People v. Elder

• Decision Date: 27 June 1969
• Docket Number: Cr. 7166
• Citation: 79 Cal.Rptr. 466,274 Cal.App.2d 381
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James L. ELDER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 466

79 Cal.Rptr. 466

274 Cal.App.2d 381

PEOPLE of the State of California, Plaintiff and Respondent, v. James L. ELDER, Defendant and Appellant.

Cr. 7166.

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

June 27, 1969.

Hearing Denied Aug. 20, 1969.

Ronald E. Mallen, Long & Levit, San Francisco, for appellant (by appointment of Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Eric Collins, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant appeals from a judgment of conviction rendered after a trial by the court in which he was found guilty of burglary in two counts (Pen.Code, § 459), and assault with intent to commit rape (Pen.Code, § 220). He contends that his in-court identification was predicated upon an unfair lineup and constituted a denial of due process; that it was prejudicial error to admit evidence of the details of his prior conviction for burglary; and that the evidence is insufficient to sustain the convictions. These contentions are examined, and it is concluded that there was no prejudicial error in the trial of the case. The judgment must be affirmed.

General Facts

At about 3 a.m., on the morning of April 14, 1967, Mrs. H. was sleeping in her attic apartment on the third floor of a house on Oak Street, San Francisco. Her sons, Jack, age 14 and George age 12, were sleeping in separate beds in the same room. Mrs. H. was awakened under the circumstances related below in connection with the discussion of the sufficiency of the evidence, when she saw an individual leaning over her. She subsequently called to her sons for help. Her son Jack came to her assistance and struck the intruder with a baseball bat. Other details are related under the discussion of identification evidence. The assailant then ran out taking a bat with him. He was a small Negro male with round eyes. Mrs. H. could not identify defendant as the man. There was blood in the apartment, on the sheets, on her heel, and outside for some way up the sidewalk. Neither the door to her apartment nor the building had been locked that night.

Jack generally corroborated his mother's testimony concerning the actions of the intruder. He saw blood on his mother's bed, on his brother's bed, and there was also blood on Jack's underclothes and left arm.

Blood samples were taken from Jack and Mrs. H. Jack had type A and his mother type B blood. A band-aid taken from the defendant was tested for blood stains which were found to be type O. The bed sheets and the T-shirt worn by Jack were stained with Group O type blood. Type O is found in about 40 to 43 percent of the population, type A in 10 to 20 percent, and type B in about 6 percent.

Two days later, on April 16, 1967, at about 12:30 a.m., Janet B. age 10 1/2, was sleeping three in a bed with her girl friends Ellen and Mary. Janet resided with her parents in San Francisco in an apartment on the third floor of a Page Street dwelling. Her girl friends were visiting for the night. The three girls were sleeping cross-wise on the bed. Janet was awakened under the circumstances related below in connection with the discussion of the sufficiency of the evidence, and discovered a strange man in the room. When the girls' screamed the intruder left the room. The girls put on the light, jammed a chair across the door, and Ellen telephoned her mother and then the police. Mary and Janet opened the door and tried to get out of the house. Mary looked down and saw the man walking up and down carrying a kitten. The girls closed the door again and heard a person walk down the hall and come up to the door but no attempt was made to force it. The next thing they heard was running on the stairs; someone was slammed against the door and there was shouting. The girls went outside and saw the defendant standing in the corner with the police holding him, and a flashlight under his chin. This was the first time that Janet got a good look at his face. Ellen K., Janet's friend, age 13, corroborated Janet's testimony and identified defendant, over objection, as the person she had seen inside the room, as well as afterwards outside the room. She agreed that the room was generally dark and said that the closest she was from the assailant's face was about two feet. She indicated that she did not 'see much of him in the room' and saw him outside the room.

Officer Tovani of the San Francisco Police Department was on patrol with Officer Langlois about two blocks away when they received a prowler call. They responded immediately, noticing a man and woman, whom Tovani later learned to be one of the girls' parents, running up the middle of the street toward them as they were alighting from the car. He went up the first flight of stairs and into the vestibule. Ahead of them was a long flight of stairs, and as they started up, they saw defendant coming down toward them. The officers ordered defendant to stand still but he turned around and went back up the stairs. They caught the defendant in the small vestibule at the top of the long stairway and at once placed him in custody. He had a band-aid over his right temple. After asking the girls to identify him, the officers arrested defendant and admonished him.

