People v. Bryant, Cr. 3311

• Decision Date: 30 September 1957
• Docket Number: Cr. 3311
• Citation: 315 P.2d 734,154 Cal.App.2d 121
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Sanford P. BRYANT, Defendant and Appellant.

Page 734

315 P.2d 734

154 Cal.App.2d 121

The PEOPLE of the State of California, Plaintiff and Respondent, v. Sanford P. BRYANT, Defendant and Appellant.

Cr. 3311.

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

Sept. 30, 1957.

Rehearing Denied Oct. 30, 1957.

Hearing Denied Nov. 26, 1957.

Carl B. Shapiro, Fairfax, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendant appeals from conviction after jury trial of violation of section 245, Penal Code (assault with a deadly weapon), contending (1) that misconduct of the assistant district attorney deprived him of a fair trial, and (2) that section 3024 (possession of gun by a person previously convicted of a felony) cannot be applied in the case of a conviction under section 245.

Evidence.

Elbert Fasen, the victim and a member of the United States Air Force, was, on December 30, 1955, driving his 1953 Mercury two-door sedan in the city of Oakland. He and another airman, M. C. Wilder, picked up Betty and Elouise at a beauty shop and then went riding around. Elouise was in the left rear seat and Betty in the right front seat. As Fasen turned off Market Street into 8th Street, he noticed another car immediately behind, which pulled ahead of Fasen's car and stopped, and then Fasen stopped his car. Four or five men emerged from the other car, came back to his car, and one of them said, 'Man, open your door.' Fasen identified that man to be defendant. Defendant opened the door of Fasen's car, and Fasen noticed that defendant had a gun in his right hand which he fired. Fasen felt a jar and started to get out, but defendant pointed the gun in his face and said., 'Don't get out.' Defendant reached into the car and pulled Elouise out with his left hand. He took her to the other car. Betty also went with defendant at his order. Then they, defendant and his group, drove off. After defendant drove away in his car, Fasen got out of his car, feeling blood in the area of his buttocks. He then drove to the Armed Service Police, and subsequently received treatment at Oak Knoll Naval Hospital.

Fasen recounted a casual meeting with defendant at Jimmy's Barbecue, a restaurant in Oakland, after his treatment. There appellant came over to him and said, 'Man, I'm sorry. * * * I know there is nothing to say when you shoot someone, but I'm still sorry.'

Betty testified she was riding in Fasen's Mercury on the evening of December 30th, at approximately 11:30 p.m. She testified essentially to the same facts as Fasen except that Fasen had picked up the two girls at her house by prearranged plan, that only three men got out of the car, and that she did not see any gun in defendant's hand.

M. C. Wilder testified that he was riding around Oakland with Fasen and the two girls on December 30th. Fasen's car was stopped by another car. Four men got out, approaching Fasen's car, two on each side. One of the men said, 'Get out.' He heard a shot after the door on the driver's side had been opened. Defendant was standing at the door of the driver's side with a gun in his left hand. Both girls got out of the car and entered the other automobile which drove away. He took Fasen downtown where they met a patrol car and Fasen was taken to the hospital.

Inspector Page was told by defendant, approximately a week after the shooting, that Fasen had the gun and in a struggle it went off.

A police stenographer testified to an interview with defendant conducted by Police Lieutenant Murray in which defendant stated that on the night in question a friend called at his house inquiring about a certain girl; that defendant and this friend went looking for the girl; that they saw Fasen on the corner of 7th and Market Streets, and parked their car in front of his; that he, defendant, went over to the driver's side of the car and told Fasen that one of his passengers was his friend's girl friend; that Fasen told defendant, 'Well, punk, you got nothing to do with it; it's none of your business'; that defendant grabbed Fasen and started to pull him off the seat, but Fasen had a gun in his hand; that defendant grabbed his hand and pushed him down; that the gun went off; that the defendant hit Fasen's hand and twisted it causing Fasen to drop the pistol to the floor; that defendant pulled Fasen out of the car; that the girls got out of Fasen's car and entered his friend's car.

