People v. Farris, Cr. 27962

CourtCalifornia Court of Appeals
Writing for the CourtSTEPHENS; KAUS, P.J., and ASHBY
Citation136 Cal.Rptr. 45,66 Cal.App.3d 376
PartiesThe PEOPLE, Plaintiff and Respondent, v. J. D. FARRIS, Defendant and Appellant.
Decision Date25 January 1977
Docket NumberCr. 27962

Page 45

136 Cal.Rptr. 45
66 Cal.App.3d 376
The PEOPLE, Plaintiff and Respondent,
v.
J. D. FARRIS, Defendant and Appellant.
Cr. 27962.
Court of Appeal, Second District, Division 5, California.
Jan. 25, 1977.
Hearing Denied April 20, 1977.

[66 Cal.App.3d 379]

Page 47

F. Elaine Easley, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

[66 Cal.App.3d 380] Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendant and appellant, J. D. Farris, was charged by information with murder (Count I, Pen.Code, § 187), assault with a deadly weapon (Count II, Pen.Code, § 245(a)), robbery (Count III, Pen.Code, § 211), and the use of a firearm in the commission of these offenses (Pen.Code, § 12022.5). Following a trial by jury, appellant was found guilty of second degree murder and of the use of a firearm in connection therewith, and not guilty as to the other offenses charged. Upon the entry of a judgment of conviction, the instant appeal was filed.

Facts

On August 13, 1974, in the early morning hours about 2:30 a.m., Mrs. Irma Wesson was walking westward down the sidewalk along Florence Avenue near a Goodyear tire and rubber plant in Los Angeles when a white van pulled up just ahead of her. A man emerged from the driver's side of the van and walked toward Mrs. Wesson. A struggle ensued as the man attempted to force Mrs. Wesson toward the van. The man struck Mrs. Wesson and the revolver in his hand discharged, mortally wounding her. Mrs. Wesson slumped to the sidewalk as the man reentered the van. The van disappeared around the corner, but a few minutes later returned to the point where Mrs. Wesson was lying and then departed at a high rate of speed.

The foregoing scene was witnessed in whole or in part by at least eleven persons--two deputy sheriffs, who were driving home from duty, six employees of the Goodyear Tire and Rubber Company who were on their lunch break, and appellant's three companions in the van. The events leading up to, and immediately following, the shooting will be related in chronological fashion from testimony adduced by the prosecution witnesses at trial.

On the afternoon of August 12, 1974, J. D. Farris and his nephew, Alexander Dickey, attended a barbecue at his brother-in-law's home. [66 Cal.App.3d 381] Early that evening Farris became involved in an altercation with some of the guests and was asked to leave. This he did, but later that evening he returned and appropriated a .32 caliber revolver belonging to his brother-in-law, Mr. Roan. Again, appellant returned home.

At approximately 1:30 a.m., on the morning of August 13, 1974, appellant woke his

Page 48

nephew and asked him to go along to the store with him in his van. Outside the house they met Garry Nettles, a friend of appellant's, and Darryl Armelin, one of Nettles' friends. Appellant asked the two to accompany him, which they did. With appellant at the wheel, they first drove to a liquor store where they purchased some beer. Afterwards they proceeded over to Florence Avenue where they observed Mrs. Wesson walking down the sidewalk. Earlier a number of other persons had pulled their vehicles up alongside Mrs. Wesson in an effort to pick her up, but she had ignored their protestations. Appellant drove his white Ford van slowly alongside Mrs. Wesson, just in front of another vehicle, while Gary Nettles called out to her. Picking up the small handgun he had taken from Mr. Roan, appellant jumped out of the van and walked down the sidewalk to accost the woman. As the appellant was attempting to pull the woman towards the van, the gun discharged. Appellant quickly reentered the van from the passenger's side 1 and Nettles drove the van around the corner. At that point, Nettles changed positions with appellant, and appellant drove around the block past Mrs. Wesson and then sped off. When questioned about the incident, appellant explained to Nettles that the lady had slapped him, and that he in turn hit her, and the gun went off.

