People v. Ebner

• Decision Date: 14 March 1966
• Docket Number: Cr. 9079
• Citation: 411 P.2d 578,64 Cal.2d 297,49 Cal.Rptr. 690
• Court: California Supreme Court
• Parties: , 411 P.2d 578 The PEOPLE, Plaintiff and Respondent, v. Robert Parks EBNER, Defendant and Appellant.

Page 690

49 Cal.Rptr. 690

64 Cal.2d 297, 411 P.2d 578

The PEOPLE, Plaintiff and Respondent, v. Robert Parks EBNER, Defendant and Appellant.

Cr. 9079.

Supreme Court of California, In Bank.

March 14, 1966.

As Modified on Denial of Rehearing May 11, 1966.

Cary G. Branch, Los Angeles, under appointment by Supreme Court for defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.

TOBRINER, Justice.

Charged with the commission of five robberies (Pen.Code, §§ 211, 211a) and with three prior felony convictions, defendant pleaded not guilty to the robbery counts and admitted the prior felonies. The jury found defendant guilty of three counts of robbery. Since the jury failed to reach a verdict on the other two robbery counts the court dismissed them. The court accordingly entered a judgment of guilty on three counts of robbery; it also found defendant to be an habitual criminal under Penal Code section 644, subdivision (a).

This case chiefly involves the issue of whether the introduction of certain exculpatory statements of defendant allegedly obtained in violation of the rules established in Escobedo v. State of Illinois (1964) 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, constituted prejudicial error. Assuming the statements were procured at the accusatory stage we explain why we cannot hold that their introduction into evidence caused defendant prejudice; as a result we have concluded that the judgment of conviction of robbery should be affirmed. We find, however, that the cause must be remanded to the trial court for redetermination of defendant's status as an habitual criminal.

As we have stated, defendant suffered convictions for three armed robberies. The first occurred on September 19, 1962, at 1:20 a. m., at the Garden Liquor Store in Los Angeles. Marvin O'Neal, the night manager of the store, identified defendant as the perpetrator. The other two, both of which likewise took place in Los Angeles, occurred in the early morning hours of October 23, 1962, one at the Clark Liquor Store and the other at Bourbon House Liquors.

As to the robbery at the Clark Liquor Store, a clerk employed there, Marion Mann, testified that a person whom he later identified as defendant held up the store on October 23, 1962, at 1:30 a. m. The robber took a sum of money which included $51.50 in change contained in coin wrappers. At the trial the prosecution showed Mann two coin wrappers, one blue, the other orange. Mann testified that they bore colors similar to the ones taken from the store. Another employee of the store, Ben Sherfield, identified defendant as the robber.

A clerk at the Bourbon House Liquors, one Ernest Metoyer, testified that at about 1:55 a. m. on October 23, 1962, defendant entered that store, 'pulled a gun and said, 'Open it up. " Defendant took an amount in excess of $200; it 'was in all denominations, currency and coins, wrappers, so forth, loose coins.' Some of the stolen coins were contained in a wrapper marked with the name of a paint company. At the trial Metoyer identified the name stamped on the blue wrapper, exhibited by the prosecution, as that of the paint company.

Wanda Hagger, a waitress at a drive-in, testified that between 2:00 and 2:30 a. m. on October 23 defendant asked her to give him paper money in exchange for several rolls of wrapped coins. She had requested defendant to write his name and address on the wrappers; he had written on each one, 'Bob Ebner, 1509 South Hampshire.' She further testified that the following night she told two police officers about this transaction, showing them two of the wrappers. At the trial she identified these wrappers as the ones there exhibited by the prosecution.

Officer Van Over of the Los Angeles Police Department testified that he talked with Mrs. Hagger a little after midnight on October 24; she gave him the two coin wrappers signed with defendant's name and signifying the South Hampshire address. After checking the files at the police station he discovered defendant's likely residence to be 1509 South New Hampshire. At that address a woman directed Officer Van Over to defendant's room; the officer awakened defendant at about 4:00 a. m. Officer Van Over questioned defendant as to the charges, searched unsuccessfully for a gun, and took certain items of clothing to the station. At some time during this interview the officer arrested defendant and removed him to jail.

