People v. Jenkins, Cr. 22876

• Decision Date: 29 October 1973
• Docket Number: Cr. 22876,22877
• Citation: 34 Cal.App.3d 893,110 Cal.Rptr. 465
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerald Reynard JENKINS and James Mayer, Defendants and Appellants.

Page 465

110 Cal.Rptr. 465

34 Cal.App.3d 893

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gerald Reynard JENKINS and James Mayer, Defendants and Appellants.

Cr. 22876, 22877.

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

Oct. 29, 1973.

Hearing Denied Dec. 27, 1973.

Lawrence E. Taylor, ^* Malibu, for defendant and appellant jenkins.

A. James Leeds, ^* Los Angeles, for defendant and appellant Mayer.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert F. Katz, Robert W. Hatton, Deputy Attys. Gen., for plaintiff and respondent.

ROTH, Presiding Justice.

Appellants Gerald Reynard Jenkins and James Mayer appeal from judgments entered following jury verdicts, finding Mayer guilty of a violation of Penal Code Section 211(a) (robbery in the second degree) and Jenkins guilty of a violation of Penal Code Section 496 (receiving stolen property).

On the evening of January 31, 1971, a truck loaded with about $200,000 worth of men's suits was, with use of force, stolen from a service yard in Los Angeles. On or about the night of February 3, 1971, Jenkins was arrested and at his request driven to his home on Alberton Avenue in Compton. Upon arrival, a 1965 white pickup truck admittedly belonging to Jenkins was exiting without headlights from the driveway of the Albertson residence. It was driven by co-defendant Mayer. One Given discussed (infra) was standing alongside the truck. The truck contained approximately 250 men's suits including many of those stolen. Jenkins admitted the truck was his but stated to the officer: 'You didn't catch me driving it, did you?' When the officer said no, Jenkins added 'Then I have nothing to worry about.'

GIVENS' STATEMENTS:

At trial, a co-defendant, Paul Givens, was allowed over objections of both defendants, to plead guilty to the charge of receiving stolen property. Appellants objected on the ground that since Givens was one of the thieves by his own confession, he could not be a receiver; and that Givens was allowed to enter the plea with the understanding that he would testify for the prosecution against appellants.

Appellant Mayer, before trial, had moved for severance. The motion was denied. Givens was called to testify, his attorney notified the court that Givens desired to withdraw his plea and would not testify. The court ruled that Givens had no right not to answer any questions and thereafter, Givens related to the court and jury that he knew nothing at all about the robbery and denied making any statements in reference to the robbery. Specifically he denied implicating Mayer or Jenkins in the taking of the truck parked in the service yard on January 31, 1971. After Givens had been excused, a police officer and a FBI agent took the stand and over defense objections, testified that Givens had told each of them that he, Mayer and Jenkins had gone to the scene of the robbery, committed the robbery, and Mayer had hit a worker at the truck yard with a pair of bolt cutters during the robbery. The jury was instructed that the prior inconsistent statements could be admitted for the truth of the matter asserted. (Evidence Code, section 1235; CALJIC 2.08). Appellants assert error.

Initially appellants assert that there was a violation of their rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 (1965). Prior to trial a motion for a severance was denied. The basis for the denial was that the out-of-court statements of Givens were to be edited. However, at trial, the unedited out-of-court statements of Givens were orally testified to. Appellants contend that this violates the spirit of Bruton and Aranda. However, Bruton and Aranda are directed towards a confession co-defendant who implicates other co-defendants, but who is never subject to cross-examination. At bench that issue does not arise since Givens did take the stand and was subject to cross-examination.

Appellants next contend that it was error for the court to force Givens, who had not been sentenced, to answer questions since he was free to refrain from self-incrimination until he had been sentenced. Whether or not Givens, in the circumstances at bench, still had the right to claim the privilege against self-incrimination is a question we need not answer. (See Witkin, California Evidence, section 926, pp. 860--61 (2d Ed. 1966)) (indicates privilege is to prevent against punishment). (Note, Effect of Immunity Grant on Criminal Appeal, Sentencing and Parole, 18 Stanford L.Rev. 709 (1966); Annotation, Plea of Guilty or Conviction As Resulting In Loss of Privilege Against Self-Incrimination as to Crime in Question, 9 A.L.R.3d 990 (1966).) (Compare People v. Varnum, 66 Cal.2d 808, 813, 59 Cal.Rptr. 108, 427 P.2d 772 (1967)) (co-defendant already sentenced when forced to answer questions.)

The right against self-incrimination is a personal right; Givens never claimed this right, and appellants have no standing to raise the question. (People v. Thomason, 13 Cal.Rptr.3d 14, 91 Cal.Rptr. 172 (1970).)

Appellants next contend that they were denied the right of confrontation since Givens never admitted making the statements that were attributed to him by the officers. Appellants' counsel requested that the statements be admitted only for impeachment purposes, but the request was denied. Appellants contend that notwithstanding California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) they were denied the right to confront the maker of the statements, since Givens denied ever making the statements. Thus, they contend, effective confrontation was denied since the issue of the truth behind the statements could never be explored. (Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).) An almost identical contention was made and rejected in Nelson v. O'Neil, 402 U.S. 622, 629--630, 91 S.Ct. 1723, 1727, 29 L.Ed.2d 222, 228 (1970) where the Court stated:

'We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.'

The theory of the Court in Nelson is apparently that the important issue in cases involving confrontation questions is that the out-of-court declarantbe in the courtroom and available for cross-examination. Thus, if the declarant refuses to testify and acknowledge or deny any asserted out-of-court statements, then he is not available for confrontation within the meaning of the Sixth Amendment. (Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)) (witness refused to answer any questions on grounds of self-incrimination and prosecutor under guise of refreshing memory read confession which had been previously made.) On the other hand, if the witness either denies, acknowledges or qualifies the truth of the prior statement, then the statement may be introduced without violating the confrontation clause. (Nelson v. O'Neil, Supra; see also People v. Cannady, 8 Cal.3d 379, 385--388, 105 Cal.Rptr. 129, 503 P.2d 585 (1972).) At bench, the witness, Givens, testified that he had been interviewed by the police officers after his arrest, but denied making any statements admitting his involvement in the robbery to them. He further testified that the suits found at his house had been purchased from a man at a park and when arrested at Jenkins' house, he had merely dropped by for a visit.

The jury had the opportunity to observe; the demeanors of Givens, his denial of the contents of the alleged statements, the demeanor of the two police officers, and their testimony as to the content of the two statements. Thus, the jury was faced with a decision of having to choose which witnesses to believe. In making this determination it had to make the same choice that juries make whenever there are inconsistent statements by a witness. The fact that they chose to believe that Givens had made the prior statements, and that he had been telling the truth when he made the prior statements, does not compel the determination that there was a denial of confrontation. (Nelson v. O'Neil, Supra.)

ACCOMPLICE INSTRUCTIONS:

Appellants next contend that the court erred in instructing the jury on corroboration. The court, in instructing the jury, gave the instruction contained in CALJIC 3.12 but modified it to cover the situation present at bench, where the statement is attributed to the accomplice. ¹

Appellants, however, argue that the court erred in refusing to add to the instruction the statement: 'Such corroborative evidence must relate to some act or fact which is an element of the offense charged.' The proposed amendment is a correct statement of law. (People v. Luker, 63 Cal.2d 464, 469, 47 Cal.Rptr. 209, 407 P.2d 9 (1965))....