People v. De Georgio

• Decision Date: 18 October 1960
• Docket Number: Cr. 3634
• Citation: 8 Cal.Rptr. 295,185 Cal.App.2d 413
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Pierre DE GEORGIO, Defendant and Appellant.

Page 295

8 Cal.Rptr. 295

185 Cal.App.2d 413

PEOPLE of the State of California, Plaintiff and Respondent, v. Pierre DE GEORGIO, Defendant and Appellant.

Cr. 3634.

District Court of Appeal, First District, Division 2, California.

Oct. 18, 1960.

Rehearing Denied Nov. 17, 1960.

Hearing Denied Dec. 14, 1960.

Donald B. King, King & Sullivan, San Francisco, for appellants.

Stanley Mosk, Atty. Gen. of Cal., Arlo E. Smith and Peter T. Kennedy, Deputy Attys. Gen., San Francisco, for respondents.

KAUFMAN, Presiding Justice.

This is an appeal from a judgment of conviction entered on a jury verdict finding the appellant, Pierre De Georgio, guilty of kidnapping and armed robbery, and from the order denying the motion for a new trial. It is argued that the judgment must be reversed because: (1) the court erroneously admitted evidence of other offenses and deprived the appellant of his privilege against self-incrimination, and (2) the court allowed the indictment to be changed after all of the evidence had been presented, and (3) the evidence does not sustain the judgment as to Count I, Count III and Count IV, and (4) the court refused appellant's proffered instructions on extortion, and (5) prejudicial remarks of the counsel for the co-defendant.

About 11:30 a. m. on July 30, 1958, Mrs. Margaret Taylor was a parient at the office of her dentist, Dr. Albert Selleck, on the twenty-first floor of 450 Sutter Street in San Francisco. Suddenly, Mrs. Taylor and the doctor heard a scream coming from the reception room. The door burst open and the appellant entered with a drawn gun, while Mrs. Blake, the doctor's assistant, was dragged in on the floor by Fred Eglip, the co-defendant, who had a knife. The doctor was tied into the dental chair, while Mrs. Taylor was bound and gagged on the floor; Mrs. Blake was also tied into a chair. The appellant threatened the doctor and told him they had already kidnapped Mrs. Selleck and would cut her up if their demands for money were not met. The doctor gave them $340 out of his wallet and about $800 from the safe which was opened by Mrs. Blake.

As the two men continued to harass the doctor and demand $4000, Mrs. Taylor said:

'I have $1500 in my checking account, and I'll write a check for that amount if you will let the doctor alone and let us go and not harm us, and let Mrs. Selleck alone, and let her go.'

Mrs. Taylor was untied and the doctor was ordered to write a check for $800 payable to Mrs. Taylor and to be cashed by her when she got the money from her checking account. Mrs. Taylor was ordered to go to the bank with the appellant while Eglip remained to guard the doctor and Mrs. BlakE with instructions to kill both of them if the appellant did not return in half an hour. Just before Mrs. Taylor and the appellant left, the two robbers took about $35 from Mrs. Taylor's purse and $20 from Mrs. Blake.

The defendant put his gun in his belt and left with Mrs. Taylor. On the way to the elevator, he said to her: 'Don't make any fuss in the elevator; don't attract attention, don't say anything.' He also warned her that two friends of his were downstairs and would be watching and following them in a green Chrysler during the entire transaction. Mrs. Taylor, however, did not at any time see anyone following them. They took a cab to the main branch of American Trust at 364 California Street. As they started toward the entrance to the bank, the appellant told Mrs. Taylor he would kill her if she tried to trick him and instructed her to get the money in $100 bills. At the bank, Mrs. Taylor cashed Dr. Selleck's $800 check and cashed one of her own for $1,500. After they left the bank, Mrs. Taylor suggested that they go to the El Prado in the Plaza Hotel to make the telephone call to Dr. Selleck's office. Mrs. Taylor had a luncheon engagement at the El Prado with her husband and hoped to be rescued. En route in a taxicab, defendant demanded and received twenty-three $100 bills from Mrs. Taylor.

At the El Prado, the appellant, suspecting that someone had recognized Mrs. Taylor pushed her into another cab which proceeded to the area of Van Ness Avenue and Sacramento Street. There, they entered a cigar store and appellant telephoned Eglip at Dr. Selleck's office and found he had already left. They got into another taxi and proceeded to Ellis and Leavenworth Streets, where Mrs. Taylor was released.

