People v. Saddler

• Decision Date: 25 July 1979
• Docket Number: Cr. 20657
• Court: California Supreme Court
• Parties: , 597 P.2d 130 The PEOPLE, Plaintiff and Respondent, v. Winfred SADDLER, Defendant and Appellant.

Page 871

156 Cal.Rptr. 871

24 Cal.3d 671, 597 P.2d 130

The PEOPLE, Plaintiff and Respondent, v. Winfred SADDLER, Defendant and Appellant.

Cr. 20657.

Supreme Court of California, In Bank.

July 25, 1979.

As Corrected July 30, 1979.

Quin Denvir and Paul Halvonik, under appointment by the Court of Appeal, State Public Defenders, Charles M. Sevilla, Chief Asst. State Public Defender, Harold E. Shabo and H. Elizabeth Harris, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington and Jesus Rodriguez, Deputy Attys. Gen., for plaintiff and respondent.

MANUEL, Justice.

Defendant Winfred Saddler appeals from a judgment entered on a jury verdict finding him guilty of robbery in the first degree (Pen.Code, § 211). ¹ He contends that the trial court committed prejudicial error in instructing the jury that it could draw adverse inferences from his failure to explain or deny evidence against him. We hold that the instruction complained of (CALJIC No. 2.62) suffers no constitutional or other infirmity, but was improperly given for lack of evidentiary support. We conclude that the error was not prejudicial.

Since the instruction at issue provides that adverse inferences can be drawn if a defendant fails to explain or deny evidence or facts against him which he can reasonably be expected to explain or deny, we set out the prosecution's case against him in detail: Constance Overfield, night desk clerk at Howard Johnson's Motor Lodge in Barstow, testified that approximately 1 a. m. on December 23, 1976, she noticed a light colored compact car come into the parking lot; immediately thereafter she opened the locked door of the motel to a young man who approached the desk, stated that his wife was a guest, and asked for her room number. He gave the name "Saddler." When Mrs. Overfield indicated that she could find no guest by that name, the man suggested that his wife could be with somebody else or was registered under her maiden name. The man was at first unable to recall the maiden name, then stated it was "Brown." Mrs. Overfield described the man as black and wearing a stocking (knit) cap, drab or tan jacket, and a sweater that was stretched at the neck.

After their conversation, the young man commenced to smoke a cigarette, and Mrs. Overfield turned away; when she next looked at the man, he was holding a knife and pointing it over the desk at her. He asked for money from the register and came around the desk to stand beside her. He again demanded the money from the register and then put his cigarette out on the floor in order to take the money she gave him. After forcing Mrs. Overfield to lie on the floor and threatening her, the assailant left, telling the woman not to scream or call the police or he would "get" her.

Mrs. Overfield called the police; Officers Jones and Sanders arrived promptly and she related the details of the incident to them. She identified defendant at the trial as her assailant.

Officer Jones testified that the robbery call was received at 1:20 a. m. and that he and two other officers responded and spoke with the victim for five to eight minutes; the victim stated that the robbery occurred about 1:15 and described her assailant as a black male, 5 feet, 10 inches, 140 pounds, and 25 years old. She also gave them the names "Brown" and "Saddler," both names familiar to the officers. Jones related that the only physical evidence found at the scene was the remains of a Kool cigarette which Mrs. Overfield picked up and handed to him. Jones did not know what happened to the cigarette butt, stating that it was "probably placed in an ashtray."

Detective Sessions testified that shortly after the robbery he brought a book of 60 mug shots to Mrs. Overfield; she selected none as that of her assailant. Later that same morning she was shown two more photographs and did not select either of them. Defendant's picture was not among those sets of pictures. About two weeks later she identified defendant from a six-photograph lineup. Defendant was arrested the following day and, after Miranda warnings, told Sessions he had been drinking heavily during the Christmas holidays and was not sure of his activities on the night in question; thereafter, however, he unequivocally denied involvement in the robbery. Sessions also testified that he clocked the time it took to go from the motel to defendant's nearby residence, nine minutes with brisk walking and three to four minutes by car.

