People v. Bowley

• Decision Date: 18 June 1963
• Docket Number: Cr. 7303
• Citation: 59 Cal.2d 855,382 P.2d 591,31 Cal.Rptr. 471
• Court: California Supreme Court
• Parties: , 382 P.2d 591, 96 A.L.R.2d 1178 The PEOPLE, Plaintiff and Respondent, v. Walter BOWLEY, Defendant and Appellant.

Page 471

31 Cal.Rptr. 471

59 Cal.2d 855, 382 P.2d 591, 96 A.L.R.2d 1178

The PEOPLE, Plaintiff and Respondent, v. Walter BOWLEY, Defendant and Appellant.

Cr. 7303.

Supreme Court of California.

June 18, 1963.

Leo R. Friedman, San Francisco, for defendant and appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, John F. Foran and Derald E. Granberg, Deputy Attys. Gen., for plaintiff and respondent.

PETERS, Justice.

Defendant appeals from a judgment of conviction entered upon a jury verdict finding him guilty of a violation of Penal Code section 288a, ¹ and of a prior felony conviction.

The only witness who testified for the prosecution ² was a woman named Joan. She testified that in April of 1960 the defendant's brother employed her to play a part in a motion picture to be filmed in a San Francisco studio; that she went to the studio; that the picture was taken; that in making this picture, in addition to several other sexual activities, she voluntarily engaged in an act of oral copulation with the sexual organ of defendant.

A film purporting to show these activities was produced by the prosecution. Joan testified that she had seen portions of the film, and that those portions accurately represented what took place during the making of the film. Over objection, it was introduced into evidence and was shown to the jury. In response to the question: 'Is that the film of the events in which you participated on this particular date at the Beaumont Studio,' Joan said 'yes.' She also testified that the defendant was the male in the film whose face was covered with a coat of dark grease, whose hair was covered with a cloth turban, and with whom frequent acts in violation of Penal Code section 288a were shown.

Joan was, of course, an accomplice. (People v. McRae, 31 Cal.2d 184, 186, 187 P.2d 741; People v. Tenner, 67 Cal.App.2d 360, 363, 154 P.2d 9; People v. Brown, 25 Cal.App.2d 513, 515, 77 P.2d 880. Cf. People v. Willis, 129 Cal.App.2d 330, 334, 276 P.2d 853; People v. Peterman, 103 Cal.App.2d 322, 325, 229 P.2d 444; People v. Battilana, 52 Cal.App.2d 685, 695, 126 P.2d 923.) As such her testimony must be corroborated. ³ This is a strict requirement, much stricter than found in many other states. ⁴ It is based on the fear that an accomplice may be motivated to falsify his testimony in the hope of securing leniency for himself. (See generally 7 Wigmore, Evidence (3d ed. 1940) § 2057, pp. 322-325.) In 19 Cal.Jur.2d, Evidence, section 498, page 267, it is pointed out, with the citation of many cases: 'The court has no discretion to deviate from the requirement of the statute, and the rule applies although the jurors are convinced to a moral certainty of the guilt of the accused. They may not convict without the requisite corroborative evidence. * * * In fact, although the jurors are the sole appraisers of the facts proved by the evidence, yet if there is no evidence, other than the testimony of an accomplice, tending to connect the defendant with the offense charged, the judge may advise an acquittal. * * * The requirement is based on the theory that accomplice testimony comes from a tainted source, is usually given in the hope or expectation of lenience or immunity, is untrustworthy, and should be viewed with caution.'

The only evidence offered to corroborate Joan's testimony was the film, and her testimony was the only foundation offered for its admission into evidence. Defendant contends that it was error to admit the film into evidence because the testimony of Joan, as that of an accomplice, was not competent foundation evidence. This contention is without merit. The fact that a witness is an accomplice does not affect the admissibility or competency of his testimony; it goes only to its weight and credibility. (19 Cal.Jur.2d, Evidence, § 497, p. 265.) In People v. Santos, 134 Cal.App. 736, at page 746, 26 P.2d 522, at page 526, where a knife was introduced into evidence upon a foundation laid by an accomplice, it was said: 'We assume (in considering the objection to the introduction of the knife into evidence) that appellant has in mind the provision of section 1111 of the Penal Code. Said section merely prohibits a conviction 'upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.' Said section does not deal with the admissibility of evidence, but merely with the sufficiency of the entire evidence to sustain a conviction. Even assuming that (the accomplice's) testimony identifying the knife was uncorroborated, it was, nevertheless, admissible.' (See People v. Trujillo, 32 Cal.2d 105, 116, 194 P.2d 681; People v. Flood, 41 Cal.App. 373, 377, 182 P. 766. Cf. People v. Rissman, 154 Cal.App.2d 265, 276, 316 P.2d 60; People v. Gordon, 71 Cal.App.2d 606, 629-630, 163 P.2d 110.) The fact that the foundation for the introduction of the film into evidence was laid by an accomplice is not, therefore, a ground for objecting to the introduction of the film into evidence.