At the trial, the appellant admitted the events of July 30 substantially as described by Mrs. Taylor, Mrs. Blake and Dr. Selleck but stated that he had been coerced by Fred Eglip, jim Boan, and Frank Cumulado. He stated that taking Mrs. Taylor to the bank was Eglip's idea but admitted he had dressed up in advance in order to be presentable at the bank. He admitted having a gun and threatening Mrs. Taylor in the elevator and at the bank, but stated that the gun was not loaded and belonged to Eglip. Eglip testified that the appellant was the originator of the plan to go to the bank with Mrs. Taylor, and that the gun belonged to the defendant who regularly carried it. Frank Cumulado testified that the appellant had planned the crime. James Boan testified that he did not participate in the crime and denied threatening the appellant or following the appellant and Mrs. Taylor in a car.

The main argument on appeal is that the trial court erroneously admitted evidence of other offenses and erroneously deprived the appellant of his privilege against self-incrimination by ordering him to answer a question about his prior conviction on cross-examination. Before the appellant took the stand, three witnesses testified that he had been armed at the time of the incident in question; on direct examination, the appellant admitted having the gun in his possession at that time and on several other occasions. On cross-examination, the appellant then denied having a gun with him when he went to the bank with Mrs. Taylor. The district attorney then asked: 'All right. Directing your attention to that same night, July 28th, weren't you in company with Mr. Eglip and Mr. Boan in this cigar store on Market Street?' The court then stated that since appellant's defense was lack of intent, the above question was within the scope of proper cross-examination, particularly since the same individuals were involved. Appellant's counsel objected on the grounds of the Fifth Amendment to the U.S. Constitution and Article XIII, subdivision (1) of the California State Constitution. The objection was overruled and appellant instructed to answer on penalty of contempt. The appellant denied being in the cigar store. Later in the trial, an independent witness identified the appellant as one of the people who had robbed his cigar store of $750 on July 28.

The general rule is that evidence of a collateral crime is inadmissible in a criminal prosecution for the asserted reason that its tendency to inflame and prejudice the jury outweighs its evidentiary value. People v. Albertson, 23 Cal.2d 550, 145 P.2d 7. An exception to the general rule is found, however, where the evidence of the prior or collateral criminal act is relevant to prove a specific and ascertainable feature of the crime on which the prosecution is founded such as motive or intent, where the connection of the accused with the collateral offense is clear and convincing. People v. Wade, 53 Cal.2d 322-330, 1 Cal.Rptr. 683. In the instant case, because of the testimony of the independent witness and the fact that Eglip and Cumulado were also involved, there is a sufficient link which connects the appellant with the robbery of the store. This is relevant to the commission of the robbery and kidnapping in the instant case as it bears on the appellant's defense of lack of intent. There was no error in the admission of this testimony. People v. Freytas, 157 Cal.App.2d 706, 321 P.2d 782; People v. Bonilla, 124 Cal.App. 212, 12 P.2d 64.

We turn now to the question presented by the contention that the trial court erroneously deprived the appellant of his privilege against self-incrimination. After the admission of the evidence discussed above, the district attorney then asked the appellant if he had ever been convicted of a felony. Appellant's counsel then instructed him not to answer on the ground that he might incriminate himself of the crime of violating section 12021 of the Penal Code, which provides:

'Any person who is not a citizen of the United States and any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or who is addicted to the use of any narcotic drug, who owns or has in his possession or under his custody or control any pistol, revolver, or other firearm capable of being concealed upon the person is guilty of a public offense, and shall be punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year or by a fine not exceeding five hundred dollars ($500), or by both. [Added Stats.1953, c. 36, p. 654 § 1.]'

Appellant's counsel requested immunity which was refused. The court then instructed the appellant to answer the question under penalty of contempt. The appellant then admitted a prior conviction for murder in Chile in 1950.

Appellant's argument is that when he was ordered to answer the question about his prior conviction, the fact of his prior conviction when taken with the previously established fact that he was armed on several occasions, would make out a circumstantial case of guilt under section 12021.

It is well established in this state that when a defendant takes the stand, he may be impeached by prior felony convictions. When a defendant takes the stand, he becomes subject to the same rules for testing his credibility as any other witness, including impeachments as provided in section 2051 of the Code of Civil Procedure. People v. Cobb, 45 Cal.2d 158, 287 P.2d 752; People v. Romer, 218 Cal. 449, ...