Following this incident, Dickey requested that his uncle take him home. Appellant dropped off his nephew, and then he, Nettles and Armelin continued on to Tommy's, a driven-in restaurant on Imperial Highway, where the three of them ate. Shortly after they left, they were stopped by sheriff's officers and arrested on suspicion of murder. At the time of the arrest, the handgun belonging to Mr. Roan was found on the step just below the right front passenger seat. Two live rounds and one spent casing were later discovered in the revolver.

[66 Cal.App.3d 382] After the three suspects were taken to the station, they were each questioned about the shooting. Appellant was advised of his rights and was then interrogated by two officers--Sergeant Lamberty and Detective Lees. When asked to account for his activities early that morning appellant told Lamberty that he and his two companions had driven around awhile, went to a Tommy's hamburger stand for about 30 minutes and were then arrested as they were driving away. The appellant denied killing anyone, but admitted that he had gotten the gun from Mr. Roan, and that he alone had used his van in the preceding 24 hours.

On the stand, appellant denied having gotten out of the van himself, but instead pointed to Mr. Nettles as the aggressor. It was Nettles, he claimed, who had driven the van up to Mrs. Wesson, and who had then exited the vehicle to accost the woman. 2 In support of this version of events, the defense put a cellmate of Nettles' on the stand, who testified essentially that Nettles had told him that appellant was innocent, but that he was forcing appellant's nephew to testify against appellant.

Contentions

The appellant makes the following four contentions in support of a reversal of his conviction: First, that the evidence adduced at trial is insufficient to sustain a conviction; second, that the district attorney

Page 49

knowingly used false testimony in order to secure the conviction, denying him due process of law; third, that the trial judge improperly dismissed a juror during the course of the trial; and fourth, that the prosecution denied him due process of law and was guilty of misconduct in questioning him about his post-arrest silence.

Discussion

I

According to fundamental principles of appellate review, this court must assume the existence of every fact in support of a judgment that can reasonably be deduced from the evidence. (E.g., People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.) A [66 Cal.App.3d 383] judgment of conviction can only be overturned if it is determined that no reasonable trier of fact could have found that the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt. (See, E.g., People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.) In making this determination, we need only ascertain whether the record contains any 'substantial evidence' supporting a conviction--that is, evidence of 'substantial probative value' or evidence 'reasonably inspiring confidence.' (In re Roderick P., 7 Cal.3d 801, 808--809, 103 Cal.Rptr. 425, 500 P.2d 1.)

Appellant seems to argue that the evidence against him is insufficient to support the conviction because inferences drawn from certain testimony support appellant's version of the killing, and because the adverse testimony given by appellant's three companions is lacking in credibility. He points out that Nettles must have been the person who got out of the van since Nettles admitted communicating with the victim, and therefore was more likely to have actually accosted Mrs. Wesson. Furthermore, appellant claims that the observations of several of the witnesses from the Goodyear plant points more strongly to Nettles as the assailant. 3 Finally, the testimony of Mr. Armelin and Mr. Dickey is discredited as fabrication. Armelin's testimony is attacked because of the conflicting stories given to the police and to the court at the preliminary examination, and because his friendship with Nettles gave him reason to cover up for Nettles. Dickey's testimony is explained as having been fabricated out of fear of Nettles, and out of a desire to satisfy the district attorney who had promised him plane fare home to Texas.

Appellant's strained reading of the record does not warrant a reversal of his conviction. Simply because inferences drawn from the evidence are consistent with innocence does not mandate that a judgment of conviction be set aside. 'Few criminals would ever be convicted if their explanations were accepted as gospel truth.' (People v. Carlson, 177 Cal.App.2d 201, 204, 2 Cal.Rptr. 117, 120.) It was for the jury to sift the true from the false and to determine the weight and credibility to be assigned to a witness' testimony. (People v. Ashley, 42 Cal.2d 246, 266, 267 P.2d 271.) The test on appeal is not whether there are inferences to be drawn for the defense, but whether the evidence is [66 Cal.App.3d 384] sufficient to sustain the conviction (see People v. Nabayan, 276 Cal.App.2d 361, 366, 80 Cal.Rptr. 779), and the evidence in the case at bench is not only sufficient, it is overwhelming. The three individuals who accompanied appellant in his van the morning of the killing--Nettles, Armelin and Dickey--all testified that appellant drove the van to the scene of the crime, that he had a gun, that he exited the...

