People v. Kelley

• Decision Date: 07 December 1977
• Docket Number: Cr. 30435
• Citation: 142 Cal.Rptr. 457,75 Cal.App.3d 672
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley Paul KELLEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 457

142 Cal.Rptr. 457

75 Cal.App.3d 672

The PEOPLE of the State of California, Plaintiff and Respondent, v. Stanley Paul KELLEY, Defendant and Appellant.

Cr. 30435.

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

Dec. 7, 1977.

Hearing Denied Feb. 1, 1978.

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

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

FLEMING, Acting Presiding Justice.

Appellant is one of three defendants originally charged in a twenty-two count information, from which twelve counts were severed for the instant trial: nine counts of armed robbery with use of a firearm, one count of kidnapping for purposes of robbery with use of a firearm, one count of armed burglary with use of a firearm, and one count of first degree murder. After a jury trial in excess of four weeks, the jury found appellant guilty of three counts of armed robbery with use of a firearm and disagreed on the other nine counts, as to which the court declared a mistrial. The court denied appellant's motion for new trial and sentenced him to state prison for terms to be served concurrently.

On this appeal appellant contends: (1) the trial court should have excluded evidence of an uncharged offense, namely, the theft of a two-tone brown Cadillac Seville used in some of the robberies, and in any event it should have given sua sponte an instruction limiting the applicability of evidence of the Cadillac's theft; (2) the court should have given appellant's requested Guzman instructions concerning eyewitness identification (People v. Guzman (1975) 47 Cal.App.3d 380, 121 Cal.Rptr. 69); (3) the repeated misconduct of the deputy district attorney prejudicially influenced his case.

Before discussing the facts and contentions in detail, it is helpful to put the issues in perspective. The evidence against appellant on almost all counts was strong, and in fact it is surprising the jury disagreed on them. Defendants, while driving the stolen Cadillac, were involved over a two-day period in a series of armed robberies, many of whose victims identified some or all defendants credibly. Much of the stolen property was recovered in codefendant Miller's apartment or personal possession, and appellant was arrested in the stolen Cadillac. On such a record only extremely serious error at trial could be deemed prejudicial, and for this reason, among others, most of appellant's contentions are not significant. However, the conduct of the deputy district attorney raises a serious question whether the trial itself, characterized by the trial judge as an unprofessional "Pier 6 brawl," deteriorated into farce and sham.

FACTS

The charged offenses, occurring on 21 and 22 February 1976, involved (1) the armed robbery of Hicks; (2) the armed robberies of Menefee and Powell; (3) robbery and burglary of the Club Mugen; (4) armed robbery of Huey, who was locked in the trunk of his car following the robbery; (5) armed robbery of Alvin Tate and murder of Jimmie Grisby. The jury convicted appellant of the Menefee/Powell robberies and the Huey robbery.

The Hicks incident allegedly occurred about 1 a. m. on 21 February 1976. Hicks had dropped off his girlfriend at her Culver City home and was beginning to drive away when a Cadillac Seville, which he described as black over silver, pulled abreast of him. Two individuals got out of the Cadillac and approached Hicks; one, defendant Miller, had a gun. Hicks unlocked the car door, and Miller took his digital watch, rings, and cash, and tore the telephone out of the automobile. One robber threw Hicks' car keys into the bushes. After the robbers departed, Hicks reported the robbery to the police but lied about the place of its occurrence to prevent his wife discovering he had been out with a girlfriend. Hicks' watch and some of his rings were later recovered from Miller on the latter's arrest. Hicks' identification of Miller was shaky. He testified that he only glanced at him a couple of times. The jury hung on this charge.

Next came the Menefee/Powell robberies, about 9 or 10 p.m. on February 21. While Powell, a retired police officer, and Menefee were sitting in a parked car in the View Park area, three individuals approached the car from both sides, and one put a gun to Powell's head. Appellant told Menefee "Don't turn around. I'll blow your head off." While appellant took a watch, ring, and about $175 from Menefee, defendants Miller and Robinson were robbing Powell. After the robberies, two of the three robbers were observed fleeing toward a two-toned brown Cadillac. An eyewitness, Yolanda Lewis, identified appellant as one of the robbers and described the Cadillac Seville. Powell identified Robinson and Miller, and Menefee identified appellant. As stated, the jury convicted on the charges arising out of this incident.