The defense rests upon a denial of all the robberies and an alibi as to two. Defendant called as his first witness Joseph Faber, the owner of a bar across the street from Clark's Liquor Store, who testified that during the early hours of October 23 defendant, accompanied by a woman, had been in his bar. He further stated that although he did not watch defendant at all times, he knew that when his porter came into the bar and said that 'the place across the street was just held up,' defendant and his companion were still at the bar. Defendant had remained about ten or fifteen minutes and then left.

Defendant denied on the witness stand that he had committed any of the charged robberies. He had been at Mr. Faber's bar from midnight until about 2:00 a. m. on October 23. After he left, he drove his companion home and then went to the drivein where he asked the waitress to give him paper money in exchange for wrapped coins. He had obtained the money mainly from gambling. He saved small coins; he made a practice of asking for coin wrappers at various places; he might have picked up wrappers from Bourbon House Liquors, one of the stores he is alleged to have robbed. On cross-examination he admitted that the arresting officers had asked him where he was on the night of October 23 but stated that he did not recall what he had told them because he had been half asleep and suffered from a diabetic condition. He further acknowledged that he had put his name on the coin wrappers. He admitted three prior felony convictions.

Officer Van Over, the first rebuttal witness for the prosecution, testified that at the time of defendant's arrest he had asked defendant about his activities on the night of October 22; defendant had said that he had gone to bed at 7:30 in the evening and did not leave his room thereafter. Further impeaching defendant, Officer Hernandez of the Los Angeles Police Department testified that on the afternoon of October 24, in response to his questions, defendant had denied signing his name on the coin wrappers. The record does not indicate whether, before defendant made either of these statements, the officers advised defendant of a right to counsel and a right to remain silent.

As we have previously indicated, defendant's primary contention here is that the admission of the statements of the two officers, presented for impeachment purposes, constituted prejudicial error; they were procured, he complains, in violation of the rules established by Escobedo v. State of Illinois, supra (1964) 378 U.S. 478, 84 S.Ct. 1758, and People v. Dorado, supra (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361. But, of course, defendant's argument must depend upon a showing that the statements were obtained at the accusatory stage (People v. Stewart (1965) 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97), and, since the statements were exculpatory, that their admission constituted prejudicial error. (People v. Hillery (1965) 62 Cal.2d 692, 44 Cal.Rptr. 30, 401 P.2d 382.)

Even assuming defendant's first premise, we cannot find the asserted prejudice under the applicable test. (People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243; Fahy v. State of Connecticut (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.) One witness identified defendant as the robber of the first liquor store; two witnesses identified him as the robber of the second; and another witness identified him as the robber of the third. Beyond this convincing evidence we have the demonstrative evidence of the coin wrappers: the identification of the color of the wrappers in the one instance and of the name of the paint company stamped upon a wrapper in the other. Furthermore, the uncontradicted testimony shows that on the very night of the robbery at the unusual hour of 2:00 or 2:30 a. m., defendant asked a drive-in waitress to give him paper money in exchange for several rolls of wrapped coins. Obviously these basic facts compose a powerful case against defendant.

Defendant nevertheless asks us to conclude that his two exculpatory remarks, repeated by the officers, were such that it is reasonably probable or possible that their omission from evidence would have produced a result more favorable to defendant. The first of these is defendant's statement to Officer Van Over that he had gone to bed at 7:30 p. m. on the night of October 22 and had not left his room thereafter. The statement certainly did not directly contradict any of defendant's testimony about his activities the night of the first robbery, September 19, 1962. Although the statement tended to impeach directly defendant's credibility as to his account of the robberies of October 23, that account had been subject to manifest contradiction in many other respects. The added drop of incredibility could not have had much effect upon this well-filled tumbler of water.

The second of defendant's impeaching statements, his denial of signing his name on the coin wrappers, likewise could have had only slight bearing upon the jury's evaluation of his credibility. Any belief in his veracity would have been weakened not only by the conflicting evidence in the record but by his own admission of prior convictions of burglary, robbery and forgery. The admission of the second statement, like the first, did not cause such additional impact of impeachment as to justify reversal.

We turn to a discussion of defenda...