People v. Obie

• Decision Date: 13 September 1974
• Docket Number: Cr. 11955
• Citation: 41 Cal.App.3d 744,116 Cal.Rptr. 283
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Wayne OBIE, Defendant and Appellant.

Page 283

116 Cal.Rptr. 283

41 Cal.App.3d 744

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Wayne OBIE, Defendant and Appellant.

Cr. 11955.

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

Sept. 13, 1974.

Rehearing Denied Oct. 11, 1974.

Hearing Denied Nov. 8, 1974.

[41 Cal.App.3d 748] Edmund A. Duggan, San Francisco (Court-appointed), for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Ina L. Gyemant, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

BRAY, ^* Associate Justice (Assigned).

Defendant appeals from judgment of the Humboldt County Superior Court after jury verdict, convicting him of violation of section 187 of the Penal Code (first degree murder).

QUESTIONS PRESENTED

1. The court's failure to rule on the section 995 Penal Code motion.

2. Failure to set bail.

3. Defendant's clothes were properly admitted in evidence.

4. The fact of defendant's prior conviction was properly admitted.

5. No error in giving CALJIC No. 8.21.

6. Defendant's admissions properly admitted.

7. No error in refusal of instructions on diminished capacity.

8. No error in allowing Dr. Harrison's testimony and partial reenactment of the crime.

9. No misconduct of prosecutor shown.

10. No incompetency of defense counsel.

RECORD

Defendant was indicted for violation of section 187 of the Penal Code (murder). A motion pursuant to section 995 of the Penal Code was heard and submitted. The record fails to show that the motion was ever decided. A jury convicted defendant of the offense charged, murder, and fixed the degree as first. Defendant's motion for new trial was denied. Defendant appeals.

FACTS

As defendant makes no claim that the evidence as admitted does not support the verdict, a brief statement of the facts will suffice. Late in the evening of August 5, 1972, the deceased, Alvin Orcutt, outside the Ishi Pishi Club in Humboldt County, asked defendant to drive with him, in the former's pickup truck, so that deceased would not get in a wreck. The next morning about 7 a.m. the truck was found off the road and down a steep embankment. Orcutt was found badly beaten and dead. The evidence indicated that defendant killed the deceased while robbing him. Defendant testified that an argument started between him and the deceased in the truck, a struggle ensued and defendant broke out of the truck, which started to roll down the embankment. However, deceased's injuries were shown to have been caused by repeated blows from a short blunt instrument and not from the wrecking of the truck. Among other incriminating evidence was defendant's bloodstained clothes and his admission to his cousin that he might have murdered a person with whom he was hitchhiking.

1. The section 995 Penal Code motion.

As stated, the trial court did not formally act on the motion after it was submitted. As the cause went to trial, it is reasonable to infer that the judge intended to deny the motion.

'(W)here the court, through inadvertence or neglect, neither rules nor reserves its ruling . . . the party who objected must make some effort to have the court Actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.' (Witkin, Cal.Evidence (2d ed. 1966) § 1302, p. 1205; People v. Staver (1953), 115 Cal.App.2d 711, 724, 252 P.2d 700.) There was no reversible error in the failure to rule on the motion.

2. Bail.

Defendant contends that his original counsel, chosen by him, failed in his duty to defendant in not requesting bail at the arraignment. By virtue of the charge against him defendant was not entitled to release on bail (Pen.Code, § 1270; Cal.Const., art. I, § 6; People v. Anderson (1972), 6 Cal.3d 628, 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880).

Defendant further charges that the trial judge's denial of bail during trial denied him his constitutional rights. Section 1129 of the Penal Code gives the court the discretion once the trial has commenced to commit the defendant into custody even where he has previously been admitted to bail. (People v. Nickell (1937), 22 Cal.App.2d 117, 123, 70 P.2d 659; People v. Savage (1944), 66 Cal.App.2d 237, 244, 152 P.2d 240.)

