People v. Rinegold, Cr. 8525

• Decision Date: 22 December 1970
• Docket Number: Cr. 8525
• Citation: 13 Cal.App.3d 711,92 Cal.Rptr. 12
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry RINEGOLD, also known as Jerry Paul Kristen, Defendant and Appellant.

Page 12

92 Cal.Rptr. 12

13 Cal.App.3d 711

PEOPLE of the State of California, Plaintiff and Respondent, v. Jerry RINEGOLD, also known as Jerry Paul Kristen, Defendant and Appellant.

Cr. 8525.

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

Dec. 22, 1970.

Rehearing Denied Jan. 21, 1971.

Hearing Denied Feb. 17, 1971.

C. Randall Schneider, San Jose, for appellant.

Thomas C. Lynch, Atty. Gen. of California, Robert R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, for respondent.

TAYLOR, Associate Justice.

Defendant appeals from a judgment of conviction entered after a jury verdict finding him guilty of assault with a deadly weapon (Pen.Code, § 245). ¹ He contends that: 1) the failure of his trial counsel to object to the admission of certain statements he made in custody after he refused to sign a written waiver of his Miranda rights does not prevent him from raising the matter for the first time on appeal; 2) the introduction of the testimony of the complaining witness at the preliminary examination, without a sufficient showing that the prosecution made a good-faith effort with reasonable dilgence to obtain the presence of the witness at the trial, violated his Sixth Amendment right to confrontation; 3) the admission of evidence that he had a gun the day before the assault was prejudicial error; and 4) the evidence is insufficient to sustain the judgment.

Viewing the record most strongly in favor of the judgment, as we must, the following facts appear: During the night of June 24--25, 1969, several friends, including Mr. and Mrs. Stocker, Mr. and Mrs. MacIntyre, several children, Tim Dunphy, the victim, 'Bud' Hassink, and defendant were spending a brief vacation together in a home in Hopland near Highway 175. From his arrival late in the afternoon, as well as throughout the evening, defendant was very upset, stated that someone was after him, and that people didn't like him. He and Hassink were together and talking the entire evening. Hassink walked to the corner grocery and back with defendant, told him to relax, that no one would harm him, and to enjoy the vacation. Defendant remained disturbed and reiterated that people were after him and the planet was involved. Defendant and Hassink were to sleep in the living room. Hassink went to bed about 11:00 p.m. and saw defendant sitting on one of the other beds. Hassink told defendant he was tired and didn't want to talk to anyone. Hassink heard defendant walking around before he dropped off to sleep, and told him to relax and to go to sleep.

Tim Dunphy retired around midnight and later heard defendant and Hassink arguing. Hassink told defendant: 'You are on an ego trip. Don't bring your reality into mine. Now go to sleep.' Defendant also said that no one liked him.

Around 2:00 a.m., the occupants of the house were awakened by the sound of several shots. They found Hassink severely wounded and bleeding in the living room. He had been shot several times. Four bullet holes were found in the wall and two in the ceiling of the front room. Hassink's statement that the shots were fired from inside the room was confirmed by the investigation of the Mendocino County Sheriff. The slug of a .37 or .38 caliber bullet found in the house could have been fired from a .38 special or a .357 Magnum revolver. No weapon was found in or around the home.

Hassink saw the gun fire and heard six shots but could not identify defendant as his assailant. Immediately after the shooting, Hassink heard the screen door at the front slam and a man's footsteps running away, and saw that the front door was open. Hassink called for help. Defendant was not present when all the other occupants of the house entered the living room in response to Hassink's cries. Hassink had known defendant for about 4 years and had not had an argument with him the evening before, merely a conversation. Hassink was not aware of any enemies; as he was on vacation, no one except the others present knew where he was the night of June 24, 1969.

About 6:45 a.m. on the morning of June 25, Clarence Sanders was driving to work in Santa Rosa from his home some 7 or 8 miles east of Hopland on Highway 175. Sanders observed a young man standing by the road, stopped and asked him where he was going. The young man indicated he was traveling in 'either direction,' and Sanders took him to Santa Rosa. The young man did not appear rational. Subsequently, Sanders described the general appearance of the young man but could not identify defendant as the person to whom he had given a ride that morning.

Over a defense objection, Tim Dunphy was permitted to testify that the day before the shooting, he had seen defendant in possession of a revolver at the Stocker's home in San Francisco. Mrs. Stocker stated that about a month before the shooting when defendant stayed with them in San Francisco, he said he would like to kill Hassink. At the time, she understood the comment to be a threat, but not in the physical sense.

