People v. Gomez

• Decision Date: 28 March 1972
• Docket Number: Cr. 21122
• Citation: 24 Cal.App.3d 486,100 Cal.Rptr. 896
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Antonio Paramo GOMEZ, Defendant and Appellant.

Page 896

100 Cal.Rptr. 896

24 Cal.App.3d 486

The PEOPLE, Plaintiff and Respondent, v. Antonio Paramo GOMEZ, Defendant and Appellant.

Cr. 21122.

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

March 28, 1972.

Hearing Granted May 23, 1972.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow and James H. Kline, Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Superior Court Case No. A--258118

In 1970, defendant was found guilty of a violation of section 10851 of the Vehicle Code; he was sentenced to county jail for one year; execution of sentence was suspended and he was granted probation. On October 20, 1971, following his conviction in case No. A--274005, the sentence was ordered into execution. ¹

On this appeal, it is argued that the 1970 sentence was ordered into execution only because of defendant's conviction in case No. A--274005 and that, if that conviction is reversed, the order in the earlier case should not stand. ² The record does not bear out that contention. The record shows that the trial court was motivated primarily by the fact that defendant, in violation of the terms of his probation, had made several illegal entries into this country. Our reversal of the judgment in case No. A--274005 does not carry with it a reversal of the orders in case No. A--258118.

Superior Court Case No. A--274005

In superior court case No. A--274005, defendant was charged with grand theft, in violation of subdivision (1) of section 487 of the Penal Code. He pled not guilty and, after a trial by jury, he was found guilty as charged. He was sentenced to state prison, execution of sentence was suspended and he was granted probation, conditional (inter alia) on his serving one year in the county jail, such term to run concurrently with the term in case No. A--258118. He has appealed; we affirm the judgment (order granting probation).

The victim, Ruiz, testified that, on May 27, 1971, he visited the immigration office in downtown Los Angeles in order to secure a renewal of his visa. Because he spoke only Spanish, he had trouble filling out the necessary forms and asked defendant to help him. Defendant told him that he (defendant) was an attorney at the department and that Ruiz would have to change all his Mexican money into American money before the papers could be filed. According to Ruiz, the two men went to a bank where Ruiz' 2,700 in Mexican pesos were exchanged for $213. After having a beer at a market, the men returned to the immigration office. There defendant took Ruiz' papers and all of his money. After waiting in line for a few minutes, defendant gave Ruiz some papers, told him to wait and went away. Thereafter an immigration official returned to Ruiz his passport and visa. Ruiz next saw defendant four days later when he pointed defendant out to the police and defendant was arrested.

Defendant denied the entire episode and claimed to have been working at the time of the alleged theft.

A bank clerk testified to changing 2,700 pesos into American money for two Mexican men, on May 27, but was unable to identify either Ruiz or defendant. ³ A bartender testified to selling beer to defendant and to Ruiz, but could not identify the date. ⁴

Defendant testified that he had searched for, but could not locate, his alleged employer. He offered to prove, by an investigator for the public defender's office, that the investigator had tried to locate the alleged employer; had verified the fact that he had been, at the time involved, an apartment manager at the location given by defendant; but had discovered that the man had, later, embezzled rent receipts and had disappeared. The offer of proof was refused.

I

The trial court instructed the jury in the terms of section 1096 of the Penal Code (CALJIC 2.90) and also gave the standard alibi instruction (CALJIC 4.50), which reads as follows:

'The defendant in this case has introduced evidence tending to show that he was not present at the time and place of the commission of the alleged offense for which he is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.'

It refused, on the stated ground that it was covered by CALJIC 2.90, a requested instruction reading as follows:

'The burden is on the People to prove beyond a reasonable doubt, bot only that the offense was committed as alleged in the Information, but also that the defendant is the one who committed it. You must be satisfied beyond a reasonable doubt of the accuracy of the identification before you may convict him. If the circumstances of the identification are not convincing beyond a reasonable doubt, you must find the defendant not guilty.'

Ordinarily, the giving of an instruction on reasonable doubt in the terms of section 1096 of the Penal Code is sufficient; section 1096a of the Penal Code so provides. But we are warned that there are cases where '(d)espite this section, a defendant, upon a proper request therefor, has a right to an instruction that directs attention to evidence from a consideration of which a reasonable doubt of his guilt could be engendered. (Citation.) This right is not limited to felony-murder cases . . . where the defendant is demanding an instruction that the underlying felony must be proved beyond a reasonable doubt. A defendant is entitled to an instruction relatlating particular facts to any legal issue. (Citations.)' (People v. Sears (1970) 2 Cal.3d 180, 190, 84 Cal.Rptr. 711, 717, 465 P.2d 847, 853.) (Italics supplied.)

Other cases have held that a specific instruction on identification testimony and on alibi is required, if requested, in spite of the broad language of section 1096a. (See: People v. Roberts (1967) 256 Cal.App.2d 488, 64 Cal.Rptr. 70, and cases cited therein.)

While the...