People v. Gray, Cr. 18154

• Decision Date: 04 April 1979
• Docket Number: Cr. 18154
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George C. GRAY, Defendant and Appellant.

Page 555

154 Cal.Rptr. 555

91 Cal.App.3d 545

PEOPLE of the State of California, Plaintiff and Respondent, v. George C. GRAY, Defendant and Appellant.

Cr. 18154.

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

April 4, 1979.

As Modified April 18, 1979.

Rehearing Denied May 4, 1979.

Donald M. Solomon, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Herbert F. Wilkinson, Alvin J. Knudson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant, George C. Gray, appeals from a judgment of conviction entered on a jury verdict finding him guilty of attempted murder (Pen.Code, §§ 187, 664), with use of a firearm (Pen.Code, § 12022.5) and great bodily injury (Pen.Code, § 12022.7) with a prior conviction (Pen.Code, § 1203.06, subd. (a)); assault with a deadly weapon (Pen.Code, § 245, subd. (a)), coupled with use of a firearm (Pen.Code, § 12022.5); and carrying a weapon capable of being concealed, with a prior felony conviction (Pen.Code, § 12021). He contends that: 1) he should not have been convicted of the great bodily injury count as Penal Code section 12022.7 does not apply to attempts; 2) he was denied due process by the People's repeated Griffin error; 3) the admission of his confessions made in the absence of counsel and after violation of Miranda rights constituted prejudicial error; 4) the imposition of sentence pursuant to Penal Code section 664 was cruel and unusual punishment as it exceeded the punishment prescribed for the more specific offense of attempted murder; and 5) attempted murder, which is punishable pursuant to Penal Code section 217, should not be prosecuted under the general attempt statute (Pen.Code, § 664). For the reasons set forth below, we have concluded that the judgment must be affirmed, except for the sentence, and the trial court directed to resentence defendant pursuant to Penal Code section 217.

As there are no contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice.

The record, which includes the victim's testimony and defendant's confessions, indicates that toward evening on July 29, 1977, defendant arrived at the Oakland apartment shared by the victim, Ms. Johnson, and Wayne Gatlin. Present were defendant's friend, Vickie, and several others. ¹ Defendant removed his blue suede jacket and began to play with the .38 pistol he took from his pants. About 45 minutes later, defendant, Vickie and the victim drove to San Francisco in a yellow and black Marauder Mercury owned by Gatlin. Vickie, who had been driving, got out at Silver Avenue and San Bruno; the victim got behind the wheel and drove two blocks to a liquor store to buy cigarettes. When she returned to the car, a strange black woman in her mid-20's was in the driver's seat; defendant explained that this person was a friend who knew where they were going. After they had driven about 10 blocks toward Sunnydale, the driver said something was wrong with one of the tires, stopped the car and got out. When the victim also got out of the car to examine the tires, defendant took out his gun, pointed it at her face and twice pulled the trigger; the gun clicked but did not fire. The victim got back into the car and defendant told her he was going to kill her. When she asked why, he told her to get out of the car and indicated that if she did so, she might have a chance to live. As she got out of the car, she began to run and was shot in the back of the head; as she fell, she hit the side of the car. Defendant and the driver then apparently left. When the police arrived shortly thereafter, they saw two white males standing over the victim, who lay on the ground spitting blood. She was conscious and told them what happened. She was taken to the hospital and remained until September while she recovered from the extensive injuries she sustained, which included a shattered jaw and paralysis of her right side. The victim indicated to the police that she had been shot by a man named George whose last name she did not know.

In September 1977, Sergeant Rose of the Alameda County Sheriff's Department gave a demonstration and lecture on institutional violence and prison gangs for a police narcotics class in Hayward. As a guest speaker, Rose invited defendant who was then incarcerated at Santa Rita. ²

On the day scheduled for the class, another deputy, Schueler, contacted Rose and told him that defendant had some information concerning a violent crime which had occurred in San Francisco. Rose indicated he would speak to defendant about the matter. After the class, he interviewed defendant at the Hayward Police Department. On September 12, defendant confessed the crime; he was interviewed again on October 14, 1977, by Inspector Cashen of the San Francisco Police Department, ³ and confessed. After the September 12 interview, Cashen obtained a photograph of defendant and several other black males. The victim positively identified defendant as her assailant.

