People v. Garcia

• Decision Date: 19 October 1959
• Docket Number: Cr. 3595
• Citation: 174 Cal.App.2d 525,344 P.2d 855
• Court: California Court of Appeals Court of Appeals
• Parties: PEOLE of the State of California, Plaintiff and Respondent. v. Sammy Vaca GARCIA, Defendant and Appellant.

Page 855

344 P.2d 855

174 Cal.App.2d 525

PEOLE of the State of California, Plaintiff and Respondent. v. Sammy Vaca GARCIA, Defendant and Appellant.

Cr. 3595.

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

Oct. 19, 1959.

Rehearing Denied Nov. 9, 1959.

Hearing Denied Dec. 16, 1959.

Volney J. Tidball, San Jose, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Peter T. Kennedy, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

We find no merit in appellant's asserted grounds of appeal: (1) the alleged illegality of the arrest without a warrant because it was not based upon probable cause and because appellant was not advised of the details of the crime; (2) the failure of the trial judge to endorse appellant's proposed instructions and to note his ruling upon them; (3) the alleged prejudicial error of the district attorney in adducing appellant's prior felony convictions and conducting certain cross-examination; (4) the failure of the evidence to support the verdict; (5) the alleged error in the verdict in that, although the jury found appellant guilty of attempted armed robbery and that he was armed, it fixed the crime in the second degree. As we interpret the verdict in favor of the lesser crime, as we shall point out, we find no ground for reversal in this last regard.

The jury found appellant guilty of violation of Penal Code, § 664 (attempted armed robbery), found appellant was armed, and fixed the crime as above stated. Appellant admitted three prior felony convictions. We recite the facts upon which appellant's contentions rest.

When one Leroy Brouse was held up at his liquor store on Keyes Street in San Jose he heard the robber's gun click, and, assuming it was not loaded, seized the gunman's arm. In the ensuing struggle the gunman broke free, ran from the store, and Brouse pursued him. As he raced down the street Brouse saw a parked car and heard a running motor. Fearing an accomplice in the car, Brouse stopped, but noticed a person behind the wheel and obtained the license number of the car. Upon returning to the store Brouse noted that the glasses and the hat worn by the gunman lay on the counter. Brouse called the police. In response to the call the police took possession of the hat, glasses and gun. The officers broadcast the license number.

The police traced a car with the license number to Joe Massuda. Likewise the police arrested Fred Padilla, appellant's cousin, for investigation of this attempted robbery. In the course of examination, Padilla told the officer that there had been a party at his house on the night of the robbery, that he was sleeping on the couch early that morning and heard appellant and Massuda enter the house and that they were very excited.

The next day, May 25, 1958, the police arrested appellant without a warrant. Officer Chapman informed him that the crime charged was robbery but did not tell him where the robbery took place or what happened. In response to appellant's demand for an arrest and search warrant Chapman stated that appellant was being arrested for a felony and therefore no arrest or search warrant was necessary.

Within the hour the arresting officer booked a charge against appellant, the details of which were not communicated to him. However, the officers gave appellant a slip of paper upon which was written 'Investigation' for violation of Penal Code, § 211. Appellant testified that other prisoners told him that section 211 referred to robbery.

Although they questioned appellant again the next day, the officers did not inform him where the crime took place or what type of store was involved. Officer Chapman testified that the reason for nondisclosure lay in the technique of investigation; that, in any event, at no session did appellant ask about the crime with which he was charged but rather made it obvious through his admissions that he knew exactly where the crime had occurred.

On May 27, 1958, appellant was arraigned in the Municipal Court of San Jose and given a copy of the complaint charging him with attempted robbery of Leroy Brouse. At this time appellant did not ask the court as to the identity of Brouse or the place of the robbery. Appellant, however, testified that the first occasion upon which he obtained knowledge that the crime did involve the liquor store on Keyes Street was the preliminary hearing on June 4, 1958. Although Brouse made no identification of appellant on May 25, 1958, he did so at a subsequent line-up on May 31, 1958, at which he positively identified appellant.

We discuss appellant's five grounds of appeal under their respective headings.

1. The alleged illegal arrest.

Appellant's contention of the illegality of his arrest without a warrant because it did not found upon probable cause and because he was allegedly not advised of the reason for it fails on procedural grounds.

