People v. Turner

• Decision Date: 20 December 1971
• Docket Number: Cr. 9800
• Citation: 99 Cal.Rptr. 186,22 Cal.App.3d 174
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jean Marie TURNER, Defendant and Appellant.

Page 186

99 Cal.Rptr. 186

22 Cal.App.3d 174

PEOPLE of the State of California, Plaintiff and Respondent, v. Jean Marie TURNER, Defendant and Appellant.

Cr. 9800.

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

Dec. 20, 1971.

Hearing Denied Feb. 16, 1972.

William R. Higham, Public Defender County of Contra Costa, Ellen Green, Deputy Public Defender, Martinez, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Robert R. Granucci, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

TAYLOR, Presiding Justice.

Defendant appeals from a judgment entered on a jury verdict finding her guilty of forgery (Pen.Code, § 470) and possession and uttering of a check with intent to defraud (Pen.Code, § 475a). She contends that: 1) the trial court erred in rejecting her proffered instructions on circumstantial evidence; 2) she was deprived of due process when asked to model before the jury a scarf and sunglasses similar to those worn by the person who cashed the check; 3) the court erred in permitting the jury, on its own request, to receive new evidence after the submission of the case; and 4) failure of the court to give a specific intent instruction, sua sponte, was prejudicial error. We have concluded that there is no merit to any of these contentions and that the judgment must be affirmed.

Viewing the record most strongly in favor of the judgment, as we must, the following facts appear. Mr. McDonald customarily received in the mail monthly public disability checks for dis daughter, Charlene Hazelett. On July 3, 1970, he gave her a check for $180 that he had received on July 2.

On July 4, Charlene had the check in her pocketbook and had neither signed it nor attempted to cash it. About 1 p.m., she entered the Mariner's Club bar in Point Richmond, California, where a large number of people gathered to celebrate the holiday. Between 2 and 3 p.m., Charlene was invited to go on a motorcycle ride and left her pocketbook with her friend, defendant. Mr. McDonald came into the bar after Charlene left and saw defendant sitting alone at a table with Charlene's purse next to her. When Charlene returned to reclaim her purse about 1 a.m. on the following morning, the bartender had her purse but the check was missing. She then notified the police.

During the week of July 1, 1970, Mrs. Lee, who worked at the cashier's desk of the Food Bowl Market in San Pablo, cashed Charlene's public disability check. Mrs. Lee gave the $180 to a woman who signed the check in her presence and produced for identification Charlene's Social Security card. A photograph taken of the woman at that time indicated that the woman wore hair curlers, sunglasses, a scarf and a print blouse. At the trial, Mrs. Lee identified the woman who had cashed the check as defendant.

Subsequently, the check was returned to Mr. Lee, the owner of the market who called the police on August 17, 1970. Mr. Lee had previously contacted Charlene, who told him that she believed that defendant had taken the check. Officer Hamilton of the San Pablo Police Department, who investigated the matter, went to defendant's home and secured a handwriting exemplar after giving her proper constitutional warnings. At this time, Officer Hamilton noticed that defendant had a beauty mark tattoo on the right side of her face, similar to what appeared to be a mole on the right side of the face of the woman whose picture had been taken at the Food Bowl Market when Charlene's check was cashed.

An expert witness analyzed the signature on the check, defendant's handwriting exemplar, and another produced by Charlene in his presence. The expert concluded that Charlene did not sign the disability check; however, he could not tell whether defendant had signed it.

Defendant admitted being in the Mariner's Club on July 4. She indicated that Charlene had thrown the purse under the table at which defendant had been sitting. Defendant denied taking the check, endorsing or cashing it.

At the conclusion of the prosecution's case, at the request of the prosecution, defendant was asked to put on a scarf and sunglasses and stand before the jury to enable them to compare her appearance with the video-monitor photograph taken when the check was cashed. The articles of apparel had been obtained by the district attorney and were worn in approximately the same manner as shown in the photograph.

