People v. Jaramillo

• Decision Date: 17 October 1962
• Docket Number: Cr. 8115
• Citation: 208 Cal.App.2d 620,25 Cal.Rptr. 403
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nash Armenta JARAMILLO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 403

25 Cal.Rptr. 403

208 Cal.App.2d 620

The PEOPLE, Plaintiff and Respondent, v. Nash Armenta JARAMILLO, Defendant and Appellant.

Cr. 8115.

District Court of Appeal, Second District, Division 3, California.

Oct. 17, 1962.

As Modified Nov. 15, 1962.

James O. Warner, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., Ventura, and E. E. Clabaugh, Jr., Deputy Dist. Atty., for respondent.

FILES, Justice.

This is an appeal from a judgment whereby appellant was convicted of burglary and grand larceny. (Pen.Code, §§ 459, 487.) The crimes involved four men. One of them, Martinez, pleaded guilty. The other three, Montanez, Baca, and appellant, pleaded not guilty and were tried together before a jury. All three were convicted. This appeal is on behalf of one only.

Sufficiency of the Evidence

The record contains evidence of the following circumstances:

On the morning of May 17, 1961, Mr. and Mrs. Hawley left their home in Moorpark in Ventura County to go to Los Angeles. They returned about 7:30 p. m. to find that their residence had been entered, and a large quantity of clothes, glassware, silverware, liquor and other household items had been taken.

On this same day Baca, Martinez, Montanez and appellant, all of whom lived in Los Angeles County, drove to the Moorpark park area in Baca's black 1957 Ford. The Ford was distinctively marked in that the words 'mi negra' were painted on the right side and 'mi negro' were painted on the left side. Martinez was appellant's half-brother, and Montanez was appellant's nephew. The four men were supplied with whisky, wine and beer, which they consumed as they drove. They had with them a 22-caliber pistol and a pellet gun. On one occasion they stopped to do some target shooting and hunt rabbits. At about 4:45 or 4:50 p. m. three witnesses saw the Ford parked in the middle of Sand Canyon Road about a mile from the Hawley home. Four 'Mexican men' were standing near the car on this occasion. At about 6:20 p. m. two of these witnesses, on their way home from work, saw the same Ford standing in front of the Hawley home. One man was at the wheel then. About 6:30 p. m. these witnesses saw a black 1957 Ford go by, traveling fast, with a man in the back seat who seemed to be sitting on something. One of the witnesses became suspicious and notified Mr. Hawley's son-in-law, William Corley, who lived a quarter of a mile away. Mr. Corley went immediately to the Hawley residence and discovered that the front door was open and that clothes hangers and other articles from the house were spread across the front yard. Mr. Corley had driven past the Hawley home between 5 and 5:15 that day and had observed that the door was closed and no car was parked in front at that time.

Before dark that evening Baca, Martinez, Montanez and appellant arrived in Baca's Ford at the home of appellant's sister, Louisa Hernandez, in Fillmore. (Sundown was at 7:52 p. m.) Appellant was driving. The things taken from the Hawley home were stacked high in the back seat. They stayed about half an hour. Martinez took a clock and a wine glass from the car and gave them to Louisa Hernandez' daughter Rosie. These were articles taken from the Hawley home.

One of the men became involved in a fight with a neighbor boy. Baca waved the pistol and someone called the police. This was a few minutes after 8:30. Before the police arrived the four men left in the Ford, with appellant driving. Thereafter Montanez and appellant separated from the other two. Shortly after 9 p. m. Baca and Martinez drove the Ford into a sheriff's roadblock in Fillmore and were captured. The goods taken from the Hawley home were recovered from the back seat and identified. A fingerprint examination disclosed that appellant's prints were on a tray, a broken wine glass, and an unopened bottle of whisky, all of which were identified as articles taken from the Hawley home. The tray was found about halfway down in the pile of clothing in the rear seat. The glass was found close to the floor level back of the front seat.

The People put into evidence a tape recording of a statement made by appellant shortly after his arrest. In that statement appellant admitted that during the afternoon he had been with the other three in Baca's Ford. He said that when they stopped to hunt rabbits, he and Baca had wandered off from the other two. When they returned to the road they found that Martinez and Montanez had taken the car. When the latter two returned, the car was loaded with the articles taken from the Hawley home. Martinez and Montanez had said that the articles belonged to Louisa Hernandez, and that she had asked them to transport that goods to Los Angeles.

