People v. Benjamin, Cr. 7693

• Decision Date: 21 January 1970
• Docket Number: Cr. 7693
• Citation: 83 Cal.Rptr. 764,3 Cal.App.3d 687
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas BENJAMIN, Defendant and Appellant.

Page 764

83 Cal.Rptr. 764

3 Cal.App.3d 687

PEOPLE of the State of California, Plaintiff and Respondent, v. Douglas BENJAMIN, Defendant and Appellant.

Cr. 7693.

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

Jan. 21, 1970.

Hearing Denied March 19, 1970.

Boyd E. Burnison, Oakland, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment of conviction, following a jury trial, of robbery in the second degree (Pen.Code, § 211). The chief contention on appeal is that the trial court improperly admitted the preliminary hearing testimony of one Arlgene Guthrie, who was not present at trial, which testimony was the only evidence connecting defendant to the crime and relied upon for conviction. Additional error is attributed to the trial court's manner of instructing the jury how a determination of guilt beyond a reasonable doubt should be made and for certain comments directed to defendant's requested instructions concerning opinion testimony of a lay witness.

The pertinent facts adduced at the trial with respect to the alleged robbery disclose that on May 9, 1968, ¹ Joseph H. Tyman was knocked to the ground on the premises of a 'Doggie Diner' in Oakland by several persons, and that, following the scuffle, Tyman discovered that his wallet containing credit cards, a driver's license and between eight and thirteen dollars was missing. Following the robbery Guthrie, who had witnessed the robbery, gave the police a description of the robber. Based on this description the police arrested defendant approximately 15 minutes later. Defendant was brought to the presence of Guthrie who identified him as the person he had seen remove Tyman's wallet. Neither the wallet nor any of its contents were found on defendant's person when he was arrested.

At the trial, which commenced on August 6, it was represented to the court by the People that Guthrie was not available as a witness. Following a Voir dire hearing on the issue of Guthrie's availability as a witness, the trial court admitted into evidence the testimony given by Guthrie at the preliminary hearing which was held on May 23. At the preliminary hearing Guthrie testified that on May 9 he was a patron at the aforementioned Doggie Diner; that he heard a scuffle and then observed Tyman on the floor; that he saw defendant standing over Tyman, and that he saw defendant slip a wallet from Tyman's inside coat pocket into his own right coat pocket. Guthrie also testified that he helped Tyman to get up and that, after a passing police car was flagged down, he and Tyman narrated to the police officer what had happened.

At the preliminary hearing Guthrie also testified that he was a member of the United States Marine Corps, stationed at Treasure Island in San Francisco, and that his final tour of duty prior to his discharge in October 1968 was to be in Vietnam. He stated he did not know the exact date he would be sent to Vietnam, but he did know that it would be soon. He stated that he was going to be stationed at Da Nang and gave his Vietnam APO address.

Defendant was the only defense witness. He testified that he was at the Doggie Diner at the time of the alleged robbery; that he had observed Tyman scuffling with two men and a woman, but that he did not see anyone take Tyman's wallet. He denied that he took the wallet and further stated that it would have been impossible for him to do so because of his crippled hand.

At trial, the prosecution in a Voir dire hearing presented the testimony of an Inspector Shelley who on July 30 had been assigned the task of locating Guthrie. Shelley testified that on July 31 he called the Marine Corps legal officer at Treasure Island concerning the whereabouts of Guthrie and was informed by the chief clerk for the legal officer, on or about August 1, that Guthrie had been sent to Vietnam in June and would be unavailable for the trial. The advice that Guthrie had departed for Vietnam on June 16 was confirmed in a letter from the legal officer to Shelley received on the morning of the first day of trial. On the same day Shelley again telephoned the legal officer's chief clerk to ascertain if there were any military procedures available whereby Guthrie might be returned from Vietnam. At this point the testimony digressed to other matters and the record is silent as to what reply the inspector received. Following this testimony, defendant offered to prove, by calling the prosecutor assigned to the case, that the People had not used due diligence in attempting to produce Guthrie as a witness on the basis that the prosecutor had known for a considerable period of time that Guthrie might not be available and that he had made no effort to make him available as a witness. This offer was denied by the court. The trial judge announced, however, that he would take judicial notice that Guthrie was not available as a witness because of his military duties.

