People v. Benjamin, Cr. 24218

• Decision Date: 31 July 1974
• Docket Number: Cr. 24218
• Citation: 40 Cal.App.3d 1035,115 Cal.Rptr. 668
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Arthur BENJAMIN et al., Defendants and Appellants.

Page 668

115 Cal.Rptr. 668

40 Cal.App.3d 1035

The PEOPLE, Plaintiff and Respondent, v. William Arthur BENJAMIN et al., Defendants and Appellants.

Cr. 24218.

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

July 31, 1974.

Rehearing Denied Aug. 13, 1974.

Hearing Denied Oct. 2, 1974.

Harold S. Vites, under appointment by the Court of Appeal, for defendant and appellant Benjamin.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Antonson.

Ray G. Clark, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant Richter.

Frederick M. Zax, and Alan H. Russell, Venice, for defendant and appellant Funkhouser.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Bradley A. Stoutt, Deputy Attys. Gen., for plaintiff and respondent.

DUNN, Associate Justice.

In case No. A183482 an information in two counts charged all defendants with (count I) burglary, a felony occurring January 15, 1973, in violation of Pen.Code § 459, it being also alleged that, in committing the crime, defendants were armed with and used pistols and, when arrested, they were armed with concealed deadly weapons, to wit, pistols. Count II, against defendant Benjamin, alone, charged him with violation of The Dangerous Weapons' Control Law, a felony occurring January 15, 1973, in violation of Pen.Code § 12021, in that said defendant had sustained earlier convictions of felonies (burglaries--Pen.Code § 459, and receiving stolen property--Pen.Code § 496) and possessed a concealable pistol, having a barrel length less than 12 long. Three prior felonies were alleged against defendant Funkhouser, four were alleged against defendant Benjamin and two were alleged against defendant Richter.

In case No. A279237, defendant Benjamin had been charged in two counts with (count I) grand theft, a felony occurring October 4, 1971, in violation of Pen.Code § 487, and (count II) attempted grand theft, a felony occurring October 7, 1971, in violation of Pen.Code §§ 664 and 487. Count II of the information apparently had been dismissed and Benjamin had pled guilty to count I, I.e.: violating Pen.Code § 487, subd. 1; proceedings had been suspended and Benjamin placed on probation for five years under various conditions, one being that he obey all laws.

In case No. A183482, all defendants pled 'not guilty.' Funkhouser admitted the three priors; Richter admitted a prior burglary conviction in Minnesota and a prior conviction of manslaughter in California. Defendant Benjamin admitted two prior felony convictions for burglary and one for grand theft; an alleged conviction for forgery was stricken on the People's motion. Later on, one of Benjamin's alleged convictions of burglary was stricken on the People's motion. A hearing was held pursuant to People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 (1972), and the court concluded that Richter's conviction of manslaughter could not be used by the prosecution for impeachment purposes, the court later declaring that neither of his convictions could be used to impeach him.

A jury trial ensued. All four defendants were found guilty of burglary as charged in count I, which the jury fixed as being in the first degree; Benjamin was found guilty of count II, also. The jury further found that: Funkhouser was neither armed with, nor did he use, a firearm in the commission of the crime nor was he armed with a concealable weapon at the time of his arrest; Benjamin was armed with and used a firearm in committing count I; Antonson did not use a firearm in committing count I but was armed with a concealable deadly weapon when arrested; Richter was not armed with, nor did he use, a firearm in committing the crime nor was he armed with a concealable deadly weapon at the time of his arrest. The allegations that Antonson was armed when committing the burglary and that Benjamin was armed at the time of his arrest, were stricken by the court because the jury returned no verdict as to them.

Funkhouser, Antonson and Richter ¹ were sentenced to state prison. Benjamin's probation was revoked in case No. A279237, and he was sentenced to state prison for the term prescribed by law. He was sentenced to consecutive prison terms on counts I and II in case No. A183482, the sentence in case No. A279237 to run consecutively to the sentence on count I (No. A183482) and concurrently with the sentence on count II (No. 183482).

Funkhouser's probation was revoked in case No. A180754 and he was sentenced to state prison, the sentence to run concurrently with the sentence in the present case, I.e.: No. A183482.

All defendants appeal from the judgments; Benjamin and Funkhouser additionally appeal from the orders revoking probation in cases Nos. A279237 and A180754, respectively. Since these latter appeals are determined by their appeals in the first case, we discuss their appeals in that case, only.

