People v. Bais

• Decision Date: 17 April 1973
• Docket Number: Cr. 10638
• Citation: 107 Cal.Rptr. 519,31 Cal.App.3d 663
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Allen BAIS, Defendant and Appellant.

Page 519

107 Cal.Rptr. 519

31 Cal.App.3d 663

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Allen BAIS, Defendant and Appellant.

Cr. 10638.

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

April 17, 1973.

Hearing Denied June 13, 1973.

Garret Shean, San Francisco, for appellant.

Evelle J. Younger, Atty. Gen. of State of California, Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Criminal Division, William E. James, Asst. Atty. Gen., Appeals Section, W. Eric Collins, Deputy Atty. Gen., Nancy S. Reller, Deputy Atty. Gen., San Francisco, for respondent.

Sheldon Portman, San Jose, amicus curiae (California Public Defenders Assn).

RATTIGAN, Associate Justice.

Appellant William Allen Bais was charged by information with the robbery of Harry Darr on July 30, 1971, in violation of Penal Code section 211. The information also alleged that he had been armed with a deadly weapon at the time, and that he had two prior felony convictions. Before trial in the prosecution which followed, throughout which he was represented by the public defender, he admitted the prior convictions. A jury found him guilty as charged and fixed the crime as robbery in the first degree. He appeals from the judgment of conviction, contending that the trial court committed prejudicial error in granting a mid-trial prosecution motion for discovery of extrajudicial statements made by alibi witnesses.

The record of the prosecution's evidence supports the following summary thereof: Harry Darr (the robbery victim named in the information) was working in the office of Western States Stone, a business establishment in Hayward, at approximately 5 p.m. on July 30, 1971. Another employee, Bill Ratzburg, was also present. The two men were in the process of closing the place for the day. After Darr had deposited money in a safe in a storeroom, he observed an automobile arrive at the place and park in rear. When he and Ratzburg then stepped outside to examine a light fixture, two men approached them on foot. Each of the pair wore a ladies' nylon stocking over his head as a mask, and gloves on his hands. Each carried a handgun.

Darr recognized one of the men as appellant, whom he knew as a customer. The man he recognized ordered the two employees into the office, demanded 'the money,' and accompanied Darr to the storeroom safe. Darr opened the safe and handed $312 in cash to the man. The man returned to the office when his companion called that someone was coming.

Lloyd Silva, a customer who entered the place at this point, saw both armed men, thought he might be observing a 'gag,' and asked Darr what was going on. Darr replied 'This is no joke, Lloyd, we're really being robbed.' The robber with the money ordered Darr, Ratzburg and Silva into a restroom area and left with his companion. Ratzburg then called the police. The entire episode lasted about five minutes.

Darr identified appellant to the investigating police officer, and identified him again from a set of eight police photographs viewed that evening. Silva similarly identified appellant, from the same set of photographs, three months later.

Both Darr and Silva, testifying at the trial, made an in-court identification of appellant as one of the robbers. Darr described the clothing appellant had worn, and testified that he could not remember whether the two men had worn hats. (He had been unable to give a 'clothing description' to the investigating officer or at appellant's preliminary examination, but testified on the latter occasion that both robbers had worn hats.) Ratzburg did not appear at appellant's trial.

The prosecution having rested, appellant presented an alibi defense through four witnesses who were called in the sequence next indicated. Cathy Rodriquez testified that she and some friends were in her home on the afternoon of the robbery, making 'flowers for a wedding'; that appellant arrived at the home at about 1 p.m., and helped make the flowers; and that he did not leave the home until about 5 p.m. On direct examination, Ronnie Lee Harbeck testified that Cathy Rodriquez was his sister; that he lived with her and her husband; that he came home at about 4:50 p.m. on the day of the robbery, and saw appellant there; and that appellant was still there when he (Harbeck) left at 5:10 or 5:15 p.m.