The record discloses, further, that on July 5 the cause had been set for trial for July 29, that the cause was apparently continued to July 31 on which date an amended information was filed to which defendant pleaded not guilty and that, by consent, the cause was continued to August 5 for trial. A peremptory challenge was interposed on August 5 to the judge assigned to the case and the cause was thereupon transferred to another department where it came on for trial on August 6.

Defendant contends, essentially, that the admission of Guthrie's testimony at the preliminary hearing denied him his Sixth Amendment right of confrontation. In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255, made fully retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508, it was held that a state must make a good faith effort to secure a witness' presence before introducing at a trial the transcript of evidence given by a witness at a prior hearing when the witness is not available or is not produced at the present hearing. (390 U.S. pp. 724--725, 88 S.Ct. 1318, see People v. Pike, 71 A.C. 617, 631, 78 Cal.Rptr. 672, 455 P.2d 776.) The rationale underlying Barber is that the right of confrontation is basically a trial right which includes both the right of cross-examination and the occasion for the jury to weigh the demeanor of the witness. (390 U.S. pp. 725--726, 88 S.Ct. 1318.) With respect to the right of cross-examination Barber placed strong stress upon the importance of ensuring the defendant's right to conduct his cross-examination before a contemporaneous trier of fact, and recognized that there is a substantial difference in the nature and purpose of the preliminary hearing and trial proceedings, regardless of whether there has been cross-examination. (P. 725, 88 S.Ct. 1318; see People v. Johnson, 68 Cal.2d 646, 659, 661, 68 Cal.Rptr. 599, 441 P.2d 111; People v. Green, 70 A.C. 696, 703--706, 75 Cal.Rptr. 782, 451 P.2d 422.)

In Green, supra, the California Supreme Court saw no constitutional inconsistency between the principles declared in Barber and the long-established 'prior testimony' exception to the hearsay rule (Evid. Code, §§ 1290--1292 ²), but observed that Barber 'adds the factor of necessity to the constitutional aspect of confrontation--which factor may, in appropriate cases, outweigh the lack of contemporaneous cross-examination.' (70 A.C. at p. 707, 75 Cal.Rptr. at p. 788, 451 P.2d at p. 428, see fn. 10.) Accordingly, the Barber rule was articulated thusly in Green: 'the 'contemporaneous' cross-examination which alone, in the absence of a legal showing of necessity, can be considered fully effective and constitutionally adequate is cross-examination at the Same time as the direct testimony is given, before the Same trier as must ultimately pass on the credibility of the witness and the weight of that testimony.' (P. 704, 75 Cal.Rptr. p. 786, 451 P.2d p. 426.)

The Green case did not define the factor of 'necessity' which would obviate the contemporaneous cross-examination emphasized in Barber, and declined to consider, because it had no occasion to do so, the question whether testimony given at a preliminary hearing, which testimony is clearly contemplated by Evidence Code, section 1291, satisfies the confrontation clause of the Constitution. (See People v. Green, supra, 70 A.C. 696, 707, 75 Cal.Rptr. 782, 451 P.2d 422, fn. 10.) In People v. Peters, 276 A.C.A. 97, 104, 80 Cal.Rptr. 648, such 'necessity' was equated with a showing that the testimony given at the preliminary hearing was necessary at the trial and that a good faith effort was made, with reasonable diligence, to procure the attendance of the unavailable witness. (See People v. King, 269 A.C.A. 35, 37, 74 Cal.Rptr. 679; People v. Haeberlin, 272 A.C.A. 802, 812--813, 77 Cal.Rptr. 553.)

In Peters the reviewing court observed as follows: 'In considering the necessity to use the transcript of testimony at the preliminary hearing, the unavailability of the witness is one criterion; but another is the constitutional and statutory imperative to bring the case to trial speedily. If the case is dismissed, the unavailability of the witness may thereafter be compounded by the unavailability of the defendant (Pen.Code, § 1382, subdivision 2), and the criminal may go unpunished.' (276 A.C.A. at p. 104, 80 Cal.Rptr. at p. 652.)

In the instant case defendant's counsel at the preliminary hearing was on notice that Guthrie might not be available as a witness at the trial because he would be leaving the jurisdiction for military service in Vietnam. We may presume that he was aware of the provisions of Evidence Code, section 1291, subdivision (a)(2) and Penal Code, section 686 ³ which would permit the use of the preliminary transcript at the trial. The record shows that defendant's counsel...