All Defendants

All defendants contend the trial court erred by refusing to read to the jury CALJIC instructions Nos. 851 (Revised) and 852 (Revised). These instructions (since replaced by CALJIC Nos. 4.60 and 4.61) embody the theory that the defense of 'entrapment' may rest upon inducements made by some person unconnected with government law enforcement. ²

Our examination of the record discloses that, if the principle of law stated is correct, there was evidence to support it in the testimony of defendant Benjamin who, in his own defense, testified that prosecution witness Barbara Ward, employed at a Universal Money Order Company store, induced him (and, through him, the other defendants) to rob her employer's store of approximately $10,500.

Contrary to this, there was evidence that Barbara Ward told the police on January 11, 1973, that two of the defendants (Funkhouser and Richter) early that morning had sought her cooperation in robbing her employer. There was no evidence that she was a paid police informer or acted other than as a citizen; similarly, there was no evidence that she was or became a police agent. ³ The only instruction Barbara Ward received from the police was their request that she notify them in the event any defendant again contacted her.

The defense of 'entrapment' ordinarily would not violate fundamental principles of due process involving the United States Constitution. (United States v. Russell, 411 U.S. 423, 430--431, 93 S.Ct. 1637, 36 L.Ed.2d 366, 372--373 (1973).) We see no such involvement here and, accordingly, look to the law of entrapment as it exists in California. (People v. Benford, 53 Cal.2d 1, 345 P.2d 928 (1959).)

People v. Moran, 1 Cal.3d 755, 761, 83 Cal.Rptr. 411, 463 P.2d 763 (1970) contained dictum indicating approval of a doctrine that would authorize the defense of entrapment to became a jury question, even though the person entrapping the defendant was not a law enforcement officer and had no connection as agent with such agency. The validity of this dictum was attacked in People v. Gregg, 5 Cal.App.3d 502, 85 Cal.Rptr. 273 (1970), wherein it was additionally pointed out that, as dictum, the statement in Moran, supra, need not be followed. We adhere to the reasoning of Gregg, supra. Inasmuch as the Gregg opinion is so sufficiently discursive as to require no further expansion by us, we refrain from added discussion, although we do point to People v. Benford, Supra, 53 Cal.2d at pp. 8--10, 345 P.2d 928 (cited in the Moran dissent) as giving the reason for the California rule. Thus, in Benford it was stated (at p. 9, 345 P.2d at p. 933): '. . . the court refuses to enable officers of the law to consummate illegal or unjust schemes designed to foster rather than prevent and detect crime.' (Also see: Patty v. Board of Medical Examiners, 9 Cal.3d 356, 363, 368, 107 Cal.Rptr. 473, 508 P.2d 1121 (1973); People v. Perez, 62 Cal.2d 769, 775, 44 Cal.Rptr. 326, 401 P.2d 934 (1965); People v. Roberts, 40 Cal.2d 483, 489, 254 P.2d 501 (1953); 1 Witkin, Cal.Crimes, § 175, pp. 167--168, and 1973 Supp., § 175.)

We conclude the instructions tendered by the defendants were properly refused, as being an incorrect statement of California law.

Defendant Funkhouser

Besides raising the point already discussed, this defendant makes other

contentions: Restriction On Examination Of Defense Witnesses Taylor And Modlies

On cross-examination by counsel for defendant Richter, prosecution witness Ward testified she had not attended a party on December 10--12, 1972, held on 106th Street in Inglewood, and did not meet there, or know, nor had she ever before seen, Ivory 'Eddie' Modlies or Jerry Taylor, except she had seen them during this trial in the corridor outside the courtroom. She was asked about purported conversations at the party with these two men but denied any. After the prosecution rested, defendants called Taylor and Modlies as witnesses. They testified they had attended a party on December 9 or 10, 1972, at 106th Street in Inglewood and there had met Barbara Ward. When asked by defense counsel regarding conversations allegedly had with her, the prosecution objected on the ground the questions called for hearsay and the objection was sustained. Thereafter, all defendants offered to prove that, if permitted to testify, the witnesses would state Barbara Ward had proposed to them that they assist her in staging a 'fake,' or feigned, robbery of her employer's store. The trial court declined to permit the questions, pointing out that Barbara Ward's conduct in December 1972 did not make her a police agent in January 1973, so that her conduct in 1972 would not be relevant to the present case. Efforts made by defendants to reopen the matter were unavailing, the prosecution objecting that defendants were improperly attempting to impeach Barbara Ward on collateral matters. We agree with the trial court.

The fact, assuming it to be a fact, that Barbara Ward...