People v. Brady

• Decision Date: 29 August 1969
• Docket Number: Cr. 3418
• Citation: People v. Brady, 275 Cal.App.2d 984, 80 Cal.Rptr. 418 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John Thomas BRADY, also known as Bill Iverson, Defendant and Appellant.

Page 418

80 Cal.Rptr. 418

275 Cal.App.2d 984

PEOPLE of the State of California, Plaintiff and Respondent, v. John Thomas BRADY, also known as Bill Iverson, Defendant and Appellant.

Cr. 3418.

Court of Appeal, Fourth District, Division 2, California.

Aug. 29, 1969.

Hearing Denied Oct. 22, 1969.

[275 Cal.App.2d 988] Mitchell & Hart and John E. Hart, Santa Ana, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

Defendant appeals a jury conviction of grand theft (Pen.Code, §§ 484--487) wherein he defrauded the owner of an auto agency of $1,600 by selling him a stolen car.

The defendant, John Thomas Brady, rebuilt salvaged automobiles for a living. He frequently used the pseudonym 'Bill Iverson.' On August 29, 1967, someone known as 'Bill Iverson' purchased a chassis from a Compton salvage firm which had been removed from a damaged Volkswagen.

On September 26, 1967, a Model 1966 white square-back Volkswagen (station wagon) was stolen in Long Beach. On September 30, 1967, the defendant offered to sell a Model 1966 white square-back Volkswagen to a Garden Grove auto sales agency. The salesman on duty knew the defendant as 'Bill Iverson.' The salesman advised the defendant that he could not buy the car then as the owner was not on the lot at the time. The defendant said he would leave the car there.

Within two hours, the car was sold to Robert Seifert. The salesman drew up a conditional sales contract for the vehicle. The Vehicle Identification Number (VIN) of the 1966 Volkswagen station wagon was identical with the VIN appearing on the salvaged Volkswagen chassis.

On October 2, 1967, the defendant returned to the Garden Grove auto agency and presented the owner with certain documents purporting to prove ownership of the car. One of the documents was an official re-registration of a dismantled or wrecked vehicle dated September 28, 1967, which bore the forged signature of a clerk of the Bellflower office of the Department of Motor Vehicles. The auto agency owner gave the defendant a $1,600 check for the car. The check designated 'Bill Iverson' as payee. The check was personally endorsed by 'Bill Iverson' and deposited in his account in the East Compton branch of the Bank of America. The defendant had been observed in the East Compton bank on several occasions.

Chemical tests were conducted on the 1966 Volkswagen purchased by Seifert. The chassis on the stolen Volkswagen had been removed and replaced with the salvaged chassis. An attempt was made to obliterate the engine number on the stolen Volkswagen and to substitute a different number. The Volkswagen was identified by the owner as the stolen car.

The defendant maintains that the judgment of conviction should be reversed on the following grounds: (1) The trial court committed constitutional error in instructing the jury that the defendant had a right not to testify (CALJIC 51 (Re-rev.)); (2) the trial court abused its discretion in not granting his motion for a change of counsel and a continuance of the trial date; (3) his motion to dismiss the information was erroneously denied; and (4) the evidence was insufficient to sustain the conviction.

The trial court instructed the jury in the language of CALJIC 51 (Re-rev.). The instruction was given at the prosecution's request without objection by the defense, and reads as follows:

'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberations in any way.'

The Fifth and Fourteenth Amendments of the United States Constitution forbid either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. (Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106.)

No contention is made that the prosecutor commented on the defendant's failure to testify, nor did the court inform the jury that his silence could be construed as evidence of guilt. However, defendant maintains that the instruction is violative of the Griffin rule.

The California authorities are not entirely consistent as to whether the giving of the instruction is proper or constitutes error. There are four principal situations where the propriety of the instruction has become a serious issue in California cases: (1) The trial judge fails to give the instruction Sua sponte (People v. Elliott, 241 Cal.App.2d 659, 667--668, 50 Cal.Rptr. 757; People v. Graham, 251 Cal.App.2d 513, 518--519, 59 Cal.Rptr. 577; People v. Horrigan, 253 Cal.App.2d 519, 522--523, 61 Cal.Rptr. 403); (2) the trial judge gives the instruction Sua sponte (People v. Brown, 253 Cal.App.2d 820, 830, 61 Cal.Rptr. 368); (3) the prosecution requests the instruction (People v. Molano, 253 Cal.App.2d 841, 846--847, 61 Cal.Rptr. 821; People v. Northern, 256 Cal.App.2d 28, 31, 64 Cal.Rptr. 15; People v. Hernandez, 264 Cal.App.2d 206, 70 Cal.Rptr. 330); (4) the defendant requests the instruction (People v. Parker, 253 Cal.App.2d 567, 571--572, 61 Cal.Rptr. 411; People v. Giovannini, 260 Cal.App.2d 597, 606, 67 Cal.Rptr. 303; People v. McGowan, 269 A.C.A. 842, 846--847, 75 Cal.Rptr. 53).

