People v. Wojahn
Citation | 198 Cal.Rptr. 277,150 Cal.App.3d 1024 |
Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. James Jordan WOJAHN, Defendant and Appellant. A018409. |
Decision Date | 19 January 1984 |
Court | California Court of Appeals |
Annette Lombardi, Santa Rosa, for defendant and appellant.
John K. Van de Kamp, Atty. Gen. of the State of Cal., Ann K. Jensen, Stanley M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Appellant was charged with attempted murder (Pen.Code, §§ 187, 664), burglary (Pen.Code, § 459), assault with a deadly weapon (Pen.Code, § 245, subd. (a)), robbery (Pen.Code, § 211), forced oral copulation (Pen.Code, § 288a, subd. (c)), and rape (Pen.Code, § 261, subd. (2)); there were allegations as to the use of a deadly weapon (a knife) in the commission of the burglary and robbery (Pen.Code, § 12022). In addition, a prior conviction, forced oral copulation (Pen.Code, § 288a), was alleged. Appellant pleaded not guilty, denied the prior conviction and moved for a bifurcated trial on the issue of the prior conviction. The motion was granted.
Appellant was tried before a jury and convicted on all substantive charges. However, as we shall discuss in more detail below, the jury was discharged without having had the issue of the prior conviction put before it. Subsequently, that issue was tried, over appellant's objection. After appellant's objection was overruled, he waived jury. The court then tried the issue of the prior conviction and found it to be true.
Appellant was sentenced to the upper term of nine years for attempted murder, and consecutive sentences of one year for robbery and eight years for rape. The three years aggravated term for burglary and four years for aggravated assault were stayed. An additional five years was imposed for the prior, for a total of 23 years less 259 days of credit.
Appellant contends that the trial court erroneously: (1) admitted testimony about a prior jail sentence in the guilt phase; (2) admitted testimony in reference to evidence lost by the police; (3) imposed a consecutive sentence for the robbery conviction without expressly stating the factors upon which it based its determination; and (4) the trial court proceeded, without jurisdiction, to try him on the prior after having dismissed the jury, in violation of his constitutional rights against double jeopardy and a speedy trial. (Pen.Code, § 1025.) For the reasons set forth below we affirm the judgment as modified to strike the five year enhancement for the prior.
The record reveals the following pertinent facts: On January 2, 1982, appellant entered the Good Finds Store in Boyes Hot Springs where the victim, Rosie Melero, was working alone. He robbed her at knife point and after securing the doors, bound her hands, orally copulated and forcibly raped her. Appellant, who was wearing brown cloth gloves, then attempted to suffocate Ms. Melero. She wrestled and begged for her life, and convinced him to spare her life.
Appellant first contends that the trial court erred to his prejudice by admitting testimony implying a prior jail confinement despite the bifurcation order prohibiting reference to the prior conviction during the guilt phase. The record indicates that the victim stated that during her struggles with appellant she asked him why he was doing this to her. He gave two reasons, (1) "he was tired and frustrated with living in Boyes Hot Springs" and (2) "so he could go back to jail ... the only place where he felt comfortable."
The testimony was relevant in two aspects on the crucial issue of identification in that appellant lived in Boyes Hot Springs and had been previously in jail. The grant of a bifurcated trial on the prior conviction issue merely guaranteed appellant that no evidence of the alleged prior felony would be presented during the guilt phase. The disputed testimony and resulting stipulation that appellant was previously in jail is not tantamount to evidence of a prior felony conviction. As the trial court noted, a person can be jailed for traffic offenses, misdemeanors, or pending a trial. Therefore, the admission of the testimony was not erroneous.
In any event, the prosecution presented ample evidence to prove that appellant was the perpetrator. The victim positively identified him in open court. The description of the perpetrator she gave to the sheriff's deputy matched the appellant. Both the victim and the store owner recognized appellant as a vendor with whom they had previously done business in the store. When apprehended appellant had in his possession brown cloth gloves like those described by the victim, as well as the approximate amount of money taken in the robbery. Appellant's blood type matched the blood type found from the semen on the bed spread used during the rape and in the victim's panties. Appellant admitted ownership of a knife like the one described by the victim. Furthermore, appellant admitted that he had sold things to the store.
