People v. Washington

Citation248 Cal.App.2d 470,57 Cal.Rptr. 487
Decision Date09 February 1967
Docket NumberCr. 2553
CourtCalifornia Court of Appeals
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. George Earl WASHINGTON, Roosevelt Johnson, Defendants and Appellants.
OPINION

McCABE, Presiding Justice.

Defendants prosecute their appeal from judgments of conviction of robbery in the first degree.

The sole question presented by these respective appeals is: Was the ruling of the trial court correct when it overruled the objection of defendants to the admissibility of a transcript of the testimony of an absent complaining witness given at a preliminary hearing upon a showing by the prosecution that the witness (the asserted victim) was without the State of California?

Without the testimony of the absent witness (who was the victim), from the record the prosecution did not present sufficient evidence to sustain the judgment of conviction.

At the preliminary hearing held on October 11, 1965, the witness, Ellis Walker Williams (who was the victim of the alleged offense), was present and gave his testimony. The defendants were present in person, by their legal counsel, and each gave testimony at this hearing. The defendants' counsel cross-examined the witness in question. The testimony was recorded, a transcription of which was offered by the prosecution at the subsequent trial. All parties at this later time stipulated the transcript of the proceedings was accurate.

At the trial, Deputy District Attorney Stuart, while under oath, testified that he had been the deputy district attorney at the preliminary hearing. On October 20, 1965, the witness personally visited the district attorney's office and there spoke with Deputy District Attorney Stuart. The witness informed Stuart he had not been able to find a job in California; he had looked hard for a job as a cook, parts man, or anything and had been unsuccessful in this endeavor; he had run out of money and was returning to Louisiana as soon as he was forwarded funds by his mother. The witness informed Stuart that he did not intend to return to California in the foreseeable future. During this conversation on October 20, Stuart gave the witness a self-addressed stamped envelope in which to send to Stuart his correct Louisiana address. On that same day the witness gave Stuart his mother's address in West Monroe, Louisiana, together with her telephone number. On October 26, Stuart received a letter from the witness. By stipulation this letter was received in evidence. It reads:

'* * * 'Dear Sir: As you know, because of a shortage of money I had to return home. I can be reached at this address if you should need me at any time and will be glad to assit you in every way I can.

"If you should call this phone during the day and no one answers, please call after 5:30 p.m., as I may be out looking for work.

"Please, sir, if you should go ahead with the trial, I would appreciate it if you would let me know the outcome of it and would send my property (that was taken) here to me. Namely, what money that was recovered, my cigarette lighter and pocket knife.

"Very truly yours, Ellis W. Williams, 508 North Fifth Street, West Monroe, Louisiana. Phone No. FA--2--4191, Area code--318."

Stuart further testified that on November 28, 1965, he placed a person to person call to the telephone number given him by the witness. The man who answered identified himself as Ellis Walker Williams (the witness) and stated he was the same man who testified at the preliminary hearing on October 11. At the trial Stuart indicated he recognized the voice as that of Ellis Walker Williams. The witness stated he was at the West Monroe, Louisiana, address previously given to Stuart. Upon questions put by Stuart, the witness stated he would not be returning to California in the near future and in no event would he be in California on December 1 or 2, 1965. The witness stated he had no objection to returning to California but had no money to do so.

The court overruled the defendants' objection to the admissibility of the transcript of the testimony of Witness Williams given at the preliminary proceedings. The testimony of Ellis Walker Williams was admitted into evidence.

In summary, defendants' postulation on this appeal is: The right of confrontation and cross-examination of a witness before the trier of the fact is not dependent upon the provisions of subsection 3, section 686 of this State's Penal Code, but instead is guaranteed by the Sixth Amendment to the Constitution of the United States, and is applicable to state action by the Fourteenth Amendment, citing Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409, and hence having been denied such confrontation they were denied due process of law.

But the holdings of the U.S. Supreme Court in Douglas, supra, or Mattox, supra do not indicate defendants herein suffered any similar deprivation of constitutional guarantees.

In Pointer, supra, the majority opinion of the court written by Mr. Justice Black, with concurring opinions by Justices Harlan, Stewart and Goldberg, decided that whether due process within the Sixth Amendment as applied to state court proceedings by the Fourteenth or whether there was a denial of due process by and inclusively within the Fourteenth Amendment; where a defendant is confronted by a witness at the preliminary hearing but is without counsel to cross-examine (as in Pointer), due process of law is denied such a defendant. From Pointer it must be concluded that though defendant is present at a preliminary hearing, confronted by a witness, has an opportunity to cross-examine the witness but is without legal representation, he is denied due process of law if the testimony of the absent witness is later admitted into evidence at the trial by a reporter's transcript of the preliminary proceedings. Confined to the facts, Pointer is inapplicable to the facts of the case at bench. Defendants can find no basis to overturn their judgment of conviction in Pointer since defendants did have legal counsel at the preliminary proceedings who thoroughly and competently cross-examined the absent witness.

