People v. Mendes
| Decision Date | 13 June 1950 |
| Docket Number | Cr. 5085 |
| Citation | 219 P.2d 1,35 Cal.2d 537 |
| Court | California Supreme Court |
| Parties | PEOPLE v. MENDES. |
Thomas C. Perkins, Sacramento, and John D. McComish, Colusa, for appellant.
Fred N. Howser, Attorney General, and Doris H. Maier, Deputy Attorney General, for respondent.
At about 7:30 p. m. on August 30, 1949, defendant, a twenty year old Mexican farm laborer, together with Gonzales and Sandoval, entered the La Moderna Cafe in Grimes, California and embarked upon an evening of beer drinking. They had originally set out to take Gonzales from Colusa to his home in Arbuckle at the request of Maria Coronado. Maria was the common-law wife of Sandoval and the mother-in-law of defendant. Gonzales was a friend of the family. A tall man, a stranger to defendant but a friend of Gonzales, either accompanied the group from Colusa to Grimes or joined them in the cafe. Early in the evening he and defendant had an argument. It is not clear who was the aggressor, but the stranger was the larger of the two and defendant was still lame from a recent automobile accident. Shortly thereafter defendant left the cafe and returned later. There is a conflict in the evidence as to whether Sandoval left and returned with defendant or remained at the cafe. Later in the evening defendant had another argument with the stranger, and one of the cafe employees observed that he had a gun, which he moved from one pocket to another. An employee asked defendant to leave, and he did. Another employee, Frances Mendes, asked the stranger, who was intoxicated, to go to a shack behind the cafe and sleep. While she was pointing out the way from a side door she observed defendant at the outside front corner of the building pointing a gun at them. The stranger proceeded to the shack, and defendant sat down at the outside front corner of the building. Frances Mendes then summoned deputy sheriff Ainger at his home nearby. Ainger deputized his son, and the two went in their automobile to the cafe where they arrived about 11:30 p. m. The deputy sheriff noticed four persons lounging near the front corner of the cafe when he arrived. He was met at the door by Frances who pointed out defendant and requested that he be searched because he had a gun. Defendant then started to retreat around the side of the building and the deputy sheriff's son ran after him and shouted at him. In the course of the first six or eight seconds of his retreat defendant fired two shots in rapid succession. The second shot struck the deputy sheriff's son, inflicting a wound from which he subsequently died. Defendant was arrested the following morning when he was found hiding in a clump of trees in a dry slough. He put up no resistance at the time of his arrest, and the gun was found on the ground where he had been hiding.
Defendant testified that when he and Sandoval left the cafe, Sandoval drove them to their home in Colusa. Sandoval entered the house and defendant stayed in the car. They then started back to Grimes, and on the way Sandoval thrust the gun on defendant over his protest telling him he would need it for his protection because they were going to kill him. During the second argument the stranger displayed a knife and indicated he intended to use it. Later when the deputy sheriff and his son drove up, Gonzales, who was near defendant outside the cafe, gave defendant a shove and addressed him in Spanish. Defendant retreated under the impression that the stranger had returned, and when he heard running and shouting behind him, fired two shots without aiming. He had no intention of killing or even hitting anyone and wished only to escape from what he feared was a murderous assault by the stranger.
On September 29th the district attorney filed an information charging defendant with murder. The next day the court appointed Ralph W. Rutledge and John D. McComish as counsel for defendant. On October 10th defendant was arraigned and pleaded not guilty and not guilty by reason of insanity, and the court set the trial for November 28th. On November 18th Thomas C. Perkins was retained by the Mexican Consul on behalf of defendant, and on November 23rd he was substituted for the court-appointed counsel and at that time associated John D. McComish with him as counsel for the defense. On November 23rd defendant moved for a change of venue under Penal Code section 1033 and also for a continuance to allow additional time for Mr. Perkins to prepare for trial. The motion for a continuance was denied on that date, and on November 26th the motion for a change of venue and a renewal of the motion for a continuance were both denied. The plea of not guilty by reason of insanity was withdrawn. On November 27th Mr. Perkins informed the judge by telephone that he was ill and was prepared to present an affidavit of his physician that he should stay in bed for three days. The judge informed him that the case would go to trial the next day and that if he were not present the court would reappoint Mr. Rutledge to represent defendant. Mr. Perkins appeared the following day and filed the affidavit of the physician. He did not move for a continuance but stated that he wanted the affidavit to be on file in the event that he should become worse and request a continuance for that reason. No further motion for a continuance was made, however, and the trial proceeded. The jury returned a verdict of guilty of murder of the first degree without recommendation.
