People v. Beghtel

• Decision Date: 27 January 1966
• Docket Number: Cr. 6259
• Citation: 239 Cal.App.2d 692,49 Cal.Rptr. 235
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Warren Paul BEGHTEL, Defendant and Appellant.

Page 235

49 Cal.Rptr. 235

239 Cal.App.2d 692

The PEOPLE of the State of California, Plaintiff and Respondent, v. Warren Paul BEGHTEL, Defendant and Appellant.

Cr. 6259.

District Court of Appeal, Second District, Division 2, California.

Jan. 27, 1966.

C. Donald McBride and David P. Weaver, Jr., for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Walter R. Jones, Deputy Atty. Gen., for plaintiff and respondent.

HERNDON, Justice.

This case now comes before this court for the second time, having once been decided in People v. Beghtel, 164 Cal.App.2d 294, 330 P.2d 444, filed October 16, 1958. We denied a rehearing November 5, 1958, and our Supreme Court denied a hearing on December 10, 1958. Appellant's petition for a writ of certiorari to the United States Supreme Court was denied by that court on March 2, 1959. (Beghtel v. People of State of California, 359 U.S. 930, 79 S.Ct. 615, 3 L.Ed.2d 632.) Nevertheless, on July 1, 1965, we entered our order recalling the remittitur filed herein by reason of the dictate of Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

Counsel representing appellant on the instant appeal have performed their duties in an extremely conscientious and workmanlike fashion. However, by way of assignment of error they have been able to suggest only (1) insufficiency of the evidence to support the judgment, and (2) violation of the rule enunciated in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

Our prior opinion herein fully sets forth the facts and our reasons for rejecting the claim of insufficiency of the evidence. Since no purpose would be served by their repetition, we adopt the prior opinion in full as constituting to the extent thereof the present opinion of this court.

We consider appellant's arguments regarding the applicability of the recent decision in Griffin as being equally unmeritorious. The augmented record on this point reports the following:

'THE COURT: People versus Beghtel. MR. POWERS: Waive opening argument, your Honor. (Unrecorded argument offered by Mr. Malmuth.) MR. POWERS: Well, the physical evidence, may it please the Court, tied in with the time element, and the distance, to this extent, the arresting officer, Mr. Stapleton, testifies at approximately 9:05 p. m. the crime took place approximately. On cross-examination the time was 8:45, and then the witness said between 8:30 and 9:00. We tie this defendant in with the get-away, to the extent that he is driving a car; no explanation by him as to how he happened to meet this defendant or drive. There couldn't conceivably be any other theory except they were together at the time. You have money scattered indiscriminately about the car, including the front of the car, in which this defendant was driving. An opportunity was given him for explanation; he gave none. The gun was found at the time; bullets were found. An opportunity was offered then, as was now, for an explanation. None was given. You have a very direct statement as far as the corpus delicti is concerned. Obviously a car was used to get that particular distance away; this defendant was driving the car, and where he is afforded the opportunity to explain, and he doesn't, even though it is not in the nature of an accusatory statement because obviously the officers don't know of the commission of the robbery. I would say we at least had tied it in to such an extent that the explanation would be called for. It would seem to me, your Honor, that under all the circumstances this defendant driving a car obviously in a get-away, he at least must face the burden of proof of making an explanation which he hasn't done. People submit. I will submit the matter as to Count I because of the fact there has been a plea as to the other defendant.

'THE COURT; The other defendant did not plead as to Count II, did he? MR. POWERS: No, he pleaded to Count I. THE COURT: I think Mr. Powers has correctly stated it. He is the only person who could overcome the testimony, and the defendant chose to keep silent, which is his right, but he is the only person who could penetrate the darkness. Find the defendant guilty of Count I of the Information. THE DEFENDANT: Nobody asked me to take the stand, your Honor. I am perfectly willing. THE COURT: You have counsel. THE DEFENDANT: I told him I want to take the stand; he wouldn't go for it. THE COURT: He is the man in charge of your defense. He runs the case the way he thinks it is for your best interest.'

Quite apart from the fact that our Supreme Court has held that the error described in Griffin is subject to the application of article VI, section 4 1/2 of our Constitution (In re Gaines, 63 A.C. 235, 239, 45 Cal.Rptr. 865, 404 P.2d 473; People v. Teale, 63 A.C. 175, 193, 45 Cal.Rptr. 729, 404 P.2d 209; People v. Bostick, 62 Cal.2d 820, 823, 44 Cal.Rptr. 649, 402 P.2d 529), we do not believe that error of the variety dealt with in Griffin is here present. Griffin dealt with California's practice of permitting the prosecution to comment upon, and the court's instructing a jury as to the inferences to be drawn from, a defendant's exercise of the privilege guaranteed him by the Fifth Amendment to the United States Constitution.

A reading of the brief argument made by the prosecution as above set forth reveals that it consisted almost entirely of a summary of the direct evidence with emphasis upon its strongly incriminating effect. The trial court was never specifically urged to draw an inference of guilt from appellant's failure to testify at the time of trial. The prosecuting attorney, in effect, did not more than argue that inasmuch as the People's case in...