People v. Sigal

• Decision Date: 08 March 1967
• Docket Number: Cr. 314
• Citation: 57 Cal.Rptr. 541,249 Cal.App.2d 299
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Barry Miles SIGAL, Defendant and Appellant.

Page 541

57 Cal.Rptr. 541

249 Cal.App.2d 299

PEOPLE of the State of California, Plaintiff and Respondent, v. Barry Miles SIGAL, Defendant and Appellant.

Cr. 314.

Court of Appeal, Fifth District, California.

March 8, 1967.

Rehearing Denied March 31, 1967.

Hearing Denied May 4, 1967.

Allan B. O'Conner, Sacramento, for appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., by Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent.

GARGANO, Associate Justice.

For the third time Barry Miles Sigal was convicted, after jury trial, of murder in the second degree. He appeals from the judgment.

The facts are substantially as follows. The decedent Mrs. Wilma McAfee, a 67-year old woman, was found dead by her daughter on January 12, 1962, around 7 p.m. She had been dead between fifteen to twenty-eight hours, placing the time of death between 9:30 p.m. on January 11, 1962, and 4 a.m. on January 12, 1962. At the time of her death the decedent was the manager of an apartment house in Sacramento containing twenty units, and the body was discovered in the apartment in which she resided. The apartment's doors and windows were locked, and apparently none of the entrances had been tampered with. In fact, the daughter had gained access to the apartment by a pass key which was customarily kept hidden in the basement or garage. The victim's body was found in the bedroom, partially covered by a bedspread, face up and fully clothed. The apartment gave no appearance of a struggle having occurred, and the victim's clothing was not torn. She was wearing a wrist watch, and an envelope containing $30 was found on the floor. A valuable diamond ring, together with some jewelry, was also found in the top dresser drawer. However, a master key which Mrs. McAfee kept on a long chain was missing; the chain was found near her body. The keys to her automobile were also missing, and the automobile had disappeared. There was a neckerchief or scarf around the victim's neck and the cause of death was diagnosed as asphyxiation due to strangulation. The victim had been struck forcefully twice in the head, and these blows had been inflicted prior to her death.

The evidence upon which the defendant was convicted was entirely circumstantial. In the late afternoon of January 11, 1962, the decedent and defendant were seen talking in a friendly manner in the doorway of defendant's apartment. Sometime on the same day between the hours of 3 p.m. and shortly before midnight a .45 caliber pistol, a clip and a box of .45 caliber ammunication were stolen from the apartment of another tenant, Mr. David Snyder. Entry to this apartment had not been forced; rather, admittance had apparently been gained by use of a key. Defendant had previously visited the Snyder apartment when Mr. Snyder was there, and they had discussed guns in general and the .45 caliber pistol in particular. On January 12, 1962, the defendant's apartment was searched. A hall light in the apartment was on and there were dirty dishes in the sink. Approximately a pound of beef was on the drainboard, and there were other packages of meat in the refrigerator. The bed was unmade and there were clothes and shoes in the closet. The defendant was next seen in Jacksonville, Illinois by a service station attendant in an automobile later identified as the automobile which belonged to the decedent, Mrs. McAfee. At that time the defendant stated that he was delivering the car to a friend in Springfield, Illinois. While there he had a candy bar and took some No-Doz tablets. The McAfee automobile was found on January 20, 1962, parked in a supermarket parking lot in Springfield, Illinois, covered with snow. The last snow in this area had occurred four or five days earlier. When found, the vehicle was locked, and according to the opinion of an experienced police captain it had not been 'hot wired,'--i.e., whoever drove it used a key. Defendant's fingerprints were found on the car's rear view mirror, and on a box of NoDoz discovered on the car seat. The defendant was arrested on February 18, 1962, in Seattle, Washington in a hotel where he was registered in his own name. A search of the hotel room revealed a .45 caliber pistol loaded with a clip of seven rounds, and a box of ammunition. The gun was identified as the one belonging to David Snyder.

