People v. Boehm

• Decision Date: 21 February 1969
• Docket Number: Cr. 6837
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene BOEHM, Defendant and Appellant.

Page 590

75 Cal.Rptr. 590

270 Cal.App.2d 13

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene BOEHM, Defendant and Appellant.

Cr. 6837.

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

Feb. 21, 1969.

David B. Mogilefsky, San Francisco, for appellant (Under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, Joyce F. Nedde, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Defendant Eugene Boehm was convicted after a jury trial of the crime of conspiracy to bring narcotics into a county jail.

His first assignment of error relates to what he calls 'the final bit of testimony before the jury, that appellant had been convicted of so-called 'felony child beating."

Boehm took the stand and testified on his own behalf after which he was cross-examined by the district attorney. The prosecution then put on rebuttal witnesses, whereupon the court recessed for the day. At the next session of the court additional prosecution rebuttal witnesses testified. The prosecutor then, without objection, recalled Boehm to the witness stand to ask a question apparently overlooked on the previous cross-examination. The record shows the following to have then occurred:

'(DISTRICT ATTORNEY): Mr. Boehm, have you ever been convicted of a felony?

'A. Yes, I have.

'Q. And what was the nature of that felony?

'A. It was for injuring a child.

'Q. Pardon me?

'A. For injuring a child.

'Q. Injuring a child?

'A. Yes.

'Q. Felony child beating, is that correct?

'A. I am not exactly sure.

'(DEFENSE COUNSEL): I wish to make the strongest objection. I want to make it at the bench.

'THE COURT: All right.

'(Counsel approach the bench.)

'(DEFENSE COUNSEL): Judge, I want to make the strongest objection.

'(DISTRICT ATTORNEY): I have no further questions.

'THE COURT: All right. Anything else?

'(DISTRICT ATTORNEY): The People rest, Your Honor.

'(The witness was excused.)

'(Whereupon, counsel for the People and defendants presented arguments to the jury.)'

Boehm here contends error in the use by the prosecutor of the term 'felony child beating' and in 'saving up evidence of a prior felony, to be released on rebuttal and close to the end of all testimony.'

There is no indication that the prosecutor's questions were not asked in good faith; the record before us shows that Boehm had in fact been convicted of 'felony child beating,' a violation of Penal Code section 273d. It is proper to secure a fair identification of the crime involved where a defendant-witness is questioned as to a prior felony. People v. Smith, 63 Cal.2d 779, 790, 48 Cal.Rptr. 382, 409 P.2d 222, 230, states: 'While the court will be zealous to insure that the prosecuting attorney is not permitted to delve into the details and circumstances of the prior crime (citations), Simple questions designed to identify the particular felony involved in the conviction are allowable. Thus the name or nature of the crime may be asked * * *.' (Emphasis added.)

While unnecessarily withholding such interrogation of a defendant in a criminal case until the closing minutes of the trial is not ordinarily to be condoned, under the circumstances here Boehm may not complain.

Boehm chose to make his objection to the closing questions of the district attorney Off the record at the bench. We do not know what the objection was; it might have been that counsel was objecting to proof of a prior conviction, or its description as a 'felony child beating,' or to the stage of the trial at which the question was asked, or something else. It cannot be determined whether the district attorney offered a reason for the belated inquiry into Boehm's previous conviction, and if so, what the reason was. Nor do we have the judge's ruling, or the ground on which it was based. We are therefore unable to determine Boehm's instant contention of error.

Boehm's On the record statement that he wished to make 'the strongest objection' is of no assistance to us. Such a general objection has repeatedly been held insufficient. (See Bundy v. Sierra Lumber Co., 149 Cal. 772, 776, 87 P. 622, Witkin, Cal. Evidence (2d ed.), §§ 1288--1290.)

Boehm urges that we should nevertheless give effect to the general objection and infer that it related to his untimely call to the stand for further cross-examination. A more probable inference must be drawn. The record shows that no objection whatever was made when Boehm was recalled to the stand, asked if he had ever been convicted of a felony, and admitted such a conviction. It was not until several questions later when Boehm was asked if his prior offense was 'felony child beating' that the first indication of an objection was made. Treating Boehm's 'strongest objection' as relating to the description of the offense, as is more reasonable, there was no error. (See People v. Smith, supra, 63 Cal.2d 779, 790, 48 Cal.Rptr. 382, 409 P.2d 222.)

