People v. Devaney

• Decision Date: 25 July 1973
• Docket Number: Cr. 10863
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Walter DEVANEY, Defendant and Appellant.

Page 276

109 Cal.Rptr. 276

33 Cal.App.3d 630

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward Walter DEVANEY, Defendant and Appellant.

Cr. 10863.

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

July 25, 1973.

Shepard, Olson, Devaney, Turner & Dietrich, by Kenneth W. Devaney, Fresno, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Gloria DeHart, Ina Gyemant, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

MOLINARI, Presiding Justice.

This is an appeal from a judgment upon conviction of violating Penal Code section 464 (burglary with acetylene torch or explosives) and Penal Code section 211 (robbery while armed with a deadly weapon).

The facts pertinent to the issues presented will be set out in connection with the discussion of such issues. Preliminarily, we set out the following facts: On October 25, 1971, at approximately 4 a.m., three men with guns and wearing wet suits entered the Trident Restaurant in Sausalito. They handcuffed Patrick Pendleton and Thomas Ribar, employees of the restaurant who were performing janitorial tasks, and moved them to the men's restroom. While there Pendleton and Ribar heard ripping, tearing and drilling noises, and the sound of an instrument described as a torch. After the noises ceased and the three men departed, Pendleton and Ribar sounded an alarm. It was then discovered that holes had been cut in six doors leading to a room where there were two safes. The two safes had been cut open. At closing time on the previous night the safes had contained $43,000. On November 12, 1971, a search was made of defendant's home pursuant to a search warrant. In this search the officer found hand tools consisting of a chisel, a bar with a curved top, a silver-colored punch, three proto tools, two additional punches, three drills, a jabsaw and pry bar. They also found three hand guns. These guns were of the calibers .380, .25 and .22, respectively.

The first issue is whether there was sufficient evidence that money or property was taken from the Trident Restaurant. Defendant contends that the prosecution failed to introduce evidence that any property or money was taken from said restaurant. This contention is without merit. Louis Ganapoler testified as to the contents of the two safes when he left and indicated that the safes had been opened and damaged when he saw them on October 25, 1971. He further identified photographs of the two safes, none of which depict the safes in the condition in which he left them. An examination of the photographs shows that the safes are empty. Marsha Sault, the bookkeeper at the Trident Restaurant, testified that a gold ring with a blue star sapphire stone was on her desk or in the safe before the robbery, and that it was missing after the robbery. This evidence provides a sufficient basis for concluding that property was removed from the Trident Restaurant.

Defendant claims that it was prejudicial error to 'parade into evidence the various drills, steel bars, and punches taken from (his) home.' Tools and instruments of a crime are properly admitted into evidence when they tend to connect the defendant with the commission of the offense charged. (People v. Planagan, 65 Cal.App.2d 371, 414--415, 150 P.2d 927.) Here there was evidence that tools were used in the commission of the crime, but there was no showing that the tools admitted in evidence, or similar tools, had been used in the commission of the crime. However, defendant failed to object to the introduction of the subject tools into evidence. Having failed to make a timely objection in the trial court defendant has waived any error in the admission of the tools into evidence. (Evid.Code, § 353, subd. (a); Russell v. Geis, 251 Cal.App.2d 560, 570, 59 Cal.Rptr. 569; People v. Keel, 272 Cal.App.2d 275, 277, 77 Cal.Rptr. 298; People v. Nugent, 18 Cal.App.3d 911, 917, 96 Cal.Rptr. 209.) We are of the opinion that the error complained of has not resulted in a miscarriage of justice so as to obviate the failure to object in the court below, particularly in view of defendant's failure to demonstrate on this appeal that such error resulted in a miscarriage of justice. (Evid.Code, § 353, subd. (b).)

Defense counsel objected to the introduction in evidence of the three hand guns belonging to defendant. The objection was overruled. On appeal defendant raises the same objection, that is, the prosecution should not have been allowed to introduce guns of different types and calibers, when there is no evidence as to what type of gun was actually used in the commission of the crime.