In People v. Brown, supra, 253 Cal.App.2d 820, 61 Cal.Rptr. 368, it was held proper for the court to give the instruction Sua sponte or at the prosecution's request; in People v. Horrigan, Supra, 253 Cal.App.2d 519, 522--523, 61 Cal.Rptr. 403, the court ruled that it would have been error to give the instruction Sua sponte; in People v. Elliott, Supra, 241 Cal.App.2d 659, 50 Cal.Rptr. 757, the court did not decide the issue whether it was error for the trial court not to instruct the jury Sua sponte but merely held that the proof of guilt was strong and, therefore, no miscarriage of justice (see also People v. Graham, Supra, 251 Cal.App.2d 513, 518--519, 59 Cal.Rptr. 577); in People v. McGowan, Supra, 269 A.C.A. 842, 75 Cal.Rptr. 53, held not error when given at defendant's request; in People v. Parker, Supra, 253 Cal.App.2d 567, 571--572, 61 Cal.Rptr. 411, the court did not determine whether it was error to give the instruction at the defendant's request, but held that if erroneous, it was not prejudicial (see also People v. Giovannini, Supra, 260 Cal.App.2d 597, 67 Cal.Rptr. 303); in People v. Molano, Supra, 253 Cal.App.2d 841, 846--847, 61 Cal.Rptr. 821, it was deemed error to give the instruction over the defendant's objection; in People v. Northern, Supra, 256 Cal.App.2d 28, 64 Cal.Rptr. 15, it was not decided whether it was error to give the instruction over defendant's objection, but assuming error, not prejudicial; in People v. Mason, 259 Cal.App.2d 30, 66 Cal.Rptr. 601, held not prejudicial where the prosecution requested the instruction without objection; in People v. Hernandez, Supra, 264 Cal.App.2d 206, 70 Cal.Rptr. 330, instruction given at prosecution's request and held not error to give the instruction even assuming defendant's objection but, if error, it was non-prejudicial.

Federal law requires that an instruction substantially similar to CALJIC 51 (Rerev.) be given if defendant requests it. (Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257; 18 U.S.C.A. § 3481.) Since it is reversible error to deny defendant's request for such an instruction, federal courts have reasoned that it is proper for the trial court to give the instruction Sua sponte. (Hanks v. United States (10th Cir. 1968) 388 F.2d 171, 175; Bellard v. United States (5th Cir. 1966) 356 F.2d 437, 439, cert. den. 385 U.S. 856, 87 S.Ct. 103, 17 L.Ed.2d 83; Chadwick v. United States (5th Cir. 1941) 117 F.2d 902, 904--905.)

The instruction may become an issue in the following factual situations: (1) The court gives the instruction Sua sponte without objection; (2) the court gives the instruction Sua sponte over prosecution's objection; (3) the court gives the instruction Sua sponte over defendant's objection; (4) the court gives the instruction over objection of both parties; (5) the court fails to give the instruction because not requested by either party; (6) instruction given at prosecution's request without objection; (7) instruction refused although requested by prosecution without objection by defendant; (8) instruction given at prosecution's request over defendant's objection; (9) instruction given at defendant's request without objection; (10) instruction refused although requested by defendant without objection; (11) instruction given at defendant's request over prosecutor's objection; (12) instruction refused when requested by defendant because of prosecutor's objection; (13) instruction given at request of both parties; (14) instruction refused although requested by both parties.

The purpose of the Griffin rule is to prevent the accused's exercise of his constitutional privilege against self-incrimination from being judicially emphasized as affirmative evidence against him. (People v. Beghtel, 239 Cal.App.2d 692, 696, 49 Cal.Rptr. 235.)

The instruction involved herein does not state that the defendant's silence may be construed as an indication of guilt. It is patently obvious to the jury when the accused fails to take the stand, and the instruction admonishes the jurors that the defendant is exercising his constitutional right in not testifying, and that his failure to testify is not to be considered in determining his innocence or guilt.

The instruction in its present form (CALJIC 51 (Re-rev.)) is not violative of Griffin and constitutes an accurate affirmation of the accused's constitutional right against self-incrimination.

We hold that it is...