Defendant's first contention for reversal is not directly concerned with his judgment of conviction, nor does it raise any question of error or other impropriety during his third trial. Instead, it attacks the court below for refusing to allow him to withdraw his plea of 'not guilty' for the purpose of introducing a motion, pursuant to Penal Code section 995, to dismiss the indictment under which he was arraigned. It is apparently conceded by both parties that the following transpired. Defendant, after indictment by the grand jury of Sacramento County, was convicted of the murder of Mrs. Wilma McAfee. The judgment of conviction, however, was reversed by the court of appeal (3rd District), which held that certain incriminating statements made by the defendant to a policeman in Seattle after his arrest were inadmissible. (People v. Sigal, 221 Cal.App.2d 684, 34 Cal.Rptr. 767). Thereafter, the defendant moved the trial court to permit him to withdraw his plea of 'not guilty' so that he could make a motion under Penal Code section 995 to have the indictment set aside. Defendant's motion was denied and he was again tried and convicted after jury trial for the murder of Mrs. McAfee. This judgment of conviction was also reversed by the court of appeal (3rd District) in People v. Sigal, 235 Cal.App.2d 449, 45 Cal.Rptr. 481. On September 16, 1965, after reversal of his second conviction, appellant again made a motion for permission to withdraw his plea of 'not guilty' for the purpose of making a motion pursuant to Penal Code section 995. This motion was denied on September 27, 1965.

Defendant asserts that the only evidence presented to the grand jury to connect him with the offense for which he was indicted was the evidence later declared inadmissible in People v. Sigal, 221 Cal.App.2d 684, 34 Cal.Rptr. 767. He argues that according to Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713, the indictment was void and conferred no jurisdiction on the Superior Court to try him. Thus, he contends that it was prejudicial error for the trial court to deny his request to withdraw his plea of 'not guilty' in order to permit him to move to set aside the indictment under Penal Code section 995.

We do not agree with this contention. In Greenberg the defendant had made a timely motion in the trial court to set aside the indictment on the ground that the evidence was insufficient to connect him with the crime charged. The Supreme Court, in holding that an indictment based on no evidence is void and confers no jurisdiction on the Superior Court, relied in part on the statute (former Penal Code section 921, now Penal Code section 939.8) which provided:

'The grand jury ought to find an indictment when all the evidence before them, taken together, if unexplained or uncontradicted would, in their judgment, warrant a conviction by a trial jury.' ¹

However, the statute (Penal Code section 996) also provides that if the motion to set aside is not made the defendant is thereafter precluded from objecting. Hence, it is settled that the failure to seasonably raise the objection by motion to dismiss (prior to demurrer or plea) constitutes a waiver of any future objection (People v. Ortiz, 208 Cal.App.2d 313, 25 Cal.Rptr. 431; People v. Diaz, 206 Cal.App.2d 651, 24 Cal.Rptr. 367). In fact, in People v. Elliot, 54 Cal.2d 498, 503, 6 Cal.Rptr. 753, 756, 354 P.2d 225, 228, the court stated:

'It is also settled that, if the defendant has not been legally committed and if the trial court erroneously denies the motion to set the commitment aside and permits the action to proceed to judgment, the resulting conviction must be reversed. (Citations.) The theory of these cases is that where the accused is not legally committed within the meaning of section 995 of the Penal Code, the commitment is voidable. Upon proper objection, the superior court has no jurisdiction to proceed. * * *' (Emphasis added)

From these cases it is clear that the trial court lacks jurisdiction to proceed on an indictment founded against a defendant on insufficient evidence only if the objection is timely; and if the defendant pleads 'not guilty' as in the instant case, his right to object is waived even though he was not aware of the inadmissibility of the evidence presented against him before the grand jury when he entered his plea. Consequently, the question herein presented is not jurisdictional, but rather it is whether the court below abused its discretion in denying defendant's motion to withdraw his plea of 'not guilty' so that he could make a motion to set aside the indictment under Penal Code section 995.

The obvious purpose of section 995 is to eliminate unnecessary trials and to prevent accusatory bodies such as grand juries from encroaching on the right of a person to be free from prosecution for crime unless there is some rational basis for entertaining the possibility of guilt (Greenberg v. Superior Court, supra, 19 Cal.2d 319, 121 P.2d 713). In the instant case, however, when the trial court ruled on defendant's motions, particularly after his second trial, it had before it the opinion of the appellate court in which the evidence presented against him had been carefully evaluated (People v. Sigal, supra, 235 Cal.App.2d 449, 45 Cal.Rptr. 481). In this opinion the court stated that the evidence was sufficient to sustain a conviction for murder in the second degree. It follows, that in denying defendant's motion to withdraw his plea, the court correctly found that there was sufficient evidence to warrant a third trial and, presumably correctly, assumed that a successful...