People v. Graham

• Decision Date: 29 June 1978
• Docket Number: Cr. 31753
• Citation: 83 Cal.App.3d 736,149 Cal.Rptr. 6
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Claudelle GRAHAM, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 6

149 Cal.Rptr. 6

83 Cal.App.3d 736

The PEOPLE of the State of California, Plaintiff and Respondent, v. Claudelle GRAHAM, Jr., Defendant and Appellant.

Cr. 31753.

Court of Appeal, Second District, Division 3, California.

June 29, 1978.

Hearing Denied Aug. 31, 1978.

[83 Cal.App.3d 738] Dennis L. Cava, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Vincent J. O'Neill, Jr., Deputy Attys. Gen., for plaintiff and respondent.

COBEY, Acting Presiding Justice.

Defendant, Claudelle Graham, Jr., appeals from a judgment of conviction of assault with a deadly weapon (Pen.Code, § 245, subd. (a)) that included the penalty enhancing finding that Graham used a firearm in the commission of the offense. (Pen.Code, § 12022.5.) The appeal lies. (Pen.Code, § 1237, subd. (1).)

Graham contends that the trial court committed error by: (1) allowing the People to introduce cumulative rebuttal evidence; (2) instructing the jury with regard to the limited admissibility of evidence tending to show his commission of other crimes; and (3) instructing the jury regarding the definition of an accomplice and the requirement that the testimony of an accomplice be viewed with distrust.

We have examined these contentions and hold that none constitutes reversible error. Therefore we will affirm the judgment of the trial court with a slight modification discussed at the end of the opinion.

FACTS ¹

In the early morning hours of February 6, 1977, the victim, Robert James, became involved in an altercation with Cynthia Richardson regarding a picture she took from his apartment during a visit. Shortly thereafter James received a telephone call at a neighbor's apartment from a male who threatened him and said that "he was coming over."

James then went with a friend to a club for a short time. Upon his return he discovered that a window in his apartment had been broken. After determining that nothing was missing from his apartment and that no one was in the apartment, he put on a pistol and holster for protection and again departed.

When he got to the front entrance of his apartment complex he found that the door had been chained and locked closed. Therefore he decided to exit through a stairway that led to the garage attached to the apartment.

As James was walking through the garage he heard a voice. Someone was "talking crazy, talking loud about what he was going to do. He was going to kill me, shoot me. He couldn't make up his mind."

James turned and saw a man, identified as defendant Graham, standing in the doorway of a Volkswagen. Graham held a rifle in his hands. Graham pointed the gun at James and walked over to him. He continued to tell James that he could not decide whether to shoot him.

This conversation at gunpoint lasted between 20 and 25 minutes. Finally, James said that he had to leave. Graham responded by striking him on the head with the butt of the rifle. The blow knocked James to the ground and caused James' gun to fall upon the ground.

Graham picked up the gun and told James that he was going to take the gun and give it to his girl friend. James then saw the aforementioned Cynthia Richardson sitting in the Volkswagen. Meanwhile, Graham slowly backed up so that he was again in the doorway of the Volkswagen.

James was angry that Graham had taken his gun. He kept talking to Graham and managed to get close enough to be able to reach out and grab Graham. James then pushed on the Volkswagen door in an effort to get the gun from Graham. He managed to trap Graham between the body of the car and the door but he was unable to disarm him. Therefore, he tried to run away.

As he ran, he was shot three times. The shots knocked him down and as he lay on the ground he heard the Volkswagen start up. James was able to determine after a few minutes that Graham and Richardson had departed.

DISCUSSION

1. The Admission of Rebuttal Evidence was not Error

The People sought to establish during their case in chief that, as noted above, James was shot by Graham while fleeing after failing to disarm Graham. The People introduced evidence on this issue in the form of the eye witness testimony of James and Richardson, as well as the testimony of Roger De Jorlando, a police investigator.

De Jorlando gave expert testimony ² that a rifle of the type which fired the shots that injured James leaves a residue of powder, called "tatooing," around the bullet entry hole when fired from a distance of 40 inches or less. He testified that he found no tatooing on the jacket worn by James. From this he concluded that James was more than 40 inches from the muzzle of Graham's rifle when he was shot.

Whether James was shot while fleeing or accidentally shot during a scuffle over possession of the rifle became the crucial factual issue submitted to the jury. Graham attacked the evidence introduced by the People by testifying to the contrary that James "grabbed the barrel of the gun," pulled it "five, six inches," and "the gun went off."

