People v. Hanz, Cr. 7384

CourtCalifornia Court of Appeals
Citation190 Cal.App.2d 793,12 Cal.Rptr. 282
Docket NumberCr. 7384
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Jimmie HANZ, Defendant and Appellant.
Decision Date04 April 1961

Lionel Richman, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was charged with burglarizing the homes of Wenston Groves (Count I) and Princella Haskins (Count II), and a prior narcotics offense. A jury found him guilty on both counts of first degree burglary, and the prior conviction to be true.

Error is asserted in the denial of defendant's motion for continuance. On the last day of a three-day jury trial defendant, appearing in pro. per. made several consecutive motions for continuance. On the day before, having been directed to proceed with his defense, defendant made two requests--that the court subpoena two witnesses, and that he read to the jury part of the transcript of the preliminary hearing, both of which were denied. The trial judge then asked him if he wanted to testify, to which he replied, 'No sir.' The next morning defendant again declared he wanted to go 'by the court script'; this denied, he said, 'Then, the defendant is not ready to proceed and would like to make a motion to continue to sometime next week.' Asked his reason, defendant said that he had broken off a piece of his tooth the day before; that he had evidence to present, but preferred 'to bring that up at a later date.' The motion was denied. Then for the first time defendant complained of being 'sick,' referring to the broken tooth; the court immediately recessed and appointed the jail physician to examine him. After his examination Dr. Crahan testified that although defendant claimed he had 'lost a filling,' he found some old fillings, palpated his finger in the tooth of which defendant complained but could feel no rough edges and it appeared that no filling had come out of it, but to give him the benefit of the doubt he had a dentist fill, with a temporary filling, not only that tooth but three others; that thereafter he examined defendant, he had no physical appearance of pain or discomfort and should have no further trouble with the filling closed; and that defendant's physical condition was such that he was able to proceed with the trial. Defendant did not testify. His second motion was denied. Asked by the court to proceed, defendant then made a third motion on the ground he felt physically unable to continue in that he had suffered with 'this condition' over night and requested that he be 'immediately examined for malnutrition.' The motion was denied. Again directed by the court to proceed he replied, 'I refuse to go on in this condition.' However, immediately thereafter he read to the jury a prepared lengthy and detailed statement of numerous constitutional rights he claimed had been denied him.

The motion for continuance created for the lower court a factual issue--whether the defendant's condition at the time was such as to preclude him from effectively proceeding with his defense; and its determination will not be disturbed unless there appears a clear abuse of its discretion. People v. Leeper, 117 Cal.App.2d 462, 256 P.2d 389; People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806; People v. Fitzgerald, 14 Cal.App.2d 180, 58 P.2d 718. We find none in the record before us. The trial court accepted the testimony of a competent medical expert that defendant was physically able to proceed, over the defendant's unsupported claims of sickness; it had the opportunity to observe defendant's physical appearance and the manner of his conduct, and to hear him express himself; and any conclusion inferring that defendant's 'condition' was but a ruse to further delay the trial will not be disturbed. It is more than obvious that from the beginning defendant simply did not want to proceed. On the day he assertedly broke his tooth he did not mention it to the court, but the next day, failing a further attempt to delay, he resorted to the broken tooth, which, when confronted by the doctor became a 'filling loss.' The results of Dr. Crahan's examination, and the defendant's conduct, cast considerable doubt on the good faith of his claim. Finally faced with the necessity of proceeding, defendant made a variety of complaints, concluding with a request for an immediate examination for 'malnutrition'; none of these complaints had been voiced to the doctor who examined him shortly before. The trial court very properly concluded that something had to be done to terminate defendant's dilatory tactics and expedite the trial, and directed defendant to proceed. His 'condition' was not such as to prevent defendant from delivering a long dissertation on the constitution; the rights he claimed he had been denied therein referred in part to the court's failure to continue the trial, and that the statement had been prepared for him in advance makes one wonder if he really ever intended to put on a defense. Moreover, his 'condition' in no way contributed to his failure to testify, for the day before he had told the court he did not want to take the stand.