Defendant said he had been drinking on Haight Street and had met a friend there. This friend had invited him to come to his home on Page Street, which was about four houses from the end of the block. The friend said that the door would be open and that the defendant could just walk in. The defendant also said that while he had been drinking in the Fillmore district he had met some friends and had gone for a ride in a car which was subsequently involved in an accident. He indicated he had bumped his head at the time of the accident, and had sustained a head injury. The officer denied that defendant said he got the head injury in a fight on Haight Street.

Inspector Mino interviewed defendant on April 16th at about 3 or 3:15 p.m. The inspector asked him how he had received an injury over one eye. Defendant replied that he had been struck and knocked down in a fight over gambling with some man by the name of Roscoe on April 13th. He said that the fight took place on Carl Street.

Mrs. Marylou W. and her former husband testified, over objection, to the details of an incident in Los Angeles which resulted in defendant's conviction of burglary in 1960, as set forth below under the discussion of evidence of other offense.

Defendant testified that about 7:30 p.m. on the evening of April 13th he was at the I-Thou coffee shop. He then went to John Fleming's residence on Carl Street for dinner but he was not home so defendant went to the Haight Levels where he played chess with a man, whom he only knew by name of 'Robert.' About 9 p.m. he went to another coffee shop, the Drug Store Cafe, where he remained for about two hours. He then went home to sleep. He did not leave his room. He never went to Mrs. H.'s residence. Upon cross-examination he testified that he did not have a roommate nor did he associate with anyone in particular that evening. Defendant testified that he had been in a fight with a man named 'Roscoe' over a gambling debt at 6 p.m. that evening. He was knocked to the pavement and injured his forehead. He denied telling Officer Tovani that he had received the injury in an automobile accident. He admitted telling Inspector Mino that he had been involved in a fight with 'Roscoe,' but he denied telling him that the fight was on Carl Street. Defendant testified that the fight was in North Beach.

Defendant testified that on the evening of April 15th, he arrived at a party on Steiner Street at about 9:30 p.m. He stayed there for about two hours and left to go to a party on Page Street which he was told was in a residence near the corner of Cole Street. He did not know which apartment it was so he entered the one which had an open door. He went up the first flight of stairs. It was very quiet; he assumed he had gone to the wrong building. He turned to go back down the stairs when the police officers entered and arrested him. He claimed that he never entered Janet's room, nor even saw the girls until the officers stopped him and the girls came down the stairs.

John Fleming also testified on behalf of the defendant. He said that after Inspector Mino had testified, Mrs. H. and Inspector Mino had a conversation. He was able to overhear parts of it. He was in the front row of one side of the seats while they were in the second to the last row on the other side. He heard Mrs. H. say, 'Is that the man?' and the inspector said, 'Don't you know?' at which she said, 'I'm not sure.' After a while they began to talk about other things. Mr. Fleming agreed that he lived at 51 Carl Street, that Elder had worked for him and that he, Fleming, had been convicted of a felony.

Identification Evidence

The first victim's 14-year-old son testified that he was awakened by his mother's scream and saw a man humped over his mother's bed; that he heard the man say, 'Shut up or I'll kill you', and his mother say, 'Get out of here. There's two little boys in the room.' After a period of silence he heard his mother entreat, 'Help, Jack, George, he's trying to kill me.' He went for a baseball bat and his brother went for the light. He hit the intruder over the head with the bat. The intruder took the bat away, and pushed the witness against the window. The curtain opened as the witness fell back against the window and in the light from the exterior he saw the left side of his assailant's face on or two feet in front of him. Just before the intruder got out of the room the witness' brother turned on the light and the witness saw the intruder full face as he was falling back toward the door. The intruder stumbled down the stairs and out of the house.

An objection was interposed to the prosecutor's question, 'Do you recognize this man sitting here next to counsel as the person...