People v. Berger

• Decision Date: 05 February 1968
• Docket Number: Cr. 12926
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Leslie BERGER, Defendant and Appellant.

Page 213

66 Cal.Rptr. 213

258 Cal.App.2d 622

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Leslie BERGER, Defendant and Appellant.

Cr. 12926.

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

Feb. 5, 1968.

Rehearing Denied Feb. 23, 1968.

Hearing Denied April 4, 1968.

Donald Leslie Berger, in propria persona. Cooper & Nelsen and Maxwell S. Keith, Los Angeles, for appellant by appointment of Court of Appeal.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Marvin A. Bauer, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant Berger and codefendant Ruggiero were convicted by a jury of first degree robbery (Pen.Code, § 211); defendant was also found guilty of kidnapping for the purpose of robbery (Pen.Code, § 209). Previously he had admitted four prior felony convictions alleged in the information. Probation having been denied, he was sentenced to the state prison. Only defendant Berger appeals from the judgment.

Carl Arthur Dunston was employed at a North Hollywood service station during the month of May 1966. On May 14, shortly before ten p.m. he was in the back room of the station changing his clothes. Hearing the station buzzer, he came out of the back to the front office and was confronted at the door by defendant pointing a gun at him. It was held in defendant's right hand and appeared to be 'a little .22.' A second man, Ruggiero, was with him but Dunston could not state whether he had a gun. Defendant told him he wanted all of him money; Dunston thought he was joking and told him he didn't have any money. When defendant said, 'You better have some,' Dunston went up to the cash box, but he did not have his keys; defendant told him to get them. Dunston then walked to the back room for the keys; defendant followed immediately behind him, while Ruggiero remained in the front office. When Dunston had secured the keys, they proceeded to the cash box outside the office in the island, and defendant told Dunston to open it up and 'to act casual.' Dunston opened the box and folded up the money, approximately $150, and defendant then said: 'Let's walk back inside.' Having done so, defendant told Dunston to give him the money; defendant folded it up, stuck it in his billfold and told Dunston to lie down for five minutes in the back room. Ruggiero was present during this interval of time, about five minutes, but remained in the office building proper; 'he didn't say too much,' and defendant did most of the talking. When Dunston had lain down, at defendant's instructions, the latter said: 'Do you hear me?' Dunston said 'Yes' and just lay there. When Dunston finally got up, both men had departed. Dunston then went back into the office to get a coin from his wallet to call the police; the wallet was missing; he had last seen it on the counter right where Ruggiero had been standing; he ran across the street and called the police. Dunston identified the defendant, the 'guy with the black hair,' and Ruggiero, he having twice previously seen both parties together at a certain tavern (Lil's Bar). Three days later, May 17, Dunston saw defendant and Ruggiero at Lil's Bar. The police were summoned, but the men had left. On May 27, they were arrested in Montebello at a private residence. Defendant was attempting to leave by a bathroom window; Ruggiero was found standing in a bedroom behind an open door with the lights out.

The defense consisted of the testimony of alibi witnesses and defendant's own testimony to the effect that for reprisal reasons he had been 'framed.' In this regard, defendant was assertedly told by Dunston that he (Dunston) 'had been beat out of some whites (benzedrine) and that he had paid $20.00 for those whites, and as a result wanted his money back because Bob Ruggiero had introduced him to Duke.' Too, even though defendant had never personally agreed to get the benzedrine for Dunston, the latter had previously made demands on him.

The first assignment of error relates to the exclusion of certain testimony offered by defendant, on the grounds that it was hearsay and irrelevant. The ruling occurred during defendant's direct examination when he was asked whether he and Dunston had ever discussed anything relating to defendant's past record, including Dunston's knowledge that defendant was then on parole. The objection by the prosecutor was the hearsay nature of such evidence; the objection was sustained on the basis of the irrelevance of such testimony. The offer of proof pointed out that the jury had the right to know of Dunston's awareness of the fact that both defendants were on parole and had a very bad background; that since the defense contended that Dunston himself took the money from the service station, it would be logical for him to point an accusing finger at defendant, a previously convicted felon. The hearsay objection does not appear to have been well taken. 'There is a well established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence. (Citations.)' (People v. Henry, 86 Cal.App.2d 785, 789, 195 P.2d 478, 480.) That was the situation here. It is also questionable whether the evidence sought to be elicited was free from irrelevance. 'Evidence is relevant not only when it tends to prove or disprove the precise fact in issue, but when it tends to establish a fact from which the existence or nonexistence of the fact in issue...