People v. Bethea

• Decision Date: 26 July 1971
• Docket Number: Cr. 18848
• Citation: 96 Cal.Rptr. 229,18 Cal.App.3d 930
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles Elston BETHEA, Defendant and Appellant.

Page 229

96 Cal.Rptr. 229

18 Cal.App.3d 930

The PEOPLE, Plaintiff and Respondent, v. Charles Elston BETHEA, Defendant and Appellant.

Cr. 18848.

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

July 26, 1971.

Hearing Denied Oct. 21, 1971.

Jesse L. Halpern, Sherman Oaks, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

By information, defendant was charged with robbery while armed with a gun (Pen.Code § 211), and he pleaded not guilty. After a jury trial, defendant was found guilty of first degree robbery, and the allegation of being armed at the time of commission of the offense was found to be true. Defendant's motion for a new trial was denied, probation was denied, and defendant was sentenced to state prison for the term prescribed by law. Defendant appeals from the judgment.

On February 22, 1968, Hector Aguilar was working as the manager of the Woodlawn Liquor Store located at 128 East Santa Barbara Street, Los Angeles. At about 8:00 p.m., he noticed a man in a long, black trench coat enter the store; there were approximately six to eight, 'maybe more,' customers in the store. While ringing up a customer's order, Aguilar kept glancing at the man in the coat and observed defendant alongside the man. Defendant vaulted over the counter with a gun in his hand and ordered Aguilar's clerk on the floor. The clerk was 'stomped' on by defendant for attempting to reach a silent alarm button, and defendant struck Aguilar in the back of the head with the gun for not giving up the cash. Aguilar did not lose consciousness from the blow; he took approximately $500 from the cash register, put it in a bag, and handed it to defendant. Defendant then ordered Aguilar to the floor and fled with the money. On his knees, Aguilar reached into a drawer, grabbed a gun, and then went after defendant but was unable to apprehend him.

Aguilar testified he was certain that defendant was the robber with the gun. The robbery lasted three to five minutes, and Aguilar spent three-quarters of the time observing defendant's face. Defendant was wearing a grey pair of slacks and a black 'Eisenhower jacket.' Aguilar had been the victim of three robberies.

Aguilar was shown photographs on three or four occasions. Officer John Noonan first showed Aguilar a group of six or seven photographs at Aguilar's place of business within a week of the robbery. Aguilar picked out the photograph of the man who had worn the trench coat at the time of the robbery. Within the next week, again at his place of business, Aguilar was shown a second group of seven or eight photographs of male Negroes. The officer asked Aguilar to 'look at the pictures.' There was nothing unusual about defendant's photograph which made it stand out from the other photographs. Aguilar looked through the second group of photographs twice, the first time selecting four photographs. From these four photographs he picked out defendant's photograph as the likeness of the robber in the Eisenhower jacket. After seeing defendant's photograph, Aguilar said to the officer, 'This is the one.' Aguilar was shown a third set of seven to eight photographs, also during 1968, from which he again picked out defendant's photograph as the likeness of the robber in the Eisenhower jacket. Before showing the photographs to Aguilar, the officers stated they wanted to make sure of the identity of the perpetrator.

Aguilar testified that there was no doubt in his mind that he could identify defendant based on his observations at the store, independently of his looking at defendant's photograph.

At the trial, Officer J. E. Guterding appeared in court in answer to a subpoena

At the trial, Officer J. E. Guterding appeared to produce the photographs used in the 1968 identifications. Officer Noonan testified that he had made a search of the records at Newton Police Station, but was unable to locate the photographs shown to Aguilar in 1968.

On March 5, 1970, Officer Noonan returned defendant, under extradition, from Chicago to Los Angeles after defendant had voluntarily waived a formal extradition hearing. On March 6, 1970, Officer Noonan showed Aguilar a group of nine photographs. Defendant's photograph was somewhere in the middle of the group. Officer Noonan did not suggest in any way which photograph Aguilar was to pick out, and Aguilar picked out defendant's photograph. These photographs were introduced into evidence as People's Exhibit 1.