During the second day of its deliberations (Dec. 16), the jury requested an enlargement of the photograph or expert testimony on the identification of defendant in relation to the photograph. This request was denied. The following day (Dec. 17), the jury asked to be allowed to compare defendant with the photograph, but specifically requested that defendant not be dressed up to resemble the woman in the photograph. Defendant was told to raise her arms with palms outward to correspond to the photograph. Defendant's counsel did not object to this pose.

Subsequently, over a defense objection, the jury used magnifying glasses to assist them in comparing the lines of defendant's hands with the photograph.

Defendant first contends that the trial court erred to her prejudice by refusing her proffered instructions on circumstantial evidence, based on CALJIC 2.01 and 2.02, set forth below. ¹ Defendant, citing People v. Yrigoyen, 45 Cal.2d 46, 286 P.2d 1, erroneously contends that in the instant case, her specific intent was shown only by circumstantial evidence and that the denial of the instructions was highly prejudicial. ² The record indicates that proper instructions were given on the weight afforded to direct and circumstantial evidence, the quantum of evidence required to show guilt beyond a reasonable doubt, and the specific intent required.

Here, the requisite acts and intent were possession of the check and endorsing and receiving money for it with the specific intent to defraud. Defendant's possession of the check was shown by the testimony of Charlene and her father, and the endorsement and cashing and use of Charlene's Social Security card for identification by the testimony of Mrs. Lee. In addition, the video-monitor photograph of the person who cashed the check was direct evidence that the person photographed did so (cf. People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792). Thus, every element of the two offenses charged was shown by direct evidence, ³ and the proffered instructions properly refused. ⁴

Defendant, relying on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, contends that she was deprived of due process by being asked to dress in a scarf and sunglasses similar to those worn by the woman in the photograph taken when the check was cashed. The record indicates that Mrs. Lee had identified defendant as the woman who cashed the check. Also, defense counsel agreed that the items, although supplied by the district attorney, approximated those worn by the person in the photograph.

Defendant argues that because she was forced to model the scarf and sunglasses to resemble the woman in the photograph, she was subjected to an unconstitutional procedure analogous to the lineups condemned in Wade and Stovall, supra. However, the more compelling analogy to the instant case is presented by the authorities holding that a defendant who is forced to exhibit a part of his body that is material to the case, is not deprived of due process (Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393). While these authorities were decided before Wade and Stovall, they are not in conflict.

In Holt v. United States, supra, a question arose as to whether a blouse belonged to the defendant. A witness testified that the defendant was required to put it on and that it fitted him. In rejecting the defendant's contention that being forced to model the blouse violated the right against self-incrimination, Justice Holmes said, 218 U.S. at pages 252--253, 31 S.Ct. at page 6: 'But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof. Moreover, we need not consider how far a court would go in compelling a man to exhibit himself. For when he is exhibited, whether voluntarily or by order, and even if the order goes too far, the evidence, if material, is competent. Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575.' (Emphasis added.)

Schmerber v. California, supra, relying on Holt, held, 384 U.S. at page 765, 86 S.Ct. at page 1832 that the taking of a blood sample did not constitute a violation of a defendant's Fifth Amendment rights because physical exhibitions do not involve 'even a shadow of testimonial compulsion upon or enforced communication by the accused.'

Wade and Stovall, on the other hand, were addressed to the lineup situation where a witness to the crime is shown a number of similar appearing persons and asked to pick out any that he recognizes. At that critical stage of the proceedings, tests of reliability of the eyewitness' extrajudicial identification, the accused is entitled to the presence of counsel. Wade and its companion case, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, 'fashion exclusionary rules to deter law enforcement authorities from Exhibiting an accused to witnesses Before trial for identification purposes without notice to and in the absence of counsel' (Stovall, supra, 388 U.S. at p. 297, 87 S.Ct. at p. 1970; emphasis added).

In the instant case, defendant, during trial, while...