People v. Cahan

• Decision Date: 28 May 1956
• Citation: 297 P.2d 715,141 Cal.App.2d 891
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles CAHAN, Defendant and Appellant. Crim. 5555.

Page 715

297 P.2d 715

141 Cal.App.2d 891

The PEOPLE of the State of California, Plaintiff and Respondent, v.Charles CAHAN, Defendant and Appellant.

Crim. 5555.

District Court of Appeal, Second District, Division 3, California.

May 28, 1956.

Hearing Denied June 27, 1956.

Albert Jack Chotiner and Russell E. Parsons, Beverly Hills, for appellant.

Edmund G. Brown, Atty, Gen., William E. James, and Norman H. Sokolow, Deputy Attys.Gen., for respondent.

VALLEE, Justice.

Defendant was charged in two counts of an information with robbery.He was convicted by a jury as charged in both counts.He appeals from the judgment and from the order denying his motion for a new trial.

On December 15, 1954Lee Cobert was living in an apartment at 1455 North Hayworth, Los Angeles.The apartment consisted of one room, a bathroom, and a small bar.Sam London was living with Cobert and had been for about 2 months.Before December 15 London had been betting on horse races, but not at a track.He would call 'Scottie' and make a bet and, so far as he knew, Scottie would place the bet with a bookmaker.On December 15 London owed Scottie and, through him, the bookmaker, about $1,200 which had accumulated over a period of 2 weeks.Scottie asked him for the money; he told Scottie when he got the money he would pay.Scottie never mentioned the name of the bookmaker.

On the night of December 15, 1954 London and Cobert retired close to midnight.About 1 a. m. on December 16 London was awakened by a knock on the door.He asked who was there.A voice said it was 'Tony,' to open the door or they would come through it.He did so and saw 2 men.He testified he believed one of them was defendant.He also testified he may have seen defendant prior to that time, he had heard him referred to as 'Chuck' on a prior occasion.Defendant and the other person, who was unknown to London, entered the apartment.Cobert was still in bed but awake.The unknown person asked which one was London and the latter identified himself.That person said London owed $1,200 for a bookmaking debt and they had come to collect it.London said he did not have that kind of money at that time.On the headboard of Cobert's bed there was a wallet with $450 in it and a money clip with $50 or $60 in it.The unknown man removed the money from the wallet and clip and placed it in his pocket.Defendant asked whether London had any money.London said all he had was about $2 which he took from his pocket and handed to defendant.London's watch, valued at about $150, was lying on the headboard of his bed.Defendant saw the watch and said he would take it.London asked him not to, saying it was a gift from a relative.Defendant said that when the balance of the money was paid the watch would be returned, and he took London's watch.The unknown man said they would be back Saturday for the rest of the money.London and Cobert were in fear and the property of each was taken against his will.Pen.Code, § 211.Defendant and the unknown person were in the apartment not more than 10 minutes.

Wooters, Phelps, and Horrell, members of the Los Angeles Police Department, went to the apartment about 5 p. m. on December 16; they identified themselves and Cobert invited them in.Wooters asked Cobert if he might put a recorder on Cobert's telephone.Cobert gave his permission.The officers installed an induction coil on the receiver of the telephone and ran wires to a recording device which was plugged into an electrical outlet in the wall.The device was placed on a couch.London called the apartment on the telephone and Wooters talked to him.London then went to the apartment, saw the recording device, and gave the officers permission to operate it.About an hour after Wooters arrived there was a telephone call and Cobert answered.When Cobert concluded his conversation Wooters suggested to London that the latter take the telephone and ask the party for his watch.Wooters said he would listen in.London took the telephone and talked into it.He held the earpiece at an angle from his ear with only the lower part touching his ear.Wooters stood at London's side with his head close to London's ear.London made no objection to Wooters' listening in on the telephone conversation and he had no objection to Wooters' doing so.London said to the party at the other end that he would like to get his watch back.The party replied that he would get it back 'on Saturday when the matter is taken care of.'London stated the watch was a gift from a relative and he would like very much to have it returned.The party assured him he would get it back on Saturday 'when the balance was taken care of.'

