People v. Benton

• Decision Date: 19 December 1979
• Docket Number: Cr. 34334
• Citation: 100 Cal.App.3d 92,161 Cal.Rptr. 12
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bernard BENTON, Defendant and Appellant.

Page 12

161 Cal.Rptr. 12

100 Cal.App.3d 92

The PEOPLE, Plaintiff and Respondent, v. Bernard BENTON, Defendant and Appellant.

Cr. 34334.

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

Dec. 19, 1979.

Hearing Denied Feb. 14, 1980.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, William Wesley Patton, Deputy State Public Defender, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

By jury trial appellant was convicted of discharging a firearm at an inhabited dwelling house. (Pen.Code, § 246.) Outside the presence of the jury appellant had admitted five prior convictions. Appellant was sentenced to state prison.

The victim, Wilma Harris, had known appellant for about 15 years. She had been a friend, sounding board or confidante. He sometimes became angry at her, including on two recent occasions when they argued about a newspaper article and when he came to her home requesting medical assistance and she told him he should go to a hospital instead. He had never threatened her, however.

On October 21, 1977, Mrs. Harris stayed up late watching Johnny Carson and Tom Snyder from her bed. The Tom Snyder show had been on for 15 to 20 minutes when she got up to go to the bathroom. After using the toilet, she suddenly observed appellant outside the house looking through the bathroom window. She addressed him by name, said, "That's not nice. You don't peek in people's windows," and closed the louvered window. Adjacent to the bathroom was a side door. Mrs. Harris heard appellant at the door, saying, "Open the door, I would like to talk to you." She told him it was too late. He said, "Well, what if I start shooting?"

Mrs. Harris went to the phone to call the police. Her 17-year-old daughter, Michele, saw appellant outside a window and said, "Bernard, why don't you leave before she calls the police?" Appellant did not reply. As Mrs. Harris called the police, appellant fired through the door and through the bedroom window. He then fired additional shots through the living room window, front door, and kitchen window, a pattern as if fired while appellant was walking down the driveway.

Los Angeles Police Officers De Mucha and Wachtler responded to a shooting call at about 1:30 a. m. Officer Wachtler observed several bullet holes in the house and recovered a .22 caliber bullet from the living room wall. Mrs. Harris described appellant and gave Officer Wachtler a picture of him. While the officers were at the house, the telephone rang. Officer De Mucha listened in on the kitchen extension. Mrs. Harris recognized the voice of the caller as appellant. He said, "So you've got the police there," and hung up.

Officer De Mucha heard background traffic noises on the telephone, suggesting that appellant may have called from a phone booth. He and his partner left the residence and found appellant on Glenoaks Boulevard, three or four blocks from the Harris residence and not far from a pay phone, about 10 minutes after the call.

After appellant was arrested and booked, he was given access to a telephone to make permitted calls. Appellant called Mrs. Harris at 5 a. m. and stated that he wanted to speak to the children and apologize for everything he had done. Subsequently he called again, saying again that he was sorry and that he had shaved his head. Appellant lived three and a half blocks from the Harris residence and worked at a liquor store one and a half blocks from the residence.

Appellant presented an alibi defense. He testified on his own behalf that he had worked at the liquor store until 1 or 1:15 a. m. and then gone to a party where he stayed until about 2, after which he walked Ann Cunningham home. He was arrested while walking home after dropping her off. He further testified that after his arrest one of the officers told him that he had shot into a woman's house and that if necessary he would be given a paraffin test. Appellant replied to the officer that he would welcome it because he had done no shooting and had no gun. He called Mrs. Harris from jail to ask her why she was going to say that he had shot at her house.

Appellant's alibi as to the party was corroborated by Samuel Pauley and Hattie Star. Ann Cunningham did not testify.

PRIOR FELONY CONVICTION

Appellant contends the trial court erred in allowing the prosecutor to impeach appellant as a witness by referring to appellant's 1966 conviction of attempted burglary. (People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1.) He contends that its remoteness in time so reduced the probative impeachment value of the conviction that it should have been excluded because its prejudicial effect outweighed its probative value. (People v. Antick, 15 Cal.3d 79, 99, 123 Cal.Rptr. 475, 539 P.2d 43.)

