Wells, In re

• Decision Date: 18 October 1971
• Docket Number: 9292,Cr. 8712
• Citation: 20 Cal.App.3d 640,98 Cal.Rptr. 1
• Court: California Court of Appeals
• Parties: In re Warren WELLS, on habeas corpus. PEOPLE of the State of California, Plaintiff and Respondent, v. Warren WELLS, Defendant and Appellant.

Page 1

98 Cal.Rptr. 1

20 Cal.App.3d 640

In re Warren WELLS, on habeas corpusPEOPLE of the State of California, Plaintiff and Respondent, v.Warren WELLS, Defendant and Appellant.

Cr. 8712, 9292.

Court of Appeal, First District, Division 4, California.

Oct. 18, 1971.

Hearing Denied Dec. 16, 1971.

Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, David E. Pesonen, Benjamin Dreyfus, Friedman, Sloan & Bresee, San Francisco, for appellant.

Thomas C. Lynch and Evelle J. Younger, Attys.Gen., of Cal., Albert W. Harris, Jr., Asst. Atty. Gen., Clifford K. Thompson, Jr., Edward P. O'Brien, John T. Murphy, Sanford Svetcov, Deputy Attys.Gen., San Francisco, for respondent.

CHRISTIAN, Associate Justice.

AppellantWarren Wells and seven codefendants were indicted on two counts of attempted murder (Pen.Code, § 187) and two counts of assault with a deadly weapon (Pen.Code, § 245, subd. (b)).Appellant's case was severed for trial.After two previous trials had ended in jury disagreement, appellant was finally found guilty of the assault charges and not guilty of attempted murder.The appeal is from the ensuing judgment of conviction; a petition for haveas corpus, filed by Wells, has been consolidated with the appeal.We find no error in the trial, but reverse the judgment so that appellant's challenge to the composition of the grand jury can be determined.

Appellant does not contest the sufficiency of the evidence, which shows that on the evening of April 6, 1968, Oakland Police Officers Darnell and Jensen, on patrol in West Oakland, were attacked by a group of armed men.The officers were both wounded, but Darnell was able to return the gunfire.Two groups of men fled from behind parked automobiles as other officers arrived.Appellant was soon found, wounded, in the bushes in front of a nearby building.A .30 calibre M-1 rifle and a bandolier containing three clips of live, .30 calibre, M-1 ammunition were found near appellant.At trial a technician testified that the rifle had fired six of the spent shell casings which were found in the area from whence the officers were attacked.

Speedy Trial

Eighty-three days elapsed between the conclusion of the second trial and the commencement of the third trial; appellant contends that this violated his constitutional right to a speedy trial.(U.S.Const., 6th Amend.;Cal.Const., Art I, § 13.)In determining whether a defendant has been denied a speedy trial, the courts must consider not only the extent of delay, but the circumstances of the particular case and the reason for the delay.(United States v. Ewell(1966)383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627.)In no case cited by appellant has a delay as short as 83 days been held to be a constitutional violation.(SeeNote, The Right to a Speedy Criminal Trial(1957)57 Colum.L.Rev. 846, 852, n. 38.)Appellant contends that the delay was due to a deliberate decision by the prosecution to try codefendant Charles Bursey, who had not yet gone to trial, before trying appellant for the third time.It is obvious that both trials could not be held at the same time, as they involved the same prosecutor, defense counsel, witnesses and evidence.The trial date for Bursey had been set more than two weeks before appellant demanded, by means of a habeas corpus petition, that he be tried on the date set for Bursey.It was not unreasonable for the court to deny this request and proceed with the trial schedule which had already been set.(SeePeople v. Lilliock(1968)265 Cal.App.2d 419, 436, 71 Cal.Rptr. 434.)Appellant was not denied a speedy trial.

Demonstrative Evidence

Appellant contends that the trial courtsection 352 because its probative value was and a large quantity of ammunition discovered in the area of the assault.He contends that this evidence was not relevant to any material issue in his case and that, even if the evidence was relevant, it [20 Cal.App.3d 64=- should have been excluded under Evidence Code section 352 bcause its probative value was outweighed by its prejudicial effect.

