People v. Vatelli

• Decision Date: 05 February 1971
• Docket Number: Cr. 8478
• Citation: 15 Cal.App.3d 54,92 Cal.Rptr. 763
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Vida VATELLI, also known as Vido Giovanni Vatelli, Defendant and Appellant.

Page 763

92 Cal.Rptr. 763

15 Cal.App.3d 54

PEOPLE of the State of California, Plaintiff and Respondent, v. Vida VATELLI, also known as Vido Giovanni Vatelli, Defendant and Appellant.

Cr. 8478.

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

Feb. 5, 1971.

Hearing Denied March 31, 1971.

John A. Reding, Oakland, for appellant (By appointment of Court of appeal).

Thomas C. Lynch, Atty. Gen., of California, Robert R. Granucci, Louis C. Castro, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment entered upon his conviction of violating Penal Code, section 4502 ¹ (possession of a knife by a prisoner). The conviction arose out of facts which disclose that on December 30, 1968 defendant, a San Quentin prison inmate, underwent a routine search which revealed the presence of a prison-made knife in the seam of defendant's blue denim coat. Defendant alleges several assignments of error which we do not find meritorious. We proceed to discuss these assertions of error and any particular facts pertinent thereto.

Double Punishment

As a result of the possession of the knife defendant was disciplined by being placed in isolation for 29 days, by being placed in maximum custody and assigned to segregation, and by being deprived of privileges for 90 days. When charged with the instant offense he moved to dismiss the prosecution on the ground that, having been administratively disciplined by the prison authorities, he would be subjected to double punishment in violation of section 654 which, in pertinent part, provides as follows: 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; * * *'

Section 654 prohibits only dual punishment by judicial action. (In re Gullatt, 69 Cal.2d 395, 398, 71 Cal.Rptr. 676, 445 P.2d 292; People v. Ford, 175 Cal.App.2d 37, 39, 345 P.2d 354; People v. Eggleston, 255 Cal.App.2d 337, 338, 63 Cal.Rptr. 104.) The prohibition in section 654 does not make a criminal sentence or administrative action a bar to the other. (In re Gullatt, supra.) Accordingly, it has been held that prison disciplinary measures do not bar subsequent prosecution in a criminal action for violation of a penal statute prohibiting the same act which was the basis of the prison discipline by virtue of the proscription against double punishment provided in section 654 (People v. Eggleston, supra; People v. Ford, supra) or by the proscription against double jeopardy provided in the California Constitution (art. I, § 13) and section 1023. (People v. Eggleston, supra; People v. Elliott, 221 Cal.App.2d 575, 577--578, 34 Cal.Rptr. 560; People v. Mason, 200 Cal.App.2d 282, 284, 19 Cal.Rptr. 240; People v. Garmon, 177 Cal.App.2d 301, 303--304, 2 Cal.Rptr. 60.)

Inmate Witnesses

Defendant argues that it was error for the trial court to deny his motion to call prison inmates to show that section 4502 was not uniformly applied. Under section 2621 a prisoner may be permitted to appear in a court of this state in the discretion of the judge to whom the application is made where the prisoner is a material witness. (See People v. Davenport, 210 Cal.App.2d 335, 339, 26 Cal.Rptr. 753.) Accordingly, there must be a showing that such discretion was abused before the denial of such an application is grounds for reversal.

Pursuant to Government Code, section 26501, the prosecution of a public offense is entrusted to the district attorney. This statute vests in the district attorney the discretionary power to institute criminal proceedings. (Taliaferro v. Locke, 182 Cal.App.2d 752, 757, 6 Cal.Rptr. 813; Ascherman v. Bales, 273 Cal.App.2d 707, 708, 78 Cal.Rptr. 445.) It is well settled, moreover, that unless a statute clearly makes prosecution mandatory, a district attorney is vested with discretionary power in the investigation and prosecution of charges, and a court cannot control this statutory power by mandamus. (Board of Supervisors of Los Angeles County v. Simpson, 36 Cal.2d 671, 675--676, 227 P.2d 14; Taliaferro v. Locke, supra, 182 Cal.App.2d at pp. 755--757, 6 Cal.Rptr. 813; Ascherman v. Bales, supra.)

Section 4502 does not provide for the mandatory prosecution of the crime therein prescribed. ² Accordingly, since the district attorney was vested with the discretionary power to prosecute for a violation of section 4502, it would not have availed defendant to present a witness who would testify that in other cases the district attorney did not prosecute since the testimony by the inmates would not have provided a defense to the charge. (People v. Stabler, 202 Cal.App.2d 862, 865, 21 Cal.Rptr. 120.)