Defendant presented no witnesses and did not testify.

Defendant first contends that he was improperly charged with attempted murder (Pen.Code, § 664) and great bodily injury (Pen.Code, § 12022.7). ⁴ We recently rejected an identical contention inPeople v. Superior Court (Grilli) 84 Cal.App.3d 506, footnote 5, at page 513, 148 Cal.Rptr. 740, at page 743 n. 5 as follows: "Defendant concedes that if the charge of attempted murder stands, it would support an allegation of great bodily injury. Because attempted murder is a separate and distinct crime, it does not fall within the four exceptions provided in the statute (murder, manslaughter, assault with a deadly weapon and assault by means of force likely to produce great bodily injury under § 245). The legislative inclusion of the four crimes as exceptions necessarily excludes any other exceptions (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828)."

Next, defendant contends that the court erroneously permitted the prosecution to commit prejudicial misconduct by repeatedly referring ⁵ to his failure to testify in violation of the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, as set forth below.

Defendant's contention is based on the fact that his entire case was based on attacking the credibility of the major prosecution witness, the victim. The record indicates that she testified under a grant of immunity, admitted a prior felony conviction for assault with a deadly weapon and did not identify defendant until after one of his confessions had been obtained. The record also indicates that the jury deliberated for four hours and then returned to clarify the sequence of events surrounding Cashen's several interviews with the victim. Defendant asserts that the jury's questions indicated that they were in doubt about the reliability of her photo lineup identification and his presence at the scene of the crime.

Defendant, however, overlooks the fact that among the victim's major difficulties in her initial communications with the police was the broken jaw she had sustained as the result of the gunshot wound in her head. As a result, her memory was also impaired. The uncontroverted evidence indicates that the injuries to her jaw prevented her from clearly communicating to the officers. In any event, as we have already indicated above, there is overwhelming evidence that the victim sustained great bodily injury as the result of defendant's actions. ⁶

While Griffin does not permit an adverse inference to be drawn from a defendant's resort to his constitutional right not to testify, Griffin did not foreclose the prosecution from emphasizing the absence of other evidence to controvert the proof in the People's case (People v. Chandler, 17 Cal.App.3d 798, 805-806, 95 Cal.Rptr. 146). That is precisely what occurred here. The prosecution's comments were proper in view of defendant's failure to call any of the witnesses who were present on July 29, 1977, when he was in Oakland with the victim, or the single other witness to the shooting. ⁷

The instant record further indicates that the prosecution pointed out that defendant did not have to testify and the jury would be so instructed. The jury was instructed that "You must not draw any inference of guilt from the fact that the Defendant did not testify, nor should this fact be discussed by you or enter into your deliberations in any way." The jury was also instructed that statements of counsel are not evidence.

We can only conclude that there was no Griffin error in any of the comments set forth in footnote 5, pages 5 and 6 above. It is now well established that although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule " 'does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (Citations.)' " (People v. Vargas, 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 18, 509 P.2d 959, 962). ⁸

In the light of the entire record, even assuming, without conceding, that there was a Griffin error, we can only conclude that it is beyond a reasonable doubt that the supposed Griffin error could have had no significant impact upon the verdict obtained (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705). ⁹

As to his confessions, defendant concedes that nothing incriminating was said the police class. His argument focuses on his prior statement to Schueler that was not adduced ¹⁰ and which provided the basis for Rose's questions after class. The People argue that there was no prejudice as the statement to Schueler was not presented to the jury. As defendant correctly argues, the issue is not whether the jury heard defendant's statement to Schueler, but whether it was coerced....