People v. Osuna

• Citation: 70 Cal.2d 759,452 P.2d 678,76 Cal.Rptr. 462
• Decision Date: 11 April 1969
• Docket Number: Cr. 11170
• Court: United States State Supreme Court (California)
• Parties: , 452 P.2d 678 The PEOPLE, Plaintiff and Respondent, v. Mark C. OSUNA and Jack R. Gorman, Defendants and Appellants.

Page 462

76 Cal.Rptr. 462

70 Cal.2d 759, 452 P.2d 678

The PEOPLE, Plaintiff and Respondent, v. Mark C. OSUNA and Jack R. Gorman, Defendants and Appellants.

Cr. 11170.

Supreme Court of California In Bank.

April 11, 1969.

Mark C. Osuna, in pro. per., Andrew P. Smirnoff, San Francisco, and A. Leonard Bjorklund, Jr., Sausalita, under appointments by the Supreme Court, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg and Robert R. Granucci, Deputy Attys. Gen., for plaintiff and respondent.

TRAYNOR, Chief Justice.

A jury found defendants guilty of the first degree murder of Mario Ferrari and fixed the penalty for earch at death. The trial court denied motions for a new trial and entered judgment on the verdicts. The appeal is automatic. (Pen.Code, § 1239, subd. (b).)

The homicide occurred at the Mission Inn, a restaurant and bar in San Rafael. At about 12:40 a.m. on September 6, 1965, Leo Albertoni, a co-owner and the chef of the Mission Inn, left the kitchen to go to his apartment upstairs at the back of the inn. On the way he was knocked down by a blow to the back of his neck. He got to his feet, and two hooded men confronted him with pistols. They tied his hands with wire and told him they wanted the safe opened and would kill him if he did not cooperate.

Albertoni did not remember the combination of the safe but told the robbers that it was written on a paper somewhere on the premises. The robbers searched for the combination in vain, but they found two automatic pistols, a .45 and a .32. Each took a pistol, one commenting, 'It's good that we found your guns; we will use these if there is going to be any shooting, then we will throw them away.' They also took pillows from a bed to be used as silencers if necessary.

The robbers stayed with Albertoni in his apartment for over two hours waiting for the bar to close and customers to leave. About 3 a.m. they took Albertoni downstairs and ordered him to call the two bartenders, Mario Ferrari and Alfred Casey, from the bar. The robbers ordered the bartenders to stand against a wall to be searched. Ferrari made a break for the door, and both robbers opened fire. Ferrari got to the street where he fell fatally wounded. Albertoni escaped from the building, and as he did so, he saw the robbers take the receipts for the night and flee.

At the trial Albertoni identified defendants Osuna and Gorman as the robbers. He remembered that the one he identified as Gorman was slender, had a dark complexion, and wore tight black pants, a black nylon windbreaker, black boots, green gloves, and a dark hood. He carried a revolver that Albertoni estimated to be between a .32 and a .45 caliber. The other robber was heavier, had a light complexion, and was over six feet tall; his eyes were light grey, flecked with red specks, with straight wrinkles radiating from them 'like sun rays.' He carried a .22 caliber pistol with a long shiny barrel and wore a black nylon windbreaker, light blue denim pants, black shoes, green gloves, and a brown-purple hood.

Albertoni's identification of defendants as the robbers and killers was confirmed by a mass of other evidence. Two witnesses testified that the robbery was planned in their San Francisco apartment and that defendants were dressed as Albertoni described them. Percell, an accomplice who acted as a lookout, and his girl friend, who was apparently unaware that a robbery was planned, testified that they took defendants to the Mission Inn and after hearing shots saw defendants run out of the inn. A girl friend of Gorman's testified that defendants told her of their plans for the robbery at her apartment the previous afternoon and that they returned about 5 a.m. the next morning with three guns, money, and a money bag. Osuna described what had happened in considerable detail, but Gorman was relatively quiet. Later in the day defendants, the accomplice and his girl friend, and one of the women in whose apartment the robbery was planned had coffee together in a coffee shop where both defendants discussed the homicide in detail.

Other evidence was introduced to show that defendants got the guns they took to the Mission Inn during a burglary at a Sacramento home and that some of the guns that the police recovered from various places where defendants had abandoned them after the killing, had been fired at the Mission Inn.

