People v. Houghton

• Decision Date: 11 February 1963
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Henry HOUGHTON, Defendant and Appellant. Crim. 3364.

Page 351

28 Cal.Rptr. 351

212 Cal.App.2d 864

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Henry HOUGHTON, Defendant and Appellant.

Crim. 3364.

District Court of Appeal, Third District, California.

Feb. 11, 1963.

Hearing Denied April 3, 1963.

Harry A. Ackley, Woodland, for appellant.

Stanley Mosk, Atty. Gen., by Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.

PIERCE, Presiding Justice.

Appellant was convicted after a jury trial of (1) assault with intent to commit murder, (2) robbery, and, (3) violation of Penal Code section 12021 (possession of a gun by a felon). The indictment had charged appellant with two prior felony convictions (1) robbery in the first degree and burglary in the second degree and (2) robbery in the second degree, for each of which he had served a term in the state prison. Appellant had admitted the prior convictions. After conviction, appellant's motion for a new trial was denied and appellant was sentenced to the state prison for the term prescribed by law. It was further ordered that the term of imprisonment under Count 2, robbery of the first degree, should run consecutively with the term under Count 1, assault with intent to commit murder, and the term under Count 3, possession of a gun by a felon, should run consecutively with the term of imprisonment under Count 2. Appellant was adjudged a habitual criminal.

Appellant appeals from the judgment and from the order denying his motion for a new trial.

Appellant makes no attack upon the sufficiency of the evidence. His contentions made will be noted below. A statement of the evidence sufficient to make the contentions and our comment thereon understandable follows:

At 11 P.M. on the night of November 2, 1961, appellant entered the showroom of Kelly's Shell Service Station and stated to the sole attendant, George Kelly (16-year-old son of the proprietor): 'Let's close the place up.' He exhibited a revolver which he then placed in his pocket. He ordered Kelly to remove money from the cash register. Kelly did so as directed. He was then ordered to, and did, carry the money to a restroom in the back of the service station. Appellant followed him into the restroom and took the money from him. Kelly was then ordered to face the wall. After he had done so he was ordered to put his hands behind his back. Appellant stated: 'Move up a little higher' and then said, 'I won't hurt you.' Appellant's next move was to shoot Kelly in the back. He then left the scene. Kelly recovered and was a principal witness for the prosecution at the trial. He identified appellant as his assailant and described the incidents of the armed robbery and assault.

Appellant took the stand at the trial and testified that he had been drinking heavily on the day of, and the day before, the crime and could not remember any of the events concerning the robbery. This, of course, would not excuse commission of the offenses. (Penal Code sec. 22.) Where, however, specific intent is a necessary element of the crime the jury may consider the fact of intoxication. However, the weight to be accorded the evidence of intoxication is a question of fact. (People v. Yeager, 55 Cal.2d 374, 391, 10 Cal.Rptr. 829, 359 P.2d 261; People v. Murphy, 1 Cal.2d 37, 32 P.2d 635.) Testimony of prosecution witnesses raised a substantial conflict by describing actions showing that appellant knew what he was doing.

Appellant's first contention is that the trial court committed prejudicial error by referring in its instructions on three occasions to a non-existent 'information' in referring to the robbery count. The accusation under which appellant was on trial was an indictment.

Reference to an 'information' occurred during the court's instructions stating the rule that specific intent is a necessary element of the crime of robbery. Appellant's contention is that the reference left the impression with the jury that there was another accusatory pleading for robbery in existence. The contention is without substance. From the context of the instruction it is obvious the charge of robbery referred to by the judge was that for which the defendant was on trial and not some other offense. The mistake was either a slip of the tongue or clerical misprision in a written instruction. The jury could not possibly have been misled, if indeed any of its members knew the distinction between an indictment and an information. Realization by appellant's trial counsel of the insignificance of the mistake seems implicit in the fact that he neither called the court's attention to the mistake nor made any objection thereto at the trial.

Appellant's next contentions relate to claimed misconduct of the deputy district attorney. During his argument this officer, in assigning a suggested reason for the act of appellant in shooting Kelly stated, 'Ladies and gentlemen, this conviction makes him [defendant] a habitual criminal, which he is, and he couldn't leave that witness, sixteen year old boy or not, and the easiest way * * * was to shoot him in the back and to kill him.' Appellant contends that reference was prejudicial error since Penal Code sec. 644 'places the responsibility as to habitual criminality solely with the court and not the jury.'