Defendant presented an alibi defense. He testified that on the night in question he was at a local park drinking with a friend until after midnight. They walked together to defendant's house, arriving about 12:30 a. m. Defendant went to the kitchen and got something to eat. In accord with a habit of reading in the bathroom, defendant then went to the bathroom where he remained for about 30 minutes. During that time Officer Sanders, whom defendant knew and whose voice he recognized, came to the house, asked for defendant, and spoke with him momentarily through the closed bathroom door.

Defendant also testified that he never owned or wore clothes matching the description given by Mrs. Overfield, that he owned a switchblade knife but did not think he was carrying it on December 22-23, ² and that he knew several persons who had small white compact cars, listing two persons. Defendant admitted to being "high" and "feeling good" on the evening in question, but denied that he told Detective Sessions that he was not sure of his activities on that night. Defendant testified that he was 18 years old in December 1976, weighed 165 pounds, and was 5 feet, 11 inches tall. He regularly smokes Salem cigarettes, habitually "bums" cigarettes, and sometimes smokes Kools, but does not "request" Kools from other persons. ³

Defendant's mother and sister testified to substantially the same sequence of events after defendant's arrival at home, although the sister estimated that Officer Sanders arrived at 12:45 a. m.

Officer Sanders testified for the defense that he and Officer Jones arrived at the motel at 1:26 a. m. and, when Mrs. Overfield mentioned that her assailant had given the name "Saddler," he immediately went to the home of defendant, whom he knew, to see if he was there. It took him four minutes to drive to the Saddler residence. In the immediate vicinity of the house was a white Buick compact car. Sanders touched the hood and radiator area to find if it had been recently driven. The car was cold to the touch. The officer entered the house and, as testified by the occupants, called for Saddler and conversed momentarily with a male in the back of the house who stated he was in the bathroom. The officer then left.

The jury was instructed as to credibility of witnesses in general (CALJIC Nos. 2.20 and 2.21) and, over defense counsel's objection, was instructed as to the testimony of defendant in particular as follows: "If you find that he failed to explain or deny any evidence or facts against him which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable." ⁴ Defendant contends that giving the above instruction (1) violated his privilege against self-incrimination; (2) denied him the presumption of innocence; (3) denied him due process in failing to give notice; (4) unfairly singled out his testimony; and (5) was unsupported by the evidence.

Comment on a criminal defendant's failure to testify was held violative of the Fifth Amendment privilege against self-incrimination in Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106. California constitutional (former art. I, § 13) and statutory (former Pen.Code, § 1093, subd. 6) provisions at that time authorized comment on a defendant's failure to explain or deny evidence against him "whether the defendant testifies or not." ⁵ Section 13 of article I was repealed in 1974 and its text restated in article I, section 15, with no reference to comment on a defendant's testimony. In 1976, subdivision (6) of section 1093 was amended to delete the provision quoted above.

Defendant argues that the changes in these provisions indicate legislative disapproval of comment on a defendant's testimony when he takes the stand on his behalf as well as when he does not and invalidates CALJIC No. 2.62. We disagree. If the Legislature so intended, it would have modified other statutes which permit comment on a testifying defendant's failure to explain or deny. The Legislature did not modify Penal Code section 1127 which permits comment in instructions to the jury. Nor has the Legislature amended or repealed Evidence Code section 413 which permits the drawing of inferences against a party from the party's failure to explain or deny evidence. ⁶

Subsequent to the noted constitutional and statutory changes, we held that an instruction substantially similar to CALJIC No. 2.62 did not violate the defendant's privilege against self-incrimination. (People v. Mayberry (1975) 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337.) We reiterated the well settled rule that a defendant who takes the stand and testifies in his behalf waives his Fifth Amendment privilege (Johnson v. United States (1943) 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704) and his state constitutional privilege to the extent of the scope of relevant cross-examination. (Mayberry, supra, at p. 160, 125 Cal.Rptr. 745, 542 P.2d 1337; see also People v. Thornton (1974) 11 Cal.3d 738, 114 Cal.Rptr. 467, 523 P.2d 267; People v. Schader (1969) 71 Cal.2d 761, 770-771, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Ing (1967) 65 Cal.2d...