With respect to the guns used by the robbers, the record discloses as follows: Pendleton testified that the gun that was held on him was 'between a .32 and .45' caliber with a barrel of approximately four inches. Ribar testified that the person who held a gun on him appeared to have an automobile pistol of approximately .45 caliber.

When the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence, weapons found in the defendant's possession some time after the crime that could have been the weapons employed. 'There need be no conclusive demonstration that the weapon in defendant's possession was the murder weapon.' (People v. Riser, 47 Cal.2d 566, 577, 305 P.2d 1, 8.)

Here the evidence discloses that the specific type of weapon used in the robbery was not known. The prosecution's evidence was circumstantial as to the exact weapon used. Accordingly, the subject guns, as an implement by means of which it is likely that a crime was committed, were admissible in evidence when they were connected with defendant. (People v. Rinegold, 13 Cal.App.3d 711, 720, 92 Cal.Rptr. 12.)

Defendant contends that the in-court identification by Pendleton was tainted because he had been shown defendant's picture a number of times prior to the trial and because he had been 'primed' during the course of the trial during a noon recess.

An in-court identification will be set aside where a pretrial photographic procedure who so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247; People v. Lawrence, 4 Cal.3d 273, 280, 93 Cal.Rptr. 204, 481 P.2d 212.) In the instant case Pendleton did not identify defendant from any of the photographs shown him prior to trial, nor was he able to identify defendant in any of the photographs shown to him at the trial.

Defendant's assertion that Pendleton was 'primed' is based on the fact that Pendleton was unable to identify any of the photographs shown to him prior to the noon recess as depicting defendant but was able to make an in-court identification of defendant after the noon recess. This assertion may be answered with the observation that Pendleton may not have been able to identify defendant from a photograph but could do so when he saw him in person.

We are not unmindful that Pendleton testified that at the time of the robbery he could see only a portion of the face of the robber who accosted him. He could only see the portion below the nose and that above the eyes. Notwithstanding this testimony, it was for the jury to determine whether Pendleton's in-court identification was believable. It was the jury's function to determine whether the identification was probable under the facts and its determination as the trier of fact is binding on us. (In re Corey, 230 Cal.App.2d 813, 825--826, 41 Cal.Rptr. 379; People v. Braun, 14 Cal.2d 1, 5, 92 P.2d 402; People v. Jackson, 183 Cal.App.2d 562, 567--568, 6 Cal.Rptr. 884.) We cannot say that the identification was so utterly unbelievable or a physical impossibility as to warrant our rejection of the jury's conclusion. (See In re Corey, supra; In re Braun, supra; People v. Jackson, supra.)

Defendant contends that the prosecutor's reference in his argument that certain items of evidence had not been explained away by defendant violated the rule established by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 13 L.Ed.2d 106 (reh. den. 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730). The essence of the Griffin rule is that it prohibits reference to a defendant's failure to take the stand in his own defense. (People v. Hardy, 271 Cal.App.2d 322, 330, 76 Cal.Rptr. 557; People v. Burns, 270 Cal.App.2d 238, 247, 75 Cal.Rptr. 688.) The rule does not, however, extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (People v. Hardy, supra, 271 Cal.App.2d at pp. 330--331, 76 Cal.Rptr. 557; People v. Burns, supra.) The comments complained of were in this category. Accordingly, we perceive no error.

Even assuming that the comments alluded to by defendant constituted Griffin error, a reversal is not required if we are 'able to declare a belief that it was harmless beyond a reasonable doubt.' (Chapman v. California,386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241); People v. Giovannini, 260 Cal.App.2d 597, 605, 67 Cal.Rptr. 303.) In the light of the record, aside from the subject comments, the evidence is of such sufficiency as to warrant the conclusion that defendant committed the crimes charged. We are thus able to declare the comments of the district attorney harmless beyond a reasonable doubt.

Defendant was convicted of violating Penal Code section 464 (burglary with acetylene torch) which carries a punishment of imprisonment in the state prison for a term of not less than 10 years nor more than 40 years. He was also convicted of violating Penal Code section 211 (first degree robbery) which carries a punishment of imprisonment in the state prison for not less than five years, but which,...