People v. Norman

• Decision Date: 08 January 1960
• Docket Number: Cr. 6674
• Citation: 1 Cal.Rptr. 699,177 Cal.App.2d 59
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Weldon Walter NORMAN, Defendant and Appellant.

Page 699

1 Cal.Rptr. 699

177 Cal.App.2d 59

PEOPLE of the State of California, Plaintiff and Respondent, v. Weldon Walter NORMAN, Defendant and Appellant.

Cr. 6674.

District Court of Appeal, Second District, Division 3, California.

Jan. 8, 1960.

Hearing Denied March 1, 1960.

Gladys Towles Root, Eugene V. McPherson and Robert Barnett, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

By information defendant was charged in two counts with kidnaping for the purpose of robbery in violation of section 209 of the Penal Code, in five counts with kidnaping in violation of section 207, in one count with attempted kidnaping in violation of sections 207 and 664, in six counts with rape in violation of section 261, subd. 4, in one count with attempted rape in violation of sections 261, subd. 4, and 664, and in two counts with robbery in violation of section 211.

A jury found defendant guilty on all counts except one of kidnaping for the purpose of robbery (XIV). As to count I, kidnaping for the purpose of robbery, the jury found defendant kidnaped and carried away a married woman for the purpose of committing robbery, that he subjected her to bodily harm in that she was raped, and fixed the penalty as life imprisonment without possibility of parole. The robberies were found to be of the first degree. The judgment as to count I was imprisonment for the term of defendant's natural life without possibility of parole; with respect to the other counts on which he was found guilty, imprisonment for the term prescribed by law, the sentences as to the other counts to run concurrently with the sentence as to count I.

Defendant appeals from the judgment and an order denying his motion for a new trial. He does not challenge the sufficiency of the evidence to sustain the verdicts. His first assignment of error is that he was denied due process of law in that the court denied his motions, made after the verdicts had been rendered, for production of documents in the possession of the People.

The verdicts were returned on July 2, 1958. On August 1, 1958 new counsel for defendant was associated with the attorney who had tried the case and a motion for a new trial was made. Various continuances of the motion for a new trial were had. On September 11, 1958 new counsel filed a notice of motion for inspection of certain documents. On December 15, 1958 new counsel filed another notice of motion for 'Production of Evidence and for Certificate under P. C. sec. 1334.3.' The motion sought an order 'to compel the production of certain documents, police reports, complaints to police and sheriff offices, and medical and hospital reports all concerning the various complaining witnesses in the above entitled action and as more specifically enumerated in the Subpoenas Duces Tecum and affidavits therefore heretofore filed in this matter.' The subpoenas duces tecum referred to had been issued by the county clerk and were directed to the district attorney, the Los Angeles Police Department the Glendale Police Department, and various hospitals, commanding the production of the same documents. The Glendale Police Department voluntarily gave counsel for defendant a copy of the reports sought from it. On December 16, 1958 the motions for orders requiring the production of the documents were denied. On January 29, 1959 the motion for a new trial was denied.

Defendant's complaint is that by the ruling denying production of the documents he was precluded from developing legal grounds in support of the motion for a new trial. No motion or request for production or inspection of the documents was made prior to or during the trial.

It is settled in this state that prior to trial and during the course of the trial an accused can compel the People to permit inspection and copying or to produce in court: written statements of the accused (Powell v. Superior Court, 48 Cal.2d 704, 705-709, 312 P.2d 698; McAllister v. Superior Court, 165 Cal.App.2d 297, 299-301, 331 P.2d 654); transcripts of recorded statements of the accused (Powell v. Superior Court, supra; Cash v. Superior Court, 53 Cal.2d 72, 346 P.2d 407); written statements of prosecution witnesses relating to matters covered in their testimony (People v. Riser, 47 Cal.2d 566, 585, 305 P.2d 1; People v. Chapman, 52, Cal.2d 95, 338 P.2d 428; People v. Silberstein, 159 Cal.App.2d Supp. 848, 849-852, 323 P.2d 591); written statements of prosecution witnesses relating to matters covered in their testimony at the preliminary hearing (Tupper v. Superior Court, 51 Cal.2d 263, 265, 331 P.2d 977); transcripts of tape recordings of statements made by the accused and by prosecution witnesses (Powell v. Superior Court, supra; People v. Cartier, 51 Cal.2d 590, 594, 335 P.2d 114); transcripts of statements used by the prosecution in impeaching an accused's witness (People v. Carter, 48 Cal.2d 737, 752, 312 P.2d 665); notes made by police officers of their conversations with prosecution witnesses (Funk v. Superior Court, 52 Cal.2d 423, 340 P.2d 593); photographs which had been exhibited to the victim of a robbery for the purpose of identifying the robber (Norton v. Superior Court, 173 Cal.App.2d 133, 343 P.2d 139); names and addresses of eyewitnesses to a crime (Norton v. Superior Court, supra); documents in the possession of the People which are relevant and material to the defense (People v. Chapman, supra). An accused may also compel permission to hear recordings of the accused's conversations with police officers and of conversations between police officers and the purported victim. Vance v. Superior Court, 51 Cal.2d 92, 93, 330 P.2d 773; People v. Cartier, supra. No authority is cited and we have found none holding that a defendant who is aware, during the course of trial, of the existence of documents in the possession of the People which may be relevant and material to the defense and who takes no action to compel inspection or copying or proudction of them, has a right, after an unfavorable verdict, to compel their production.