Given this overwhelming evidence it is not reasonably probable that the exclusion of the testimony relating to appellant's desire to return to jail would have resulted in a more favorable outcome. Thus, even if it was error to admit this portion of the testimony, it was not prejudicial error.
Appellant's second contention is that the trial court erroneously admitted testimony in reference to evidence lost by the police in violation of People v. Hitch (1974) 12 Cal.3d 641, 644, 652-653, 117 Cal.Rptr. 9, 527 P.2d 361. The record reveals that during the trial the victim testified that she recognized the appellant from a previous business transaction in which appellant sold some clothing racks to the store and a rubber boat to her. She states that she "asked him to fill out a purchase slip ... I wrote across [the slip] clothes racks, thirty dollars, and I requested that he fill out the top portion with his name, his address, and his phone number." This receipt was given to the police but lost. The trial court ruled that the contents of the receipt could not be introduced into evidence by secondary evidence.
Appellant argues that the court's sanction came too late because the victim had already testified about the existence of the receipt, and that this reference deprived him of a fair trial.
The trial court was faced first with a "Best Evidence" issue and, secondly, a People v. Hitch issue. The Best Evidence Rule requires the admission of the original writing to prove the content of that writing (Evid.Code, § 1500). If the original is lost, as in the instant case, Evidence Code sections 1501 and 1505 allow the admission of either a copy or oral testimony as to the content of the writing.
However, our Supreme Court ruled in People v. Hitch, supra, 12 Cal.3d 641, 645-653, 117 Cal.Rptr. 20, 527 P.2d 372, that when evidence cannot be disclosed as a result of intentional but non-malicious destruction by the investigative officials due process requires exclusion of the evidence unless the prosecution meets the burden of demonstrating that the involved governmental agencies have established, enforced, and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the evidence. This rule was extended to the "negligent loss of evidence" in People v. Swearingen (1978) 84 Cal.App.3d 570, 574-575, 148 Cal.Rptr. 755. Thus the court here properly excluded all testimony about the contents of the receipt.
Appellant mistakenly argues that the trial court excluded any reference to the receipt and the victim's testimony about the existence of the receipt violated the court's ruling. The record reveals that the court's ruling was to exclude the admission of any secondary evidence about the contents of the receipt. The victim's testimony only refers to the existence of the receipt, not to its contents. In this connection, appellant further argues that the trial court abused its discretion by refusing to grant either his motion for mistrial or for dismissal. "[A] motion for a mistrial," like a motion for dismissal, "presupposes that the effect of the objectionable evidence 'is so prejudicial as to be incurable by striking it and admonishing the jury to disregard it.' " (People v. Guillebeau (1980) 107 Cal.App.3d 531, 547, 166 Cal.Rptr. 45.)
To demonstrate the degree of harm caused by the victim's reference to the receipt appellant points to the jury's request, during deliberations, for clarification as to whether the receipt had supplied the police with the appellant's name. After rereading the testimony, the court instructed the jury, "[y]ou have to decide the case based solely on whatever evidence that was brought before you ... if something isn't touched on in the testimony before you I can't add anything to it and you must decide."
We find that the trial court's Hitch sanction was appropriate; the victim's testimony did not violate this sanction; there is no harm evidenced which was sufficient to warrant dismissal or a mistrial.
Appellant next erroneously contends that the trial court imposed a one year consecutive sentence for the robbery without stating on the record the factors in aggravation that warranted the consecutive terms. When directing that any sentence be served consecutively to another, the sentencing judge must state his reasons on the record. (People v. Anjell (1979) 100 Cal.App.3d 189, 203-204, 160 Cal.Rptr. 669.)
The record reveals that the sentencing court expressly stated the factors which warranted consecutive terms; namely separate and distinct objectives, premeditation, and planning. Appellant's contention, therefore, fails.
The final contention presents a question of first impression in California. He contends that the trial court was without jurisdiction to try him on the prior conviction after having dismissed the jury, as he was constitutionally entitled to the...
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