People v. Masters

• Decision Date: 03 September 1963
• Docket Number: Cr. 3892
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Richard T. MASTERS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 383

33 Cal.Rptr. 383

219 Cal.App.2d 672

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard T. MASTERS, Defendant and Appellant.

Cr. 3892.

District Court of Appeal, First District, Division 1, California.

Sept. 3, 1963.

Robert M. Brilliant, Albany, under appointment of District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Question Presented

On this appeal from a judgment of conviction for armed robbery, and from the order denying a motion for new trial, the sole question presented is whether the trial court erred prejudicially in failing to instruct the jury on the circumstantial evidence.

The Record

The instant appeal is by Richard T. Masters (hereinafter referred to as 'Masters' or 'appellant'), who was charged jointly with Harry R. Feuersinger (hereinafter referred to as 'Feuersinger') and Peter A. Lucero (hereinafter referred to as 'Lucero') of violating Penal Code section 211 (Armed Robbery).

On May 26, 1960, at about 9 p. m., Feuersinger entered the Countryside Market in San Jose, pulled a revolver on the owner, Enrico Benassi, and said to him "This is it. Reach into the register and give me the money." Benassi turned over approximately $475 to Feuersinger, who, after telling Benassi to lie down on the floor, went out the front door. Allan Breakwell, one of Benassi's clerks with whom Feuersinger had conversed upon entering the store, was attracted by a flash of silver on an electric eye beam. He went to the front of the store, saw Feuersinger go out of the door, and followed him outside. There he observed Lucero standing near the store entrance. Lucero looked at him, paused momentarily and then ran around the store building. Breakwell then ran back into the store to call the police. He dialed the phone, which was then taken by Benassi, and went back outside the store where he observed an automobile moving slowly away with the door on the passenger side open. The clerk observed a man in the driver's position and two men, whom he identified as Feuersinger and Lucero, getting into the car which then proceeded to move away at a rapid rate of speed in a northerly direction along King Road. With respect to the route taken by the car after it sped from the Countryside Market, Masters testified that he drove on King Road and turned into another road which led into the Bayshore Highway. Shortly after entering the Bayshore Highway and travelling a short distance thereon, the said automobile was observed by Police Officers Burroughs and Wells, who were in a police patrol car. The officers had received a radio call concerning the market robbery and a description of the automobile involved shortly before, at approximately 9 p. m. The automobile had been described as a '49 to 51 or 52 Buick, white in color.' ¹ The police gave chase with the police car siren and red lights turned on. After a chase of about four blocks the Buick stopped. As the officers approached the car they observed three persons in it. Feuersinger got out and then the Buick again suddenly sped off, with the police car driven by Officer Wells in pursuit. Shots were fired at the Buick and after a chase of about four blocks the Buick stopped. Wells observed a man get out on the passenger side and run into a nearby open field. Masters got out from the driver's side with his hands in the air. While being searched Masters volunteered the statement that he did not 'have the heat on him.' ² A later search by another officer of the area where Masters was apprehended resulted in the apprehension of Lucero, who was lying down in a depression surrounded by weeds. Feuersinger had, in the meantime, been handcuffed and searched by Officer Burroughs. This search disclosed an empty shoulder holster and a quantity of currency on Feuersinger's person. At the time of his apprehension Feuersinger stated to Officer Burroughs that 'he had been in an armed robbery and he had gotten that money from it.' On the following day a police officer found a 38-caliber revolver in the vicinity of the location where Masters and Lucero had been apprehended on the previous night.

At the trial in the court below, Officer Wells, while being cross-examined by counsel for Masters, testified that Masters had told him that the first he knew that a robbery had taken place was when 'both of them came running out of the store.' ³ Masters, who took the stand in his own defense, testified that he drove the car to the Countryside Market where he parked it in the parking lot; that Feuersinger got out saying that he was going to go into the store to get something; that Lucero also got out 'to get fresh air, or something'; that Feuersinger and Lucero came back to the car; that they were running; that Feuersinger said "Let's get going"; and that he then drove away at a speed of about 50 miles per hour. It was Masters' testimony that prior to the time Feuersinger came running out of the store he did not have any knowledge of what Feuersinger was doing and that he had not discussed the robbery of any stores with Feuersinger. Masters did not deny making the statement to Officer Wells that the first time he knew that a robbery had taken place was when Feuersinger and Lucero came running out of the store. Moreover, on direct examination by his own counsel as to when he first suspected Feuersinger 'had done something wrong.' Masters replied: 'When he came out of the store the way he did.'

