People v. Hoover

• Decision Date: 26 November 1974
• Docket Number: Cr. 17481
• Citation: 12 Cal.3d 875,528 P.2d 760,117 Cal.Rptr. 672
• Court: California Supreme Court
• Parties: , 528 P.2d 760 The PEOPLE, Plaintiff and Respondent, v. George Mitchell HOOVER, Defendant and Appellant. In Bank

Page 672

117 Cal.Rptr. 672

12 Cal.3d 875, 528 P.2d 760

The PEOPLE, Plaintiff and Respondent, v. George Mitchell HOOVER, Defendant and Appellant.

Cr. 17481.

Supreme Court of California,

In Bank.

Nov. 26, 1974.

Rehearing Denied Dec. 26, 1974.

Martin F. Bloom, San Diego under appointment by the Court of Appeal, Harold F. Tyvoll and Richard L. Tyree, San Diego, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., A. Wells Petersen, Mark L. Christiansen and Alan S. Meth, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment, following a jury trial, finding him guilty of (1) discharging a firearm at an inhabited dwelling (Pen.Code, § 246) while armed with a dangerous weapon (Pen.Code, §§ 3024 and 12022); (2) assault with a dangerous weapon (Pen.Code, § 245, subd. (a)) by using a firearm (Pen.Code, § 12022.5); and (3) possession of a billy club (Pen.Code, § 12020). The Attorney General concedes that Penal Code sections 12022 and 3024 cannot be applied where the conviction is for violation of section 246 (People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862). ¹

The sole issue on appeal is whether the court erred in refusing to give requested instructions defining an accomplice and stating the rules relating to accomplice testimony. (Pen Code, § 1111; CALJIC Nos. 3.10, 3.11, 3.12, 3.18.) We conclude under the circumstances that the denial was correct and the judgment must therefore be affirmed.

Defendant was a 'combat team member' in a right-wing paramilitary group known as the Secret Army Organization (SAO). The expressed aim of the group was to prevent, by violent means if necessary, a Communist takeover of the government. Defendant's superior in the organization was one Barry Godfrey who, unknown to defendant, was serving in an undercover capacity for the FBI. Godfrey's assignment was to infiltrate right-wing direct action organizations and to convey information about the groups to his superiors. To this end Godfrey had been associated with the Minutemen from 1967 to 1971 and thereafter with the SAO. By 1972 he had risen to the rank of San Diego County commander, assistant state commander, and state intelligence officer of the SAO.

On the evening of January 6, 1972, Godfrey took defendant in his car for the purpose of conducting a 'surveillance operation' of suspected left-wing centers in San Diego. One of the places under surveillance was the residence of Peter Bohmer, whom the SAO considered to be an ideological opponent. Their express plan was to record the license plate numbers of persons who visited or occupied the Bohmer residence. After a brief stop at Nazi party headquarters and a short surveillance of an enlisted men's coffee house, they arrived at the residence at approximately 8:30 p.m. They parked, observed the house from the car, walked up to the house and placed an SAO sticker on the front door, walked around the block, reentered the car, and continued their observation of the house from two additional parked positions. At this point defendant was armed with a .45 caliber automatic pistol and a .22 caliber Derringer. Underneath the front seat was Godfrey's semi-automatic pistol, which defendant began handling when the pair returned to the car.

As the car passed once more in front of the Bohmer residence, with the house on the right and defendant occupying the passenger's seat also in the right, defendant suddenly fired two shots from Godfrey's gun at the house. One of the bullets passed through the window of the house and entered the arm of a woman in the front room. Defendant attempted to fire a third shot but the weapon jammed. Godfrey told defendant to stop firing, drove on, and eventually returned defendant to his home. Godfrey did not report the incident to the police, but the next day reported it to his FBI superior. He then turned over to the FBI both the pistol and a jacket which defendant had been wearing at the time of the shooting and had given to Godfrey to be destroyed.

