People v. House

• Decision Date: 06 November 1970
• Docket Number: 18093,Cr. 17842
• Citation: 12 Cal.App.3d 756,90 Cal.Rptr. 831
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Henry HOUSE, Defendant and Appellant. In re Henry House on Habeas Corpus.

Page 831

90 Cal.Rptr. 831

12 Cal.App.3d 756

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

In re Henry House on Habeas Corpus.

Cr. 17842, 18093.

Court of Appeal, Second District, Division 5, California.

Nov. 6, 1970.

Hearing Denied Dec. 30, 1970.

Paul T. Locke, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James Asst. Atty. Gen., and Howard J. Schwab, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

Defendant in superior court No. AO56766 was found guilty by a jury of voluntary manslaughter (after being charged with murder in count I and assault with a deadly weapon in count II). He admitted three prior felonies and was sentenced to state prison with the sentence on count II ordered to run concurrently with the sentence on count I. He appeals from the judgment.

Prior to the occurrence of the events charged in AO56766, defendant had been found guilty of assault with a deadly weapon in superior court No. A227715. Probation had been granted and no appeal had been taken from the appealable order granting probation (Pen.Code, § 1237). After sentence with appropriate reservations in AO 56766, but before determination of whether the sentence on the two counts would be consecutive or concurrent, a different judge presiding in a different department revoked probation in A227715 and sentenced defendant to state prison with sentence to run consecutive to any other sentence being served. Thereafter the previous sentence in AO56766 ordering sentences on the two counts to run concurrent to each other was ordered to stand. Defendant appeals from this judgment.

In addition defendant has filed a petition for habeas corpus in the Supreme Court (Crim. No. 14502) which was transferred to this court 'for consideration in connection with the pending appeal.' The points raised in the petition all deal with errors alleged to have occurred at the trial in AO56766; therefore, the petition will be treated as a supplemental brief in that action.

I.

Since some points in defendant's petition may be construed as an attack on the sufficiency of the evidence, a short review is required.

As to count I, defendant admitted firing the fatal shot at the victim, Jack DeVane. The testimony of James Moyers, the victim in count II, was as follows: He and DeVane had been drinking on the Sunset Strip in the early morning hours and left the bar shortly before two in the morning. As they were walking along Sunset somebody yelled 'Hey you.' They turned around and defendant was standing there with a shotgun pointed at Moyers. Defendant asked if they were Death Riders (a motorcycle club) and when they replied 'yes' he said 'My name is House. I hear you are looking for me in connection with Pamela.' Moyers and DeVane turned and started walking toward defendant. DeVane said something to defendant and defendant looked at him and shot him. After DeVane was shot, Moyers tried to tackle defendant, but was himself tackled by defendant's companion before he could reach defendant. While Moyers and defendant's companion were struggling, defendant hit Moyers with the barrel of the shotgun. Defendant and his companion then left. Both Moyers and DeVane had chains although only DeVane's was heavy enough to be used as a weapon. DeVane's remained over his shoulder and under his jacket where it was found by the investigating officer.

Defendant's testimony was the same except that he claimed the two victims approached him and his companion with their chains out and 'cocked'; that he intended only to scare the two victims with the shotgun, and shot the victim because he feared his life was in danger. However, when defendant was arrested after a hot pursuit from the scene of the killing, he spontaneously told a deputy sheriff patting him down for weapons, 'I had to do it. The job had to be done. I had to do it. I just got back from Tijuana, the guy has been bugging me for a long time. I had to do it.' ¹

Defendant discharged the shotgun from a distance of only 2 to 4 feet, or at most 5 feet, according to the testimony of two other witnesses. According to Moyers, the shot caused a large hole in DeVane's chest.

