People v. Gioviannini

• Decision Date: 29 March 1968
• Docket Number: Cr. 6134
• Citation: 67 Cal.Rptr. 303,260 Cal.App.2d 597
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Sotero Rosendo GIOVIANNINI, Defendant and Appellant.

Page 303

67 Cal.Rptr. 303

260 Cal.App.2d 597

PEOPLE of the State of California, Plaintiff and Respondent, v. Sotero Rosendo GIOVIANNINI, Defendant and Appellant.

Cr. 6134.

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

March 29, 1968.

Hearing Denied May 29, 1968.

Donald W. Haynes, Santa Maria, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Jerome C. Utz, James A. Aiello, Deputy Attys. Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

Having been found guilty by a jury, defendant appeals from a judgment of conviction of murder in the first degree (Pen.Code, § 187) with a penalty of life imprisonment.

On Sunday, July 19, 1964, Virginia Mae Cothern was working as a barmaid at the Sidewinder Bar in El Monte. When Fred Baker, the owner of the Sidewinder, left at 7:30 p.m., several customers were drinking at the bar. He told Miss Cothern to close at about 10:00, the normal Sunday closing time. At approximately 9:00 p.m., Richard Lopeman and five others arrived at the Sidewinder.

Appellant and Miss Cothern were the only ones present when Lopeman and his group arrived. The newcomers went to the back dining area and began to sing and drink beer. A while later Miss Cothern brought appellant over and introduced him to Lopeman and his cronies. Appellant joined in the singing and conversation. Since no other customers were at the bar, Miss Cothern spent most of her time with the singers. On one occasion she sat on appellant's lap and appellant put his arm around her waist. Appellant seemed to have had less to drink than the others. At 10:00 o'clock, Miss Cothern announced that it was closing time. Lopeman and his friends departed. On his way out, Lopeman talked briefly with appellant. Thereafter appellant and Miss Cothern were left alone in the bar.

When Baker arrived at the Sidewinder the next morning, Mary Kern, Miss Cothern's roommate, was waiting outside. Baker noticed that the outside light and window lights were still on. Entering the bar, he saw that the place was not cleaned up and that the back door was not closed. In the dining area, he found Miss Cothern's nude body lying in a considerable amount of blood. The cash register was empty, and some loose change was scattered on the floor. Baker estimated that $115 to $120 was missing.

After the police arrived, it was noticed that there were footprints in the fluids surrounding the body and on the body itself. The causes of death were strangulation and a stab wound in the neck, which caused profuse hemorrhage. There was evidence of sexual molestation. A pair of sunglasses, an empty Marlboro cigarette pack and a broken ball point pen were found near the body.

Lopeman, upon hearing of the homicide, offered to help the police. As he was an accomplished artist, he prepared a sketch of the last person in the Sidewinder on July 19. The sketch showed a person wearing a goatee. On five occasions Lopeman went to the police station to look at suspects. None was appellant.

Police Sergeant Wrona led the investigation. He published Lopeman's sketch of the suspect, and as a result numerous leads were received. A few days after the crime, appellant's aunt called and told Sergeant Wrona the published sketch resembled her nephew. Sergeant Wrona did nothing about this call; he was busy with other leads. The officers investigated at least one hundred suspects. On Friday, August 28, Sergeant Wrona finally called appellant and asked him to come to the station to talk about what occurred at the Sidewinder on July 19. Appellant said he knew what the sergeant was referring to, and said he would come right down.

When appellant first arrived at the station, Sergeant Wrona asked for appellant's name and address and got a physical description. He observed that appellant did not have a goatee. Lopeman was summoned to the station; he signalled covertly to Sergeant Wrona indicating that appellant was the man Wrona had been searching for. Appellant had already admitted that he had been singing with a group of men at the Sidewinder on July 19. Appellant said he heard about the murder the next day.

Sergeant Wrona then invited appellant into the kitchen for a cup of coffee and asked him to relate what happened on July 19, 1964. Appellant stated that he went to the Sidewinder at 7:00 p.m. on July 19. Other customers were present at this time; one drunk had an argument with Miss Cothern over an alleged shortchanging. Later appellant was invited to sit with a group singing in the back dining area. On one occasion the victim sat on his lap. When the victim announced that it was closing time, the others left and appellant was alone with her. He noticed that he had lost his sunglasses, a pen or pencil, and a Marlboro pack. When the victim went into the dining area, he left. He went for a long walk in the area, returned home and went to bed.