The following evidence was also adduced at the trial: On the afternoon of the robbery in question, Feuersinger and Lucero went together to a used car lot where Feuersinger purchased a 1949 2-door light grey Buick sedan; Masters and Feuersinger then visited one Walter Weeks from whom Feuersinger purchased a 38-caliber revolved for $20; Weeks also sold Feuersinger two holsters (a shoulder holster and a side holster), and some shells; the shells were at Weeks' mother's house where Masters picked them up later that afternoon; the balance of the afternoon was spent riding around in the Buick; about 8 p. m. Feuersinger was seen in a Purity Store by its night manager, Floyd Balzer, who observed Feuersinger pick up groceries, set them down, look generally around the store and at the safe on the premises; Feuersinger was then seen by Balzer to leave the store and get into an automobile, which Balzer identified as a 1950 model 2-door car and in which he saw two other persons seated; about one-half hour later Anthony Aiello, one of the owners of the Berryessa Super Market, observed an automobile, which he identified as between a 1949 and 1951 dirty white Buick parked in front of his store with the motor running and three men sitting in it; one of these men in the car was identified by Aiello as Feuersinger; Aiello then observed Feuersinger and another man looking into the front window of his store for about 10 minutes; Aiello became suspicious and closed his store; when the Buick drove off, Aiello followed it to the Countryside Store where it stopped and parked; Aiello then returned to his store to check it; Aiello later passed the Countryside Store and was told it had been robbed, whereupon he told the police what he had observed and gave them a description of the Buick.

The 38-caliber revolver which was found in the general area in which Masters and Lucero had been apprehended was identified at the trial as the same gun which Feuersinger had purchased from Weeks.

The 'Standard Instructions' on Circumstantial Evidence

Appellant contends that the trial court was required on its own motion to give certain standard instructions on circumstantial evidence, namely, such as those which embody the principles contained in CALJIC instructions Nos. 24, 25, 26, 27 and 28. ⁴ As stated in People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865, these instructions 'clarify the application of the general doctrine requiring proof beyond a reasonable doubt to a case in which the defendant's guilt must be inferred from a pattern of incriminating circumstances. [Citations.] They deal with proof of 'each fact which is essential to complete a chain of circumstances that will establish the defendant's guilt,' the use of evidence 'susceptible of two constructions or interpretations,' and the relationship required between 'the proved circumstances' and possible hypotheses. Such instructions should not be given when the problem of inferring guilt from a pattern of incriminating circumstances is not present.' (P. 629 of 54 Cal.2d p. 277 of Cal.Rptr. p. 869 of 354 P.2d.) Accordingly, it is the rule in California that, where circumstantial evidence is wholly or substantially relied on for proof of guilt, the court on its own motion must give an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. (People v. Yrigoyen, 45 Cal.2d 46, 49, 286 P.2d 1; People v. Bender, 27 Cal.2d 164, 174, 163 P.2d 8, et seq.; People v. Moore, 196 Cal.App.2d 91, 97-98, 16 Cal.Rptr. 294, 298.) ⁵

In Moore the applicable principle of law expressed by this rule is interpreted to mean that 'if proof of a significant element of the charge depends upon circumstantial evidence the instruction in question should be given. [Citations.]' (Pp. 97-98 of 196 Cal.App.2d p. 298 of 16 Cal.Rptr.) The instructions in question need not be given, however, even upon request, where the circumstantial evidence is incidental to or corroborative of direct evidence (People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805; People v. Yrigoyen, supra, 45 Cal.2d at p. 50, 286 P.2d at p. 3; People v. Moore, supra, 196 Cal.App.2d at p. 98, 16 Cal.Rptr. at p. 298); and in Gould it was held that the standard instructions on circumstantial evidence are not...