People v. Diaz

• Decision Date: 28 September 1962
• Docket Number: Cr. 1599
• Citation: 208 Cal.App.2d 41,24 Cal.Rptr. 887
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel DIAZ, Defendant and Appellant.

Page 887

24 Cal.Rptr. 887

208 Cal.App.2d 41

The PEOPLE of the State of California, Plaintiff and Respondent, v. Angel DIAZ, Defendant and Appellant.

Cr. 1599.

District Court of Appeal, Fourth District, California.

Sept. 28, 1962.

Rehearing Denied Oct. 23, 1962.

Hearing Denied Nov. 21, 1962.

Leonard H. McBride, Santa Ana, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber Deputy Atty. Gen., for plaintiff and respondent.

STONE, Justice. ^*

Appellant was charged in a two-count amended information with conspiracy to escape, a violation of Penal Code section 182, subd. 1, and with attempted escape, a violation of Penal Code section 4532(a). He has appealed from a judgment of conviction of both counts.

The conspiracy and attempt to escape took place in the Orange County Jail. Appellant and two fellow inmates who participated in the attempted escape were charged with both counts, but a fourth conspirator who did not participate in the attempted break was not charged with conspiracy. In fact, he testified as a prosecution witness. There was testimony that the conspirators made plans for an escape, attempted to secure a gun from parties on the outside, that they made a sap by placing soap in a sock, and that they tore strips of cloth from a mattress to gag and bind the jailer. Most of the testimony connecting appellant with these preliminary acts came from one Masot, who was an active member of the conspiracy until shortly before the attempted escape occurred. Masot did not participate in the overt act because appellant Diaz told him not to go. Diaz gave this order an hour or so before the attempted break. The evidence does not support respondent's contention that the witness Masot disassociated himself from the plan and from his fellow conspirators, thereby removing him from the status of an accomplice. There is nothing to indicate any intention on the part of Masot to withdraw, or to indicate that he would not have joined the others in the escape attempt had Diaz permitted it.

Masot's relationship to the conspiracy is important since no cautionary instruction was given, as required by Code of Civil Procedure section 2061, subdivision 4. Aside from Masot's testimony, the evidence corroborating the conspiracy consisted largely of testimony by another inmate of the jail, one Cahill, who was not involved in either the conspiracy or in the attempted escape. His testimony concerning the conspiracy was rather weak, but in regard to the attempted escape it was clear and convincing. Shortly after the attempted break Cahill advised the officers that he knew nothing about the episode. Later he testified for the prosecution and explained the inconsistency by stating that he feared for his life when first questioned.

Count One, Conspiracy

The court instructed the jury that the testimony of an accomplice must be corroborated, giving CALJIC 821 without modification. However, the cautionary instruction that the testimony of an accomplice ought to be viewed with distrust, was not given. The question whether the failure to give this instruction, required by Code of Civil Procedure section 2061, subdivision 4, is reversible error, must be determined from the record as a whole. (People v. Koenig, 29 Cal.2d 87, 173 P.2d 1; People v. Rogers, 22 Cal.2d 787, 141 P.2d 722; People v. Dail, 22 Cal.2d 642, 653, 140 P.2d 828; People v. Hamilton, 33 Cal.2d 45, 51, 198 P.2d 873.)

The record reflects that most of the evidence proving the conspiracy came from the lips of the co-conspirator, Masot; certainly the persuasive evidence came from him. Therefore it is quite probable that had the jury been instructed in the language of Code of Civil Procedure section 2061, subdivision 4, it might have returned a different verdict as to the conspiracy count. (People v. Hamilton, supra.) The paucity of evidence connecting appellant with the conspiracy, other than the testimony of his co-conspirator, impels the conclusion that a cautionary instruction should have been given. It is immaterial that appellant failed to request such an instruction. It is well settled that when an accomplice is called as a witness by the People, the court must instruct the jury as to the rules of law governing their consideration of the testimony of such accomplice. This is so even though no request is made for such an instruction by the defendant. (People v. Miller, 185 Cal.App.2d 59, 82, 8 Cal.Rptr. 91, and cases cited therein.)

Count Two, Attempted Escape

As might be expected, the record reflects considerably more testimony concerning the overt act of attempted escape than is found concerning the conspiracy to commit the act. Although the failure to fully instruct the jury as to the testimony of an accomplice was, in our opinion, reversible error as to the conspiracy because the proof thereof rested so largely upon the testimony of the accomplice, the failure to give the same instruction was not reversible error as to Count Two.

