People v. Rhone

• Decision Date: 25 November 1968
• Docket Number: Cr. N
• Citation: 73 Cal.Rptr. 463,267 Cal.App.2d 652
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John Anthony David RHONE, Defendant and Appellant. o. 3271.

Page 463

73 Cal.Rptr. 463

267 Cal.App.2d 652

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Anthony David RHONE, Defendant and Appellant.

Cr. No. 3271.

Court of Appeal, Fourth District, Division 1, California.

Nov. 25, 1968.

[267 Cal.App.2d 654] John W. Porter, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Mark L. Christiansen, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

Defendant appeals from an order admitting him to probation following his conviction by a jury of assault (an offense included within the charge of assault with a deadly weapon of which he was found not guilty), and of two counts of battery on each of two peace officers.

On October 7, 1967, two on-duty uniformed San Diego police officers, Knoll and Smith, in a marked police vehicle driven by Knoll, saw a late model automobile come onto National Avenue from Wabash Freeway shortly before 9:00 p.m. The police vehicle, westbound on National Avenue, was passed by the other car, eastbound, traveling at a high rate of speed.

Knoll made a U-turn to follow the other car, which turned from National Avenue onto 35th Street, onto which the police car followed with its red light directed at the car ahead. Driving on 35th Street at as fast as 60 miles per hour, the police car did not gain on the other vehicle; 35th Street merged into Rigel Street about three blocks from National Avenue. After traveling one block on Rigel Street, the pursued car turned east onto Birch Street which it went along for one block to Siva onto which it turned and on which it traveled north for one block, and from which it turned west onto Acacia Street where it stopped in front of 3520 Acacia, the home of Mr. and Mrs. Autry. Rigel, Birch, Siva and Acacia Streets are unpaved, and the area is a residential one. During the chase, Smith, in order to avoid being thrown about, had to hold onto the door fixtures on his side. The rear-end of the pursued car fishtailed as it traveled over the streets after leaving National Avenue.

As Knoll came up behind the other car, defendant got out of the left front door of that car, went around the front of it and turned toward the entrance to 3520 Acacia Street. From the police car, which had then stopped, Smith called to defendant to stop, that Smith wanted to talk to him. Defendant turned and looked at Smith and continued toward the house; the two police officers alighted and followed defendant who entered the house, into which the two policemen followed him, opening the screen door to pass through an otherwise opened door. Defendant had gone from the living room into a bedroom, into which the officers followed, and where Smith asked defendant to come outside, that Smith wanted to talk to him. Without saying anything, defendant went out the front door, followed by Smith and Knoll; outdoors, Knoll took hold of defendant's right arm and Smith of his left and conducted defendant to the police car where Smith told defendant he was under arrest for reckless driving; told defendant to put his arms behind his back so he might have handcuffs put on. Defendant said, 'You are not going to put me no place' and shoved Smith so that the latter was thrown off balance. Smith attempted unsuccessfully to subdue defendant, in which effort Knoll also joined. In the ensuing melee, defendant pulled Smith's pistol in its holster away from Smith's belt, but during the struggle the pistol and holster were forced from defendant's hand. After the officers had subdued defendant, he broke away and ran. Smith then drew his pistol but did not fire it. Several hours later defendant surrendered himself into custody.

At the time, defendant, a 21-year-old Negro high school graduate, temporarily separated from his wife, was living with his mother on Rigel Street around the corner from the Autry house. He was six feet tall and weighed about 190 pounds. He was working as a welder's apprentice and a plumber's apprentice five and as many as seven days a week. The car followed by the police, a 1967 Plymouth Sports Fury, had been purchased by defendant in February.

DEFENDANT'S CONTENTIONS

Defendant states the issues as follows:

'1. Whether the chief of police of the City of San Diego should have been permitted to testify under subpoena as an expert witness for the defense with respect to police practice in circumstances like those shown here.

'2. Whether the trial judge properly sustained objections to the hypothetical question sought to be propounded by the defense to the chief of police as an expert.

'3. Whether special interrogatories and special verdicts requested by the defendant should have been submitted to the jury.

