People v. Bennett

• Decision Date: 16 September 1969
• Docket Number: Cr. 14991
• Citation: 80 Cal.Rptr. 706,276 Cal.App.2d 172
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Omar BENNETT, Defendant and Appellant.

Page 706

80 Cal.Rptr. 706

276 Cal.App.2d 172

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Omar BENNETT, Defendant and Appellant.

Cr. 14991.

Court of Appeal, Second District, Division 5, California.

Sept. 16, 1969.

As Modified Sept. 24, 1969.

As Modified on Denial of Rehearing Oct. 9, 1969.

Hearing Denied Nov. 12, 1969.

Myron Wigderson, El Monte, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Robert P. Samoian, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

A jury convicted defendant of having violated section 12021 of the Penal Code (possession of concealable firearm by a former felon). Sentenced to prison, defendant appeals from the judgment.

The firearm in question was a .38 revolver, the property of Officer R., then a member of the police department of one of the smaller cities in Los Angeles County. Though married, Officer R. was an extremely close friend of defendant's sister whose car he used when he and the sister went out together. Occasionally, R. had the weapon along when he used the sister's car.

Defendant was charged with a violation of section 12021 when, during a routine traffic stop on September 18, 1967, a highway patrol officer found the gun under the left front seat of the sister's car which defendant had been driving. It was fully loaded. ¹

The prosecution's theory was that defendant had stolen the gun and was in knowing possession at the time of his arrest. The defense was that defendant was unaware of the presence of the weapon which, somehow, must have been placed in the car by Officer R.

Officer R. testified that on July 20, 1967, he left the gun in the locked glove compartment of his own car. About two weeks later he opened the glove compartment. The gun was missing. A small hole had been cut into the cardboard bottom of the glove compartment. It was big enough to 'sort to wriggle' a hand through.

Incredibly R. did not report the theft until after he was advised of defendant's arrest. His explanation for this failure was that he had tried to retrace his steps during the two week period between July 20 and the discovery of the loss. ² Another reason was that he suspected defendant of being the thief.

To buttress his theory that Officer R. must have left the gun in the sister's car, defendant attempted to show that the officer was a heavy drinker and consumer of 'bennies' and other 'narcotic type pills.' The theory of the offered evidence was that the officer could have placed the gun where it was eventually found in an 'alcoholic or narcotic stupor' and forgotten about it. That this was more than idle speculation is evident. If Officer R. was certain that he had not removed the gun during the critical two week period, his explanation that he failed to report the loss while he was mentally retracing his steps would have been nonsense.

The attempt to establish R.'s habits with respect to alcohol and pills was made twice during the cross-examination of the officer, ³ once during the redirect examination of a witness who described herself as defendant's 'common law wife' ⁴ and finally by an elaborate offer of proof. This offer related to testimony counsel, expected from the 'next witness' an otherwise unidentified woman. The prosecutor's objection to her testimony was sustained. The witness was never called. The proceedings are set forth in the footnote. ⁵ We think defendant adequately complied with section 354 of the Evidence Code. The 'substance, purpose, and relevance of the excluded evidence was made known to the court' by the questions asked and the offer of proof. Furthermore, the court's flat statement that the evidence had no relevance made further compliance with the requirements of subdivision (a) of section 354 futile. (Evid.Code § 354(b).).

Section 1105 of the Evidence Code reads as follows: 'Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.' The 'specified occasion' in which we are interested is the two week period after July 20. It is quite clear from the offers made by defendant that he thought he could prove a habit of drinking and pill taking sufficiently regular so that there should have been several occasions during that period when Officer R.'s condition would cause him not to remember all of his actions.

Although there appears to be considerable conflict with respect to the admissibility of habitual drinking to prove intoxication at a particular time (1 Wigmore, Evidence (3d ed. 1940) § 96 fn. 1), there are at least two California decisions permitting such evidence. In Cosgrove v. Pitman, 103 Cal. 268, 37 P. 232, the Supreme Court said that intoxication at the time of an accident could be inferred from a showing of a habit of intemperance 'at or about the time of the accident.' ⁶ In Kovacs v. Sturgeon, 274 Cal.App.2d ---, --- ^*, 79 Cal.Rptr. 426 it was held that the trial court had properly admitted evidence of the plaintiff's drinking habits, as there was some showing that plaintiff had been drinking immediately before the accident. In so holding the court distinguished Wilson v. Manduca, 233 Cal.App.2d 184, 43 Cal.Rptr. 435. In that case the issue was the genuineness of the plaintiff's purported signature on a deed. The deed in question had allegedly been signed in February 1958. Evidence, held to have been improperly admitted, came from a former coemployee of the plaintiff who testified that 'some years before' the plaintiff 'appeared to have been drinking in the afternoon.' The distinction was based on the fact that in Wilson there was no evidence of drinking at the critical time.

Obviously plaintiff's offer of proof was much stronger than the improper evidence in Wilson. It was directed to the relevant time period. The Attorney General points to the fact that counsel admitted that he had no evidence that the officer placed the gun in the sister's car while under the influence of drugs or alcohol; but if counsel had had such proof, evidence of the officer's habits would have been superfluous. Instead, for what it was worth, counsel wanted to lay the foundation for a permissible inference which, if drawn by the jury, would negative the People's theory that his client stole the gun. ⁷ He should have been permitted to present his proof. ⁸

The jury apparently felt that the case was a close one. It first retired at 10:43 a.m. and did not reach its verdict until 8:57 p.m. A little earlier, at 8:05 p.m. the foreman of the jury had expressed the opinion that there was no reasonable possibility of a verdict being reached that evening. Admission of the rejected evidence could have raised a reasonable doubt. The error was prejudicial.

It is unfortunate that we must reverse, for we do not really know whether the offered evidence would have lived up to its advance billing. Offers of proof are rarely colored by pessimism. Unnecessary reversals for failure to receive evidence which does not, in fact, exist, can easily be avoided by hearing the offered proof from the witness, under oath. Quite apart from possibly showing that the witness would have had nothing to contribute had the court ruled differently, the impact of the testimony, if the witness does come through, may cause the court to change an erroneous ruling. In federal nonjury trials, such a procedure is required by rule 43(c) of the Federal Rules of Civil Procedure. (See also 9 A.L.R.3d, 508 at 509, fn. 1.)

Defendant makes several other contentions. We shall only discuss those that are likely to arise on retrial. He claims that the court erroneously instructed the jury on the law concerning confessions, although there was no evidence of any confession. We need not decide whether defendant is technically correct. ⁹ The instructions that were given to the jury do not characterize any of defendant's statements as a confession and it is inconceivable that he was prejudiced.

The prosecution produced two witnesses who testified that on September 6, 1967, defendant had threatened them with a revolver. They both identified Officer R.'s revolver as being the weapon. ¹⁰ On appeal it is argued that the evidence was irrelevant and unduly prejudicial.

The relevance of defendant's possession of the gun on September 6 is, under the circumstances of this case, so obvious that we need not discuss it further.

Turning to the claim of prejudice there is a clear distinction between the naked fact of appellant's possession of the gun and his actions at the time. Strictly speaking only the possession was relevant. Theoretically the trial court could have prevented the prosecutor from going further during the direct examination of his witnesses. As a practical matter it would have been futile to do so, since defendant obviously could not leave their testimony unchallenged and any attempt to discredit or contradict the witnesses would have entitled the prosecutor to develop their entire version of the incident.

Defendant claims that the prosecutor...