Later in the day Sergeant Wrona and the appellant, accompanied by Sergeant Human, went to an interview room, where appellant related the same story to Sergeant Human that he had previously told Sergeant Wrona, adding that he owned a 1956 Ford. At this time he was not under arrest. At the officer's request, appellant showed them both his shoes. The officers immediately saw that the pattern on the soles resembled the prints found in the fluids near the body. Laboratory examination later revealed that appellant's shoes probably did make the footprints near the body.

The officers then asked him to 'tell us just what happened at the Sidewinder Cafe on Sunday night.' Appellant replied that when he heard the next day that Virginia Cothern had been choked he realized that he had strangled her. While she was counting the money, he had gone behind the bar and grabbed for her neck. In an ensuing violent struggle her clothes had been torn off. After stabbing and choking her, he wrapped some clothing around her, took the money and left. At home he noticed some debris on his pants; he removed them, left his home and, walking past a lot where some cars were parked, placed the pants in a Buick or Oldsmobile. He purchased a Ford convertible with the money he had taken. It was not until this point that appellant was informed of his right to an attorney and to make a telephone call, and placed under arrest. Sergeant Wrona testified that all the statements were made voluntarily but that once Lopeman identified appellant as being the last person in the Sidewinder on Sunday night, he (Sergeant Wrona) would not have let appellant leave the station without first obtaining his account of what occurred.

All of Sergeant Wrona's testimony regarding the content of appellant's statement, and the circumstances in which it was given, was heard by the judge out of the presence of the jury. The judge concluded that the investigation focused on appellant as a prime suspect when the officers saw that appellant's shoes appeared to be the ones that had made the prints at the scene of the crime. Therefore, under People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361, the accusatory stage was reached at that point. Thus Sergeant Wrona was permitted to relate to the jury only statements made by appellant prior to the examination of his shoes. The judge also struck some testimony which had already been received relating to the condition of appellant's pants as the discovery of the pants was the fruit of an inadmissible portion of the statement.

Appellant's first contention is that the prosecutor commented on appellant's failure to testify and that a reversal is therefore required under Griffin v. State of California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. Although the trial took place a few weeks before Griffin was decided by the United States Supreme Court, the prosecutor, perhaps anticipating that the California rule allowing comment upon the silence of the accused was likely to be disapproved, indicated to the court and defense counsel that he did not intend to make such comment in his argument. However, he did argue the evidence vigorously and at length; it is contended that by clear implication he invited the jury to draw an inference of guilt from appellant's exercise of his constitutional privilege to remain silent.

Although many convictions have been reversed for impermissible comment, none has specifically defined what Griffin comment is. For example, in People v. Odom (1965) 236 Cal.App.2d 876, 46 Cal.Rptr. 453, the court, not quoting any statements, reversed a conviction because the 'prosecution commented extensively on Odom's failure to take the stand.' (236 Cal.App.2d at 880, 46 Cal.Rptr. at 546.) In People v. Montigo (1967) 248 Cal.App.2d 32, 56 Cal.Rptr. 33, the defendant contended that although the prosecution did not comment directly on defendant's failure to testify, the statements inferentially called the jury's attention to defendant's refusal to testify. Specifically the prosecutor said 'There's no explanation for' defendant's possession of the stolen property. The court held that although the comment was close to a violation of Griffin, it actually related to the state of the evidence before the jury. The concept of a fair trial required that counsel be permitted to fully discuss the evidence, drawing all reasonable inferences therefrom. The court recognized that there is no clear line of demarcation between Griffin comment and legitimate comments on the evidence. 'If Griffin were to be pushed to its dry, logical extreme, the right to argue the effect of evidence when a defendant refuses to testify would be nearly nullified by attenuated subtleties.' (248 Cal.App.2d 38, 56 Cal.Rptr. 36.) The court suggested that legitimate comment must relate to the evidence and to inferences logically drawn therefrom.

In People v. Beghtel (1966) 239 Cal.App.2d 692, 49 Cal.Rptr. 235, the court said the purpose of Griffin is to prevent a citizen's exercise of a constitutional privilege from being judicially...