Masot was not an accomplice to the attempted escape since he was not a participant therein. Even though Masot were to be considered an accomplice in the actual attempt to escape, failure to give the cautionary instruction was not reversible error because there is ample evidence in the record aside from Masot's testimony, to support the jury's verdict of guilty as to Count Two.

The attempted break occurred when jailer Walker went to a group of cells in tank five at 9:00 p. m. on February 14, to get a prisoner named Edlen. Walker ordered Edlen to come forward, and as he reached the entrance to the tank Walker opened the door but retained his grip on it, requiring Edlen to stoop under his arm. As this occurred, Walker was struck in the throat by a man whom he later identified as Diaz, the appellant. Diaz was joined in the attack by two other prisoners. Walker was struck over the head with some object, apparently soap in a sock; a hand was placed over his mouth to prevent his crying out, and an attempt was made to pull him into the tank. Walker slumped, feigning unconsciousness, then bit the hand that was over his mouth and shouted 'break.' Another deputy sheriff, one Horton, responded, but as he approached the four brawling men the three prisoners rushed back inside the tank and into cells, Diaz disappearing into cell two. There was testimony, including Walker's, that Diaz was wearing a green shirt at the time of the attack. Other testimony brought out that as Diaz ran into cell two he took off a green sport shirt and placed it on a bunk. Shortly after the attack Diaz came out wearing a white Tshirt and grey slacks, but no green shirt. Walker, somewhat dazed from the experience, could not immediately identify him. Later, however, Walker was able to identify Diaz, and testified positively that he was the man who approached him as Edlen was being removed through the door to the tank, and that it was Diaz who struck him in the face or throat.

Deputy Horton also testified that he saw Diaz run into the tank. The green shirt was found in cell two, where Diaz claimed to have remained during the entire fracas. Cahill, another inmate not involved in the attempted jail break, identified Diaz as one of the attackers, and further stated that he saw Diaz remove a green shirt as he ran back into cell two.

Appellant produced several inmates as witnesses on his behalf, all of whom denied seeing him participate in the attempted break. Appellant points to this conflict in the evidence and argues that the evidence is insufficient to sustain his conviction. He also vigorously attacks the credibility of the prosecution's witnesses. The court answered a similar argument in People v. Arenas, 128 Cal.App.2d 594, at pages 600-601, 275 P.2d 811, at pages 814-815, thusly:

'In determining a similar contention urging insufficiency of the evidence because of the asserted weakness of the testimony given by the prosecuting witness as to identification of the accused, this court said in People v. Alexander, 92 Cal.App.2d 230, 234, 206 P.2d 657, 659: 'On the question of identification of the perpetrator of the crime, it has been repeatedly held by the courts of this state that such a question is essentially one for determination by the triers of fact, and that their verdict or decision will not be set aside unless the appellate court can say as a matter of law that there was no substantial evidence to support the conviction. (Citations.) Unless it can be said that the evidence of identity was so weak as to constitute practically no evidence at all, an appellate court is not entitled to set aside a jury's finding of guilt. (Citation.) In the instant case appellant has not met the burden imposed upon her to show that the identification evidence is inherently unbelievable. The claimed inconsistencies and uncertainties in the testimony of the prosecuting witness were matters which should have been directed to the attention of the jury, and cannot be urged upon appeal. (Citations.)

"What we have just said is equally applicable to the testimony in support of appellant's defense of alibi. The jury was authorized to stamp this testimony as false.'

'While the claimed weakness in the testimony of the witnesses for the prosecution as to identification, as well as other claimed weaknesses in their testimony, undoubtedly afforded ground for a forceful argument to the trier of facts, nevertheless, they cannot avail appellant as ground for reversal because the evidence identifying an accused as the perpetrator of the crime charged need not be positive and uncontradicted (citations). While some of the witnesses were cautious in their identification, they expressed the belief that appellant was the person they had seen and it was for the trial judge to say what weight such evidence was entitled to (citation).'

(See also People v. Toth, 182 Cal.App.2d 819, 832, 6 Cal.Rptr. 372; People v. Lint, 182 Cal.App.2d 402, 412, ...