Robert L., In re
Decision Date | 20 November 1980 |
Docket Number | Cr. 36469 |
Citation | 112 Cal.App.3d 401,169 Cal.Rptr. 354 |
Parties | In the Matter of ROBERT L., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Petitioner and Respondent, v. ROBERT L., a Minor, Appellant. |
Court | California Court of Appeals Court of Appeals |
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz, Frederick C. Grab, Deputy Attys. Gen., for petitioner and respondent.
Quin Denvir, State Public Defender, Patricia L. Reber, Deputy State Public Defender, for defendant and petitioner.
As the result of two petitions filed respectively April 17 and May 4, 1979, appellant was found to be a person described by Welfare and Institutions Code section 602 in that he had violated Penal Code sections 12020 1 (carrying concealed dirk or dagger), 211 (robbery)[112 Cal.App.3d 404] and 487(3) (grand theft auto). He was ordered committed to the California Youth Authority on concurrent terms associated with the described violations of one, two and three years. The appeal is from the judgment (order of commitment).
Most simply stated, appellant on January 29, 1979, was found to be carrying a concealed ice pick of ordinary commercial manufacture when he, among others, was subjected to a precautionary pat down search by officers who, after observing a traffic violation, had stopped the car in which the detainees were riding. Discovery of the ice pick occasioned the first of the petitions enumerated.
The second resulted from a photographic identification of appellant by the victim, as the person who, with numerous others, had participated in relieving one Julian Valdez of the money from his person and in thereafter stealing his car at about 5:30 a. m. on April 28, 1979.
Appellant's sole contention respecting the ice pick charge is that that instrument is not, as a matter of law, a "dirk or dagger" within the meaning of the statute. (See fn. 1.) We find the contention lacking in merit and conclude that, under the circumstances present, the trial court was justified in its determination the ice pick fell within the statutory proscription.
Our view in this respect, again, (see People v. Villagren (1980) 106 Cal.App.3d 720, 727, 165 Cal.Rptr. 470) drives from principles set out in People v. Grubb (1965) 63 Cal.2d 614, 47 Cal.Rptr. 772, 408 P.2d 100. It was there observed that (Id. at 620-621, 47 Cal.Rptr. 772, 408 P.2d 100; fn. omitted.)
Here, appellant was detained with five other persons by police at 2:00 a. m. The ice pick was discovered concealed in his waist band. When asked by one of the officers why he had it, appellant replied Nothing further was necessary to show the instrument though "conceived for peaceful purposes, ... was wrapped in the indicia and circumstance of probable assault." (People v. Grubb, supra, 63 Cal.2d 614, 622, 47 Cal.Rptr. 772, 408 P.2d 100; cf. People v. La Grande (1979) 98 Cal.App.3d 871, 159 Cal.Rptr. 709; Bills v. Superior Court (1978) 86 Cal.App.3d 855, 150 Cal.Rptr. 582).
In the adjudication of the second petition hereinabove described appellant asserted by way of defense the alibi he was on the date of the robbery with his girlfriend at a party and otherwise engaged with her in such fashion he could not have been involved in the crime.
In further support of his innocence, it was sought to have introduced the contents of a letter from one Father Santillan, appellant's Catholic priest, to the apparent effect someone else had stated to him that the declarant and not appellant was the culprit. 2 The justifying theory proffered was that the declaration, being one against penal interest, was properly admissible as an exception to the hearsay rule, since Father Santillan's refusal to disclose the declarant's identity made him (the declarant) unavailable as a witness. (See Evid.Code, § 1230.) The trial court's rejection of the offered evidence, accordingly, is cited as error. We hold the ruling was proper.
The following colloquy respecting the question provides the basis for our determination:
Based upon the foregoing, it is clear to us the trial court was of the view an adequate showing of the declarant's unavailability had not been made. Thus while the most obvious source of his identity, i. e., the priest, was foreclosed, nothing was suggested which would indicate other possibilities for discovering his name and whereabouts were or would have been unavailing. By offering only that this information would not be forthcoming from Father Santillan, appellant, so far as the trial court was concerned, failed to satisfy his statutory burden as proponent of the evidence that the witness could not be produced through due diligence. We find no abuse of discretion in that determination. (See People v. Enriquez (1977) 19 Cal.3d 221, 235, 137 Cal.Rptr. 171, 561 P.2d 261; People v. Smith (1971) 22 Cal.App.3d 25, 32, 99 Cal.Rptr. 171.)
It is next contended certain comments made by the prosecution, respecting alleged threats to Julian Valdez, appellant's membership in a gang and whether certain defense witnesses were "covering up" for appellant, constituted prejudicial misconduct. Without detailing these statements, we deem it sufficient to observe both that the trial court, sitting without a jury, made it clear it was not influenced by them 3 and that no objection thereto was made by appellant's trial counsel. Under such circumstances, no error requiring reversal has been shown. (See People v. Green (1980) 27 Cal.3d 1, 27-34, 164 Cal.Rptr. 1, 609 P.2d 468.
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