People v. Mort

• Decision Date: 28 March 1963
• Docket Number: 72,Cr. 50
• Citation: 29 Cal.Rptr. 650,214 Cal.App.2d 596
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clinton Wayne MORT, Defendant and Appellant. Application of Clinton Wayne MORT, Petitioner.

Page 650

29 Cal.Rptr. 650

214 Cal.App.2d 596

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clinton Wayne MORT, Defendant and Appellant Application of Clinton Wayne MORT, Petitioner.

Cr. 50, 72.

District Court of Appeal, Fifth District, California.

March 28, 1963.

Rehearing Denied April 24, 1963.

Hearing Denied May 22, 1963.

[214 Cal.App.2d 598] C. Ernest Rushing, Modesto, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edsel W. Haws, Deputy Atty. Gen., Sacramento, for respondent.

STONE, Justice.

Defendant was convicted after trial to a jury, of the crime of assault with a deadly weapon, violation of Penal Code section 245. The evidence, viewed in the light most favorable to the People (People v. Caritativo, 46 Cal.2d 68, 70, 292 P.2d 513), reveals that the assault occurred in a tavern on December 31, 1962, about 11:30 p. m. It was New Year's Eve, the place was overcrowded, and many customers were standing behind the bar stools. There was testimony that defendant was seated at the bar, while the victim was standing behind him. She ordered drinks, which were placed on the bar in front of defendant, and in order to get them she had to reach over defendant's shoulder. She was in the act of passing the drinks back to her friends when defendant struck her in the face with a beer bottle, cutting her forehead, nose and cheek.

Defendant gave a different version of the incident. He testified that he was standing near the bar, minding his own business, talking to no one, while waiting for a friend to return from the restroom. Suddenly his head was struck a blow from the back or the side, by someone he did not see, and he instinctively struck out as he was knocked off balance. However, he emphatically denied striking the victim or striking any woman.

Defendant appealed from the judgment of conviction, and thereafter filed a Petition for Writ of Error Coram Nobis. The hearing on the writ was set at the same time as the hearing on the appeal.

THE CORAM NOBIS PROCEEDING

The petition for writ of error coram nobis charged the district attorney with suppression of evidence. In support of the petition defendant filed the affidavits of two witnesses to the barroom incident, an affidavit of a former investigator for the district attorney, and an affidavit by defense counsel. Petitioner bases his charge of suppression of evidence upon the assertions that the two witnesses would have been helpful to his cause, that they were known only to the district attorney and that he was under a duty to either call the witnesses or advise defense counsel of their existence.

Preliminarily, we are met with a question of jurisdiction, as the petition was filed as an original proceeding in this Court, rather than in the trial court. Once an appeal has been taken from a judgment the trial court, during pendency of the appeal, may not vacate or set aside the judgment. (People v. Helsley, 41 Cal.App.2d 935, 939, 108 P.2d 97; Parkside Realty Co. v. MacDonald, 167 Cal. 342, 347, 139 P. 805; Kinard v. Jordan, 175 Cal. 13, 15, 164 P. 894.) Since the judgment which petitioner attacks was appealed to this Court before the petition was filed, the coram nobis proceeding is properly before us.

Passing now to the merits of the petition, counsel for defendant recites that in Stanislaus County preparation for trial is frequently expedited by informal discovery. Following this custom, defense counsel asked and was granted permission to see the district attorney's file. Accordingly, on March 15, defense counsel examined the district attorney's file, but it revealed nothing concerning the two witnesses. This was because the witnesses became known to the district attorney after March 15, and they were not interviewed by the district attorney until March 26, two days before trial.

At oral argument petitioner conceded that in view of the holding in People v. Briggs, 58 A.C. 391, 417, 24 Cal.Rptr. 417, 374 P.2d 257, the district attorney was not under a continuing duty to disclose the identity of witnesses discovered after defense counsel's informal discovery. He does contend that the failure of the district attorney to either call the two witnesses or advise him of their existence constituted suppression of evidence.

Without question the intentional suppression of material evidence by a district attorney can result in the denial of a fair trial, and when it does, such suppression amounts to a denial of due process. (People v. Kiihoa, 53 Cal.2d 748, 752, 3 Cal.Rptr. 1, 349 P.2d 673.) It is also true that the prosecution is not required to call any particular witness, nor to put on all evidence relating to a charge, so long as all material evidence bearing thereon is fairly presented in such manner as to accord the defendant a fair trial. (People v. Kiihoa, supra; People v. Tuthill, 31 Cal.2d 92, 98, 187 P.2d 16; People v. Parry, 105 Cal.App.2d 319, 232 P.2d 899.) Thus, whether the district attorney's failure to call a particular witness constitutes a suppression of evidence necessarily depends upon the state of the evidence in the case, measured against the facts to which the uncalled witness could testify.

Considering the substance of the two affidavits of the uncalled witnesses in the light of the record before us, it is apparent that one witness saw so little that he could have added nothing to what was said at the trial. The other witness recites that defendant struck the victim with a glass or a beer bottle, thus refuting defendant's categorical denial that he struck the complaining witness. The affidavit also states that defendant was seated at the bar, yet defendant testified that he was standing at the time the fracas commenced.

Relief by way of coram nobis must be denied a defendant when the facts upon which he predicates his petition are inconsistent with the facts to which he testified in the trial of his case. (People v. Shorts, 32 Cal.2d 502, 516, 197 P.2d 330.)

In an effort to demonstrate that the substance of the two affidavits could add to the merits of defendant's case, he asserts that the two affiants would have established the defense of self-defense. As we have pointed out, so little was observed by one of the witnesses that he could have added nothing to the testimony adduced at the trial. The other affidavit described the incident in some detail,...