'4. Whether the trial court erred in refusing a 'formula' instruction to the jury on the issue of self-defense, offered by the defendant. ¹

'5. Whether the trial court should have instructed the jury, as requested by the defendant on the effect of the violation of Penal Code 844 by the police officers as disclosed in the evidence at the trial.

'6. Whether the defendant should have been permitted to refer, in voir dire of the jury panel and in closing argument, to portions of the report of the National Advisory Commission on Civil Disorders relative to community-police relationships in the ghettoes.'

DISCUSSION OF THE EVIDENCE

The evidence presented by defendant would have placed the emphasis on issues quite different from those stated above. Defendant's testimony was that he had last driven his car at least a half hour before the police entered the Autry house; that just before his arrest he himself had gone to the Autry house from his mother's home to make a phone call and saw his wife, another woman and his two children in the car as he went toward the Autry house and stopped to speak to them.

He concedes, however, that the evidence was sufficient to support the verdicts.

DEFENDANT'S FIRST CONTENTION

It is claimed that a police officer is competent to give an expert opinion as to whether, under stated circumstances, another police officer uses force upon a person without lawful necessity.

A hypothetical question was prepared covering defendant's contentions as to the circumstances.

Defendant obtained and had served upon the San Diego Chief of Police a subpoena for his appearance at 2:00 p.m. of the day the trial commenced. The police chief presented, through the district attorney, his statement that he did not know anything about the facts of the case, and a motion to quash the subpoena.

Defendant urged to the court that he wished to examine the police chief as an expert as to whether the circumstances of defendant's encounter with the police on October 7 were such as to make the police guilty of a violation of section 149, Penal Code, which provides:

'Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by a fine not exceeding five thousand dollars, or by imprisonment in the state prison not exceeding five years or in a county jail not exceeding one year, or by both such fine and imprisonment.'

The court granted the motion to quash.

There is no statutory authority to quash a subpoena, other than a Subpoena duces tecum. It was held in an early case that in the absence of a statutory provision for such an order, an order quashing a subpoena was a nullity. (Pfister v. Superior Court, 64 Cal. 400, 1 P. 492.) It has since been established that the court may quash a subpoena that is regular on its face where the facts justify such action. The Supreme Court has said:

'The defendant is entitled to compel the attendance of witnesses (Cal.Const., art. I, § 13; Pen.Code, § 686, subd. 3), but in the instant case he failed to show that the persons he subpoenaed could offer relevant testimony in his behalf. It is not claimed that they had personal knowledge of the matters relating to the charges. The defendant himself indicated that they could establish only that the sections of the Vehicle Code were discriminately enforced as to him (testimony manifestly incompetent, irrelevant and immaterial for the reasons heretofore stated), and, although invited by the court to set forth the specific nature of the testimony sought to be elicited from the witnesses in question, defendant failed to do so, nor is there any such showing in the petitions with which we are here concerned. Under the circumstances present in the instant proceeding, we are satisfied that the court did not err in quashing the subpoenas.' (In re Finn, 54 Cal.2d 807, 813, 8 Cal.Rptr. 741, 356 P.2d 685, 688.)

A like result has been achieved by the quashing of a request for the issuance of subpoenas to witnesses for the purpose of impeaching witnesses for the prosecution where:

'There was no showing that any one of the witnesses subpoenaed would have impeached any of the People's witnesses.' (People v. Hollander, 194 Cal.App.2d 386, 391, 14 Cal.Rptr. 917, 919.)

The defendant subpoenaed the police chief for the sole purpose of asking questions as to police methods in dealing with minority groups in the city, and to propound a hypothetical question with whose defects we deal hereafter.

No attempt was made to show what testimony would be elicited from the prospective witness; there was no offer of proof.

Apart from the hypothetical question with which we deal later, the subject matter of the proposed interrogation was irrelevant to the issue, and had no tendency to prove what in fact occurred at the time or place in question; under the authorities cited, there was no error in the court's ruling. ²

DEFENDANT'S SECOND CONTENTION

Defendant submitted to the court a hypothetical question in writing which was marked as a court exhibit. The question was one that defendant would have propounded to the chief of police of San Diego. The court sustained an...