The Club Mugen incident occurred about 10:15 p.m. on February 21, the same evening as the Menefee/Powell incident. Various witnesses testified that four armed individuals entered the club (a restaurant and bar on Crenshaw) from the rear exit, held up the patrons, and cleaned out the cash register. The club proprietor and an eyewitness, Ed Sanders, identified Miller and Robinson at a lineup, and the bartender, Reva Caliman, identified all defendants. Mrs. Sanders also identified Miller and appellant. A credit card stolen from one of the patrons, Freddie Chavez, later turned up in the brown Cadillac Seville in which appellant was ultimately arrested. The jury hung on the Club Mugen charges.

The Huey incident and the Tate/Grisby incident both occurred around 2 to 3 a. m. on February 22 in the parking lot across from a club called the 2001 Disco near Eighth and La Brea. Huey testified that as he was leaving the club and walking to his car he saw the three defendants get out of a brown Cadillac Seville, appellant and Miller being armed with guns. Huey later identified appellant from a photo lineup. Miller ordered Huey out of the car and took his money and jewelry. The three then locked Huey in the trunk of his car. His ring was later found in Miller's possession at the time of Miller's arrest. The Huey charges resulted in conviction.

The Tate/Grisby incident, which did not result in a conviction, occurred as Jimmie Grisby and his brother-in-law Alvin Tate were leaving the 2001 Club about 3 a. m. As they were getting into their automobile, appellant and Robinson approached with a gun and demanded money from Tate. While Robinson was searching Tate on the passenger side of the car, Tate observed two persons robbing Grisby on the driver's side. Someone told Grisby to "shut up", and then Tate saw a shot fired. Grisby ran into the street, collapsed, and died. Tate identified appellant and Robinson, but he had changed his story several times between pretrial and trial.

Appellant was arrested in the two-tone brown Cadillac Seville. Over objection, evidence was introduced that the vehicle belonged to David Shapell and had been stolen from a Beverly Hills parking garage on 17 February 1976 prior to the time of the charged offenses. The vehicle when stolen had personalized license plates, DS 18. A friend of appellant's testified that at one point she rode with appellant in the Cadillac and he told her the DS stood for "Diamond Stanley." The evidence also showed that on 20 February 1976 license plates 758 JMU had been removed from a Chrysler Imperial, and thereafter placed on the two-tone Cadillac Seville in which appellant was arrested on February 23. After the car was returned to its owner from the police impound, one of Shapell's employees found two .38 calibre bullets in it and two stolen credit cards, one of which belonged to a Club Mugen patron.

CONTENTIONS

1. Admission in Evidence of Cadillac Theft and Lack of Limiting Instruction Thereon.

It is hornbook law that evidence of uncharged offenses is inadmissible to prove criminal propensity to commit the crime charged, but that such evidence may be used to prove other matters if it is sufficiently relevant and not unduly prejudicial. (People v. Sam (1969) 71 Cal.2d 194, 203, 77 Cal.Rptr. 804, 454 P.2d 700; People v. Haston (1968) 69 Cal.2d 233, 245, 70 Cal.Rptr. 419, 444 P.2d 91.) In such instances the trial court must weigh " probative value" against "danger of undue prejudice" (Evid. Code, § 352). On appeal the court's exercise of discretion will not be disturbed absent a clear showing of abuse. (People v. Delgado (1973) 32 Cal.App.3d 242, 251, 108 Cal. Rptr. 399, overruled on another point in People v. Rist (1976) 16 Cal.3d 211, 221-22, 127 Cal.Rptr. 457, 545 P.2d 833.)

At bench, use of the Cadillac Seville was part of the res gestae of the crime and relevant to the issue of identity. (Cf. People v. Rodriguez (1977) 68 Cal.App.3d 874, 883, 137 Cal.Rptr. 594.) Evidence of the stolen license plates was necessary to explain the changes in the automobile's plates between the time appellant was first observed in the vehicle and the time of his arrest. Evidence of the theft of the automobile was relevant to show that it came into defendants' possession before the time of the charged offenses. The quantity of evidence introduced on this issue was small and consumed little time. No attempt was made to prove the circumstances of the theft of the vehicle. The brief testimony concerning the theft could not have influenced the outcome of this case, given the length of the trial, the volume of eyewitness identification, and the multiplicity of similar charges. The trial court did not abuse its discretion in admitting this evidence.

Similarly, lack of a limiting instruction in such instances is reversible error only when prejudicial. (People v. Harris (1974) 39 Cal.App.3d 965, 971, 114 Cal.Rptr. 892; People v. Williams (1970) 11...