People v. Boothe

• Decision Date: 05 January 1977
• Docket Number: Cr. 8622
• Citation: 65 Cal.App.3d 685,135 Cal.Rptr. 570
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. J. C. BOOTHE, Defendant and Appellant.

Page 570

135 Cal.Rptr. 570

65 Cal.App.3d 685

The PEOPLE of the State of California, Plaintiff and Respondent, v.J. C. BOOTHE, Defendant and Appellant.

Cr. 8622.

Court of Appeal, Third District, California.

Jan. 5, 1977.

As Modified Jan. 10, 1977.

Hearing Denied March 3, 1977.

Evelle J. Younger, Atty. Gen. by Charles P. Just, Deputy Atty. Gen., for plaintiff and respondent.

Chino, Donald M. Perkovich, Sacramento, for defendant and appellant.

JANES, Associate Justice.

A jury convicted defendant of first degree robbery (Pen.Code, §§ 211,211a.)He appeals from the judgment.

On the evening of October 17, 1975, defendant went with his wife and her children to the El Paso Cafe in downtown Sacramento.Between 10:30 p.m. and 11:00 p.m., defendant left the cafe by himself after telling his wife that he was going to the Gold Nugget, a nearby cardroom.The Blue Ribbon Cafe is located in the same area.At approximately midnight, the bartender at the Blue Ribbon was robbed at knifepoint by a customer who had entered the premises an hour before.At trial, the bartender identified defendant as the robber.He was also identified by the Blue Ribbon manager, who arrived while the robbery was in progress and encountered defendant as defendant was leaving the premises.

Defendant testified in his own behalf that he departed from the Blue Ribbon prior to the robbery and returned to the El Paso Cafe after stopping at the Gold Nugget and the nearby apartment of a female acquaintance.

I

After the People rested their case-in-chief, defendant made a motion to preclude the prosecutor from using a 1969 California conviction of first degree robbery for impeachment purposes if defendant elected to testify.(SeePeople v. Beagle(1972)6 Cal.3d 441, 451--454, 99 Cal.Rptr. 313, 492 P.2d 1.)The court denied defendant's motion, but on its own motion excluded two 1960 convictions in Alabama--one for second degree burglary and the other collectively designated 'Burglary, Grand Larceny and Receiving Stolen Property.'Subsequently, upon defendant's direct examination, his attorney elicited the fact of the 1969 conviction; and, upon cross-examination, the prosecutor obtained defendant's admission as to the degree of the prior.

Defendant contends that the court abused its discretion when it permitted impeachment with the 1969 conviction.The contention fails.The court properly exercised its discretion when it excluded the Alabama priors, apparently because they were so remote.(SeePeople v. Antick(1975)15 Cal.3d 79, 99, 123 Cal.Rptr. 475, 539 P.2d 43;People v. Beagle, supra, 6 Cal.3d at p. 453, 99 Cal.Rptr. 313, 492 P.2d 1.)The record suggests that the 1960 convictions may have been excluded on the additional ground that they were not, according to the prosecutor, 'constitutionally proper.'There thus was available to the People for impeachment purposes no prior other than the one in 1969.'No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.'(People v. Beagle, supra, at p. 453, 99 Cal.Rptr. at p. 320, 492 P.2d at p. 8.)

Neither People v. Antick, supra, 15 Cal.3d 79, 123 Cal.Rptr. 457, 539 P.2d 43, nor People v. Rist(1976)16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, is inconsistent with our conclusions herein.In Antick, abuse of discretion was found where the priors used for impeachment were remote and the case'was clearly a close one, there being no direct evidence linking defendant to the charged offenses.'(15 Cal.3d at pp. 98--99, 123 Cal.Rptr. at p. 487, 539 P.2d at p. 55.)Neither of those factors is present in the instant case.In Rist, where (as here)the defendant was convicted of first degree robbery, abuse of discretion was found where (as here) a prior robbery conviction was used to impeach the defendant.In Rist, however, unlike the case at bench, at least one dissimilar nonremote prior was available for impeachment purposes.Rather than laying down a rule that similar priors could never be used for impeachment, the court said in Rist: 'We observed in Beagle that prior convictions for the same crime should be admitted Sparingly.(Citation.)With dissimilar prior available reason fairly dictated that the trial court exclude defendant's robbery conviction as a showing of defendant's possible dishonesty could have been accomplished by use of his far less prejudicial forgery conviction.'(16 Cal.3d at pp. 220--221, 127 Cal.Rptr. at p. 463, 545 P.2d at p. 839.)(Emphasis added.)Moreover, in Rist (unlike the instant case) the record disclosed that the ruling permitting impeachment with the similar prior 'was based upon the practice of the (trial) court and not upon an exercise of discretion.'(Id. at p. 223, 127 Cal.Rptr. at p. 465, 545 P.2d at p. 841.)Additionally, in Rist (unlike the instant case)the defendant did not testify, and the Supreme Court therefore said: 'It is thus not possible for us to determine on the record before us the degree of prejudice suffered by defendant because of the court's error in failing to grant his motion, and the usual tests for concluding that an error requires the reversal of a judgment of conviction are not applicable.'(16 Cal.3d at p. 223, 127 Cal.Rptr at p. 465, 545 P.2d at p. 841.)Even if it be assumed in the case at bench that the court abused its discretion as to the 1969 prior conviction, we have examined the entire cause and are of the opinion that no miscarriage of justice resulted.(People v. Watson(1956)46 Cal.2d 818, 836, 299 P.2d 243.)