Defendant also contends that the film should not have been admitted into evidence because Joan authenticated only portions of the film. It is claimed that there was no showing that the portions which she had seen portrayed the commission of acts violating Penal Code section 288a by an identifiable male, and therefore there was no foundation for the admission of those portions into evidence. There is no merit in this contention. It is true that Joan testified that there were two separate sequences or scenes in the film and that she had only seen part of it. But analysis of the film discloses that in each portion or scene an act of oral copulation with an identifiable male is portrayed. Therefore, regardless of which portion John referred to as accurately representing what took place, there was portrayed the illegal act charged with an identifiable male participant.

It is well settled that the testimony of a person who was present at the time a film was made that it accurately depicts what it purports to show is a legally sufficient foundation for its admission into evidence. (Berkovitz v. American River Gravel Co., 191 Cal. 195, 201-202, 215 P. 675; People v. Ah Lee, 164 Cal. 350, 352, 128 P. 1035; People v. Durrant, 116 Cal. 179, 212-213, 48 P. 75; Heiman v. Market St. Ry. Co., 21 Cal.App.2d 311, 314-315, 69 P.2d 178; People v. Hayes, 21 Cal.App.2d 320, 71 P.2d 321. See McCormick, Evidence (1954) § 181, pp. 387-389; 3 Jones, Evidence (5th ed. 1958) § 627, pp. 1193-1194; ibid. § 630, pp. 1198-1199; 3 Wigmore, Evidence (3d ed. 1940) § 794, pp. 186-189; ibid, § 798a, pp. 203-208; Note 62 A.L.R.2d 686.) The film was, therefore, properly admitted into evidence.

Defendant's main contention is that the film may not be used to corroborate Joan's testimony because its admission into evidence rests solely upon her foundation testimony. Under these circumstances, it is argued, the film is not 'other evidence' within the meaning of Penal Code section 1111.

According to Professor Wigmore, a photograph is no more than the nonverbal expression of the witness upon whose foundation testimony its authenticity rests. (3 Wigmore, Evidence (3d ed. 1940) § 790, pp. 174-175; ibid. § 792, p. 178; ibid. § 793, p. 186. See International Union etc. v. Russell, 264 Ala. 456, 88 So.2d 175, 186, 62 A.L.R.2d 669.) It is merely that witness' testimony in illustrated form; a 'pictorial communication of a qualified witness who uses this method of communication instead of or in addition to some other method.' (3 Wigmore, Evidence (3d ed. 1940) § 793, p. 186.) If this theory were accepted, it would necessarily follow that the film in this case does not fulfill the corroboration requirement. An accomplice cannot, or course, corroborate his own testimony. (Cf. People v. Clapp, 24 Cal.2d 835, 837, 151 P.2d 237; People v. Goldstein, 146 Cal.App.2d 268, 272, 303 P.2d 892.)

Other authorities disagree. They urge that once a proper foundation has been established as to the accuracy and authenticity of a photograph, 'it speaks with a certain probative force in itself.' (Scott, Photographic Evidence (1942) § 601, p. 476.) '(P)hotographs may, under proper safeguards, not only be used to illustrate testimony, but also as photographic or silent witnesses who speak for themselves. * * * (A) picture taken with adequate equipment under proper conditions by a skilled photographer is itself substantive evidence to be weighed by the jury.' (Gardner, The Camera Goes to Court (1946) 24 ,N.C.L.Rev. 233, 245. See State v. Goyet, 120 Vt. 12, 132 A.2d 623, 631; A. & N. Dept. Stores v. Retail etc. (1950) 2 D.L.R 850; McKelvey, Evidence (5th ed. 1944) 663-664.)

Until now, this court has not been called upon to state the theory upon which photographs are admitted into evidence. (See Comment, 8 Hastings L.J. (1957) 310.) In doing so we recognize that photographs are useful for different purposes. When admitted merely to aid a witness in explaining his testimony they are, as Wigmore states, nothing more than the illustrated testimony of that witness. But they may also be used as probative evidence of what they depict. Used in this manner they take on the status of independent 'silent' witnesses. (See McKelvey, Evidence (5th ed. 1944) § 379, p. 668.)

An example of a photograph which is probative in itself is found in People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792, in which convictions of violating Penal Code section 288a were affirmed. The only evidence of the crime was a photograph showing the defendants committing an act of sexual perversion. This photograph was introduced into evidence although there was no testimony by any eyewitness that it accurately depicted what it purported to show. There was, however, other evidence of when, in point of time, the picture was taken, the place where it was taken and that the defendants were the persons shown in the picture. Furthermore, there...