People v. Cavanaugh, Cr. 11797

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; TRAYNOR
Citation70 Cal.Rptr. 438,69 Cal.2d 262,444 P.2d 110
Parties, 444 P.2d 110 The PEOPLE, Plaintiff and Respondent, v. Donald A. CAVANAUGH, Defendant and Appellant.
Decision Date19 August 1968
Docket NumberCr. 11797

Page 438

70 Cal.Rptr. 438
69 Cal.2d 262, 444 P.2d 110
The PEOPLE, Plaintiff and Respondent,
v.
Donald A. CAVANAUGH, Defendant and Appellant.
Cr. 11797.
Supreme Court of California,
In Bank.
Aug. 19, 1968.
Rehearing Denied Sept. 18, 1968.

Page 439

[444 P.2d 111] [69 Cal.2d 263] Donald A. Cavanaugh, in pro per., and Gilbert F. Nelson, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting him on three counts of armed robbery. 1 He contends that the trial court abused its discretion in limiting the number of corroborating alibi witnesses to be brought from Massachusetts to testify in his behalf, that it was prejudicial error to admit evidence of another robbery committed by defendant in California some two weeks after those charged, and that he [69 Cal.2d 264] was identified at an unfairly constituted lineup. We have concluded that these contentions are without merit and hence that the judgment should be affirmed.

At 9:30 p.m. on November 12, 1964, four employees of a Von's Shopping Bag market were closing the store for the day when they were accosted by defendant. His face was pock marked and he was wearing a gray or tan trenchcoat. According to the three employees who testified, Webster, Monette, and Lowery, 2 defendant 'punched' what appeared to be a gun into Webster's side and ordered them 'back into the market.' He looked both ways outside the door, and called to another man who thereupon entered with him. It was subsequently learned that the name of defendant's confederate was Joseph Ponte.

With drawn guns, defendant and Ponte then demanded, 'Take us to the back where the money is.' The employees proceeded to a small room at the rear of the store, and turned on the lights. Defendant ordered Monette to open the safe. When Monette had difficulty in doing so because he was afraid, defendant told him to hurry 'before the police come around' to check the store, and warned him to get the 'safe open or I'll blow your head off like we did the last man.'

With Webster's assistance Monette finally opened the outer portion of the safe, containing only rolls of coins; the inner portion was inaccessible because of a time lock. Defendant and Ponte placed the coins in a gunnysack, then ordered the

Page 440

[444 P.2d 112] employees to empty their wallets. They each handed over some cash, and were herded into the safe room.

The robbery took 15 or 20 minutes, and the employees had ample opportunity to see their assailants' faces. Thus Monette testified that as he gave defendant the store keys 'I focused my gaze on his face and I tried to pick up every feature I could,' in order to be able to identify him later; similarly, Webster testified that 'I was looking at him very good.' Immediately after the event the employees gave the police descriptions of the robbers; they subsequently selected defendant's picture from mug shots, and pointed him out at a lineup. At the trial the three eyewitness-victims positively identified defendant as one of the men who had robbed them.

The sole defense was alibi. Defendant was from the Boston area, and had been extradited from Massachusetts to stand trial. A friend of defendant, John Ragucci, testified that he [69 Cal.2d 265] met defendant in October 1964 at a Halloween party at the house of one Peter Piso in Boston; that defendant was living in the basement of Piso's house, and Ragucci saw him there every day in the month of November 1964. In particular, the witness testified he saw defendant at another party at Piso's on November 11, and the next night (i.e., the night of the robbery of Von's market) went out on a double date with defendant and one Patricia Kane. In the course of a vigorous cross-examination, however, it became apparent that the witness was confused as to the exact day of his double date with defendant.

Jeanette Sarno testified that defendant visited her house in Malden, Massachusetts, in the afternoon of Armistice Day, 1964.

Defendant took the stand and denied being in California at any time in the month of November 1964. He testified, rather, that he was living in the basement apartment of Peter Piso in Boston and saw John Ragucci every day during that period. On cross-examination defendant admitted he had come to California 'just for one day' on October 14 or 15, 1964, but denied being a criminal commuter for one day on November 12. He further admitted he knew Ponte, who was also from Massachusetts. On redirect examination, defense counsel elicited from him the fact that he had met Ponte in early 1964 when both were inmates of a Massachusetts prison; and on re cross, defendant admitted he had previously been convicted of armed robbery.