II

The court refused defendant's request for the so-called 'Guzman' instruction.(SeePeople v. Guzman(1975)47 Cal.App.3d 380, 386--388[65 Cal.App.3d 690] and fn. 1, 121 Cal.Rptr. 69.)As Guzman itself indicates (Id. at p. 388), such refusal was nonprejudicial since the jurors were instructed as to the factors they could consider in judging the credibility of witnesses (CALJIC No. 2.20), and were also instructed that defendant was entitled to acquittal if the circumstances of his identification were such that the jurors had a reasonable doubt concerning the accuracy of the identification (CALJIC No. 2.91).

Notwithstanding defendant's objection, the court properly included former CALJIC No. 22(Rev.) in its instructions to the jury.¹Defendant does not contend that the court erred when it gave CALJIC No. 2.90, the standard instruction pertaining to the presumption of innocence, reasonable doubt, and the People's burden of proof in a criminal case.Except for its added definition of 'moral certainty,' former CALJIC No. 22(Rev.) substantially restates a portion of CALJIC No. 2.90.The current (3d) edition of CALJIC does not define 'moral certainty.'The term was correctly defined by former CALJIC No. 22(Rev.).(SeeCode Civ.Proc., former § 1826.)Defendant makes a single argument in support of his claim that former CALJIC No. 22(Rev.) misstates the law; he asserts that the challenged instruction suggests that the only proof of guilt required is 'a strong suspicion' thereof.No such suggestion can even remotely be inferred from the instruction.

III

Prior to defendant's arrest, his wife became suspicious that he committed the robbery.She showed a photograph of him to Chris Rodis, manager of the Blue Ribbon Cafe.Upon seeing the picture, Mr. Rodis thought he recognized defendant as the robber and notified the police.As previously stated, Mr. Rodis identified defendant at trial.

Defendant contends that his in-court identification by Mr. Rodis was tainted by his wife's pretrial display of the picture to the witness.(Cf.Simmons v. United States(1968)390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247, 1253.)The contention fails.Defendant made no objection to the identification testimony given by Mr. Rodis.Defendant thus waived the claimed error.(People v. Hoiland(1971)22 Cal.App.3d 530, 541, 99 Cal.Rptr. 523;People v. Hawkins(1970)7 Cal.App.3d 117, 124, 86 Cal.Rptr. 428.)Nor does the record show that defense counsel failed to make the objection because of lack of awareness of the facts or the law, or that such omission resulted in withdrawal of a crucial defense.(People v. Jenkins(1975)13 Cal.3d 749, 753--755, 119 Cal.Rptr. 705, 532 P.2d 857;People v. Najera(1972)8 Cal.3d 504, 516--517, 105 Cal.Rptr. 345, 503 P.2d 1353.)

Moreover, defendant cites no authority (nor has our own research found any) for the proposition that the rule of Simmons v. United States, supra, 390 U.S. at page 384, 88 S.Ct. at page 971, 19 L.Ed.2d at p. 1253, is applicable to pretrial photographic identification procedures conducted by private citizens, such as defendant's wife, who are not shown to have acted as actual or ostensible agents of the police.(Cf.Dyas v. Superior Court(1974)11 Cal.3d 628, 632, 114 Cal.Rptr. 114, 522 P.2d 674;People v. Rogers(1943)22 Cal.2d 787, 805141 P.2d 722;People v. Brown(1961)198 Cal.App.2d 253, 261, 17 Cal.Rptr. 884.)

IV

Having waived the privilege applicable to confidential marital communications (Evid.Code, § 980), defendant's wife testified for the People that defendant returned to the El Paso Cafe shortly after the robbery and made certain inculpatory statements.Prior to such testimony, defendant claimed the same marital privilege and requested the court to instruct his wife not to testify concerning any confidential statements made to her by him.Upon the prosecutor's assurance that defendant's wife would not be questioned about statements made to her by defendant outside the presence of other persons, defendant did not pursue his request for an instruction; and his wife's foregoing testimony was subsequently received without objection.

Defendant contends that the evidence failed to show that his inculpatory statements were made other than in confidence to his wife.He asserts that the eliciting of his wife's testimony reflects prosecutorial misconduct.The contentions are without merit.Quite apart from defenda...