People v. Parriera

• Court: California Court of Appeals
• Writing for the Court: CONLEY
• Citation: People v. Parriera, 46 Cal.Rptr. 835, 237 Cal.App.2d 275 (Cal. App. 1965)
• Decision Date: 29 September 1965
• Docket Number: Cr. 163
• Parties: The PEOPLE, Plaintiff and Respondent, v. Frank Louis PARRIERA, Defendant and Appellant.

Page 835

46 Cal.Rptr. 835

237 Cal.App.2d 275

The PEOPLE, Plaintiff and Respondent, v. Frank Louis PARRIERA, Defendant and Appellant.

Cr. 163.

District Court of Appeal, Fifth District, California.

Sept. 29, 1965.

Rehearing Denied Oct. 21, 1965.

Hearing Denied Nov. 24, 1965.

Cardozo, Trimbur & Nickerson, A. A. Cardozo, Jr., and Gary S. Davis, Modesto, for appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

Frank Louis Parriera appeals from a conviction of attempted murder in the second degree of his wife, Emilia F. Pariera, while he was armed with a deadly weapon, to-wit: a .22 caliber Rigarmi automatic pistol.

At all times during the trial, defendant denied that he was guilty, his defense being that Mrs. Parriera attempted to take her own life. There were no eyewitnesses except Mr. and Mrs. Parriera; appellant maintained that at the time of the alleged offense he was asleep in bed with his wife when he was awakened by the report of a pistol, and discovered that she had attempted to shoot herself with his weapon. Uncontradicted evidence shows that Mrs. Parriera had been mentally and emotionally disturbed for a long period of time, and that she had threatened to put Mr. Parriera in prison, or the death house, because of a love affair between him and a Daisy van Zwaluwenburg; there was evidence by two reliable witnesses that, after the shooting, Mrs. Parriera admitted that she herself had done it; however, aside from these statements by her in the presence of two nurses at the hospital, she consistently urged that her husband was guilty of an attempt to murder her.

The defendant lived with his wife and their daughters, Bernadette, 18, and Veronica and Genevieve, 12-year-old twins, at 365 Maxwell, in Oakdale; a fourth daughter, Deanna, had married and was living apart from the family home.

Two main elements in the relationship of the defendant and the complaining witness exercised a strong influence over the trial. One was the fact that Mrs. Parriera had been mentally and emotionally ill for a long period of time, so much so that she had been incarcerated in a sanitarium at Livermore for a period some years before the shooting, and that she had received treatment from a psychiatrist and her family doctor for very evident departure from the norm insofar as mental manifestations were concerned; one medical man referred to her condition as manic depressive psychosis, and another one termed her mental condition schizophrenic. Several witnesses said that there were times when she apparently paid no attention to what they said to her and seemed to be engrossed in a mental state of her own. There was evidence that she constantly scribbled letters and messages to others at unusual times and testimony that she wrote letters to the Pope and composed unmailed letters to the parish priest with the concept of a mystic marriage between them and setting forth facts that were outlandishly bizarre. In his argument, the district attorney said:

'* * * there is no question that Mrs. Parriera is mentally ill. And I would be the last to argue that point because * * * we would concede that she is mentally ill. There is no question about it. The evidence is clear on that point.'

The second factor which exercised an extraordinary influence over the trial was the fact that for the previous four or five years Mr. Parriera had conducted an active love affair with Daisy van Zwaluwenburg, and that this fact and many of the details were known to Mrs. Parriera and were tremendously resented by her to the point that she attacked her husband's mistress in public and made various threats against the lovers.

On the night of August 7, 1964, Mrs. Parriera, the twins, Bernadette, and her friend, Herkie Vieira, drove to the home of Mrs. Parriera's mother in Stockton for a visit. Appellant was not with them but was working at the Power Thrust gasoline station in Modesto. The group returned from Stockton to their Oakdale home at around midnight; Mr. Parriera was not yet home. Mrs. Parriera went to bed around 1:00 a.m. She testified that she was very restless.