The verdicts were amply supported by the evidence. (Manslaughter: People v. Alfreds (1967) 251 Cal.App.2d 666, 672, 59 Cal.Rptr. 647; People v. Jackson (1962) 202 Cal.App.2d 179, 183, 20 Cal.Rptr. 592; People v. Doyle (1958) 162 Cal.App.2d 158, 160, 328 P.2d 7; People v. Toliver (1949) 90 Cal.App.2d 58, 60--61, 202 P.2d 301. Assault with deadly weapon: People v. Herrera (1970) 6 Cal.App.3d 846, 851, 86 Cal.Rptr. 165; People v. Thompson (1949) 93 Cal.App.2d 780, 209 P.2d 819; cf. People v. McCoy (1944) 25 Cal.2d 177, 189, 153 P.2d 315.)

II.

The main claim on appeal is that evidence of prior convictions should not have been presented to the jury. The priors were: (1) murder without malice (Texas, 1950); (2) assault with a deadly weapon (Los Angeles County, 1957); (3) assault with a deadly weapon (Los Angeles County, 1968). Defendant admitted these prior convictions before trial after his counsel had examined the records and found that there had been adequate representation by counsel in each of these cases. They were admitted into evidence as impeachment when defendant testified. Defendant's argument may be summarized as follows: Although under section 788 of the Evidence Code ² a prior felony conviction may be used for impeachment, Evidence Code, section 352 ³ also applies and it must be shown that the probative value of the impeaching evidence does not outweigh its prejudicial value. The issue was fully argued before the trial judge who stated that he felt the cases precluded an exercise of discretion as provided by section 352 with regard to evidence of prior felony convictions. This conclusion was correct. The precise issue raised here was decided in this district adversely to defendant in People v. Romero (1969) 272 Cal.App.2d 39, 46--46, 77 Cal.Rptr. 175, hearing denied; followed in People v. Sneed (1970) 8 Cal.App.3d 963, 966, 88 Cal.Rptr. 32. (Cf. Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 590--591, 86 Cal.Rptr. 465, 468 P.2d 825.)

The court in People v. Kelly (1968) 261 Cal.App.2d 708, 712, 68 Cal.Rptr. 337, 340, explained why such cases as Gordon v. United States (1967) 127 U.S.App.D.C. 343, 383 F.2d 936, cert. denied, 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287, and Luck v. United States (1965) 121 U.S.App.D.C. 151, 348 F.2d 763, cited by defendant are not controlling in California. It also explained: 'When our Evidence Code was in process of enactment, the California Law Revision Commission proposed limiting impeachment to proof of a crime in which 'an essential element' is 'dishonesty or false statement.' (Citations.) But the Commission's recommendations did not meet with legislative approval, and section 788 as enacted simply restates the rule expressed by former Code of Civil Procedure section 2051, under which any felony conviction is admissible to impeach the defendant's credibility if he takes the stand.'

III.

Defendant further attacks the validity of Evidence Code, section 788 on constitutional grounds, which is left unanswered in the Attorney General's brief. The first facet of this constitutional attack is that the section permits the introduction of non-relevant matters not probative of whether the truth is being spoken and highly prejudicial, thus violating fundamental standards of fair trial. The second facet is that a rule permitting the introduction of prior felony convictions on the issue of credibility places too great a penalty upon his right to testify in his own behalf, citing Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 in support.

At issue in Spencer v. Texas (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 was the question whether a state procedure permitting the introduction of evidence of prior felony convictions for purposes of enhancing punishment under a recidivist penal provision, at the same time as the trial on the issue of guilt or innocence on a current charge, violated fundamental fairness under the Fourteenth Amendment. In holding no violation, the court stated on pp. 563-- 564 of 385 U.S., 87 S.Ct. pp. 653--654, 17 L.Ed.2d p. 614: 'Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. See, e.g., Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595; cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; see Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; cf. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure. And none of the specific provisions of the Constitution ordains this Court with such authority. In the face of the legitimate state purpose and the long-standing and widespread use that attend the procedure under attack here, we find it impossible to say that because of the possibility of some collateral prejudice the * * * procedure is rendered unconstitutional under the Due Process Clause * * *.' Distinguishing Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 the court continued (385 U.S. at p. 565, 87 S.Ct. p. 654, 17 L.Ed.2d p. 615): 'It would be extravagant in the extreme to take Jackson as evincing a general distruct on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instructions by the judge in a criminal case, or as standing for the proposition that...