The foregoing facts were testified to by Godfrey; defendant interposed an alibi defense, denying he had been with Godfrey at the scene on the evening in question. ²

Penal Code section 1111 provides that '(a) conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. . . .' The section defines an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant. . . .' In order to be charged with the identical offense as the defendant it would be necessary for the witness to be considered a principal under the provisions of section 31, which includes '(a)ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission. . . .' Merely aiding in the escape of a principal does not result in liability as a principal, but only as an accessory under Penal Code sections 32 and 33. Thus in order to bring Godfrey within the definition of an accomplice it would not have been sufficient to show that he aided in defendant's escape. (People v. Johnson (1971) 18 Cal.App.3d 458, 463; People v. Wolden (1967) 255 Cal.App.2d 798, 804, 63 Cal.Rptr. 467.) Rather it had to be demonstrated that he acted with 'guilty knowledge and intent with regard to the commission of the crime.' (People v. Duncan (1960) 53 Cal.2d 803, 816, 3 Cal.Rptr. 351, 358, 350 P.2d 103, 110; People v. Gordon (1973) 10 Cal.3d 460, 466--467, 110 Cal.Rptr. 906, 516 P.2d 298.)

Defendant contends there was sufficient evidence of Godfrey's knowing complicity in the shooting to warrant the giving of accomplice instructions. He asserts that notwithstanding the fact that the testimony of Godfrey with regard to the latter's purposes and motivations was wholly uncontradicted,s the requisite guilty knowledge could be inferred from his conduct: i.e., Godfrey picked up the defendant; the car and gun used belonged to Godfrey; he conceivably could have been aware that defendant was handling the gun with the intent to use it; ³ Godfrey slowed down, thus giving defendant an opportunity to shoot; he provided the means of escape; and he did not report the matter to the local authorities.

The well-settled rule with respect to the provinces of judge and jury in determining whether a witness is an accomplice is: if the material facts are in dispute, the question is factual and lies in the domain of the jury; conversely, if the facts are not in dispute the question is legal and to be determined by the trial judge. (People v. Gordon (1973) supra, 10 Cal.3d 460, 467, 110 Cal.Rptr. 906, 516 P.2d 298; People v. Hill (1967) 66 Cal.2d 536, 555--556, 58 Cal.Rptr. 340, 426 P.2d 908; People v. Rosoto (1962) 58 Cal.2d 304, 329--330, 23 Cal.Rptr. 779, 373 P.2d 867; People v. Cisneros (1973) 34 Cal.App.3d 399, 413, 110 Cal.Rptr. 269; People v. Brocklehurst (1971) 14 Cal.App.3d 473, 478, 92 Cal.Rptr. 340; People v. Williams (1970) 10 Cal.App.3d 638, 641, 89 Cal.Rptr. 143; People v. Hensling (1962) 205 Cal.App.2d 34, 22 Cal.Rptr. 702.) As stated in People v. Jones (1964) 228 Cal.App.2d 76, 94--95, 39 Cal.Rptr. 302, 314: 'Whether a witness for the prosecution is or is not an accomplice may be a question of law or fact. Where the facts with respect to the participation of a witness in the crime for which the accused is on trial are clear and not disputed, it is for the court to determine whether he is an accomplice . . .. Where such witness is an accomplice as a matter of law, the court should so charge . . .. Conversely where, as a matter of law, the witness is not an accomplice, the court does not err in refusing to charge that he is or in refusing to submit the issue to the jury.'

To state the rule, however, does not resolve the problem before us, for none of the cases isolates the precise meaning of 'disputed facts.' Here defendant presented an alibi defense, denying generally any connection with the crime or the witness at the time of the incident. Aside from character witnesses, the evidence introduced by defendant went solely to the question of His involvement in the crime. ⁴ Yet the mere fact this evidence conflicted with Godfrey's version of defendant's role in the crime cannot be considered a 'dispute' within the meaning of the rule, as the instant issue is not the complicity in the crime of defendant but of Godfrey. On this question the testimony is wholly onesided: Godfrey testified he had no inkling that the shooting was about to occur; he drove to the Bohmer residence only as an adjunct to his feigned activities as an SAO officer; he ordered defendant to cease firing immediately after the latter began to shoot; he turned the evidence over to his FBI superiors and relied on them to take whatever further steps were necessary consistent with protecting his cover; and at no time did he have any personal animosity towards Peter Bohmer or desire to harm him or any of the other inhabitants of the house. There was no evidence whatever to suggest that Godfrey was anything other than he claimed to be, an agent in the employ of the FBI. Thus while reaffirming the general rule delineating the province of judge and jury in these matters, we nevertheless conclude that the defendant's denial of any connection with the crime does not Ipso facto create a disputed fact situation within the meaning of the rule if the evidence in regard to the witness' connection with the crime is otherwise uncontradicted

Similarly where, as here, the defendant contends that such a dispute arises from inferences to be drawn from the witness' testimony, more must be shown than that the witness was present at the scene and acted in a manner...