'The basis for requiring pre-trial production of material in the hands of the prosecution is the fundamental principle that an accused is entitled to a fair trial.' Cash v. Superior Court, supra, 53 Cal.2d 72, 346 P.2d 407, 408. (Emphasis added.) 'The value to defendant of seeing the statements made by the witnesses is that to do so might enable him to impeach their testimony at the trial.' Tupper v. Superior Court, supra, 51 Cal.2d 263, 265, 331 P.2d 977, 978. (Emphasis added.)

People v. Sauer, 163 Cal.App.2d 740, 329 P.2d 962, was a prosecution for forgery. With respect to inspection of documents, the court stated (163 Cal.App.2d at page 743, 329 P.2d at page 964):

'Appellant next contends that the trial court abused its discertion in not permitting pretrial inspection of the handwriting expert's report. The court denied the motion without prejudice to a renewal of the motion at the trial if it became necessary. It is contended that the basis of the prosecution's case was the testimony of the handwriting expert and that without an opportunity to examine it before trial the defense could not adequately prepare to meet it. The motion was not renewed at the trial. Pretrial inspection of reports in the hands of the prosecution is not a matter of right in all cases. The record does not show that a motion for inspection was made at the trial. Under such circumstances we do not believe that appellant is in a position to raise the point on appeal.' Also see People v. Day, 159 Cal.App.2d 572, 575-577, 323 P.2d 1051; People v. Atchley, 53 Cal.2d 160, 346 P.2d 764.

The record is clear that the defense was well aware during the course of the trial that the complaining witnesses had reported the offenses to the police, and that some of them had been taken to hospitals where they were examined and presumably made statements. No reason appears from the record, and none is suggested, for not having made a motion for production during the course of the trial. A defendant may not gamble on a favorable verdict and take advantage of his want of diligence in the event it is unfavorable.

We are of the opinion defendant waived any right he had to compel production of the documents; and that his motion, made long after the verdicts were rendered, was not timely. There was no denial of due process. A defendant in a criminal case has many rights, the denial of which to him would constitute a denial of due process, and yet he may waive such rights without its affecting due process. Rights of a defendant which may be waived without affecting due process are: to be brought to trial within sixty days after the filing of the information; to a public trial; to any trial at all by a plea of guilty; to trial by jury; to be confronted with the witnesses against him; to defend with counsel; to be put in jeopardy only once for the same offense by failure to raise the plea. In re Baird, 150 Cal.App.2d 561, 570-571, 310 P.2d 454 and cases there cited; People v. Rogers, 150 Cal.App.2d 403, 410-415, 309 P.2d 949; People v. Brown, 145 Cal.App.2d 778, 780-781, 303 P.2d 68; People v. Johns, 173 Cal.App.2d 38, 343 P.2d 92. Under the circumstances the court did not abuse its discretion in denying the motions for production and inspection of the documents.

The facts with respect to count I, which charged kidnaping for the purpose of robbery, were these: On December 20, 1956 Mrs. Scott, a married woman, was alone in her apartment with her six-month-old baby, and had put the baby to bed. About 9 p. m. defendant forced his way into the apartment. He lunged forward 'with his face contorting into that of a maniac.' He pulled a gun with one hand, and with the other thrust Mrs. Scott's head back until she thought it would break. At the point of the gun he directed her to remove all her clothing, threatened to kill her and the baby, and...