Defendant first contends that the trial court abused its discretion in limiting the number of corroborating witnesses to be brought from Massachusetts to support his alibi.

Article I, section 13, of the California Constitution declares Inter alia that in all criminal prosecutions the accused shall enjoy the right 'to have the process of the court to compel the attendance of witnesses in his behalf * * *.' A similar provision of the Sixth Amendment to the United States Constitution has been held to be an element of the due process of law guaranteed by the Fourteenth Amendment. (Washington v. State of Texas (1967) 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019.) But as the compulsory process of a court ordinarily runs only to those persons who can be located within its jurisdiction, the Constitutional provisions do not give the defendant a right to compel the attendance of a witness from beyond that jurisdiction. (Minder v. State of Georgia (1902) 183 U.S. 559, 22 S.Ct. 224, 46 L.Ed. 328; State v. [69 Cal.2d 266] Smith (1965) 87 N.J.Super. 98, 208 A.2d 171, 174; cf. Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.) It was to fill this gap that in 1937 the Legislature adopted the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases, with slight changes, as sections 1334 to 1334.6 of the Penal Code. This statute, accordingly, controls the issue now before us. 3

Page 441

[444 P.2d 113] Penal Code section 1334.3, based on section 3 of the uniform act, provides in relevant part that 'If a person in any State, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations in this State, 4 is a Material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation, a judge of such court May issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county of such other State in which the witness is found.' (Italics added.)

The emphasized terms make clear that the statutory procedure need not be invoked unless the trial judge in the requesting state first determines that the proposed witness would be material: 'Obviously this does not mean that all persons are material witnesses who are so designated by either party, or because they might possibly give pertinent evidence at the trial. Whether the witnesses are material can only be determined by the judge after hearing. At such hearing a showing that the testimony to be given by the witnesses is material must be made.' (State v. Fouquette (1950) 67 Nev. 505, 221 P.2d 404, 410, cert. den. 341 U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361, 342 U.S. 928, 72 S.Ct. 369, 96 L.Ed. 691.) And even after such a showing, the statute declares only that the judge 'may' issue the certificate of demand; [69 Cal.2d 267] in other words, the decision to bring even a material witness from out of state remains within his sound discretion. The statute has been consistently so construed (People v. Newville (1963) 220 Cal.App.2d 267, 274, 33 Cal.Rptr. 816; People v. Cahan (1956) 141 Cal.App.2d 891, 901, 297 P.2d 715; cf. People v. Washington (1967) 248 Cal.App.2d 470, 475, 57 Cal.Rptr. 487, and cases cited), as has its counterpart in our sister states (State v. Smith (1965) supra, 87 N.J.Super. 98, 208 A.2d 171, 175; State v. Lesco (1965) 194 Kan. 555, 400 P.2d 695, 699, cert. den. 382 U.S. 1015, 86 S.Ct. 628, 15 L.Ed.2d 529) and the federal system (Thompson v. United States (5th Cir. 1967) 372 F.2d 826, 828; United States v. Zuideveld (7th Cir. 1963) 316 F.2d 873, 880--881; Feguer v. United States (8th Cir. 1962) 302 F.2d 214, 240--241, and cases cited).

Applying these principles to the case at bar, we find no ground to disturb the challenged ruling of the trial judge. On March 4, 1966, when the cause was first called for trial, defendant moved for a continuance and for an order 'to bring witnesses from Massachusetts.' Proceedings were continued to March 8, at which time defense counsel filed a supporting affidavit, listing 11 proposed witnesses whom he desired to have brought from Massachusetts to testify. At the hearing, defense counsel advised the court that 'every one' was an alibi witness; the affidavit, however, was somewhat vague as to the proposed testimony of several of these witnesses, and silent as to the remainder. Citing the inconvenience and expense of disrupting the lives of all the named persons on such an inadequate showing, the court ruled that 'the number of witnesses, I think, that you have requested are all out of proportion to the realities of this situation. I am going to place your primary request off calendar. I am going to entertain a motion in due time from you to renew the motion for one witness, or perhaps two, after you have taken oral or written interrogatories and you have had a chance to evaluate which