There was no impropriety in argument by the district attorney that the shooting of the victim was an act prompted by the motive of disposing of him as the only eyewitness to the crime. Particularly is this true in view of appellant's contention that he was incapable of forming a specific intent due to intoxication. Evidence of appellant's prior convictions was properly before the jury, having been received in evidence for impeachment purposes on cross-examination and in proof of the charge of possession of a gun by an exconvict. (People v. Raquel, 125 Cal.App.2d 384, 270 P.2d 528; People v. DePrima, 172 Cal.App.2d 109, 341 P.2d 840.) Under the circumstances present here, therefore, the district attorney's reference to appellant as a habitual criminal should not be deemed calculated to inflame the jury but rather as fair comment to convince the jury that the shooting was not the product of alcohol-induced 'Trigger-happiness' but done diliberately to escape detection. (See People v. Bryant, 154 Cal.App.2d 121, 129, 315 P.2d 734.)

Again, and even assuming an impropriety in the characterization which we do not believe to exist, it is to be noted that no objection or request that the jury be admonished, timely or otherwise, was made at the trial, absent which misconduct of the type here involved will normally be regarded as waived and not a ground for reversal. (See People v. Rosson, 202 A.C.A. 540, 551-552, 20 Cal.Rptr. 833, where the district attorney referred to defendant as a 'con' man.)

Appellant's next contention also involves statements of the district attorney said to inject his personal opinion of the guilt of the accused into the case. Appellant correctly states the rule that statements by a prosecuting attorney, not based upon legitimate inferences from the evidence, that he has personal knowledge of defendant's guilt, or to the effect that he would not conduct the prosecution unless he believed the defendant to be guilty are misconduct. (People v. Kirkes, 39 Cal.2d 719, 723, 249 P.2d 1; People v. Warren, 175 Cal.App.2d 233, 346 P.2d 64.) In People v. Kirkes, supra, the prosecutor had stated he knew and had known prior to the trial that defendant was guilty and he would not have participated in the prosecution otherwise.

The court in reversing for misconduct, quotes from an earlier case, People v. Edgar, 34 Cal.App. 459, 468, on pages 723-724, 167 P. 891, on page 894, and says:

"When the district attorney declared that he would not prosecute any man he did not believe to be guilty he thereby wrongfully placed his personal opinion of the guilt of the defendant in evidence in the case. He was privileged to argue to the jury that it was his opinion formed from deductions made from the evidence adduced at the trial, that the defendant was guilty of the crime charged [citation]. But his declaration to the jury that he would not prosecute any man whom he did not believe to be guilty was tantamount to an assertion that he believed in the guilt of the defendant at the very inception of the prosecution; and necessarily such belief must have been founded upon the result of the destrict attorney's original and independent investigation of the charge, and therefore in all likelihood was based, in part at least, upon facts which did not appear and which perhaps could not have been shown, in evidence."

We have tested the statement by the district attorney, criticized here, reading them in context, and within the rule stated above. With one exception to be noted below we do not consider them to have been improper.

The statement, 'This is not, in my opinion, a proper case for trial in that there are no conflicts in the evidence', followed by the statement, 'therefore, there isn't much for me to say' were merely expressions that the evidence had proved appellant's guilt conclusively.

The next portion claimed improper (stated in context, with the portion objected to emphasized) was 'Mr. Salamy [defendant's trial counsel] * * * undoubtedly will not make any contention that this was not the gun with which George Kelly was shot, because Harry Johnson [criminologist of the State Burear of Criminal Identification] says it was the gun. That is good enough for all of us,--and he took a picture so that you can see for yourself, if you like. The fact that he said it was the gun is good enough for me.' This is argument from the evidence and is proper.

The statement, 'Certainly as a prosecutor it is my job to enforce the law where the law has been violated and I have the man who did it, but not to play games to get a conviction of somebody whose guilt is not proved by evidence which is convincing beyond a reasonable doubt, and about...