Demonstrative evidence that tends to clarify the circumstances of the charged crime is generally admissible despite its prejudicial tendency.(People v. Trujillo(1948)32 Cal.2d 105, 115, 194 P.2d 681;People v. Adamson(1946)27 Cal.2d 478, 485, 165 P.2d 3.)The theory of the prosecution was that appellant, and his codefendants, carried out an attack from ambush.Therefore, although the weapons and ammunition found in the area were not shown to have been used specifically by appellant, they were admissible to show the nature and apparent intent of the acts of which appellant was charged.We cannot say that the evidence was so prejudicial that it should not have been admitted despite its relevancy.Prosecution testimony had already revealed that a gun battle involving many persons and weapons had taken place.The jury had been informed that there were 49 bullet holes in the police car and 33 bullet holes in other cars in the area.In light of this evidence, it is doubtful that the minds of the jury were improperly affected by the sight of the actual weapons and ammunition.

Prejudicial Publicity

Somewhat inconsistently with the speedy trial point discussed above, appellant sought indefinite continuance of the trial on the ground that publicity concerning the Black Panthers, and identifying the perpetrators of the assault with the Black Panther party, would deny him a fair trial.On review an appellate court is to make an independent evaluation of the evidence to determine whether there is a reasonable likelihood that appellant did not receive a fair trial.(People v. Tidwell(1970)3 Cal.3d 62, 69, 89 Cal.Rptr. 44, 473 P.2d 748;Maine v. Superior Court(1968)68 Cal.2d 375, 382--383, 66 Cal.Rptr. 724, 438 P.2d 372.)

Appellant complains of no adverse publicity directly relating to him.Instead he contends that adverse publicity about the Black Panthers must have damaged him in the eyes of the jury.But the jurors indicated during voir dire that they understood that appellant, not the Black Panthers, was on trial and declared that they would not be influenced by mention of the Black Panther party.Indeed, eight of the jurors indicated that they had no opinion whatever about the Black Panthers; none of the remainder showed an adverse opinion of the party.Several jurors, when questioned about the condemnation of the Panthers by public officials, indicated that they were not aware of such statements.Publicity apparently continued during trial, but the record does not show that this publicity was conveyed to the jury.It is to be presumed that the jurors heeded the admonition, given by the court, to ignore such publicity if they did become aware of it.(SeePeople v. Santo(1954)43 Cal.2d 319, 331, 273 P.2d 249.)

The connection between the assertedly adverse publicity and appellant's case was remote, the responses of the jurors on voir dire indicated lack of bias, and there is no showing that publicity during trial reached the jurors; therefore there is no showing of a reasonable likelihood that publicity deprived appellant of a fair trial.

Peremptory Challenges

Appellant contends, on appeal and in a separate petition for habeas corpus, that the prosecution exercised peremptory challenges as part of a scheme to exclude all Negroes from the jury.To prove a consistent pattern of racial discrimination by the prosecution, appellant relies on records in two other cases involving his codefendants (People v. Bursey, 1/Crim. 8498, and People v. Lankford and Cotton, Superior CourtNo. 42287) as well as the record in his own case.Those two cases, and appellant's own case, were tried by the same prosecutor.In the three cases a total of 19 black persons were peremptorily challenged by the prosecution.No blacks served on any of the three juries.Appellant contends that these three cases are sufficient for a prima facie showing of discrimination and that the burden should therefore shift to the prosecution to prove that no discrimination occurred.

In Swain v. Alabama(1965)380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the United States Supreme Court declared: 'We have decided that it is permissible to insulate from inquiry the removal of Negroes from a particular jury on the assumption that the prosecutor is acting on acceptable considerations related to the casehe is trying, the particular defendant involved and the particular crime charged.But when the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries, the Fourteenth Amendment claim takes on added significance.* * * Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population.These ends the peremptory challenge is not designed to facilitate or justify.'(380 U.S. at 223--224, 85 S.Ct. 837--838.)The court went on to discuss the proof necessary to establish the defendant's claim.'This is not to say that a defendant attacking the prosecutor's use of peremptory challenges over a period of time need elicit an admission from the prosecutor that discrimination accounted for his rejection of Negroes * * *.But the defendant must, to pose the issue, Show the prosecutor's systematic use of peremptory challenges against Negroes over a period of time.'(380 U.S. at 227, 85 S.Ct. 839;emphasis added.)

Three cases(especially three cases chosen by the appellant) are insufficient to establish that the Alameda County...