People v. Jones

• Decision Date: 04 September 1962
• Docket Number: Cr. 1823
• Citation: 207 Cal.App.2d 415,24 Cal.Rptr. 601
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Burkitt Donald JONES, Defendant and Appellant.

Page 601

24 Cal.Rptr. 601

207 Cal.App.2d 415

The PEOPLE, Plaintiff and Respondent, v. Burkitt Donald JONES, Defendant and Appellant.

Cr. 1823.

District Court of Appeal, Fourth District, California.

Sept. 4, 1962.

Rudolph J. Basile and Richard S. Henderson, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Robert H. O'Brien, Deputy Atty. Gen., for plaintiff and respondent.

COUGHLIN, Justice.

The defendant was indicted for the crime of sex perversion with a child under the age of 14 years and 10 years his junior, i. e., a violation of Section 288a of the Penal Code; entered a dual plea of 'not guilty' and 'not guilty by reason of insanity'; was tried by a jury which found him guilty of the offense charged; withdrew his plea of not guilty by reason of insanity; made an application for probation, which was denied; was certified for examination as a sexual psychopath and was declared not to be such; made a motion for a new trial, which was denied; was sentenced to the state prison; and appeals from the judgment entered, the order denying him probation and the order denying a new trial. The orders in question are not appealable and the attempted appeal therefrom should be dismissed. (Pen.Code, sec. 1237.)

The evidence in this case overwhelmingly establishes that the defendant committed an act of sex perversion described in Section 288a of the Penal Code upon the body of his stepdaughter; that the act was committed on the night of July 26, 1961, after his stepdaughter had gone to bed, and while his wife was away from home; that he was then 35 years of age; and that his stepdaughter was 10 years of age. He did not deny committing the offense; in a statement made to the police after his arrest, said he did not remember what took place during the night in question; and did not testify on his own behalf.

Alleged errors of the trial court and misconduct of the district attorney are urged as grounds for reversing the judgment.

At this juncture it should be noted that a judgment may be reversed only when the errors or misconduct complained of have resulted in a 'miscarriage of justice' (Cal.Const., art. 6, sec. 4 1/2), and 'a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error' or misconduct in question. (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254.)

Upon the voir dire examination of the jury, counsel for defendant asked a prospective juror: '[H]ave you ever sat in a criminal matter that was similar, where the charge was similar to the matter here'; an objection to the question was sustained; and this ruling is assigned as error. On appeal the defendant contends that the subject question was proper because a prospective juror may be challenged for cause if he served on the grand jury which found the indictment at hand, or served on a trial jury which tried another person for the offense charged. (Pen.Code, sec. 1074, subd. 5). However, the question under consideration was not directed specifically to the claimed right to challenge; did not ask if the prospective juror had served on the grand jury rendering the indictment, which information could have been obtained from other sources, or on a trial jury that had tried another person for the same offense, it being obvious that the defendant was the only person charged with the offense in question; and the objection thereto properly was sustained. Furthermore, the prospective juror was excused upon the exercise of a peremptory challenge by the People, and no prejudice resulted from sustaining the objection to the question asked.

During the course of the trial a statement in the defendant's handwriting, made after he had been arrested, was admitted in evidence over his objection that 'no corpus has been established,' and that it was hearsay. On appeal he claims this was prejudicial error.

In the subject statement the defendant said he did not recall just what happened on the night in question; that he did remember going to the store for candy and beer, 'the kids going to bed,' and that he went to bed; that when his wife came back the next morning she found his stepdaughter 'on the back porch asleep'; that he went out to see what was going on and then went back to bed; that he heard his wife and stepdaughter talking; and when he went out the girl said he had bothered her and did not let her sleep; that his wife said 'it was all red and that it didn't get that way by itself'; that he got mad and started to leave but told his wife not to tell his mother; that he had been 'trying to think this all out' and believed that what they said must be true; that he believed he needed a doctor to find out 'if this is in my mind'; that he had done 'this' with his wife but with no one else that he knew of; and that he would appreciate being sent to a hospital 'for this thing.'

