearsay rule established by Evidence Code section 1280.

We conclude that the trial court's ruling was proper. If offered for the Nonhearsay purpose indicated, the evidence was inadmissible on the ground of Irrelevancy. The evidence was obviously being offered by the defense to prove that the victim, Martin, was mistaken in his testimony as to the license number of the get-away car and that the license number of that car was one of the numbers contained in the police report as emanating from Mary Nitto. The document was thus being proffered in evidence to prove the truth of the matter stated therein. Thus, the statement Nitto made to the police was hearsay and inadmissible unless it qualified under one of the exceptions to the hearsay rule.

Defendant contends that it should have been admitted under the Official-Record exception to the hearsay rule set forth in Evidence Code section 1280. Section 1280 provides as follows: 'Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: ( ) (a) The writing was made by and within the scope of duty of a public employee; ( ) (b) The writing was made at or near the time of the act, condition, or event; and ( ) (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.'

In ruling that the police report was inadmissible, the trial court relied upon the ground that the requirement of trustworthiness had not been established for the Official-Record hearsay exception. The trustworthiness requirement for this exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a Duty to observe the facts and report and record them correctly. 'Thus, a public employee's writing, which is based upon information obtained from persons who are not public employees, is generally excluded because the 'sources of information' are not 'such as to indicate its trustworthiness'. . . .' (Jefferson, California Evidence Benchbook (1972) § 5.1, p. 96; Behr v. County of Santa Cruz (1959) 172 Cal.App.2d 697, 342 P.2d 987.) In the instant case, Mary Nitto, the source of the information, was not a public employee with any duty either to observe facts correctly or to report her observations accurately to the police department. The trial court was correct, therefore, in ruling that the proffered police report was inadmissible hearsay.

Defendant also contends that the trial court erred when it refused to give an instruction on reasonable doubt requested by defendant. This instruction provided: 'The burden is on the People to prove beyond a reasonable doubt, not only that the offenses were committed as alleged in the Information, but also that the defendant is the person who committed them. Therefore, you must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the defendant not guilty.'

The principal issue in the present case was that of identification of defendant by the victim, Martin. It is understandable that the defense would, under these circumstances, seek to emphasize the importance of the identification testimony and its relation to 'reasonable doubt.'

'Section 1096a of the Penal Code declares that when the statutory definition of reasonable doubt is given (see Pen.Code, § 1096), no other instruction need be given defining reasonable doubt. Despite this section, a defendant, upon proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered. . . . A defendant is entitled to an instruction relating particular facts to any legal issue. (Citations.)' (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 717, 465 P.2d 847, 853.) (Emphasis added.)

Under this principle of Sears, it has been held to be...