Appellant's attack crystallizes into two claims: (1) Padilla's statement to the police as to appellant's excited homecoming could not furnish the basis for probable cause because Padilla had neither been used as an informer by the police nor was he known to them as a reliable person; and (2) the failure of the police to inform appellant of the victim's identity, the location and type of the store, denied him the protection of Penal Code, § 841, requiring the arresting officer to inform the arrested person of the 'cause of the arrest.'

Appellant's procedural failure lies in his waiver of the objection at the trial level. The record discloses no motion to quash appellant's arrest either at the time appellant entered his plea or at the trial. The contention that the arresting officers lacked the probable cause which would justify an arrest without a warrant may not now be raised on appeal.

Just as a defendant may waive his right to prevent the introduction of illegally seized evidence by failure to object (Robison v. Superior Court, 1957, 49 Cal.2d 186, 187, 316 P.2d 1), so may a defendant, by failure to move to quash the indictment or information, waive the illegality of an arrest. Justice Peters, denying a writ of error coram nobis, stated in People v. Wilson, 1951, 106 Cal.App.2d 716, 718-719, 236 P.2d 9, 10, that, 'When a person is illegally incarcerated he must take proper steps in the trial court, before trial, to correct the situation. If he proceeds to trial without objection, as he did here, any invalidity in the proceedings prior to commitment is waived.' To the same effect: People v. Shorts, 1948, 32 Cal.2d 502, 513, 197 P.2d 330; People v. Millwood, 1957, 150 Cal.App.2d 154, 309 P.2d 495. Appellant's citation of People v. Thymiakas, 1956, 140 Cal.App.2d 940, 296 P.2d 4; People v. Hudak, 1957, 149 Cal.App.2d 88, 307 P.2d 942; and People v. Goodo, 1956, 147 Cal.App.2d 7, 304 P.2d 776, for the proposition that information supplied by previously used and unknown informers cannot furnish the basis for probable cause does not support his procedurally weak position because in none of these cases did the court discuss whether or not presentment of the issue to the trial court constituted a necessary prerequisite for consideration of the issue on appeal.

2. Failure to endorse the proposed instructions.

The failure of the trial judge to endorse nine of appellant's proposed instructions with his disposition of them does not per se entitle appellant to a reversal. (People v. Guiterez, 1932, 126 Cal.App. 526, 14 P.2d 838, holding failure to endorse instructions nonreversible error in the face of a record showing which were given and which were refused; 126 Cal.App. at page 531, 14 P.2d 838.)

While Penal Code, § 1127, explicitly requires the trial judge to note upon the proposed instructions his disposition of the instructions, it is almost a truism, in light of Article VI, section 4 1/2, of the California Constitution, that a judgment will not be reversed for technical errors which have not prejudicially affected an appellant's right to a fair trial. Since no prejudice resulted to appellant because of the error in failing to comply with section 1127, as will be shown infra, reversal would be improper.

The doctrine of invited error precludes an appellant from predicating error upon instructions which he has himself proposed to the court. Gray v. Ellis, 1913, 164 Cal. 481, 487, 129 P. 791; Blythe v. City and County of San Francisco, 1947, 83 Cal.App.2d 125, 188 P.2d 40. Obviously appellant cannot complain here because instructions may have been rendered which he himself submitted.

However, since the court did not conform to the legislative mandate requiring endorsement of proposed instructions, and since we cannot ascertain from the record whether the instructions were given or refused, we shall, giving appellant the benefit of every doubt, assume the instructions were refused. We shall treat these unendorsed proposed instructions under four dispositive classifications.

First, the two instructions regarding testimony of an accomplice were properly refused since no testimony of an accomplice exists in the record. 'To give instructions not pertinent to the issues involved tends only to confuse the jury, and instead of enlightening them, serves to impede the administration of justice.' (People v. Geibel, 1949, 93 Cal.App.2d 147, 178, 208 P.2d 743, 761, holding instruction improperly given in the absence of evidence to which the jury could apply such instruction.)

Similarly, the court properly refused the proposed instruction on interpreting the evidence favorably to appellant if such evidence is equally susceptible of two interpretations, one of which points to the defendant's innocence. Our evaluation of the evidence convinces us that the prosecution's evidence was susceptible only of the interpretation of defendant's guilt; appellant's, only of innocence. Consequently, as the evidence was actually developed at the trial, the instruction was unnecessary and its refusal not...