People v. White

• Decision Date: 31 December 1954
• Docket Number: Cr. 5613
• Citation: 278 P.2d 9,43 Cal.2d 740
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph WHITE, Defendant and Appellant.

Page 9

278 P.2d 9

43 Cal.2d 740

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph WHITE, Defendant and Appellant.

Cr. 5613.

Supreme Court of California, In Bank.

Dec. 31, 1954.

Rehearing Denied Jan. 26, 1955.

William B. Esterman and William B. Murrish, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

Joseph White was charged in Count I of an information with assault with intent to commit rape upon Velma Gonzales on November 17, 1952. In Counts II and III he was charged with rape and a violation of section 286 ¹ of the Penal Code committed upon Agapita Gallegas, both offenses alleged to have been committed on October 27, 1952. He pleaded not guilty as to each count and moved to challenge the jury panel upon the ground that there had been a systematic exclusion of Negroes, working people, men, and young persons. The motion was denied. Upon defendant's motion for a severance, the court ordered separate trials of the charges relating to each victim. Counts II and III were tried first and the jury found defendant guilty on both courts. He was sentenced to the state prison for the term prescribed by law as to each offense, the sentences to run concurrently. Count I was then dismissed. Defendant has appealed from an order denying his motion for a new trial and from the judgment.

There was evidence presented at the trial to the effect that shortly after Mrs. Gallegas had left her place of employment in downtown San Bernardino, in the early evening of October 27, 1952, she was accosted and forced into an empty lot where her assailant raped her and committed a violation of Penal Code section 2869 On November 18, 1952, defendant was arrested and taken to the police station where he was identified by Mrs. Gallegas as her assailant. Mr. Parker, a parole officer for the California Youth Authority, testified that during an interview defendant made a statement admitting the commission of the crimes charged. There was also testimony to the effect that defendant had confessed to Deputy District Attorney Hartley in the presence of a shorthand reporter, Roy Cain, who testified concerning the contents of the statement taken down by him. Defendant made no argument concerning the voluntary character of these confessions but merely denied having made them.

Defendant contends that the district attorney committed prejudicial misconduct in the cross examination of Maria Lawson, one of the character witnesses for the defense. After the witness had testified on direct examination as to defendant's good reputation in the community for chastity, virtue and morality, she was asked on cross examination: 'Had you heard that reports had been given to the San Bernardino Police Department that Joe White carried on homosexual activities in Meadowbrook Park?' Defendant objected and moved to strike the question on the ground that it had been asked in bad faith and without factual basis. The objection was overruled but the court reserved a ruling on the motion to strike and the witness answered in the affirmative. From her answer it was evident that she did not understand the question and after the meaning of 'homosexual' was explained to her, she stated that she had not heard such reports. A hearing was had (outside the presence of the jury) on the issue of the prosecutor's good faith in asking the question. At the hearing the prosecutor testified that his question was based upon information concerning defendant's homosexual activities gained from oral reports and written arrest reports received from Officer Avery of the San Bernardino Police Department, Mr. Parker of the California Youth Authority and Mr. Hartley of the district attorney's office. He also testified that he had researched the law on the propriety of such a question and had conferred with other members of his office about the legal point involved and that the consensus of opinion was that the question was a proper one. In view of this the trial court's finding that the question was asked in good faith and its refusal to strike the question are not without support. In this connection it is also contended that the court erred in failing to give, of its own motion, an instruction to the effect that questions concerning such reports are not proof of the facts therein contained and are not to be considered as evidence. Not only was such instruction not asked for, People v. Stevens, 5 Cal.2d 92, 100, 53 P.2d 133, but a negative answer was given by the witness. Under the circumstances defendant would appear to have suffered no prejudice.

