People v. Estrada, Cr. 10425

• Decision Date: 30 July 1965
• Docket Number: Cr. 10425
• Citation: 236 Cal.App.2d 221,45 Cal.Rptr. 904
• Court: California Court of Appeals Court of Appeals
• Parties: , 11 A.L.R.3d 1307 The PEOPLE, Plaintiff and Respondent, v. Alfredo Huescas ESTRADA, Defendant and Appellant.

Page 904

45 Cal.Rptr. 904

236 Cal.App.2d 221, 11 A.L.R.3d 1307

The PEOPLE, Plaintiff and Respondent, v. Alfredo Huescas ESTRADA, Defendant and Appellant.

Cr. 10425.

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

July 30, 1965.

David A. Sanders, under appointment by the District Court of Appeal, Beverly Hills, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., and Albert W. Harris, Jr., and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

FILES, Presiding Justice.

Defendant was charged with kidnaping for the purpose of robbery in violation of Penal Code section 209. A jury convicted him of kidnaping in violation of Penal Code section 207, a lesser and included offense. The jury found defendant to have been armed at the time of the offense. He is appealing from the judgment.

The facts may be stated simply because there is no conflict in the evidence. When a uniformed police officer approached defendant at the edge of a street in North Hollywood at about 1:30 in the afternoon, defendant pulled a revolver out of his pocket and ordered the officer to put up his hands. Defendant took the officer's revolver, forced him into a nearby police car and ordered, "Take me to L.A." As the officer drove, he heard shots fired from the rear seat where defendant was sitting. Then defendant struck the officer on the side of the head with his gun. The officer suddenly applied the brakes and deliberately crashed into a parked car, then leaped into the back seat and seized the two guns. With the help of three bystanders defendant was subdued. The record contains the testimony of the victim and three other persons who saw the kidnaping, and of the three who assisted in defendant's capture. Defendant offered no evidence except a record of the General Hospital to show that he 'smelled of alcohol' when brought in after his arrest.

The sufficiency of the evidence is beyond question, as the defendant himself concedes. In a letter which he wrote to the trial judge after the trial, and which was included in the record on appeal at defendant's request, he wrote:

'I was found guilty of 'Kidnapping With a Gun' 207 of the Penal Code by what I term an extreamly fair and impartial jury on June 19, 1964 in your courtroom. At trial I had no real defence except of the fact that I was intoxicated at the time of the commision of the crime, and also that I was beaten, other then that Im unable to say that is a real defence. I did not take the stand as I did not want to lie, and to tell the truth of the matter I can't really remember what took place, except what Ive been told, and by the testomony given, which I cant in truth denic. I for one am glad that I was subdued by the witneses before something more drastic took place.'

The trial took place in June 1964 and was properly conducted under the law as it was set forth in the decisions of the highest courts up to that time. However, on this appeal the judgment must be reviewed in the light of the subsequent decisions in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

In arguing the case to the jury, the prosecutor commented upon the failure of the defendant to testify. The court gave the jury the usual instruction (CAL JIC No. 51 (Revised)) that it might draw an inference from the defendant's failure to explain or deny matters within his knowledge. Both the argument and the instruction were error under the rule established in the Griffin case. But it is not necessary to reverse the judgment and grant a new trial upon this ground because the evidence of guilt is so clear that the comment could not have influenced the result. (People ple v. Bostick, 62 A.C. 869, 872, 44 Cal.Rptr. 649, 402 P.2d 529.)

The retrospective application of the Dorado rule here is a different matter. On the afternoon following the kidnaping, police Officer Bentley, who was assigned to investigate the case, called on defendant in the prison ward of the hospital. Officer Bentley testified:

'I told him that we were going to seek a Kidnaping for Robbery Complaint against him, and I asked him at that point what his story was, what had happened. Then he related that he had been drinking with some friends on the following day, which would be March 10th in the morning, starting at about 10:00 o'clock. That he then had started walking around the Valley; that he had walked from Downtown Los Angeles out to the Valley, and that he had been at the location where he had, where the officers had stopped him, and that the officer stopped the car, proceeded to walk towards him, and that he realized that if the officer shook him down, that he would have to go back to prison because he had a gun concealed in his pocket.

'He says, 'What would you have done? I took the gun out of my pocket and told the officer to drive me downtown.' He says, 'We got in the car. We drove downtown.'

'I asked him if he had struck the officer. He says, 'No, I did not hit the officer with the gun.'

'I asked him if he had fired the gun. He says, the only time the gun was fired, to his knowledge, was when the officer was trying to take the guns away from him.

'That is the substance of the conversation relative to the taking of the officer's gun.'

This interview lasted approximately thirty minutes.

In the Dorado case the court said (at pp. 365-366, 42...