Although Obiter dictum, the verbiage of Mr. Justice Black in Pointer may be indicative of the future attitude of that court, but is an expression of the current California law when he stated:

'Nothing we hold here is to the contrary. The case before us would be quite a different one had Phillips' statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine. Compare Motes v. United States, supra, 178 U.S. (458), at 474, 20 S.Ct. (993), at 999, 44 L.Ed. 1150. There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them.'

The then existing statutory rule was stated in Penal Code section 686, subdivision 3, which provided in pertinent part:

'In a criminal action the defendant is entitled:

'* * *.imi

'3. To produce witnesses on his behalf and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or can not with due diligence be found within the state; and except also that in the case of offenses hereafter committed the testimony on behalf of the people or the defendant of a witness deceased, insane, out of jurisdiction, or who can not, with due diligence, be found within the state,...

To continue reading

Request your trial
10 cases
  • People v. Ashford
    • United States
    • California Court of Appeals Court of Appeals
    • September 16, 1968
    ...255 A.C.A. 864, 867, 63 Cal.Rptr. 471; People v. Haney (1967) 249 Cal.App.2d 810, 816, 58 Cal.Rptr. 36; and People v. Washington (1967) 248 Cal.App.2d 470, 475, 57 Cal.Rptr. 487.) Defendant relies upon Pointer v. State of Texas (1965) 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 and Douglas ......
  • People v. Moore
    • United States
    • California Court of Appeals Court of Appeals
    • December 10, 1970
    ...was a felony, regardless of the punishment imposed. It was, therefore, a felony for purposes of impeachment (People v. Washington (1967) 248 Cal.App.2d 470, 477, 57 Cal.Rptr. 487; People v. Theodore (1953) 121 Cal.App.2d 17, 29, 262 P.2d 630) quite apart from the fact that three years in pr......
  • Truman v. Thomas
    • United States
    • California Supreme Court
    • June 9, 1980
    ...the jurisdiction in which it was sustained. (People v. Moore (1970) 13 Cal.App.3d 424, 437, 91 Cal.Rptr. 538; People v. Washington (1967) 248 Cal.App.2d 470, 477, 57 Cal.Rptr. 487; People v. Miller (1961) 188 Cal.App.2d 156, 170, 10 Cal.Rptr. 326. See Evid. Code §§ 787, 788.) Utah law class......
  • People v. Cavanaugh
    • United States
    • California Supreme Court
    • August 19, 1968
    ...220 Cal.App.2d 267, 274, 33 Cal.Rptr. 816; People v. Cahan (1956) 141 Cal.App.2d 891, 901, 297 P.2d 715; cf. People v. Washington (1967) 248 Cal.App.2d 470, 475, 57 Cal.Rptr. 487, and cases cited), as has its counterpart in our sister states (State v. Smith (1965) supra, 87 N.J.Super. 98, 2......
  • Request a trial to view additional results
2 books & journal articles
  • Table of Cases null
    • United States
    • Full Court Press California Guide to Criminal Evidence Table of Cases
    • Invalid date
    ...776, 276 Cal. Rptr. 3d 76 (2d Dist. 2021)—Ch. 4-A, §4.1.4(2)(d); Ch. 4-C, §8.4.3(2)(a); Ch. 5-A, §2.2.1(1)(b)[5] People v. Washington, 248 Cal. App. 2d 470, 57 Cal. Rptr. 487 (4th Dist. 1967)—Ch. 4-B, §3.5.1(1)(a)[2] People v. Watkins, 170 Cal. App. 4th 1403, 89 Cal. Rptr. 3d 135 (3d Dist. ......
  • Chapter 4 - §3. Specific types of impeachment evidence
    • United States
    • Full Court Press California Guide to Criminal Evidence Chapter 4 Statutory Limits on Particular Evidence
    • Invalid date
    ...law for impeachment use. See Evid. C. §788; People v. Moore (2d Dist.1970) 13 Cal.App.3d 424, 437; People v. Washington (4th Dist.1967) 248 Cal.App.2d 470, 477. [3] Juvenile felony convictions. If a juvenile is tried as an adult and convicted of a felony, the juvenile's prior felony convict......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT