People v. Keller, Cr. 4722

• Decision Date: 13 May 1965
• Docket Number: Cr. 4722
• Citation: 234 Cal.App.2d 395,44 Cal.Rptr. 432
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ross Kent KELLER, Defendant and Appellant.

Page 432

44 Cal.Rptr. 432

234 Cal.App.2d 395

PEOPLE of the State of California, Plaintiff and Respondent, v. Ross Kent KELLER, Defendant and Appellant.

Cr. 4722.

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

May 13, 1965.

Rehearing Denied June 11, 1965.

Nathan S. Smith, San Francisco, for appellant (under appointment of the District Court of Appeal).

Thomas C. Lynch, Atty. Gen. of California, Albert W. Harris, Jr., Robert R. Granucci, Deputy Attys. Gen., San Francisco, for respondent.

AGEE, Justice.

Defendant appeals from a judgment of conviction of assault with a deadly weapon (pocket knife) entered upon a jury verdict. (Pen.Code, § 245, subd. (a).) He was sentenced to state prison. A prior felony conviction for which he had also been sentenced to state prison was charged in the Information and admitted by defendant.

Prosecuting witness Osmundson was a private citizen who had volunteered to act as an undercover narcotics agent for the San Francisco Police Department. He testified in December, 1963, in a narcotics case against an acquaintance of defendant.

Osmundson testified herein that on January 13, 1964, about 10:15 p. m., he entered a restaurant on Turk Street; that defendant and one Jimenez were there; that defendant asked him to step outside, that he wanted to talk to him; that he, defendant and Jimenez stepped outside; that defendant said to him, "You testified in court, you are a snitch, I'm going to fix you"; that defendant swung at him with his fists but missed; that defendant then asked if anyone had a 'blade'; that one 'Al' produced a pocket knife, opened it, and threw it to defendant; that defendant came at him with the open knife, saying, "I'm going to kill you" (the knife blade was one and one-half inches in length); that he, Osmundson, brought out a pair of pliers which he had in his pocket.

Osmundson further testified that Jimenez got behind him and held his arms, that defendant slashed at him twice but did not touch him either time. Officer Wydler of the San Francisco Police Department was nearby. He drew his revolver, Jimenez released his hold, and defendant dropped the knife.

Wydler testified that he and Officer Schneider were in plain clothes and were covering Osmundson, who had gone into the restaurant for the purpose of making a 'buy' of narcotics; that defendant pursued Osmundson down Turk Street with a knife in his hand, saying "You have testified in court, you are a snitch, I'm going to kill you"; that Jimenez got behind Osmundson and held him; that defendant was making forward motions with the hand holding the knife; that he, Wydler, drew his gun at this point and stopped further activity; that defendant stated that 'Ozzie had produced a corkscrew, and that's how it all started.'

Undercover police officer Brush testified that he was inside the restaurant; that he heard Osmundson yell "Help" and saw defendant, Jimenez and 'Al' moving down Turk Street after him; that he did not see a knife.

Jimenez was the remaining prosecution witness. He testified that as he was walking down Turk Street he heard some 'hollering'; that he saw Osmundson 'walking backwards,' with defendant 2 or 3 feet away and calling Osmundson a "snitch"; that '[t]here were a couple of punches thrown--none were connected--and then Mr. Osmundson * * * made a motion towards his pocket, and I saw a flash. I wasn's sure whether it was a corkscrew or a can-opener or even a gun. * * * Without thinking, I ran out and I grabbed him [Osmundson]'; that he heard defendant say, "I'm going to kill you, you snitch"; that he saw a 'flash' in defendant's hand and 'I naturally assumed that he [defendant] also had a knife'; that some officer pulled out a gun and he, Jimenez, ceased any further activity.

When the prosecution rested, the defense read into the record the testimony given at the preliminary hearing by police officer Schneider, Wydler's partner. Schneider's testimony was that he had seen Osmundson and two other men come out of the restaurant but, not noticing anything unusual, went into a nearby cigar store and apparently was in there when the 'action' described by the other witnesses took place. No other evidence was offered by defendant.

In its argument to the jury the prosecution commented upon the failure of defendant to testify and the court instructed the jury on the effect of such failure. The instruction given is substantially identical ¹ with that given in Griffin v. State of California, 85 S.Ct. 1229, discussed hereafter.

The prosecution stated in argument to the jury: 'Now, the Defendant did not testify. On that fact alone you have no right to automatically assume he is guilty. The Law doesn't so provide. Our Constitution allows any Defendant in a criminal case to make a choice as to whether or not he will testify. The People can never call a Defendant in a criminal case, and he has the absolute right to choose. So, there is no automatic prejudice that leads to a total conviction because a man doesn't testify.

'But there are certain ways you may consider this. You have a right to consider that if you feel there were things the Defendant had within his knowledge to explain, statements that are made by other witnesses, or the circumstances or anything like that, and he doesn't testify, you may draw inferences that the evidence against him is probably true and that the explanations he could have made would have been against him, in truth, and truly.

'I would like to emphasize that again. You...