People v. Cooper

• Decision Date: 31 July 1970
• Docket Number: Cr. 17265
• Citation: 88 Cal.Rptr. 919,10 Cal.App.3d 96
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry James COOPER, Defendant and Appellant.

Page 919

88 Cal.Rptr. 919

10 Cal.App.3d 96

The PEOPLE, Plaintiff and Respondent, v. Jerry James COOPER, Defendant and Appellant.

Cr. 17265.

Court of Appeal, Second District, Division 4, California.

July 31, 1970.

Hearing Denied Sept. 24, 1970.

Richard H. Levin, Los Angeles, Cal., under appointment by the Court of Appeal, for defendant and appellant.

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

DUNN, Associate Justice.

In the early morning hours of September 9, 1966, appellant Cooper, David Thomason and a third young man identified only as 'Chuck' were creating a disturbance in the Thriftimart grocery store in Eagle Rock. They were loud and boisterous, and were asked to leave. They did so, but returned an hour and a half later. During this interval, they went to the home of appellant's stepsister. There, they decided to return to the store to pick a fight with the people who had 'thrown them out', and to use knives if necessary. Appellant initiated the conversation, but all three agreed to the plan.

After they returned to the store, they stepped on and off the mat outside one of the entrances, causing the automatic door to open and close repeatedly. Upon observing this Mr. Kleidosty, the manager, and Ronald Snowball, a clerk, went outside to investigate. They found Thomason and 'Chuck' standing on the mat, and saw appellant coming around a corner of the store. Appellant asked Kleidosty and Snowball if they 'were looking for trouble.' They replied they were not. After further conversation appellant hit Snowball in the face with his fist, whereupon Kleidosty went to the door of the store to summon help from the employees inside. When he turned around, he saw the scuffle had proceeded farther out into the parking lot in front of the store. Snowball had pinned 'Chuck' to the ground, and appellant and Thomason were running away. When they had gone 10 or 15 feet, they returned to help 'Chuck'. At this time, appellant was holding a switchblade knife with the blade exposed. Kleidosty saw the blade flash beneath the light in the parking lot, which was illuminated by 10 or 15 light standards. Visibility was good. From 15--20 feet away, he saw appellant hit Snowball several times with the hand which was holding the knife. He was using a punching motion to the front midsection of Snowball's body. (As a result of a stab wound received, Snowball was hospitalized and his spleen removed.)

Following this assault appellant Cooper, Thomason and 'Chuck' ran from the parking lot. Kleidosty tried unsuccessfully to apprehend them, and then returned to Snowball. He discovered a box-cutter in the pocket of Snowball's apron, but the blade was closed. It was found he had been stabbed in the left portion of the midsection. Kleidosty did not actually see the stabbing, but concluded that the punching movements by appellant corresponded with the wounding of Snowball, as he had not seen a knife in the hands of either Thomason or 'Chuck.'

On September 11th appellant went to Missouri. Later that month two Los Angeles police officers traveled there to take him into custody on a charge of assault with a deadly weapon. He waived extradition and was brought back to Los Angeles.

By information filed October 18, 1966 appellant was formally charged with assault with a deadly weapon (Pen.Code § 245, subd. (a)). A jury convicted him, but judgment was reversed because the trial court prejudicially omitted to instruct, Sua sponte, on the lesser offense of simple assault. ¹ Upon retrial, the jury again found appellant guilty of assault with a deadly weapon. Probation was denied; he was sentenced to state prison and now appeals.

His appeal raises the following contentions: (1) the court erred in failing to instruct that the testimony of an accomplice ought to be viewed with distrust; (2) it was error to instruct the jury that appellant had a constitutional right not to testify; and (3) it was error to admit appellant's extrajudicial statements to the police officers.

I. Was The Court Required To Instruct That The Testimony Of An Accomplice Ought To Be Viewed With Distrust?

As a prosecution witness, David Thomason testified that after he, appellant and 'Chuck' left the store for the second time, appellant stated that he had 'stabbed the guy'. Appellant contends that because he, Thomason and 'Chuck' agreed to return to the store, pick a fight with the employees and use knives, Thomason was an accomplice to the crime and the court therefore erred in failing to instruct that the testimony of an accomplice ought to be viewed with distrust. Appellant did not request such an instruction, or any instruction relating to accomplices, ² although this was the second time the case had been tried.