Appellant did not testify at the trial. Neither did Montanez.

Martinez, who had pleaded guilty, testified that he and Montanez had committed the burglary while Baca and appellant were hunting. Baca also testified to the hunting alibi. The testimony of Martinez and Baca was impeached in several important respects, both by their own prior statements and by the testimony of other witnesses.

Under the evidence here, where appellant was in company with the burglars just before the crime, and was with the group immediately afterwards, in fact driving the car which carried the loot, and where his fingerprints were found on stolen articles buried in the back seat, the evidence is sufficient to support the inference that appellant was a participant in the burglary and the larceny. The jury certainly was not required to believe the discredited testimony of the defendant Baca, who was trying to exculpate himself, nor the testimony of appellant's brother, Martinez, who had pleaded guilty and had little to lose by trying to save appellant.

Since the record contains substantial evidence of guilt, the weight of the evidence and the credibility of the witnesses were matters to be determined in the trial court, and the verdict of the jury as to such matters is binding on this appellate court. (See People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911.)

Misconduct by the District Attorney

Appellant complains of the tactics of the district attorney in cross-examining the defense witnesses. Some of the questions were argumentative and should not have been tolerated. No objection was made at the trial and no admonition to the jury was requested. This court cannot say, from a reading of the record, that the error complained of has resulted in a miscarriage of justice. (Cal.Const. art. VI, § 4 1/2.)

The Motion for New Trial

On August 29, 1961, appellant was arraigned for sentence. He was in court with the attorney who had represented him at the trial, Mr Boyes. No motion for a new trial had been made. After the court asked whether there was any legal cause why judgment should not be pronounced, the record is as follows: 'MR. BOYES: No legal cause, your Honor. THE COURT: There is none. If there were, I would give you the benefit of it. It is the judgment of this Court that you be committed to the Adult Authority of the State of California to serve the sentence prescribed by law for both of these offenses, that the sentences and each of them run concurrently and not consecutively. It is the judgment and sentence of this Court that you be delivered to the Director of Corrections at Chino, California, that you serve the sentence prescribed by law. I hope you will do your time easily. DEFENDANT JARAMILLO: Your Honor, if there is any possible way I can make a motion for a new trial? THE COURT: Sure, you can make a motion. You have got an absolute right to make a motion. It must be in writing and you make one out before they send you and file it here and that will lay the foundation for an appeal.'

Counsel for appellant requested a stay of execution for a week so that appellant might prepare a motion for a new trial and an appeal. The court explained that this week's delay would be 'dead time,' but appellant said that wouldn't make any difference to him. They stay of execution for one week was granted.

On September 6, 1961, a six-page handwritten motion for new trial, with citation of authorities, signed by appellant, was filed with the clerk. On September 7 appellant again appeared in court with his counsel, Mr. Boyes. Counsel handed to the court a formal substitution of attorneys, signed by appellant, substituting himself in propria persona. The court inquired of appellant if this was his wish, and appellant answered, 'Yes.' Then the following occurred: 'THE COURT: And you presently have a motion for new trial. Do you want to argue it? DEFENDANT JARAMILLO: Well, I don't know. I am not guilty of what I am charged with that I was found guilty--THE COURT: Well, on the motion for new trial: I heard the testimony and I know all about it. I have no authority to grant the motion for new trial. That is simply one of the proceedings in perfecting your appeal. So the motion for a new trial is denied.'

Penal Code, section 1182, provides that the application for a new trial must be made before judgment. The motion must be made orally. The grounds relied upon must be specified. Otherwise the right to make the motion is waived. (People v. Dillard, 168 Cal.App.2d 158, 167, 335 P.2d 702; People v. Skoff, 131 Cal.App. 235, 239, 21 P.2d 118; People v. Fry, 137 Cal.App. 525, 529, 31 P.2d 204.) The code does not empower the court to grant a motion for new trial after judgment. (See People v. Fry, 137 Cal.App. at 530, 31 P.2d at 206.)

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