People v. Wilson

• Decision Date: 20 September 1967
• Docket Number: Cr. 5829
• Citation: 254 Cal.App.2d 489,62 Cal.Rptr. 240
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse WILSON, Defendant and Appellant.

Page 240

62 Cal.Rptr. 240

254 Cal.App.2d 489

PEOPLE of the State of California, Plaintiff and Respondent, v. Jesse WILSON, Defendant and Appellant.

Cr. 5829.

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

Sept. 20, 1967.

Francis C. Stockum, San Francisco, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen. of the State of California, Robert R. Granucci, Lawrence R. Mansir, Deputy Attys. Gen., San Francisco, for respondent.

ELKINGTON, Associate Justice.

Defendant Jesse Wilson was found guilty by a jury of assault with a deadly weapon with intent to commit murder (Pen.Code, § 217). The court thereafter ordered the conviction reduced to that of assault with a deadly weapon (Pen.Code, § 245(a)). From an order granting probation this appeal is taken.

At the trial substantial evidence in support of the charge was introduced by the prosecution. Defendant does not contend otherwise.

The first assignment of error is stated as: Appellant was denied the constitutional privilege against self-incrimination.

In an obvious attempt to establish that he could not have been driving his car at the time and place of the alleged assault as indicated by prosecution evidence, defendant testified he had loaned his car to a Miss Rockmore some hours earlier. On cross-examination he was asked if he had driven the car to Miss Rockmore's house. The question was objected to on the ground that the answer might tend to incriminate him on a charge of driving with a suspended or revoked driver's license. ¹ The objection was overruled and the defendant answered that he had so driven his car.

The question of the district attorney was clearly relevant, and it was proper cross-examination. 'A defendant in a criminal action * * * can not be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief. * * *' (Pen.Code, § 1323; see also People v. Zerillo, 36 Cal.2d 222, 227--229, 223 P.2d 223; People v. Teshara, 141 Cal. 633, 638, 75 P. 338.)

The defendant's Fifth Amendment rights were not violated. By taking the stand and testifying on the subject matter to which his claimed rights related he waived them. Brown v. United States, 356 U.S. 148, 155--156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589, states '(One) cannot reasonably claim that the Fifth Amendment gives him not only this choice (of testifying to his own version of the facts) but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell.' (See also Witkin, Cal.Evidence (2d ed.) Witnesses, § 935, pp. 871--872.)

Defendant's second assignment of error is: Appellant was prejudiced by the improper admission of testimony of witness Henry Broussard.

Prosecution evidence indicated that the victim of the assault, Herman George, had been shot in the arm in the early morning hours of October 2, 1962. Defense witness Cottonham testified that a 'little bit' after midnight, October 2, 1962, while parked in a car near 1125 Pierce Street (a considerable distance from the scene of the shooting as fixed by the prosecution) he saw three people in an automobile. They were Yvonne Rogers, Herman George and an unidentified third man (not the defendant) who was the driver. Herman George got out of the car, there was a sound like a shot or backfire of a car, and he grabbed his arm. The other parties then got out of the car and all three walked into 1125 Pierce Street which is the apartment house where Yvonne Rogers lived. Fifteen or twenty minutes later Henry Broussard, Yvonne's only brother, drove up, parked his car, got out, and he also walked into the building at 1125 Pierce Street.

Thereafter the defense rested. The prosecution presented rebuttal witnesses and rested. Defense rebuttal witnesses were then put on the stand. They were followed by more prosecution rebuttal witnesses who in turn were succeeded by a defense witness. Up to this point no objection was made by either side to the order in which witnesses were called. Then Henry Broussard was called to the stand by the People. He testified that on the evening of October 1, 1965, he worked as a cabdriver, that he arrived home at about 12:45 the next morning, and that he did not on the evening of October 1 or the early morning of October 2 go to 1125 Pierce Street.

Defendant contends that since Broussard's testimony was in no way related to the testimony of the defense witness who immediately preceded him it was not proper. He insists the testimony was reserved by the prosecution for the purpose of making a last minute dramatic appeal to the jury and that he did not have the opportunity to investigate Broussard's statements. He relies upon People v. Carter, 48 Cal.2d 737, p. 753, 312 P.2d 665, p. 675, from which he quotes the following: 'The purpose of the restriction (cf. Pen.Code, § 1093(4)) is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent's case is suddenly confronted at the end of trial with an additional piece of crucial evidence.'

We first point out that no objection appears to have been made to the introduction of the complained of testimony. The error, if it be error, was therefore waived and defendant may not now complain. ² '(A) reversal would not be justified by reason of any incorrect order of proof where no objection thereto was interposed in the trial court.' (People v. Alvarez, 212 Cal.App.2d 406, 409, 28 Cal.Rptr. 141, 143; see also Witkin, Cal.Evidence (2d ed.) § 1285, p. 1188.) In any event, if the quoted language (fn. 2, ante) does disclose an intent to object, as stated in People v. Carter, supra, 48 Cal.2d 737, 754, 312 P.2d 665, 675, 'since defendant did not make completely clear to the trial court the objection that he now argues, we would not be justified in finding that there has been an abuse of discretion.'

Even had proper objections been made we consider that the trial court, in its discretion might properly have allowed Broussard's testimony. It was concededly rebuttal testimony. (See fn. 2, ante.) It would not have been proper as part of the prosecution's case in chief, as the evidence which was the subject of People v. Carter, supra, 48 Cal.2d 737, 312 P.2d 665, would have been. We do not find here an 'additional piece of crucial evidence' or a magnification of evidence or unfair surprise, as in Carter. Nor do we see any prejudice resulting from deferring this rebuttal testimony until after an extra round of rebuttal witnesses had testified.

Defendant contends if there was no objection to Broussard's testimony, then he did not receive adequate representation and that under the rule of People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, his conviction must be reversed. To justify Ibarra relief on the ground of constitutionally inadequate representation by counsel an extreme case must be disclosed. It must appear that counsel's lack of diligence reduced the trial to a farce or a sham. Defendant has the burden of establishing his allegation of inadequate representation not as a matter of speculation but as a demonstrative reality. (People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35; see also People v. Ibarra, supra, at p. 464, 34 Cal.Rptr. 863, 386 P.2d 487.) We have read the record of the trial. Defendant was ably represented by an experienced trial lawyer. The criteria of Ibarra and Reeves as to inadequate representation are here wholly inapplicable.

The district attorney may have had a reason, known to defense counsel and believed by him to be probably acceptable to the court, for not being able to present the witness sooner. More likely the failure to object was simply a manifestation of an often extended courtesy of counsel on matters not involving...