Previous to the offer of the aforesaid statement, the stepdaughter testified in detail about the act of perversion with which the defendant had been charged; adequate proof of the corpus delicti was then in evidence; the statement contained declarations by the defendant which were relevant and admissible against him (Code Civ.Proc., sec. 1870, subd. 2); and, thus, the grounds for the objection as stated at the trial were not well taken.

On appeal, defendant contends that the statement should not have been admitted in evidence because his admission therein that 'what they say must * * * be true' is contradicted by his declaration that he did not know what happened on the night in question. This objection goes to the interpretation of and weight to be given the statement rather than to its admissibility. (People v. Rucker, 11 Cal.App.2d 609, 612, 54 P.2d 508.) The defendant did not therein deny that he had committed the offense with which he was charged but, without offering any reason therefor, professed a lack of knowledge about the incident, saying that he did not know what happened on the night in question, although he related a number of incidents that took place before going to bed and a number of incidents which occurred the next morning; and did not suggest that he had been intoxicated or was ill. The trier of fact was entitled to conclude that his professed lack of knowledge was a sham.

During cross-examination of the stepdaughter, who had been called as a witness by the People, after a number of objections to questions propounded by counsel for the defendant had been sustained, the court said:

'I will tell you, counsel, I am about to call a halt to this cross-examination. You'd better choose very pertment questions and ask them in a hurry, because I think we've gone far enough. * * * I am not shutting you off, but I think you have gone far enough. You are not getting anywhere. Now if you have any pertinent questions, you go ahead and ask them. I don't mean to shut you off but----.'

Thereupon the defendant moved for a mistrial upon the ground that the foregoing statement of the court was tantamount to an announcement by the judge that he believed 'defense counsel is attempting to cross-examine and present a defense which is entirely without merit.' The motion was denied; counsel stated that he had no further questions to ask the witness; and the court rejoined:

'You may ask any other questions that you wish that are pertinent';

but no further questions were asked. The action of the trial court is cited as prejudicial error. The record shows that the cross-examination of the witness was eight times as long as the direct examination; that many irrelevant questions had been asked; that the statement by the court, considered in the light of all that transpired, constituted an admonition to confine the questioning to pertinent matters, otherwise it would be necessary to terminate the examination; and that the interpretation placed thereon by the defendant is not justified. There is a broad discretion vested in the trial judge to keep cross-examination within reasonable bounds. (Code Civ.Proc. sec. 2044; People v. Burton, 55 Cal.2d 328, 343, 11 Cal.Rptr. 65, 359 P.2d 433; People v. Corlett, 67 Cal.App.2d 33, 57, 153 P.2d 595, 964.) No abuse of discretion appears in the instant case.

When the People had rested their case the defendant moved for a dismissal upon the ground that 'no corpus was established'; a discussion ensued, the net result of which was an observation by the court that the People had not proved that the defendant was 10 years older than his stepdaughter thereupon the district attorney asked for a stipulation respecting this fact; this request was denied; the court then observed that the defendant's wife or mother could testify to his age; and defense counsel said:

'I don't care. Certainly he should have no difficulty in proving it with the mother.'

All the foregoing took place outside the hearing of the jury. Thereupon the district attorney moved for and was granted permission to reopen the case for the purpose indicated.

The defendant contends that the trial judge was acting as an assistant prosecutor and that his action in the premises constituted prejudicial error. There is no merit in this contention. It is the duty of the trial judge 'to see that as nearly as possible the issues shall be disposed of on their merits; and it is not out of place for him to call attention to omissions in the evidence * * * which are likely to result in a mistrial.' (Farrar v. Farrar, 41 Cal.App. 452, 457, 182 P. 989; People v. Frahm, 107 Cal.App. 253, 262-263, 290 P. 678; see also People v. Collins, 117 Cal.App.2d 175, 183, 255 P.2d 59.) It would be ridiculous to grant a motion to dismiss because of a failure of proof obviously due to an oversight of the district attorney, without...