People v. Gordon

• Decision Date: 22 August 1966
• Docket Number: Cr. 9501
• Citation: 53 Cal.Rptr. 252,244 Cal.App.2d 391
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arlester GORDON, Defendant and Appellant.

Page 252

53 Cal.Rptr. 252

244 Cal.App.2d 391

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arlester GORDON, Defendant and Appellant.

Cr. 9501.

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

Aug. 22, 1966.

H. Randolph Moore, Jr. ^* , Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., John T. Murphy, Lawrence R. Mansir, Deputy Attys. Gen., for respondent.

ROTH, Presiding Justice.

Appellant and his co-defendant Mary Duffy were convicted by a jury of violating Penal Code, section 496, receiving stolen property. The appeal is from the judgment and the order denying motion for a new trial. The appeal from the latter is dismissed. (Penal Code, § 1237.)

On March 28, 1963, Prentiss Green's home was burglarized and a Hi-Fi set was taken.

On April 20, 1963, Officers Helvin and Kelch of the Los Angeles Police Department responded to a disturbance of peace complaint placed by co-defendant Duffy, arising from her desire to eject appellant from her house. When the police arrived, appellant was gathering his clothing, and announced that he would leave shortly. He started to take a phonograph set. Miss Duffy objected, saying 'You are not going to take that.' When appellant persisted in the removal of the set, Miss Duffy, in a whisper to him, overheard by the police, said: 'If you try to take that I will tell them it is stolen.' Appellant did not reply and moved to the door with the set. At this point, Miss Duffy turned to the officers and said: 'Officers, that box is stolen.' Gordon made no reply.

At this point the record becomes rather sketchy. It is clear that Officer Helvin called police headquarters and determined that the set had in fact been stolen from the home of Prentiss Green, which was one block away from the Duffy house. Appellant and Miss Duffy both explained that the set had been obtained from a man as security for a $10 loan. Both defendants maintained this story throughout the proceedings.

Prentiss Green testified at the preliminary hearing, but could not be produced at the trial. The prosecution offered Green's prior testimony under the provisions of Penal Code, section 686(3), which provides for such procedure where the witness 'cannot with due diligence, be found within the state'. To lay a foundation for due diligence, the process server for the district attorney's office testified what he did to locate Mr. Green. This testimony was heard before the jury, over appellant's objection. ¹ When appellant took the stand to refute the process server's evidence, the court stated 'we will have to have the jury go upstairs, so that they will not be required to listen to anything from the defendant that has nothing to do with the question of guilt or innocence.' Appellant testified he had made a brief attempt to locate Mr. Green, that he was not successful, but given the opportunity, he thought he could find the missing witness. ²

Appellant insists that due diligence within the meaning of section 686(3) of the Penal Code was not shown as a matter of law. In People v. Redston, 139 Cal.App.2d 485, at page 494, 293 P.2d 880, 886 the court stated:

'The word 'diligence' (as used in the foregoing section) connotes persevering application, untiring efforts in good earnest.' The court continues, quoting from People v. McDonald, 66 Cal.App.2d 504, at p. 509, 152 P.2d 448, at p. 450: "The provisions of section 686 of the Penal Code * * * contemplates something more than a desultory and indifferent search for a witness."

It is also well established, however, that the question of what constitutes due diligence to secure the presence of a witness is largely within the discretion of the trial court, and depends upon the facts of each case. (People v. Cavazos, 25 Cal.2d 198 200--201, 153 P.2d 177.)

The court ruled that a showing of due diligence had been made. The testimony of Prentiss Green given at the preliminary hearing, complete with cross-examination by appellant's counsel, was read. There was no abuse of discretion in this ruling.

Appellant urges prejudicial error because the process-server was permitted to testify before the jury, but the jury was dismissed when he attempted to refute that testimony. He argues: 'When they (the jury) returned, the court had ruled against appellant and allowed the people to read the transcript. This necessarily carried the impact that the court did not believe the appellant and gave less credence to his testimony. It gave the appearance that appellant should not be believed.'

We agree that it would have been fair and proper for the trial judge to have had appellant's testimony on this subject heard by the jury since respondent's testimony was permitted over objection in the presence of the jury. However, the record indicates clearly that the trial judge stated in the presence of the jury, referring to such testimony, that '* * * there isn't anything that comes out that has anything to do with the substance of the offense charged.' When appellant was about to take the stand, the trial judge, as he was in the act of excusing the jury, said in part: '* * * so that they will not be required to listen to anything from the defendant that has nothing to do with the question of guilt or innocence.'

There is evidence that appellant was present when Miss Duffy asserted to the police that the phonograph set was stolen. He said nothing until the police checked on the veracity of her accusation and requested an explanation.

Respondent requested and the court gave the following instruction: 'If you should find from the evidence that there was an occasion when the defendant, under conditions which fairly afforded him an opportunity to reply, failed to make denial * * * in the face of an accusation, expressed directly to him or made in his presence, charging him with the crime for which he now is on trial * * * and if you should find that he heard the accusation and understood its nature, the circumstance of his silence * * * may be considered against him as indicating an admission that the accusation thus made was true. * * *.'

Appellant asserts that the court erred in so instructing the jury.

The statements made by Mrs. Duffy form the basis of the above instruction. These statements were not made by either of the officers. They were made by appellant's co-defendant before appellant was arrested or even suspected of any crime. In these circumstances the language of the court in People v. Wilson, 238 A.C.A. 530, at page 538, 48 Cal.Rptr. 55, 60, commencing is apposite:

'Defendant assumes that all of the questions propounded * * * are accusatory statements, and that it was error to admit them and his conduct in response thereto because of his right to remain silent under the federal and state Constitutions. He appeals to three separate, although related, legal principles, as demonstrating the error of the trial court (see People v. Simmons (1946) 28 Cal.2d 699, 721, 172 P.2d 18; People v. Dorado (1965) 62 Cal.2d 338, 342--357, 42 Cal.Rptr. 169, 398 P.2d 361; and Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106), but no one of them is controlling here.

'* * *. The questions directed to defendant concerning his naem, where he was going in such a hurry, his address, whether he lived in the area, with whom he had been, and whether there was anyone in the area the officer could contract to clear him, contain no accusations which are converted into adoptive admissions by the defendant's silence, unless resort be had to the fact, which was conceded by all, that he was in a hurry when apprehended. The silence here is mere nonassertive conduct; it is not a declaration but a failure to offer an...