Defendant asserts that the testimony of the proffered witnesses was material for the purpose of establishing that defendant was deprived of the equal protection of the laws because others who committed the same offense and who are known to the authorities were not prosecuted. This contention is answered by the decisions which hold that it is not a denial of equal protection that one guilty person is prosecuted while others equally guilty are not. (People v. Hess, 104 Cal.App.2d 642, 685, 234 P.2d 65 (app. dism'd 342 U.S. 880, 72 S.Ct. 177, 96 L.Ed. 661); People v. Darcy, 59 Cal.App.2d 342, 353, 139 P.2d 118; People v. Oreck, 74 Cal.App.2d 215, 222, 168 P.2d 186; People v. Montgomery, 47 Cal.App.2d 1, 11, 117 P.2d 437; City of Banning v. Desert Outdoor Advertising, Inc., 209 Cal.App.2d 152, 155, 25 Cal.Rptr. 621; People v. Flanders, 140 Cal.App.2d 765, 767, 769, 296 P.2d 13; People v. Pope, 168 Cal.App.2d 666, 669, 336 P.2d 236.) In Pope the reviewing court rejected the same contention which defendant makes here, i.e., that in some cases prison inmates were punished administratively for the possession of weapons while in isolated cases criminal charges were filed against them for violating section 4502.

Defendant's reliance on Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, is misplaced. That case 'does not stand for the proposition that persons violating the law are to have equal protection from prosecution, but rather for the proposition that equal protection of the law will be extended to all persons in the pursuit of their lawful occupations regardless of their race.' (People v. Flanders, supra, 140 Cal.App.2d 765, 769, 296 P.2d 13, 16; People v. Darcy, supra, 59 Cal.App.2d 342, 352--353, 139 P.2d 118; People v. Montgomery, supra, 47 Cal.App.2d 1, 11, 117 P.2d 437.) As observed in Darcy, the basis of the claim in Yick Wo is that the petitioner had been refused a license because of his nationality and not that he had been arrested because he was Chinese. (59 Cal.App.2d at p. 352, 139 P.2d 118.) If the rationale of Yick Wo were applied to persons arrested for crimes the effect would be that if some guilty persons escape prosecution, others who are apprehended should not be prosecuted. (People v. Flanders, supra; People v. Darcy, supra, at p. 353, 139 P.2d 118.)

Expert Witness

Upon the finding of the knife on defendant's person Correctional Lieutenant Richard A. Nelson read an admonition to defendant from a form designated 'Specific Warning Regarding Interrogation.' This admonition, in essence, stated the Miranda warning ³ and inquired whether defendant understood these rights and whether, having these rights in mind, he wished to talk. Defendant responded orally that he understood his rights and stated that he was willing to discuss the situation. Defendant then signed two of these forms, following which he submitted to an interrogation, responding to some questions and declining to answer others.

At the trial testimony was adduced by the prosecution with respect to the execution by defendant of these forms and defendant's statements elicited by the interrogation. Defendant, upon taking the stand, did not deny that the signatures on the two forms were his, but stated that they did not look like his signatures and that he did not remember signing the two forms. ⁴

Defendant's counsel thereafter moved the court to appoint two handwriting experts to determine the authenticity of the signatures appearing on the two forms. At the time said motion was made defense counsel represented to the court that he had submitted one of the documents purporting to contain defendant's signature and exemplars of defendant's signature to a handwriting expert in the sheriff's office for examination, and that said expert was of the opinion that the signature was that of defendant although it appeared to have been made under emotional stress. In making the motion counsel for defendant made no showing as to the necessity for the appointment of the two experts except that defendant felt that the authenticity of his signatures was material in that 'it bears directly upon an incident arising out of the factual circumstances.' The trial court denied the motion upon the basis that while the authenticity of the signatures might have some bearing on the issue of the credibility of the officers, it was immaterial since, in view of the oral Miranda admonition, it made no difference whether the forms were signed or not. The trial court also based its ruling on the ground that the motion was not timely made, in that it was made on the last day of the trial. The court also indicated that it would permit defendant to call the expert witness whom defendant had consulted.

Although the trial court was correct in stating that it is not necessary to obtain an accused's signature to a Miranda admonition, we perceive that the authenticity of defendant's signature on the subject forms was material to the issue whether the Miranda warning was in fact given to defendant. If evidence was adduced indicating that the signatures which the officers testified were those of defendant were not in fact his, their credibility would be subject to...