Wooters testified he had known defendant about 3 years.When the call came into the apartment Cobert answered to telephone and talked for a short period, then London took the phone.He listened to the conversation.He had London's permission to do so.He recognized the voice on the other end as defendant's.London said, 'Hey, Chuck, when am I going to get that watch back?'Defendant said, 'You will get the watch back when you come up with the money.I will see you Saturday.'Defendant is known throughout the city as Chuck.

The watch was returned to London the morning of Saturday, July 16, 1955(the trial commenced July 21, 1955).London heard a knock on the door of the apartment and answered.A person he had never seen before handed him a package, stating it was a present for London.The person left immediately.The package contained London's watch.

The defense was an alibi.Defendant and Harold Coates testified they were together the night of December 15 and the early morning of December 16, that they left the Dutch Oven restaurant at Beverly and Vermont about 12:30 a. m. and arrived at the Candle Light restaurant and bar at Sunset and Laurel Canyon Boulevard about 1 a. m., remaining there until about 2:15 a. m. The manager of the Candle Light testified defendant and Coates arrived at the restaurant shortly before 1 a. m., December 16, and left a little after 2 a. m. The Candle Light was a quarter of a mile from the apartment house on Hayworth.Wooters testified he walked the distance in 2 1/2 minutes.

Defendant first contends the evidence is insufficient to support the verdicts.He attacks the credibility of London, asserts the evidence is woefully weak and neither clear nor good, challenges London's identification of defendant, and argues the convincing force of the alibi.It is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which a determination depends.A reviewing court cannot reject the testimony of a witness that has been believed by the trier of fact unless there exists either a physical impossibility that it is true or its falsity is apparent without resorting to inferences or deductions.Even testimony which is subject to justifiable suspicion does not justify the reversal of a judgment.People v. White, 43 Cal.2d 740, 747, 278 P.2d 9.A reviewing court will not hold unsupported a jury's finding of guilt merely because it might reasonably draw different inferences from those the jury reasonably drew or might not be convinced beyond a reasonable doubt of the guilt of the defendant.People v. Whitehurst, 112 Cal.App.2d 140, 143, 245 P.2d 509.

Defendant says London's identification of defendant is no evidence of identification because when asked if he recognized the men who entered the apartment on the morning of December 16he said, 'I believe the defendant is one of the individuals.'When a witness says 'I believe'he is not necessarily guessing.People v. Miller, 134 Cal.App.2d 792, 794, 286 P.2d 415.To sustain a conviction, it is not necessary that identification of the defendant be positive and free of inconsistencies.People v. Mazza, 135 Cal.App.2d 587, 598, 287 P.2d 798.'If the testimony of the identifying witnesses is worthy of credence and convinces the jury, the latter's finding is final unless the trial judge should with his intimate knowledge of the witness' behavior upset the verdict.[Citations.]It is not essential that the witness be free from doubt as to one's identity.He may testify that in his belief, opinion or judgment the accused is the person who perpetrated the crime.The want of positiveness goes only to the weight of the testimony.'People v. Harris, 87 Cal.App.2d 818, 823, 198 P.2d 60, 63.Even though the alibi testimony sounds plausible on the cold record, it does not justify a reversal.The jury was not compelled to believe the testimony of defendant and the alibi witnesses.People v. Shivers, 139 Cal.App.2d 275, 293 P.2d 479;People v. Quijada, 124 Cal.App.2d 422, 425, 268 P.2d 745.The verdicts are supported by substantial evidence.

Defendant made a motion to dismiss the information under Penal Code, section 995.The motion was denied.He contended, and now contends, he was not legally committed by a magistrate.The person who acted as committing magistrate had been a judge of the Municipal Court, Los Angeles Judicial District.On January 1, 1947 this judge was permitted to retire under the Judges' Retirement Act because of physical disability.2 Deering's Gen.Laws, Act5849a, § 3.The substance of the physician's affidavit filed with the Certificate of Retirement in the office of the secretary of state is stated in the margin.¹An affidavit of one of counsel for defendant filed in support of the motion stated that on inquiry at the Employees Retirement Boardhe stated on information and belief that the record failed to show the judge had ever been relieved from such disability.Prior to the preliminary examination in this case the Chairman of the Judicial Council, with the consent of the judge, assigned the retired judge to sit in the Municipal Court, Los Angeles Judicial District, from December 7, 1954 to March 4, 1955.The preliminary examination was held on January...