People v. Breckenridge

Decision Date12 November 1975
Docket NumberCr. 12839
Citation125 Cal.Rptr. 425,52 Cal.App.3d 913
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Leroy Virgil BRECKENRIDGE, Defendant and Appellant.

William P. Daley, Oakland, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and April Kestell Cassou, Dep. Attys. Gen., San Francisco, for plaintiff-respondent.

THE COURT: *

Defendant has appealed from the judgment and sentence 1 imposed by the trial court following his conviction by jury verdicts of two counts of robbery in the first degree (Pen.Code, §§ 211, 211a and 213), aggravated by the use of a firearm as proscribed by section 12022.5 of the Penal Code. The court ordered that the sentences on each count should run concurrently with each other and concurrently with any unexpired term to which the defendant might have been subjected by virtue of three charged and admitted prior convictions.

He contends (1) that his right to a trial by jury, chosen with a fair possibility for a representative cross-section of the community, was violated; (2) that his right against self-incrimination, his right to remain silent, the attorney-client privilege, and his right to the effective assistance of counsel were all violated because in response to the prosecutor's discovery motion, the court, after the prosecution had rested, elicited from defense counsel that he had no alibi witnesses, and impliedly communicated that response to the prosecutor; (3) that the court erred in denying defendant's motion to permit him to testify free of impeachment by his prior convictions; (4) that the in-court identification procedures were so suggestive as to deprive the defendant of a fair trial and to violate due process; and (5) that the court abused its discretion under the provisions of section 352 of the Evidence Code in admitting evidence which tended to show prior criminality on the part of the defendant. On examination of these contentions in the light of the record, and applicable principles of law, no reversible error is found. The judgment must be affirmed.

The offenses giving rise to defendant's convictions arose from the robbery of a P.G. & E. office in Richmond on April 2, 1973. An armed robber took considerable cash from each of two cashiers at that office. He was observed by the two cashiers, and by a schoolboy who all originally gave descriptions consistent with the appearance of the defendant. One of the cashiers selected the defendant's picture from a group of photographs but she was unable to identify him positively as the robber at either the preliminary examination or the trial, although she felt he was the man. The second cashier did not identify the defendant's picture, but testified at both the preliminary examination and at the trial that the defendant was the robber. The schoolboy did not testify at the preliminary hearing, but at the trial he testified that the defendant was not the robber he saw running away, because the defendant did not have a mustache and a scar. A palm print found on the counter was identified as that of the defendant.

The defendant did not testify. He produced one witness who testified she had seen him in the P.G. & E. office at some uncertain date near the day of the robbery. Other evidence indicated that the office and the counter were regularly cleaned. Two other witnesses testified that at or about the time of the robbery, the defendant, allegedly a barber, had a neat facial appearance, not the scraggly beard described by witnesses for the prosecution.

Other facts are set forth below where pertinent.

I

Before the start of the trial the defendant objected to the panel from which the jury would be selected on the grounds that it did not include a fair proportion of blacks or persons from the area where the crime occurred. He now claims that the court erred in denying his challenge because the only facts before the court made a prima facie showing of improper exclusion of both a geographical class and racial class in the selection of jurors, and because the trial court erred in taking judicial notice that the jurors were summoned in the county by random computer selection from the voter lists.

It is well established, and recognized by the People, that a defendant is entitled to a jury panel selected without the intentional systematic exclusion of an identifiable substantial class of citizens. (See Peters v. Kiff (1972) 407 U.S. 493, 497, 92 S.Ct. 2163, 33 L.Ed.2d 83; Apodaca v. Oregon (1972) 406 U.S. 404, 412, 92 S.Ct. 1628, 32 L.Ed.2d 184; Williams v. Florida (1970) 399 U.S. 78, 93--96 and 100, 90 S.Ct. 1893, 26 L.Ed.2d 446; Swain v. Alabama (1965) 380 U.S. 202, 203--205, 85 S.Ct. 824, 13 L.Ed.2d 759; Thiel v. Southern Pacific (1946) 328 U.S. 217, 220--225, 66 S.Ct. 984 90 L.Ed. 1181; Adams v. Superior Court (1974) 12 Cal.3d 55, 59--60, 115 Cal.Rptr. 247, 524 P.2d 375; People v. Jones (1973) 9 Cal.3d 546, 553 and 556--557, 108 Cal.Rptr. 345, 510 P.2d 705; People v. Sirhan (1972) 7 Cal.3d 710, 749--752, 102 Cal.Rptr. 385, 497 P.2d 1121 (cert. den. (1973) 410 U.S. 947, 93 S.Ct. 1382, 35 L.Ed.2d 613); People v. Spears (1975) 48 Cal.App.3d 397, 400--401, 122 Cal.Rptr. 93; People v. Powell (1974) 40 Cal.App.3d 107, 120--123 and 124--133, 115 Cal.Rptr. 109; People v. Murphy (1973) 35 Cal.App.3d 905, 917--919, 111 Cal.Rptr. 295; People v. Casillas (1973) 33 Cal.App.3d 1078, 1080, 109 Cal.Rptr. 579; People v. Gonzalez (1972) 28 Cal.App.3d 1091, 1097, 104 Cal.Rptr. 530 (overruled on other grounds People v. Schueren (1973) 10 Cal.3d 553, 558, fn. 6, 111 Cal.Rptr. 129, 516 P.2d 823); People v. McDowell (1972) 27 Cal.App.3d 864, 869--877, 104 Cal.Rptr. 181; People v. Gibbs (1970) 12 Cal.App.3d 526, 538--539, 90 Cal.Rptr. 866; People v. Newton (1970) 8 Cal.App.3d 359, 389--391, 87 Cal.Rptr. 394; People v. Hunter (1969) 1 Cal.App.3d 461, 466, 81 Cal.Rptr. 750; People v. Hayes (1969) 276 Cal.App.2d 528, 533, 80 Cal.Rptr. 893 (overruled on other grounds People v. Ray (1975) 14 Cal.3d 20, 32, 120 Cal.Rptr. 377, 533 P.2d 1017; Ganz v. Justice Court (1969) 273 Cal.App.2d 612, 618--623, 78 Cal.Rptr. 348; and Carmical v. Craven (9th Cir. 1971) 457 F.2d 582, 585--588 (cert. den. (1972) 409 U.S. 929, 93 S.Ct. 227, 34 L.Ed.2d 186).)

In People v. Jones, supra, it was established that 'the Sixth and Founteenth Amendments to the United States Constitution as interpreted in Williams and Peters, guarantee a criminal defendant in a state trial the right to be tried by an impartial jury comprising a representative cross-section of, and selected from residents of, the judicial district where the crime was committed.' (9 Cal.3d at p. 556, 108 Cal.Rptr. at p. 352, 510 P.2d at p. 712. See also People v. Spears, supra, 48 Cal.App.3d 397, 400, 122 Cal.Rptr. 93; People v. Murphy, supra, 35 Cal.App.3d 905, 917--919, 111 Cal.Rptr. 295; People v. Casillas, supra, 33 Cal.App.3d 1078, 1080, 109 Cal.Rptr. 579; People v. Gonzales, supra, 28 Cal.App.3d 1091, 1097, 104 Cal.Rptr. 530; and People v. Gibbs, supra, 12 Cal.App.3d 526, 538--539, 90 Cal.Rptr. 866. Cf. People v. McDowell, supra, 27 Cal.App.3d 864, 869--877, 104 Cal.Rptr. 181.)

In the instant case defendant relies upon a record which he contends shows that only three members of a 54 member panel were from Richmond where the crime was allegedly committed. He asks this court to take judicial notice that in 1974 the Richmond Chamber of Commerce estimated the population of that city at 80,800 which he compares with a 1970 census enumeration of 558,389 for the entire county. He asserts that since only 5.5 percent of the members of the panel come from Richmond, as compared with 14.5 percent of the population which live there, that he has made a prima facie showing of systematic exclusion of Richmond residents from the panel. We pass by the obvious discrepancy that no attempt was made to invite the trial court's attention to the figures upon which defendant now relies. (See Evid.Code, § 453.) In fact the court observed that the jury list contained adequate representation from the west end of the county including Richmond. Defendant relies upon People v. Newton, supra, in which the court stated, '. . . any substantial disparity, Over a period of time, between a group's percentage therein and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Citations.)' (8 Cal.App.3d at p. 390, 87 Cal.Rptr. at p. 414, emphasis added.) There was no shift in the burden of coming forward with evidence on the issue of discriminatory selection of jurors in this case because the defendant failed to show that such discrepancies as existed in this case, either as to residency or race, had continued 'over a period of time.' (Cf. People v. Spears, supra, 48 Cal.App.3d at pp. 402--404, 122 Cal.Rptr. 93; People v Powell, supra, 40 Cal.App.3d at pp. 127--142, 115 Cal.Rptr. 109; People v. Newton, supra, 8 Cal.App.3d at p. 390, 87 Cal.Rptr. 394; and Carmical v. Craven, supra, 457 F.2d at pp. 584--585.) 'Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.' (Swain v. Alabama, supra, 380 U.S. at p. 208, 85 S.Ct. at p. 829. See also Apocada v. Oregon, supra, 406 U.S. at p. 413, 92 S.Ct. 1628; People v. Newton, supra, 8 Cal.App.3d at p. 390, 87 Cal.Rptr. 394; People v. Hayes, supra, 276 Cal.App.2d at p. 533, 80 Cal.Rptr. 893; and Carmical v. Craven, supra, 457 F.2d at p. 586.)

The use of voter lists as the sole source of jurors is constitutional, absent a showing of discrimination in compiling the lists or in selecting the names of jurors from them. (People v. Sirhan, supra, 7...

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