The disputed prosecution discovery occurred at this point in the defense case. The circumstances attending it, and its aftermath, require detailed examination because, as will appear, the trial record is less than complete. Following the direct examination of Harbeck, and prior to cross-examination, the prosecutor made the discovery motion in question. ¹ Defense counsel made a timely and comprehensive objection, citing several decisions on the subject of prosecution discovery (including Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673). In the course of an extended discussion which followed outside the presence of the jury, the trial judge stated: 'The difference in what we are considering here . . . (from) . . . the Prudhomme case, is that now an alibi witness has been sworn and testified. We (sic) are not asking for disclosure of names which would tend to incriminate . . .' He further indicated the view that the prosecution was entitled to the 'statements,' as sought (see fn. 1, Ante), for use by way of impeachment. He then granted the prosecutor's motion, stating to defense counsel that 'I'm going to permit him (the prosecutor) to discover statements that you have of the witness. . . . We will instruct the jury if there are any inconsistencies, they are only submitted for the purpose of impeachment.'

The court then ordered defense counsel to deliver to the prosecutor the pretrial 'statements' made by defense witnesses Rodriquez and Harbeck, and by other defense witnesses as and when they were called. In sequence, and as the court spelled out its order in detail, defense counsel handed the prosecutor 'statements' given by Ronnie Harbeck and Cathy Rodriguez. ²

After he had received the 'statements,' the prosecutor commenced the cross-examination of Harbeck. The witness reiterated that he had seen appellant in the Rodriquez home at and about 5 p.m. on the day of the robbery, and named the persons who had been present according to his present recollection. The following exchange then occurred: 'Q. (by the prosecutor) Have you talked to anyone about this? A. No, I haven't. Q. Have you talked to an investigator from the Public Defender's office? A. Yeah. Somebody came to talk to me. Q. You don't know who it was? A. No. Q. You remember telling him you can't really recall--you can't actually remember who was at the home when you came in? A. I told him what I know and that was it. Q. Did you tell him you couldn't remember who was in the house? A. I don't remember. That happened so long ago. Q. But you remember today who was in the house? A. Yeah. Q. But you can't remember whether you told the Public Defender's investigator or not, is that right? A. Yeah. Q. What did you do on July 29th, 1971, the day before the 30th? A. (No response.) Q. No idea? A. I don't know. Out looking for a job. I don't know. Q. What did you do on the 31st? A. (No response.) Q. Don't know? A. No.'

The prosecutor did not further pursue the point of what Harbeck had told 'the Public Defender's investigator.' He (the prosecutor) made no direct reference to Harbeck's 'statement' to the investigator, or to its contents. The 'statement' was not at any time shown to the witness, offered in evidence, otherwise produced, or marked for identification. The 'investigator' who had 'transcribed' it (see fn. 2, Ante) was not called to the stand. ³

Appellant's father, next testifying for the defense, stated that he had arrived at his home between 5:15 and 5:30 p.m. on July 30, 1971; that appellant arrived there shortly later; and that appellant drove the witness to the bank at about 5:20 or 5:30 p.m.

Appellant testified in his own defense as follows: On the date in question, he was at Cathy Rodriquez' home, helping to make paper flowers. He saw Ronnie Harbeck come into the Rodriquez home at about 4:50 p.m. and leave 15 or 20 minutes later. Appellant took his father to the bank between 5:00 and 5:30 p.m., and waited outside. He knew the alleged victim of the robbery, but denied having been at the Western States Stone office on July 30 and denied any part in the robbery. On cross-examination, he admitted the two prior felony convictions alleged in the information.

After the defense rested, the prosecutor offered no evidence by way of rebuttal. There was a discussion at this point, and the trial court instructed the jury before final arguments commenced, concerning the prosecutor's use of a prior 'statement' by Harbeck in the course of cross-examining him. ⁴ In his arguments to the jury thereafter, the prosecutor twice referred to the same subject. ⁵

After having been instructed, the jury retired to deliberate at 11:30 a.m. on Tuesday, November 30, 1971. That afternoon, the jury asked for and received a reading of the entire testimony of both Darr and Silva (the eyewitnesses to the robbery). The jury was adjourned at 6 p.m. on that day, and reconvened at 9 a.m. on Wednesday, December 1. At 3:55 p.m. on the second day, the foreman reported that the jury had been unable to arrive at a verdict after seven ballots, and was presently divided by a 9--3 vote (the opposing directions of which were not stated). The trial court then gave the so-called 'Allen instruction' ⁶ and directed the jury to deliberate further. The jury returned its guilty verdict at about 5 p.m. on the second day.

Appellant contends that the order granting discovery of the Harbeck statement violated his Fifth Amendment privilege against compulsory self-incrimination and his Sixth Amendment right to effective counsel. His contention must be sustained on the first ground.

In Prudhomme v....