On June 27, 1969, Captain Howard of the Mendocino Sheriff's Department, went to the Sonoma County Jail to interview defendant, who was in custody on another matter. Captain Howard and his companion advised defendant of his Miranda rights and indicated that they were investigating a case involving an assault with a deadly weapon. Defendant replied that they were trying to trick him and were 'after more than that.' Defendant would not reply as to whether he understood his constitutional rights and refused to sign a written waiver of his Miranda rights. Defendant repeatedly asked the officers whether they were investigating only an assault and accused them of trying to trick him. He then more or less blurted out, 'What would happen if a man were shot with a .357 Magnum?' Defendant continued: 'Wouldn't it make a hole,' simultaneously indicating with his hands an area about 10 inches in diameter. Defendant also asked: 'Is Bud still alive?' At this time, neither Captain Howard nor his companion had said anything about a .357 Magnum or mentioned the name of the victim. The interrogation took place in the visitors' room and was terminated after 19 minutes when defendant indicated he did not want to talk any further. Captain Howard's testimony was admitted into evidence without objection from defense counsel.

Defendant first contends on appeal that Captain Howard's testimony concerning his statements after refusing to sign the waiver of his Miranda rights should not have been admitted and that his trial counsel's failure to object thereto does not preclude him from raising the matter on this appeal for the first time. Even assuming defendant's questions to Captain Howard were obtained in violation of defendant's Miranda rights, as they occurred after some interrogation, and his refusal to sign a written waiver, ² it is well settled that the failure to raise the issue at trial is fatal (In re Dennis M., 70 Cal.2d 444, 75 Cal.Rptr. 1, 450 P.2d 296; People v. Huddleston, 275 Cal.App.2d 859, 80 Cal.Rptr. 496; People v. Duty, 269 Cal.App.2d 97, 105, 74 Cal.Rptr. 606).

Defendant attempts to rely on the affidavit of his trial counsel to excuse the failure to object. However, the affidavit is no part of the record on appeal and it is well settled in California that on direct appeal from a judgment, a reviewing court will not consider matters outside the record. Accordingly, the issue is not properly before us on this direct appeal (People v. Gardner, 71 Cal.2d 843, 79 Cal.Rptr. 743, 457 P.2d 575), but to be considered in a separate habeas corpus proceeding (In re Rinegold, Cal.App., 92 Cal.Rptr. 18). ³

Defendant's major contention on appeal concerns the reading at the trial of Hassink's testimony at the first preliminary hearing. Defendant contends that he was deprived of his Sixth Amendment right to confrontation and that the prosecution did not make a sufficient showing of its good faith efforts with reasonable diligence to obtain Hassink's presence at the trial.

The record indicates that at the first preliminary hearing held on July 25, 1969, Hassink testified and was extensively cross-examined by defendant's trial counsel. Thereafter, the matter was set for trial during September. At that time, Hassink, although under subpoena, did not appear and the first information was dismissed, presumably pursuant to Penal Code section 1382. A second preliminary hearing was scheduled for September 22, 1969, and again Hassink was under subpoena but failed to appear. A bench warrant was issued for his arrest but he was not found.

At the trial, which commenced on November 24, 1969, defendant was represented by the same counsel who had cross-examined Hassink at the preliminary hearing in July. The prosecuting attorney testified that since September 22, his office had obtained information that Hassink might be working at Western Records Studio and had forwarded this information, along with other addresses and duplicate subpoenas, to the Los Angeles and San Francisco Police Departments. Neither the Los Angeles nor the San Francisco authorities were able to locate Hassink and serve the subpoenas. The prosecution located and interviewed the MacIntyre family in Tennessee. Neither they nor Mr. Dunphy, who had just been brought back from Hawaii, knew the whereabouts of Hassink. The prosecution also contacted the Stockers, who believed they had seen Hassink a few weeks previously and informed him of what had transpired on September 22, so that presumably, Hassink was aware that he was needed to testify. The district attorney was unable to ascertain whether Hassink was in California or not and as late as November 25, 1969, the Mendocino deputy attempted to serve the subpoena and was unable to locate him.

Simultaneously, the Los Angeles Police Department was also looking for Hassink in connection with several burglaries and were equally unsuccessful. The Los Angeles police also talked to the Stockers, who indicated...