The trial court then allowed the People to introduce, over Graham's objection, the challenged rebuttal evidence. De Jorlando was again called to the stand. He was then asked if in his opinion it would be possible for the bullet holes in James' jacket to have been made from a distance of approximately ten inches. He answered in the negative because of the lack of tatooing.

Graham contends that De Jorlando's testimony conveyed no new matter to the jury and had the effect of erroneously magnifying the significance of the evidence. Ironically, his contention suggests a rule that is the converse of the rationale that is the basis for restricting rebuttal evidence. Restrictions on the introduction of rebuttal evidence were created to prevent the tactic of Withholding crucial evidence from presentation during the case in chief in order to take advantage of the drama and surprise inherent in confronting the defendant with that evidence For the first time at the end of trial. (People v. Carter (1957) 48 Cal.2d 737, 753, 312 P.2d 665; People v. Contreras (1964) 226 Cal.App.2d 700, 702, 38 Cal.Rptr. 338.)

We decline to extend the rule as suggested by Graham. The admission of rebuttal evidence rests largely within the discretion of the court and will not be disturbed upon appeal in the absence of palpable abuse. (Pen.Code, § 1093, subd. (4); People v. Demond (1976) 59 Cal.App.3d 574, 587, 130 Cal.Rptr. 590.) Numerous cases have approved the introduction of rebuttal evidence where, as in the case at bench, rebuttal testimony repeats or fortifies a part of the prosecution's case in chief which has been attacked by defense evidence. (People v. Whitehorn (1963) 60 Cal.2d 256, 263, 32 Cal.Rptr. 199, 383 P.2d 783; People v. Demond, supra, 59 Cal.App.3d at pp. 580-581, 587, 130 Cal.Rptr. 590; People v. Orabuena (1976) 56 Cal.App.3d 540, 543-544, 128 Cal.Rptr. 474.)

2. The Instruction on the Limited Admissibility of Evidence of Other Crimes was Proper

Graham contends that the trial court erred in reading the jury an instruction ³ based on CALJIC 2.50, the standard instruction regarding the limited admissibility Graham testified on direct examination that he purchased the rifle with which James was shot from a private party rather than a gun store, he fired the gun in the backyard of a friend's house on New Year's eve, he thereby learned that it was an automatic weapon, and he had the gun with him in the back of the Volkswagen on the night of the shooting. This testimony Tends to show Graham's commission of several offenses: (1) possession of an automatic weapon (Pen.Code, §§ 12200, 12220); (2) transportation of an automatic weapon (Pen.Code, §§ 12200, 12220); and (3) disturbing the peace (Pen.Code, § 415, subd. (2)). ⁴

of evidence tending to show that a defendant has committed crimes other than that for which he or she is on trial. We disagree. A basis for the instruction existed in the evidence presented to the jury (see People v. Nudd (1974) 12 Cal.3d 204, 209, 115 Cal.Rptr. 372, 524 P.2d 844, overruled on other grounds, People v. Disbrow, 16 Cal.3d 101, 113, 127 Cal.Rptr. 360, 545 P.2d 272; People v. Harris (1977) 71 Cal.App.3d 959, 965-966, 139 Cal.Rptr. 778) and the instruction aided the jury's understanding of the case by explaining to the jury the limited significance of such evidence. (See People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.)

3. The Instructions Defining an Accomplice and Indicating the Untrustworthiness of Accomplice Testimony did not Constitute Reversible Error

Graham contends that the evidence at trial did not justify using the standard instructions defining an accomplice (CALJIC 3.10 (1976 rev.)), and indicating that the testimony of an accomplice should be viewed with distrust (CALJIC 3.18). We believe that ordinarily the evidence of Richardson's complicity would warrant the giving of these instructions ⁵ (see People v. Gordon (1973) 10 Cal.3d 460, 466-469, 110 Cal.Rptr. 906, 516 P.2d 298), but that, under the circumstances of this case, the giving of them was error. This is because the sole witness to whom such instructions might apply (Richardson) testified In favor of the defendant.

The practice of instructing the jury to be skeptical of accomplice testimony developed in order to make the admission of such testimony against a criminal defendant fair. (Phelps v. United States (5th Cir. 1958) 252 F.2d 49, 52; People v. Coffey (1911) 161 Cal. 433, 437-438, 119 P. 901.) For experience has shown that an accomplice will often attempt to earn clemency or leniency by giving testimony unfavorable to the defendant. (People v. Tewksbury (1976) 15 Cal.3d 953, 967, 127 Cal.Rptr. 135, 544 P.2d 1335; People v. Gordon, supra, 10 Cal.3d at pp. 468-469, 110 Cal.Rptr. 906, 516 P.2d 298; Wigmore on Evidence (3d ed. 1940) §...