'This statute has been held to be constitutional and not violative of the right to bail (citations), nor is any hearing or showing required to be made or notice given for the court to be able to exercise its discretion under the statute. (Citation.)' (People v. Enos (1973), 34 Cal.App.3d 25, 43, 109 Cal.Rptr. 876, 888.)

There is nothing in the record to show that defendant could have made bail if one were fixed. Defendant's brief merely says, 'Had bail been set, Appellant's friends and family may have been able to pledge their homes and farms to secure his release,' and had he been admitted to bail, 'he cannot say now what he might have found.' As said in People v. Enos, Supra, at page 43, 109 Cal.Rptr. at page 889, 'In any event, defendant has not made any showing that the conduct of his trial was prejudiced by his incarceration.'

3. Defendant's clothes.

Defendant clams that his pants, shirt and boots were seized in an illegal search of his Uncle Antone's trailer. There was conflict in Antone's testimony with that of the officers concerning the circumstances of the search of his trailer in which the officers found the clothing. The officers testified that although Antone told them they could look around the trailer, they waited until they could get a consent form which he signed. Antone did not deny signing the form but claimed that he did not know he was signing a consent form. In any event, the court, out of the presence of the jury, weighed the testimony of all concerned and found that Antone had consented to the search and that there was no illegality in the seizure of the clothing.

Section 402 of the Evidence Code provides, in pertinent part, that the court may hear and determine the admissibility of evidence out of the hearing of the jury and 'A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto.' The trial court's attention was called to Antone's advanced age and the extent of his inability to see and hear 'well,' and the fact that he had had a college education. The trial court had the opportunity to observe him as he testified. The trial judge was in an excellent position to weigh these factors. The power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences is vested in the trial court. 'On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.' (People v. Manning (1973), 33 Cal.App.3d 586, 599, 109 Cal.Rptr. 531, 540.) There can be no question but that the trial court's ruling on the admission of this evidence was supported by substantial evidence.

4. Defendant's prior conviction.

On cross-examination the prosecutor asked defendant if he had ever been convicted of a felony. Defendant replied 'yes' before his counsel could object. Counsel then approached the bench and objected on the ground that under People v. Beagle (1972), 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, the conviction would not have 'any probative value in the case.' In the discussion it appeared that defendant had suffered prior convictions of burglary and auto theft. The judge took the objection under consideration and the next day overruled it, at which time defendant was again asked if he had been convicted of a felony. On his affirmative reply no inquiry was made as to the character of the felony nor that he had been convicted of both burglary and auto theft.

Apparently defendant contends that the court before ruling should have made inquiry into the circumstances of the felony in determining whether its probative value was outweighed by any prejudice it may have cost defendant. People v. Beagle, Supra, indicates the factors that must be considered in determining the probative value of an admission of a felony conviction as against the risk of undue prejudice. It does not require a hearing of the details of the felony or felonies involved. People v. Beagle, Supra, at page 453, 99 Cal.Rptr. at page 320, 492 P.2d at page 8, said, quoting from Gordon v. United States (1967), 127 U.S.App.D.C. 343, 383 F.2d 936, 940--941, that 'acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity.' The court further stated, 6 Cal.3d at page 453, 99 Cal.Rptr. at page 320, 492 P.2d at page 8, that 'No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.' Defendant's two convictions, burglary and auto theft, are crimes of stealing which Gordon, supra, states reflect on a man's honesty and integrity. The burden is on the defendant to show that his prior conviction or convictions did not involve deceit, fraud, cheating, etc. (People v. Stewart (1973), 34 Cal.App.3d 244, 248, 109 Cal.Rptr. 826). People v. Beagle, Supra, 6 Cal.3d at page 453, 99 Cal.Rptr. at page 320, 492 P.2d at page 8, states, '. . . 'The nearness or remoteness of the prior conviction is also a factor of no small importance. " The record does not show the date of the admitted felony convictions. Respondent's brief states that defendant had been released from prison on his felony conviction approximately two years before the commission of the instant offense. It cannot be said that the conviction should have been excluded on the grounds of remoteness. 'Remote convictions are not disregarded merely because they are remote. (Evid.Code, §§ 788, 352.)' (People v....