Where the evidence is sufficient to warrant the conclusion by a jury that a witness implicating the defendant was an accomplice, it is the duty of the trial court to give instructions regarding accomplices and their testimony, whether or not the defendant has requested such instructions. People v. Davis, 43 Cal.2d 661, 673--674, 276 P.2d 801 (1954); People v. Putnam, 20 Cal.2d 885, 890, 129 P.2d 367 (1942); People v. Warren, 16 Cal.2d 103, 118--119, 104 P.2d 1024 (1940); People v. Wade, 169 Cal.App.2d 554, 557, 337 P.2d 502 (1959). An accomplice is 'one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.' (Pen.Code § 1111.)

Whether Thomason was an accomplice within the meaning of section 1111 depends upon whether he conspired to procure commission of the crime charged. (Pen.Code § 182), or aided and abetted in its commission (Pen.Code § 31). People v. Davis, Supra, 43 Cal.2d at 672, 276 P.2d 801.

In addition to the agreement to return to the store and use knives, the record shows: on the occasion of their second appearance at the store, Thomason and appellant ran back together to help 'Chuck', who was pinned to the ground by Snowball; both of them attempted to pull Snowball away from 'Chuck', and in this attempt Thomason kicked Snowball in the head before he was stabbed. Hence, there was sufficient evidence to warrant a conclusion by the jury that Thomason was an accomplice. It follows that the trial court erred in failing to instruct, Sua sponte, upon the law of accomplices, including an instruction that if the jury found Thomason to be an accomplice his testimony should be viewed with distrust. ³

However, not every failure so to instruct is reversible error. People v. Koenig, 29 Cal.2d 87, 94, 173 P.2d 1 (1946). The question for an appellate court to determine is whether, considering the entire record, the error prejudiced the defendant's rights. Cal.Const. Art. VI, § 13; People v. Hamilton, 33 Cal.2d 45, 51, 198 P.2d 873(1948). Here, the testimony of Kleidosty and Snowball, eyewitnesses to the crime, constituted substantial evidence to support the judgment. Furthermore, as will be seen, appellant admitted to an officer that he had stabbed Snowball. He fled from the state. All of this was in addition to the testimony of Thomason. The failure of the trial court to instruct the jury regarding accomplices and their testimony, thus was not such error as to warrant reversal of the judgment. People v. Wade, Supra, 169 Cal.App.2d at 557, 337 P.2d 502; People v. Robinson, 110 Cal.App.2d 415, 418, 242 P.2d 676 (1952); People v. Burton, 91 Cal.App.2d 695, 712, 205 p.2d 1065 (1949). Put another way, it is not reasonably probable that a result more favorable to appellant would have been reached, absent the error. People v. Watson, 46 Cal.2d 818, 834--838, 299 P.2d 243 (1956).

II. Was It Error To Instruct The Jury That Appellant Had A Constitutional Right Not To Testify'

At the prosecution's request the jury was instructed: '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.' (CALJIC No. 51, Re-revised, now CALJIC No. 2.60 (3d Rev.Ed., 1970).) The record does not indicate that appellant objected to this instruction. He contends it was error to give the instruction because he did not join in the prosecution's request therefor.

In support of this contention, appellant cites People v. Molano, 253 Cal.App.2d 841, 61 Cal.Rptr. 821 (1967), an opinion by this division. It was there held error to give the instruction over the express objection of the defendant because doing so was tantamount to making a comment on his silence, as forbidden by Griffin v. California. ⁴ People v. Brown, 253 Cal.App.2d 820, 61 Cal.Rptr. 368 (1967) is a decision by Division Five of this court and was filed one day before Molano. There, a modified form of the instruction had been given. ⁵ The defendant did not object. That court held it was not error to give the instruction, stating that the rationale of Griffin was inapplicable (253 Cal.App.2d p. 830, 61 Cal.Rptr. p. 374): 'The thrust of the Griffin decision was to prevent (the silence of the defendant) from becoming part of the proof in the prosecution's case. This is what the given instruction sought to prevent.' It thus appears that the two decisions, if not flatly contradictory, do adopt a different Ratio decidendi.

Considerable divergence is reflected in subsequent decisions considering the propriety of the instruction. In People v. Mason, 259 Cal.App.2d 30, 66 Cal.Rptr. 601 (1968), this division again considered the problem. The instruction was given at the request of the prosecution without objection by defendant. We concluded it was immaterial whether defendant expressly or impliedly...