Page 442

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65 practice notes
  • People v. Asher, Cr. 6623
    • United States
    • California Court of Appeals
    • 12 Junio 1969
    ...No reversible error is found in the admission of evidence of the earlier robbery. (See People v. Cavanaugh (1968) 69 A.C. 266, 277, 70 Cal.Rptr. 438, 444 P.2d Page 909 Prior Convictions The indictment charged Carrafa with prior convictions involving a total of three felonies, 13 and set for......
  • People v. Greene, Cr. 10427
    • United States
    • California Court of Appeals
    • 15 Octubre 1973
    ...establishing intent and identity.' (3 Cal.3d at p. 639, 91 Cal.Rptr. at p. 412, 477 P.2d at p. 436. See also People v. Cavanaugh (1968) 69 Cal.2d 262, 272, 70 Cal.Rptr. 438, 444 P.2d 110 (cert. den. (1969) 395 U.S. 981, 89 S.Ct. 2139, 23 L.Ed.2d 768); People v. Kelley, supra, 66 Cal.2d 232,......
  • People v. House, Cr. 17842
    • United States
    • California Court of Appeals
    • 6 Noviembre 1970
    ...that the section is the only provision in the code which authorizes the exclusion of cumulative evidence. 11 (People v. Cavanaugh, 69 Cal.2d 262, 269--270, 70 Cal.Rptr. 438, 444 P.2d 110.) Even impeachment of a prosecution witness or evidence concerning a defendant's good character can reac......
  • People v. Elder, Cr. 7166
    • United States
    • California Court of Appeals
    • 27 Junio 1969
    ...to irreparable mistaken identification as to deny defendant due process of law. (See People v. Cavanaugh (1968) 69 A.C. 266, 278, 70 Cal.Rptr. 438, 444 P.2d 110; People v. Neal (1969) 271 A.C.A. 944, 951--952, 77 Cal.Rptr. 65; People v. Hughes (1969) 271 A.C.A. 343, 345--346, 76 Cal.Rptr. 3......
  • Request a trial to view additional results
64 cases
  • People v. Asher, Cr. 6623
    • United States
    • California Court of Appeals
    • 12 Junio 1969
    ...No reversible error is found in the admission of evidence of the earlier robbery. (See People v. Cavanaugh (1968) 69 A.C. 266, 277, 70 Cal.Rptr. 438, 444 P.2d Page 909 Prior Convictions The indictment charged Carrafa with prior convictions involving a total of three felonies, 13 and set for......
  • People v. Greene, Cr. 10427
    • United States
    • California Court of Appeals
    • 15 Octubre 1973
    ...establishing intent and identity.' (3 Cal.3d at p. 639, 91 Cal.Rptr. at p. 412, 477 P.2d at p. 436. See also People v. Cavanaugh (1968) 69 Cal.2d 262, 272, 70 Cal.Rptr. 438, 444 P.2d 110 (cert. den. (1969) 395 U.S. 981, 89 S.Ct. 2139, 23 L.Ed.2d 768); People v. Kelley, supra, 66 Cal.2d 232,......
  • People v. House, Cr. 17842
    • United States
    • California Court of Appeals
    • 6 Noviembre 1970
    ...that the section is the only provision in the code which authorizes the exclusion of cumulative evidence. 11 (People v. Cavanaugh, 69 Cal.2d 262, 269--270, 70 Cal.Rptr. 438, 444 P.2d 110.) Even impeachment of a prosecution witness or evidence concerning a defendant's good character can reac......
  • People v. Elder, Cr. 7166
    • United States
    • California Court of Appeals
    • 27 Junio 1969
    ...to irreparable mistaken identification as to deny defendant due process of law. (See People v. Cavanaugh (1968) 69 A.C. 266, 278, 70 Cal.Rptr. 438, 444 P.2d 110; People v. Neal (1969) 271 A.C.A. 944, 951--952, 77 Cal.Rptr. 65; People v. Hughes (1969) 271 A.C.A. 343, 345--346, 76 Cal.Rptr. 3......
  • Request a trial to view additional results

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