The only defense evidence at the trial on the issue of guilt was introduced by Gorman to establish an alibi for the Sacramento burglary. Neither defendant testified.

Gorman contends that he was denied due process of law by the use of Albertoni's pretrial identification and the incourt identification based thereon. Albertoni testified that he identified Gorman at the district attorney's office, first by standing outside the door and listening to him talk with the district attorney for ten or fifteen minutes, and then by coming into the office and confronting him. Since the identification took place before the decisions of the United States Supreme Court in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, neither the identification nor any product of it was inadmissible because Gorman did not have the assistance of counsel at the time. (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Feggans (1967) 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21.) As in the Feggans case, however, we have scrutinized the record with respect to the pretrial identification to determine whether Gorman was denied due process. Since Albertoni had heard the robbers talk for over two hours but had not seen them unmasked, it was reasonable to seek a voice identification before Albertoni confronted Gorman. It might have been preferable to have Albertoni hear several persons speak, but in view of the length of time he was able to hear the robbers talk during the crime, it was not unreasonable to have him confront a single suspect. (Cf. People v. Caruso (1968) 68 Cal.2d 183, 188--189, 65 Cal.Rptr. 336, 436 P.2d 336; Simmons v. United States (1968) 390 U.S. 377, 385, 88 S.Ct. 967, 19 L.Ed.2d 1247. Moreover, there is nothing in the record to show that the district attorney in any way suggested the response Albertoni should make. We conclude that the procedure was not so suggestive as to give rise to a substantial likelihood of misidentification. (See Simmons v. United States, supra, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247;Stovall v. Denno, supra, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)

One witness testified to one conversation and three witnesses testified to another in which defendants discussed the homicide. The conversations were with defendants' friends or confederates and took place on the day of the killing while defendants were still at large. ¹ Since each defendant implicated the other as well as himself, they invoke People v. Aranda (1965) 63 Cal.2d 518, 530--531, 47 Cal.Rptr. 353, 407 P.2d 265 (see also Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476), and each contends that the other's statements were inadmissible against him. There is no merit in this contention. During each conversation both defendants recounted various details of the crimes. Had one disagreed with what the other said, it is reasonable to assume that he would have said so. Under these circumstances the statements of each were common admissions of both and therefore admissible against both. (See former Code Civ.Proc., § 1870, subd. 3; Evid.Code, § 1221; People v. Robinson (1964) 61 Cal.2d 373, 401, 38 Cal.Rptr. 890, 392 P.2d 970; People v. Simmons (1946) 28 Cal.2d 699, 712, 172 P.2d 18.)

Defendants contend that the evidence of the Sacramento burglary was needlessly prejudicial. That evidence consisted of the testimony of an accomplice to the burglary, which was corroborated by other evidence connecting defendants with the guns taken during the burglary. Evidence of that crime was relevant to show that defendants had the guns used in the robbery and murder. It played a significant part in completing a chain of physical evidence that could dispel any doubts with respect to Albertoni's identification of defendants or the testimony of witnesses who were or may have been accomplices. Under these circumstances the probative value of the evidence of the burglary outweighed any possible prejudicial effect the evidence might have had. (People v. Stanley (1967) 67 Cal.2d 812, 818, 63 Cal.Rptr. 825, 433 P.2d 913.)

Defendants contend that the district attorney committed prejudicial misconduct in his closing argument by telling the jury that Percell, the lookout for the Mission Inn robbery, had been sentenced for the robbery at the Mission Inn, whereas in fact he had been convicted of another robbery. The purpose of the argument was to rebut a possible inference that Percell testified pursuant to a bargain with the prosecution. No objection was made, however, and a timely admonition could have corrected any effect the misstatement could have had. (See People v. Mitchell (1966) 63 Cal.2d 805, 809, 48 Cal.Rptr. 371, 409 P.2d 211.) Moreover, Percell's testimony was merely cumulative of the testimony of many other witnesses. The error in misstating his record was not prejudicial.

Gorman contends that it was prejudicial error to allow Norene Michaels, one of the women in whose apartment the Mission Inn robbery was planned, to testify that she was afraid of Gorman because he had told her and others that he had been imprisoned because he cut off a woman's breast and crippled a man for life. There was no motion to strike or to admonish the jury to disregard the statement. Miss Michaels' fear of Gorman was relevant on the issue whether she was an accomplice whose testimony would require corroboration (Pen.Code, § 1111) or a...