It is noted that the jury properly had knowledge that Boehm was a jail inmate at the time of the charged offense. This would tend to minimize the prejudice, if any, resulting from knowledge of Boehm's prior conviction.

The next assignment of error concerns a meeting held in the judge's chambers shortly before the trial in the absence of Boehm and his attorney. At this meeting immunity was granted to a codefendant and the charge, as to him, was dismissed. It is urged that this proceeding was violative of 'due process' and of Penal Code section 1043.

As to the due process contention, the United States Supreme Court in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674, has stated: 'So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process To the extent that a fair and just hearing would be thwarted by his absence and to that extent only.' (Emphasis added.) The rule has been expressed in In re Dennis, 51 Cal.2d 666, 672--673, 335 P.2d 657, 660, as follows: 'In other words, it appears that when the presence of the defendant Will be useful, or of benefit to him and his counsel, the lack of his presence becomes a denial of due process of law.' (Emphasis added.) In Dennis (p. 672, 335 P.2d p. 660) the court quoted with approval from Snyder v. Commonwealth of Massachusetts, supra, the following: 'Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.'

Penal Code section 1043 provides that 'The defendant must be personally present at the Trial * * *.' (Emphasis added.) This probably means that the defendant must be present at every stage of a felony prosecution after his apprehension. (See People v. Williams, 194 Cal.App.2d 523, 525--526, 15 Cal.Rptr. 191; People v. Berling, 115 Cal.App.2d 255, 267, 251 P.2d 1017.) However, it is held that section 1043 requires a defendant's presence only at such stages of the trial in which his substantial rights may be affected by the proceedings (People v. Blye, 233 Cal.App.2d 143, 149, 43 Cal.Rptr. 231; People v. Morales, 60 Cal.App.2d 196, 200, 140 P.2d 461); and that his presence is not necessary at proceedings which are merely preliminary or formal wherein no matters affecting his guilt or innocence are presented. (Mooney v. Superior Court, 130 Cal.App. 521, 522, 20 P.2d 106.)

While we recognize that circumstances might be presented in which a defendant might be prejudiced by his absence from a conference at which immunity is granted a codefendant, we find no such prejudice here. A reading of the transcript of the brief recorded hearing shows that the hearing in no way affected his substantial rights to a fair trial, or otherwise. He would have had no voice in the granting of such immunity had he been personally present. Moreover, after the conference but before the immunized witness took the stand several days later, appellant was furnished with a complete transcript of the immunity hearing which he could use for any impeachment value it might have. Appellant suggests no other way in which his substantial rights may have been adversely affected. In such circumstances we conclude that no showing has been made that appellant was in any way damaged or denied a fair trial. (See People v. Blye, supra, 233 Cal.App.2d 143, 149, 43 Cal.Rptr. 231.) In the language of Snyder v. Commonwealth of Massachusetts, supra, any possible benefit that he might have derived by being personally present at the conference would have been 'but a shadow.'

Another assignment of error is that the grant of immunity to Boehm's codefendant, but not to Boehm, was a denial of equal protection of the laws. There is no merit to this contention. It has been repeatedly held that California's immunity statute is constitutional, and that, absent a policy of unfair and unequal law enforcement (which does not appear here), the prosecution may select the codefendant or coconspirator to whom immunity shall be given. (See Powers v. Floersheim, 256 Cal.App.2d 223, 233--234, 63 Cal.Rptr. 913; People v. Maldonado, 240 Cal.App.2d 812, 816, 50 Cal.Rptr. 45; People v. Northrup, 203 Cal.App.2d 470, 475, 21 Cal.Rptr. 448; People v. Clemons, 182 Cal.App.2d 808, 818, 6 Cal.Rptr. 727; People v. Fowler, 119 Cal.App.2d 657, 664, 260 P.2d 89; People v. Walther, 27 Cal.App.2d 583, 590--591, 81 P.2d 452; People v. Frahm, 107 Cal.App. 253, 260-- 261, 290 P. 678.) This rule is particularly applicable where, as here, the evidence indicates the person granted immunity so that he may testify is not the leading figure, or originator, of the conspiracy.

It is contended that the trial court improperly restricted Boehm's cross-examination of the witness to whom immunity had been granted.

On cross-examination the witness testified at length and in detail on his relations with the district attorney both...