Ironically, the prosecutor had sought to use appellant's 1976 conviction of forgery, but utilized the 1966 conviction instead when appellant's counsel erroneously persuaded the court that the forgery conviction was not a felony. ¹

In any event, remoteness is only one of the factors to be considered by the trial court in exercising its discretion in permitting impeachment for prior felony convictions. (People v. Wilson, 50 Cal.App.3d 811, 818, 123 Cal.Rptr. 663; People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.) In the absence of a showing by appellant that his prior attempted burglary did not involve a theft, it is assumed that it did and thus is a crime reflecting on appellant's honesty. (People v. Stewart, 34 Cal.App.3d 244, 247-248, 109 Cal.Rptr. 826, disapproved on other grounds in People v. Rist, 16 Cal.3d 211, 221, 127 Cal.Rptr. 457, 545 P.2d 833.) That crime was not similar to the crime with which appellant was charged. Appellant had numerous other convictions, and the court permitted one, but only one, to be used for impeachment. To exclude any reference to any of appellant's numerous convictions would have given his testimony a false aura of veracity. Appellant had not led a legally blameless life since the 1966 conviction. The court's ruling did not dissuade appellant from testifying. The court did not err in exercising its discretion under Beagle.

MISCONDUCT

Appellant contends the prosecutor committed misconduct in her argument to the jury. Appellant contends the prosecutor should not have argued that appellant "has a temper that's a character defect" or that appellant and his alibi witnesses were lying. There was no objection to these statements at the time they were made nor any request that the jury be admonished, and therefore these arguments may not normally be raised for the first time on appeal. (People v. Reyes, 12 Cal.3d 486, 505, 116 Cal.Rptr. 217, 526 P.2d 225.) In any event, neither comment was misconduct. Appellant seizes upon the prosecutor's reference to "character defect" and argues a defendant's character is ordinarily inadmissible to prove his conduct on a specified occasion. (Evid.Code, §§ 786, 1101.) However, the context of the statement is that the prosecutor was commenting upon one of appellant's previous quarrels with the victim. ² Specific incidents showing prior quarrels or antagonism between a defendant and the victim are admissible. (People v. Daniels, 16 Cal.App.3d 36, 46, 93 Cal.Rptr. 628.) The prosecutor was entitled to draw inferences from the evidence as to appellant's identity as the perpetrator and his motive for the crime. As to the prosecutor's other comment that appellant's witnesses were lying, ³ this is a permissible inference when the defense evidence is contradicted by the prosecution evidence. (People v. Reyes, supra, 12 Cal.3d at p. 505, 116 Cal.Rptr. 217, 526 P.2d 225.)

Appellant also contends the prosecutor committed misconduct in her argument concerning appellant's willingness to take a paraffin test. Appellant had testified that when he was arrested a police officer told him that he would be given a paraffin test if necessary to determine if he had fired a gun. Appellant testified he told the officer he would welcome it because he had not done any shooting and had no gun, but the police did not give him the test. On cross-examination appellant was asked, "But at the time you did know the test was useless?" and he replied, "No, I didn't know anything about the test. . . . I didn't even know what a paraffin test was. It was referred to me and I asked what it was and he said it was something to tell if you have fired a gun . . . ."

In his argument to the jury, defense counsel stated, "Now, is that a guilty man talking there? Do you accept that scientific test if there is any question in your mind that you shot a gun? You don't. You don't. Mr. Benton was not guilty, knew he didn't do it, and wanted the chance to prove that he didn't."

In reply, the prosecutor argued: ". . . You also hear this argument regarding Officer Wachtler, that he tried this technique with juveniles and it worked. He tried it with a conwise defendant and it didn't work. Well, that is not unreasonable. That makes a lot of sense. A person says, 'All right, I'll take that test. It's useless, but I'll take that test.' It's like the defendant saying, 'Okay, Officer, you can come in,' you are investigating narcotics, 'Come in, search my premises,' in the hopes that the officer misses his stash. It happens all the time. It is not the first time that a person has done that. The defendant wants you to believe that he doesn't want you to know that the test is useless."

Outside the presence of the jury the trial court had determined that appellant's offer to take the test was admissible (cf. People v. Thornton, 11 Cal.3d 738, 763-764, 114 Cal.Rptr. 467, 523 P.2d 267), because there was a generally accepted test for finding gunfire residue on a suspect's...