Defendant arrived sometime after 1:30 a.m. He drank some coffee and ate a sandwich in the kitchen, went to the bathroom, sat on the edge of the bed briefly to read an article in the newspaper, took off his glasses and put them on the same bureau where he placed his gun in an upper drawer. He had purchased this weapon sometime before as a protection against thievery at the gasoline station and carried it into the house in his left front pocket. He was wearing only a T-shirt when he went to bed. His wife was lying on her stomach with her face toward the wall. Defendant turned off the light. In a few minutes, Mrs. Parriera arose, picked up an electric clock and took it into Bernadette's room so that she could be awakened at a proper hour in the morning to carry on work at a neighbor's. Mrs. Parriera then went to the bathroom and returned to bed lying on the right side of Mr. Parriera. He testified that his wife got up a second time and went to the drawer of the bureau where he assumed that, as she frequently did, she took a handkerchief out of that chest of drawers; he went to sleep and the next sound that he said he heard was the bang or bounce of the discharging gun; he sat up immediately and attempted to light the electric lamp at the head of the bed, but was not able to. His wife was trying to get up, moving her left hand about, and saying, 'I'm shot.' Mrs. Parriera testified that she called to her daughter, Bernadette, who was in bed in another room, and that as she raised herself she felt what she thought was a finger and the gun sliding across the palm of her left hand. Bernadette heard the shot shortly before 6:00 o'clock, and testified that she heard her mother scream, 'Bernie, Bernie, he shot me. Come quick.'

The evidence shows that for several years before the shooting the defendant and Mrs. van Zwaluwenburg had been carrying on a love affair, which became more serious with time, so much so that on the night before the shooting he told her that he intended to leave home and get a separate place to live in Modesto. She urged him not to go home at all that night, but he said that he needed to get his clothes and would, as usual, sleep at his house.

The appellant presents three main contentions for reversal:

1) That during the trial errors in law occurred which reulted in a miscarriage of justice; although appellant discusses at some length five alleged errors, there are only two which deserve closely applied consideration and which would necessitate a reversal of the judgment if the points are well taken;

2) That, in questioning witnesses and in his argument to the jury, the district attorney was guilty of prejudicial misconduct; and

3) That there was insufficient evidence to justify the verdict, in this connection, citing People v. Hall, 62 A.C. 101, 109, 41 Cal.Rptr. 284, 396 P.2d 700.

We can quickly dispose of the last point. If Mrs. Parriera's testimony is believed, there can be no question of the sufficiency of the evidence to support the verdict. She stated that the defendant shot her, and the wound as to location and seriousness justifies the inference the person who discharged the gun intended to kill.

Turning to two of the claimed errors under the first ground for reversal above mentioned, we find: an alleged violation of the constitutional rule enunciated in the cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, and an alleged unjustified restriction by the trial court of the effect of the evidence of two witnesses that Mrs. Parriera admitted that she had shot herself.

On the morning of the shooting, Sergeant Riley of the Oakdale police arrested the defendant and took him to the police station and repeatedly questioned him concerning the alleged crime without advising him of his constitutional rights, namely, he did not tell him that he could remain silent or that he could have an attorney at all stages of the case, including the period when questioned. Finally, Mr. Parriera made what, under the state's contention, constituted a confession. He was asked repeatedly whether he had shot his wife; he emphatically denied the accusation, but the police officer insistently repeated the essential inquiry, and he ultimately said in effect, 'I have denied it. I have told the truth, but you keep saying that I did it. If you say that I did it, I must have done it.' The defense contends that this statement was actually tinged with sarcasm and meant 'I was there. I know what I am talking about. I have denied it, and do deny it but, if you purport to have more knowledge than an eyewitness, what you say must be correct.' In any event, from the standpoint of the prosecution, this statement was actually and literally a confession, and, therefore, the test of whether it could be introduced in evidence is correctly set out in the Dorado and Escobedo cases. The trial court ruled that this evidence could not be received at the time it was offered as part of the prosecution's case, but, after the defendant had taken the stand in his own defense and denied the shooting the district attorney again offered the evidence on the theory that, although it had not been available previously, it could be used for impeachment purposes on cross-examination of the defendant, and that Mr. Parriera had waived the protection of the constitutional right by taking the stand.

The record shows that the following proceedings took place at that time:

'THE COURT: Let the record show the presence of the parties.

'There is no decisive case upon this question right now. It might be looked upon as defending the purpose of the ruling of the Dorado case to not permit the cross examination...