People v. Horrigan

• Decision Date: 14 August 1967
• Docket Number: Cr. 2547
• Citation: 253 Cal.App.2d 519,61 Cal.Rptr. 403
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Lawis HORRIGAN, Defendant and Appellant.

Page 403

61 Cal.Rptr. 403

253 Cal.App.2d 519

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Lawis HORRIGAN, Defendant and Appellant.

Cr. 2547.

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

Aug. 14, 1967.

Hearing Denied Oct. 11, 1967.

George S. Smiley, Jr., Anaheim, by appointment of Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., by Bruce Wm. Dodds, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

We have concluded that the admission of evidence of other offenses was not error requiring reversal and the court is not required to give CALJIC 51 (revised), Sua sponte.

About midnight, October 17, 1965, Steve Jackson, an employee of 'Jack-In-The-Box,' a food dispensing establishment on South Manchester Avenue, County of Orange, was robbed by defendant of $222.00 at gun point. Defendant was charged and convicted of the crime.

Evidence of other offenses with similar surrounding factors to the charged crime was admitted without objection by defendant. Unless there be an objection by defendant there is no duty upon the trial court to refuse the testimony. (People v. Williams, 53 Cal.2d 299, 304, 1 Cal.Rptr. 321, 347 P.2d 665.) The California rule as to the admissibility of other offenses is clearly delineated in People v. Sanders, 114 Cal. 216, 230, 46 P. 153; People v. Griffin, 66 Cal.2d 459 ¹, 58 Cal.Rptr. 107, 426 P.2d 507; People v. Kelley, 66 Cal.2d 232 ², 57 Cal.Rptr. 363, 424 P.2d 947; People v. Coefield, 37 Cal.2d 865, 869--870, 236 P.2d 570; People v. Peete, 28 Cal.2d 306, 315--316, 169 P.2d 924, cert. den. 329 U.S. 790, 67 S.Ct. 356, 91 L.Ed. 677. Since the evidence was otherwise legally admissible under the general principles enunciated in these cases, defendant cannot now successfully premise an attack upon his trial counsel for inadequacy because he failed to object to the evidence being admitted.

Upon certain evidence being admitted as to defendant's past activities at and during his employment, defendant's counsel immediately made a motion to strike it from the record with a request for an admonition to the jury. The court granted the motion and fully admonished the jury to disregard the testimony. The evidence in this case is of such quality and quantity that the error in admitting the evidence could have had no effect upon the jury. We conclude it is not reasonably possible or probable that a different verdict would have been returned by the jury had the excluded evidence not been heard by the jury. (People v. Watson, 46 Cal.2d 818, 299 P.2d 243; Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.) Beyond a reasonable doubt the error, if such it be, did not influence the jury in arriving at its verdict. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

The evidence of the guilt of defendant was so compelling that the striking of the evidence together with the admonition was sufficient to overcome any effect it may have had upon the jury. (People v. Seiterle, 59 Cal.2d 703, 710, 31 Cal.Rptr. 67, 381 P.2d 947, cert. den. 375 U.S. 887, 84 S.Ct. 163, 11 L.Ed.2d 116; People v. Duncan, 53 Cal.2d 803, 818, 3 Cal.Rptr. 351, 350 P.2d 103, cert. dism. Baldonado v. California, 366 U.S. 417, 81 S.Ct. 1355, 6 L.Ed.2d 380.)

A question arises whether an instruction to the jury is required Sua sponte. Defendant offered CALJIC 51 (revised), though it was withdrawn by the defendant after offering it. CALJIC 51 (revised), reads:

'DEFENDANT NOT TESTIFYING--NO INFERENCE OF GUILT MAY BE DRAWN

'It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus the decision as to whether he should testify is left to the defendant, acting with the advice and assistance of his attorney. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberations in any way.'

The 'comment' and instruction reviewed in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, violated the Fifth Amendment which applies through the Fourteenth Amendment to state proceedings. However, in Griffin, supra, the condemnation was so premised because the California Constitution, Article I, Section 13, and the comment and instruction allowed thereunder permitted an inference of guilt of defendant when he failed to take the witness stand. Under such comment or instruction the defendant was penalized for his failure to take the witness stand contrary to the constitutional provision against self-incrimination. As we read Griffin, supra, the defendant has a constitutional right against self-incrimination which he may exercise by not taking the witness stand. The California Constitutional provision allowed the submission to the jury of evidence, by an inference, because of his failure to take the witness stand, thus violative of defendant's constitutional right guaranteed to him by the Fifth Amendment. In Griffin, supra, the court concluded defendant's constitutional rights were violated by 'either comment by the prosecution on the accused's silence or Instructions by the court that such silence is evidence of guilt.' (Emphasis added.)

We find no California case determinative of this point on the present instruction CALJIC 51 (revised), which contained instructional verbiage somewhat different from that condemned in Griffin, supra. In People v. Graham, 251 Cal.App.2d 513 ³, 59 Cal.Rptr. 577, defendant postulated on appeal he was denied a fair trial because the court did not give CALJIC 51 (revised), Sua sponte. The Court of Appeal did not decide the issue since it found that the failure of the court to give the instruction, even though it might be error, was not prejudicial since the proof of guilt was so 'strong' that no different result was reasonably possible. Graham, supra, was decided after Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; supra.

We must disagree with some of the reasoning in Graham, supra, which might be construed as not requiring the giving of the instruction, Sua sponte, if the evidence of proof of guilt was 'strong' leaving the illation that it might be prejudicial error to fail to give it, Sua sponte, when the evidence is less than 'strong.'

Many of the vices pointed up in Griffin, supra, and Chapman, supra, remain in CALJIC 51 (revised). Without enumerating the totality of these vices, one paramount evil is the effect in pointing up to the jury the absence of a prime witness from the witness stand. As has been stated in many cases there are numerous reasons why a defendant may exercise his constitutional rights for not becoming a witness. Whatever the jurors may think, without the CALJIC Instruction 51 (revised), or similar instruction, about the absence of the defendant as a witness is too conjectural for consideration here but it is not conjectural as to what they could and probably would think and take into consideration if the judge, without request of defendant, injected this feature into the case by giving such an instruction. The jury, not otherwise focused to a situation, is so directed to it by the instruction given Sua sponte by the court. We cannot but formulate a conclusion that this, the giving of such...