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55 practice notes
  • People v. Johnson, No. S005232
    • United States
    • United States State Supreme Court (California)
    • October 18, 1993
    ...324, 399-401, 3 Cal.Rptr.2d 106, 821 P.2d 610 [concealment of prior conviction and dismissed assault charge]; People v. Farris (1977) 66 Cal.App.3d 376, 386-387, 136 Cal.Rptr. 45 [concealment of misdemeanor prosecution and arrest record].) Defendant argues Solano's prior arrests were in leg......
  • In re Reno, No. S124660.
    • United States
    • United States State Supreme Court (California)
    • October 31, 2012
    ...and weighing the credibility of witnesses is for the trier of fact, usually the jury, at the time of trial (see People v. Farris (1977) 66 Cal.App.3d 376, 383, 136 Cal.Rptr. 45), and that [283 P.3d 1240]claims of evidentiary insufficiency must be raised in either a motion for a new trial,34......
  • People v. Allison, No. S004649
    • United States
    • United States State Supreme Court (California)
    • May 11, 1989
    ...786, 248 Cal.Rptr. 126, 755 P.2d 310; People v. Barker (1979) 94 Cal.App.3d 321, 329-330, 156 Cal.Rptr. 407; People v. Farris (1977) 66 Cal.App.3d 376, 390, 136 Cal.Rptr. Defendant argues that the following colloquy further establishes that the prosecutor was accusing defense counsel of col......
  • 15 Cal.4th 1385A, People v. Holt, No. S016076
    • United States
    • United States State Supreme Court (California)
    • May 19, 1997
    ...469, 245 Cal.Rptr. 61 [juror personally facing prosecution in case filed by same deputy district attorney]; People v. Farris (1977) 66 Cal.App.3d 376, 136 Cal.Rptr. 45 [juror facing current criminal charges, had past charges and attitude]; In re Devlin (1956) 139 Cal.App.2d 810, 294 P.2d 46......
  • Request a trial to view additional results
55 cases
  • People v. Johnson, No. S005232
    • United States
    • United States State Supreme Court (California)
    • October 18, 1993
    ...324, 399-401, 3 Cal.Rptr.2d 106, 821 P.2d 610 [concealment of prior conviction and dismissed assault charge]; People v. Farris (1977) 66 Cal.App.3d 376, 386-387, 136 Cal.Rptr. 45 [concealment of misdemeanor prosecution and arrest record].) Defendant argues Solano's prior arrests were in leg......
  • In re Reno, No. S124660.
    • United States
    • United States State Supreme Court (California)
    • October 31, 2012
    ...and weighing the credibility of witnesses is for the trier of fact, usually the jury, at the time of trial (see People v. Farris (1977) 66 Cal.App.3d 376, 383, 136 Cal.Rptr. 45), and that [283 P.3d 1240]claims of evidentiary insufficiency must be raised in either a motion for a new trial,34......
  • People v. Allison, No. S004649
    • United States
    • United States State Supreme Court (California)
    • May 11, 1989
    ...786, 248 Cal.Rptr. 126, 755 P.2d 310; People v. Barker (1979) 94 Cal.App.3d 321, 329-330, 156 Cal.Rptr. 407; People v. Farris (1977) 66 Cal.App.3d 376, 390, 136 Cal.Rptr. Defendant argues that the following colloquy further establishes that the prosecutor was accusing defense counsel of col......
  • 15 Cal.4th 1385A, People v. Holt, No. S016076
    • United States
    • United States State Supreme Court (California)
    • May 19, 1997
    ...469, 245 Cal.Rptr. 61 [juror personally facing prosecution in case filed by same deputy district attorney]; People v. Farris (1977) 66 Cal.App.3d 376, 136 Cal.Rptr. 45 [juror facing current criminal charges, had past charges and attitude]; In re Devlin (1956) 139 Cal.App.2d 810, 294 P.2d 46......
  • Request a trial to view additional results

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