On his appeal defendant contends that the trial court erred in denying his motion for a change of venue. He urges the following facts as establishing that he could not secure a fair and impartial trial in Colusa County; that he was a foreign national charged with murdering a popular officer of a small community; that the decedent, his family, and the prosecuting attorneys were well known to, or friends of, a large fraction of the jury panel; and that the newspaper accounts of the homicide both stimulated and reflected a hostile and biased attitude against him in the county. The newspaper accounts, however, appear to be no different from the usual reporting of any homicide of this sort. The popularity of the decedent, the fact that the inhabitants are well known to each other in a small county, and the customary newspaper publicity, do not necessarily warrant the granting of a motion for change of venue. People v. Yeager, 194 Cal. 452, 482-483, 229 P. 40; People v. Agnew, 77 Cal.App.2d 748, 758-759, 176 P.2d 724; People v. Ford, 25 Cal.App. 388, 394, 143 P. 1075. Against defendant's motion the district attorney presented affidavits of the editors of the two local papers describing the attitude of the community. The record also shows that a jury was selected without undue difficulty and that defendant did not exhaust his peremptory challenges. The trial did not take place until approximately three months after the homicide. In view of these facts and the trial court's own knowledge of the atmosphere of the community, it cannot be said that the trial court erred in concluding that defendant could secure a fair and impartial trial in Colusa County. People v. Brite, 9 Cal.2d 666, 689-690, 72 P.2d 122; People v. Hall, 220 Cal. 166, 170, 30 P.2d 23, 996; People v. Yeager, supra; People v. Agnew, supra; People v. Ford, supra.
Defendant contends that the trial court erred in denying his motions for continuances. The fact that Mr. Perkins was retained ten days before the trial and had the assistance throughout of one of the appointed counsel who had almost two months to prepare, establishes, however, that the trial court did not abuse its discretion in denying a continuance to allow Mr. Perkins additional time to prepare. People v. Dorman, 28 Cal.2d 846, 852, 172 P.2d 686. As to the request for a continuance because of illness, any objection was waived when Mr. Perkins appeared and disavowed any intent to move for a continuance for that reason at that time. Although he contends that a motion in court would have been a futile act in view of the trial judge's attitude communicated to him over the telephone the day before, there was at no time any proper motion before the court for a continuance based on counsel's illness Penal Code § 1050.
Defendant contends that the trial court erred in denying a motion to replace the court-appointed interpreter on the ground of incompetence. Defendant and three witnesses testified through the court-appointed interpreter. Defendant also had the assistance throughout the trial of interpreters from the Mexican Consulate. The record contains affidavits of defendant's interpreters that the court-appointed interpreter was incompetent. It was arranged at the trial that if defendant's interpreter disagreed with the court-appointed interpreter the questions should be asked and answered anew for purposes of correction. Defendant points out many instances in the record where corrections were made in this manner and the court interpreter admitted error. The competence of the interpreter is ordinarily for the trial court to determine. People v. Valencia, 27 Cal.App. 407, 408, 150 P. 68; People v. Salas, 2 Cal.App. 537, 539, 84 P. 285; see 3 Wigmore on Evidence, 3rd Ed., § 811, p. 225. Since the court interpreter and defendant's interpreter were generally in agreement and the affidavits set forth no errors that were not corrected in the course of the trial, the trial court was justified in concluding that the court-appointed interpreter was competent.
Defendant contends that the trial court erred in admitting in evidence the statement of Frances Mendes to deputy sheriff Ainger that defendant had a gun and she wanted him searched. This evidence was admitted to show that defendant had retreated, not because he thought the stranger had returned, but because of the conversation he heard between Frances and the deputy sheriff. Although defendant...
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...to a criminal case where a jury is waived, but that it does not apply in such a case where the trial is by jury. (People v. Mendes, 35 Cal.2d 537, 546, 219 P.2d 1; People v. Carmen, 43 Cal.2d 342, 349, 273 P.2d 521; People v. Edgmon, 267 Cal.App.2d 759, 770, fn. 9, 73 Cal.Rptr. 634; see Peo......
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...held that an application such as that made by the defendant must be denied where, as here, a jury trial was not waived. People v. Mendes, 35 Cal.2d 537, 546, 219 P.2d 1; see also People v. Cowan, 38 Cal.App.2d 144, 152-154, 100 P.2d The evidence presented at the trial is not sufficient to p......
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