People v. Bernal
| Decision Date | 11 September 1967 |
| Docket Number | Cr. 2805 |
| Citation | 254 Cal.App.2d 283,62 Cal.Rptr. 96 |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Charley BERNAL, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
*
Defendant appeals from a judgment of conviction of possession of marijuana in violation of Health and Safety Code, section 11530, after trial before a jury. The information filed also charged defendant with a prior conviction of a felony which defendant admitted. Because of the limited nature of the contentions made upon appeal, we set forth only those facts essential to their consideration.
On the morning of July 3, 1966, about 2:00 a.m., defendant was arrested as he sat in his Thunderbird automobile waiting for a traffic light to change in the downtown area of San Diego. The evidence of defendant's guilt consisted of testimony that he was smoking an apparent handrolled cigarette and cupping his face and holding his nose in a manner customary to marijuana users; when the car door was opened for defendant to get out, a strong odor of marijuana smoke was apparent; on the floor a matchfolder with a charrred area was found which was warm; it is customary to keep partially smoked marijuana cigarettes in such a matchfolder; another matchfolder with two partially burned but cold marijuana cigarettes was found in the console between the two front seats of the Thunderbird. Defendant concedes the sufficiency of the evidence to support the conviction if the trial court did not commit error or if committed error was harmless or not prejudicial.
Defendant testified in his own behalf, and denied smoking marijuana at the time in question and denied having any in his car.
The contentions of the defendant require that we set out at length the testimony of defendant's brother, Alex Bernal, who was called as a witness by defendant.
'Q Mr. Bernal, do you recognize the gentleman sitting at the left of me?
'A Yes.
'Q Who is he?
'A My brother.
'Q And what is his name?
'A Charles Bernal.
'Q Where are you staying at the present time?
'A In the county jail.
'Q How long have you been there?
'A Almost a month now.
'Q Why are you there?
'A Sale of marijuana and possession--not possession, sales.
'Q Over what period of time were you accused of selling marijuana?
'Q Well, starting when?
'A Oh, around June, July.
'Q Does your brother Charley have an automobile?
'A Yes.
'Q What sort of an automobile is it?
'A '59 Thunderbird.
'Q What color?
'A Blue.
'Q Did he have it in July of this year? May I withdraw that question? Wait a minute. Can you answer the question?
'A I don't know how long he has had it. I mean--
'Q Do you know when he was arrested?
'A Today? The day?
'Q Did he have the automobile before he was arrested?
'A You mean before he was picked up?
'Q Yes.
'A No.
'Q You know that your brother Charley is accused of possession of marijuana, don't you?
'A Yes.
'Q You know that he is accused of possessing marijuana in an automobile.
'A Yes.
'Q Is it this blue Thunderbird?
'A That he is accused?
'Q That he is accused of possession of marijuana in.
'A Yes.
'Q Then he had the blue Thunderbird at the time he was arrested for possessing marijuana, didn't he?
'A Yes.
'Q Before he was arrested for possessing this marijuana did you ever drive the blue Thunderbird?
'A Yes.
'Ladies and gentlemen of the jury, when an answer is stricken you treat it as though you had not heard it and, of course, you draw no inference from the question itself.
'BY MR. LANGFORD:
'Q Did you ever possess marijuana in that blue Thunderbird?
'A I refuse to answer that question because I honestly believe that answer may tend to incriminate me.
Defendant's first contention is stated in these terms:
'The trial court erred in striking the testimony of Alex Bernal, because his testimony including his claim of the privilege against self incrimination, was relevant, admissible evidence in support of an inference that he, rather than appellant, was the possessor of People's Exhibit 2, the only usable quantity of contraband introduced in evidence in the case at bar.'
Two questions are suggested by this contention. The first is whether the trial court properly allowed the witness Alex to withdraw his answer admitting use of defendant's automobile for the purpose of claiming his privilege against self-incrimination. The second and basic question is the effect to be given to the witness' claim of the privilege against self-incrimination.