It is further contended by defendant that certain testimony of Mr. Parker relating to a confession was improperly admitted. After defendant on cross examination had denied making any statements amounting to a confession, Mr. Parker was called as a rebuttal witness. He testified that during their conversation the defendant had made the confession which he had denied on cross examination. Defendant contends that it was error to admit Parker's testimony without preliminary proof that the confession was free and voluntary. Defendant did not object to the admission of the testimony at the trial on that ground and apparently no testimony was introduced at the trial indicating that the confession had been obtained by improper threats or promises. It is true that a confession not shown to have been freely and voluntarily made cannot be used for the purpose of impeachment, People v. Rodriguez, 58 Cal.App.2d 415, 419-420, 136 P.2d 626; however, when no objection has been made in the trial court as to involuntariness and no evidence is presented to show the involuntariness of the confession, it is not error to admit it for the purpose of impeachment, People v. Byrd, 42 Cal.2d 200, 210, 266 P.2d 505.

It is next contended by defendant that the court erred in instructing the jury (1) on the presumption of innocence; (2) on circumstantial evidence; and (3) 'in unexplained reference to Counts II and III.' With respect to the presumption of innocence the court gave an instruction in the language of section 1096 ² of the Penal Code and then added the following: 'If, when considering all the evidence, the jury are satisfied to a moral certainty and beyond a reasonable doubt that the defendant is guilty, then the presumption of innocence no longer prevails and you should find the defendant guilty.' Defendant argues that these added words suggested a distinction between the objective evidence and the presumption of innocence and that it therefore deprived him of his right to have all of the evidence, including the presumption, considered until a verdict was reached. The instruction, as given, merely told the jury that if after considering all the evidence (and this would include the presumption of innocence) they were satisfied that defendant was guilty beyond a reasonable doubt they should find him guilty since the presumption of innocence would then no longer apply. While not identical, the instruction is similar to the one upheld in People v. Arlington, 131 Cal. 231, 63 P. 347, and there would appear to be no prejudicial error.

In regard to circumstantial evidence the court instructed, in part, as follows: 'You are not permitted on circumstantial evidence alone, to find defendant guilty of any crime charged against him unless the proved circumstances not only are consistent with the hypothesis that the defendant is guilty of the crime, but are irreconcilable with any rational conclusion.' (Emphasis added.) Defendant argues that the omission of the word 'other' before the word 'rational' rendered the instruction ambiguous and meaningless, with the effect of depriving the defendant of his right to a jury trial. It is difficult to see how such an omission could have misled the jury. Moreover, the People's case rested chiefly on direct evidence and was merely corroborated by some circumstantial evidence. The references to Counts II and III, of which defendant complains, were made by the court in instructing the jury as to the form of the verdicts. The court merely instructed the jury that if they found certain elements to be present they were to find defendant guilty as 'charged in count II of the Information.' The reference to Count III was similar. Defendant argues that this reference to Counts II and III could not have failed to arouse the curiosity of the jury as to the existence and nature of another unmentioned count. It is difficult to see how any substantial prejudice could have resulted from a mere passing reference of this nature. Indeed, if any curiosity was aroused the jury could well have thought that Count I had been dismissed for lack of evidence or that the defendant had already been acquitted of it.

Defendant also contends that the trial court erred in limiting one phase of the cross examination of the prosecutrix. There is little merit in this contention. The incident complained of arose after the prosecuting witness had explained how, on the day of the alleged attack, she had happened to punch her time card out at 4:37 p. m. and yet not leave her place of employment until 5:35 p.m. Thereafter counsel for defendant insisted upon returning to the matter with an argumentative line of questioning. It is well established that where questions are asked which are improper, the court acts within the scope of its duty in refusing to allow them to be answered, even though no objection be made. People v. Parry, 102 Cal.App.2d 319, 322, 232 P.2d 899; People v. Yuen, 32 Cal.App.2d 151, 160, 89 P.2d 438, 90 P.2d 291; People v. Bartley, 12 Cal.App. 773, 777-778, 108 P. 868. Where, as here, the questioning is purely argumentative it is properly excluded. People v. Harlan, 133 Cal. 16, 65 P. 9; Kimball v. McKee, 149 Cal. 435, 86 P. 1089; People v. Ramey 70 Cal.App. 92, 232 P. 724; Newsom v. Smiley, 57 Cal.App.2d 627, 135 P.2d 24; People v. Horowitz, 70 Cal.App.2d...