Approximately five months after the shooting police officers, armed with search warrant, went to apartment one at a certain address in Oakland. Searching a chest of drawers therein which contained mostly baby clothes, they found a loaded .38 caliber revolver, and also a large number of .38 caliber cartridges. In a man's coat in a closet which contained mostly men's clothing, most of the same caliber cartridges were found. About three hours later, four people entered the apartment, Elouise, a Filipino named Hipol, and defendant, carrying a baby. Defendant was then arrested. When queried as to who owned the revolver he said he did not know. Elouise also stated that she did not know its ownership. In defendant's pocket were keys, one of which was for the outside door to the building and a second was for the door to the apartment. Elouise stated that the men's garments in the closet belonged to defendant. The next day Elouise asked for the return of the gun. Ballistic tests showed that this revolver fired the bullet extracted from Fasen's body.

Elouise came valiantly to defendant's rescue. She testified that on the night in question, Betty and she were in the car with Fasen and Wilder; that her former boy friend, Bennett, had asked her to keep for him a gun which was in a paper bag. Not wearing a coat she put the gun in a pocket of her pedal pushers, taking it with her when she got in Fasen's car. As they were proceeding Fasen said that another car was going to run into them. Fasen pulled over and stopped. Three people got out of the other car, one of whom was defendant and another one Willis. Defendant was standing at the side of the driver's door and said, 'Open the door.' Wilder told Fasen, 'Don't open the door; just roll the glass down.' The window was already down. Defendant stated, 'Open the door, get out the car, Elouise; your mother has been looking all over for you; she is worried about you; you better go home to your baby.' Wilder told Elouise not to get out of the car, holding onto her right hand. The defendant said to Wilder, 'You let her out of the car, man * * * You don't have anything to do with that, man, let her out.' Wilder said, 'Well, she don't have to get out unless she wants to.' The two of them started to pull on her arms, causing the gun to slip out of her pocket. She picked it up and it went off. Defendant put the two girls in his car and took them home. At that time, Elouise was living at 7728 Rugsdale. She put the gun in the basement where it remained until April, at which time she moved to 693 39th Street, where she kept the gun in the drawer with the baby's clothes.

Elouise admitted telling the officers at the apartment that she did not know anything about the gun and that one Brown had left some bullets on the floor that morning. She denied requesting the return of the gun. She said she told the officers defendant did not own it. She said that they asked her if she had shot Fasen. She said 'I am not telling you Yes and I am not telling you No.' She said defendant kept some of his clothes in her apartment. Letha, a friend of Elouise's, testified that when she asked the latter about the gun in her apartment, Elouise said that she had accidently shot someone on 7th Street.

In spite of defendant's earnest contention that the evidence was close, particularly because of the testimony of Elouise, there can be no question of defendant's guilt.

Defendant's version was that with one Owens, he set out to find Elouise. When they saw Fasen's car with the girls in it, they followed. When Fasen parked, defendant fulled in front. Owens and he approached the other car. Defendant asked Fasen to open the door. There was no reply. Defendant opened the door and told Elouise she was wanted at home. Wilder told defendant they would take her home. Defendant grabbed Elouise by one arm. Wilder grabbed her by the other. In the course of the struggle, Elouise, getting her arm free from Wilder, reached for something on the floor. Wilder grabbed the arm again and there was an explosion. Fasen stated that he had hurt his right hand. Both of the girls got into defendant's automobile, whereupon he drove them home. At the time of his arrest defendant asked Sergeant Hilliard why he was being arrested. Hilliard replied 'For possession of narcotics.' Defendant told Hilliard he knew nothing about the pistol found in Elouise's apartment. He admitted he lied to the police in stating that Fasen had the gun. He did it to protect Elouise.

The Naval Hospital Medical Officer testified to removing a bullet from Fasen's buttocks and that from the course the bullet followed it must have been fired from an angle of about 30 degrees up from the horizontal and approximately 30 degrees from the lateral axis of Fasen's body to the rear. The bullet entered the left buttocks and was found in the right. This testimony made Elouise's version of the shooting highly improbable.

1. Alleged Misconduct.

Defendant's charge of misconduct on the part of the assistant district attorney deals mainly with references to narcotics. Defendant concludes from the fact that apparently no question of narcotics was raised in a previous trial in which the jury disagreed, and that narcotics was mentioned in this trial, that the latter fact was the cause of his conviction. There is nothing in the record to show whether or not his statement concerning the evidence at the prior trial is correct. Assuming it to be correct, however, admittedly there is a very...