Defendant's position as expressed in his brief makes no claim of error in the withdrawal of the answer. The record discloses the answer was given; the witness' counsel requested the striking of the answer and then advised his client not to answer. In summary fashion a claim of privilege in effect was allowed, although the witness did not actually and personally assert the claim. No objection to the procedure was made by defendant. Under the circumstances the trial court acted within the limits of its discretion in allowing the withdrawal of the answer. There is no sound basis for distinguishing in this regard between a defendant and a witness and it does not appear from the record that the witness had been informed of his privilege against self-incrimination, although represented by counsel. It is true that a defendant represented by counsel waives his privilege not to testify if he voluntarily becomes a witness. (See People v. Kramer, 227 Cal.App.2d 199, 38 Cal.Rptr. 487; People v. Glaser, 238 Cal.App.2d 819, 826 Et seq., 48 Cal.Rptr. 427.) A distinction may be made with respect to a witness not a defendant; he has no choice whether to be a witness, hence the question of waiving the privilege does not arise until he answers or refuses to answer a specific question. (See Ex parte Stice, 70 Cal. 51, 53, 11 P. 459.) Having in mind the exigencies of trial procedure, we apprehend no error of which defendant may take advantage in the retrospective and delayed claim against self-incrimination. The court acted within its discretionary power to control the introduction of evidence.
We consider secondly the court's action in striking from the record and the consideration of the jury the witness' claim of privilege against self-incrimination. Defendant contends that he was entitled to have before the jury, for what it was worth, the refusal to answer the question whether the witness had used defendant's Thunderbird. As defendant sees it, the jury would have the right to infer the answer would be yes (as in fact it was), which in turn would permit an inference of guilt upon the part of the witness and possibly result in doubt of defendant's guilt. While questions of remoteness and of consistency of guilt of both defendant and the witness notwithstanding readily pose themselves, we deem the point worthy of more comprehensive analysis.
As with other individual constitutional rights, the privilege against self-incrimination has in recent years been the subject of intensive judicial attention. For state courts a turning point was reached in 1964 with the decision of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, when the United States Supreme Court ruled that the Fourteenth Amendment carried the protection against compulsory self-incrimination of the Fifth Amendment into state court proceedings. California, of course, has had its own constitutional provision (Art. I, § 13) affording the same right against compulsory self-incrimination, diluted by the concurrent permission authorizing comment on a defendant's failure to testify. Federally, the no-comment rule was founded on statute (see Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650) until 1965 with the decision of Griffin v....
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People v. May
...accord, People v. Coleman (1975) 13 Cal.3d 867, 875, fn. 5, 120 Cal.Rptr. 384, 533 P.2d 1024; see generally People v. Bernal (1967) 254 Cal.App.2d 283, 288-294, 62 Cal.Rptr. 96.) In view of these policies, the privilege "must be accorded liberal construction in favor of the right it was int......
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People v. May
...accord, People v. Coleman (1975) 13 Cal.3d 867, 875, fn. 5, 120 Cal.Rptr. 384, 533 P.2d 1024; see generally People v. Bernal (1967) 254 Cal.App.2d 283, 288-294, 62 Cal.Rptr. 96.) In view of these policies, the privilege "must be accorded liberal construction in favor of the right it was int......
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United States v. Marquez
...v. Shaughnessy, 212 F.2d 128, 130 (2d Cir. 1954). 24 United States v. Atnip, 374 F.2d 720 (7th Cir. 1967). 25 People v. Bernal, 254 Cal.App.2d 283, 62 Cal.Rptr. 96, 102-103, cert. denied, 389 U.S. 863, 88 S.Ct. 123, 19 L.Ed.2d 133 26 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943). 27 Id. 3......
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...present a defense do not include a right to present to the jury a speculative, factually unfounded inference'"]; People v. Bernal (1967) 254 Cal.App.2d 283, 294, 62 Cal.Rptr. 96 ["the defendant, as opposed to the witness, has no right which he may assert superior or even equal to that of th......