Further error is predicated on the denial of defendant's request for the issuance of subpoenas for the appearance of Gershen and Arenfeld, both of whom were prosecution witnesses and testified at the preliminary hearing. The request was not made until the trial judge directed defendant to proceed with his defense. Involved herein is the continuance of a half-completed jury trial; had the request been granted, a continuance would have been necessary, for at least one witness, Arenfeld, was then on vacation. A continuance to obtain the presence of a witness lies within the sound discretion of the trial court (People v. Buckowski, 37 Cal.2d 629, 233 P.2d 912; People v. Collins, 195 Cal. 325, 233 P. 97; People v. Mason, 183 Cal.App.2d 168, 6 Cal.Rptr. 649); and a request therefor must be supported by a showing of due diligence in an attempt to secure his attendance (People v. Lamb, 133 Cal.App.2d 179, 283 P.2d 727; People v. Carroll, 160 Cal.App.2d 6, 324 P.2d 713) by legal means (People v. Collins, 195 Cal. 325, 233 P. 97; People v. Grey, 180 Cal.App.2d 683, 4 Cal.Rptr. 561), his expected testimony (People v. Rios, 172 Cal.App.2d 623, 342 P.2d 317) and its materiality. People v. Mellon, 40 Cal. 648; People v. Walton, 97 Cal.App. 782, 276 P. 426.

Defendant offered no explanation to the court relative to the absence of the two witnesses or what he did to produce them (People v. Bloemsma, 171 Cal.App.2d 261, 340 P.2d 350); in fact the circumstances point to the conclusion that he never intended to use them and the request was dilatory; or if he did, he not only ignored the means to procure their attendance but failed to inform anyone that he wanted them. There was ample time for defendant to subpoena the witnesses; he was present and heard their testimony at the preliminary hearing; for over two months prior to the trial he knew who they were and their whereabouts, yet defendant elected to wait not only until the trial, but until the very moment of his defense, to request their appearance. Moreover, defendant made no showing either of the testimony he expected Gershen and Arenfeld to give, or its materiality. Vague reference to bringing Arenfeld in 'for challenge' gives no inkling of the testimony he might give; defendant did not mention the testimony of Gershen; nor did he show their testimony would in any way be material to his defense. The record also fails to disclose the whereabouts of the two witnesses or that their presence could be obtained within a reasonable time. We find no abuse of discretion in the trial court's order.

Appellant's claim that because no foundation of due diligence to produce Haskins was laid, the reading of her testimony taken at the preliminary hearing was error, is without merit. Under Section 686, subd. 3, Penal Code, a showing of the absence of a witness from the state constitutes sufficient foundation for the introduction of his prior testimony; a showing of due diligence to find him is unnecessary. Thus, when it is shown that a witness is absent from the state, even temporarily (People v. Harding, 180 Cal.App.2d 152, 4 Cal.Rptr. 120), the due diligence requirement of Section 686, subd. 3 is inapplicable (People v. Carswell, 51 Cal.2d 602, 335 P.2d 99; People v. Barker, 144 Cal. 705, 78 P. 266; People v. Martin, 127 Cal.App.2d 777, 274 P.2d 509), and due process is not denied the accused by the introduction of testimony taken at the preliminary hearing, in his presence, where he cross-examined the witness or had the opportunity to do so. People v. Raffington, 98 Cal.App.2d 455, 220 P.2d 967; People v. Terry, 180 Cal.App.2d 48, 4 Cal.Rptr. 597. The record discloses the Princella, on the date of the trial, was in the state of Texas; moreover, prejudice to defendant seems doubtful, for her testimony was not seriously disputed by him. People v. Harding, 180 Cal.App.2d 152, 4 Cal.Rptr. 120.

Concerning the evidence, it is undisputed that the homes of Groves and Haskins were burglarized. After securing the premises, Wenston Groves (Count I) left his home at about 6:00 p. m. on March 16; the sun was almost down, in fact, the sun set at exactly 6:02 p. m. Groves returned at 10:30 p. m. and found his back door unlocked; saw a smooth iron on the sofa, that the front window screen had been cut, the hook opened and the window pried up with a knife; and discovered his television set, two suits and an overcoat missing. On the day after the burglary, March 17, defendant brought Groves' television into Milton Loan Co. where John Diener bought it from defendant for $40. He saw defendant sign the bill of sale, and wrote thereon the number of defendant's license. After the...

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