Defendant's wife testified that she and defendant left for Chicago approximately two or three days after February 14, 1968 and remained there for the next two years; that during this time defendant did not return to California. She testified that there was no possible way defendant could have been in Los Angeles on February 20, 1968. The prosecution introduced rebuttal evidence that defendant had been arrested for driving under the influence of intoxicating liquor on February 14, 1968 and had appeared in Division 35 of the Los Angeles Municipal Court on February 20, 1968. A certified copy of the February 20, 1968 docket of the Los Angeles Municipal Court was received into evidence as People's Exhibit 2. Defendant's photograph, taken on February 14, 1968 when booked for this arrest, was also received into evidence as People's Exhibit 3. A defense motion requesting two weeks' continuance to investigate the preparation and trustworthiness of People's Exhibit 2 (certified copy of the February 20, 1968 municipal court docket) was denied.

Defendant contends: ¹ (1) the prosecutor's remarks in his closing argument violated the Griffin rule and constituted prejudicial error; (2) the trial court's refusal to grant a continuance amounted to a denial of due process of law; (3) admission of the in-court identification by Aguilar violated the Sixth and Fourteenth Amendments of the federal constitution; (4) failure of the prosecution to produce (certain of the) photographs shown to the complaining witness resulted in a denial of due process of law; (5) the delay in commencement of defendant's prosecution resulted in a denial of due process of law; (6) defendant was denied due process of law as guaranteed by the state and federal Constitutions because the prosecution failed to meet the burden of showing that the eye-witness identification 'was the product of the witness' independent recollection and not the result of the suggestiveness of the court's proceedings.'

Defendant's contention (1) is that the prosecution's remarks in his closing argument violated the rule established in Griffin v. California, 380 U.S. 690, 85 S.Ct. 1229, 14 L.Ed.2d 106, which prohibits references to a defendant's assertion of his Fifth Amendment right against self-in-crimination and his not taking the stand in his own defense. During the deputy district attorney's opening argument, he alluded to the testimony of defendant's wife that she and defendant had moved from Los Angeles to Chicago and that there was no possible way that defendant could have been in Los Angeles on February 20, 1968. The deputy then referred to the certified copy of the municipal court docket which shows that defendant was in the Los Angeles court on February 20, 1968. The deputy then stated to the jury: 'So, ladies and gentlemen, basically what this case boils down to is that we have the prosecution's positive evidence that the defendant is guilty of robbery in the first degree, and we have the defense which has just been shot out of the water, zero. So you have the prosecution's case against nothing for the defense. The state of the record is that there has been no explanation given for this, and you will get the exhibits in the jury room, and you will determine whether or not the defendant is guilty beyond a reasonable doubt.' Defendant claims these remarks constitute prejudicial error. The remarks made by the prosecution go to the state of the evidence, which is entirely proper. (People v. Hardy, 271 Cal.App.2d 322, 330--331, 76 Cal.Rptr. 557; People v. Burns, 270 Cal.App.2d 238, 247, 75 Cal.Rptr. 688.) There is absolutely no reference to the fact that defendant did not take the stand; nor is the remark susceptible of such interpretation by inference or innuendo.

Defendant next claims that the refusal of the trial court to grant a continuance was a denial of due process of law. Defendant's assertion is based on his claim that the prosecution's evidence (the municipal court docket) which rebutted defendant's wife's testimony that they were in Chicago at the time of the crime, came as a complete surprise. He claims that his request for two weeks' continuance would have provided time to investigate and find witnesses on the validity of the evidence. A continuance will be granted when the ends of justice require it. (Pen.Code § 1050.) It is established law that the determination of whether a defendant has affirmatively demonstrated that justice requires a continuance is a factual matter and will not be disturbed on appeal in the absence of a...