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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Chester Lewis JORDAN, Defendant and Appellant.

No. A033979.

Decided: July 18, 1988

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Blair W. Hoffman, Christopher W. Grove, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Frank O. Bell, Jr., State Public Defender, Joan Y. Nosse, Deputy State Public Defender, San Francisco, for defendant and appellant.

A jury convicted defendant Chester Lewis Jordan (Jordan) of the second degree murder of Juanita Anderson (Juanita), and he appeals from the judgment which was entered on the jury's verdict.

No contention is made that the jury's verdict was unsupported by substantial evidence.   And this court finds the proof of Jordan's guilt of second degree murder to be exceedingly strong.

We respond to the several appellate contentions as they are stated by Jordan.

 I. Contention:  “The trial court erroneously told the jury that they could not consider a lesser included offense unless they unanimously found appellant not guilty of the charged offense.”

The contention is founded on the trial court's giving of a jury instruction known as CALJIC 8.75, which informed the jury that they must unanimously agree that the defendant is not guilty of a greater offense before their consideration of a lessor included offense.

CALJIC 8.75 follows Stone v. Superior Court (1982) 31 Cal.3d 503, 519, 183 Cal.Rptr. 647, 646 P.2d 809, which states that:  “The jury must be cautioned, of course, that it should first decide whether the defendant is guilty of the greater offense before considering the lesser offense.”   We are bound by that authority.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

CALJIC 8.75 has now been repetitiously approved as constitutional, and otherwise proper, in murder cases such as that before us.  (People v. Gibson (1987) 195 Cal.App.3d 841, 848, 241 Cal.Rptr. 126;  People v. Campbell (1987) 193 Cal.App.3d 1653, 1673, 239 Cal.Rptr. 214.)

There was no error here.

 II.  Contention:  “The trial court erred by allowing evidence of appellant's prior assault.”

Jordan argues that the jury were improperly “instructed that the evidence of appellant's prior assault [with a deadly weapon] was to be considered by them solely to determine intent and identity in the current case.”

Issues of Jordan's trial for murder, or for necessarily included offenses, were the identity of Juanita's killer and whether Jordan had the intent to kill.

The complained of evidence was the testimony of Jordan's former wife Donna, that in 1978 he had committed a similar assault upon her, and that he had as a result, been convicted of assault with a deadly weapon.

Evidence Code section 1101 renders such evidence admissible on the issue of intent and identity.

Again there was no error.

Moreover, since the adoption, June 8, 1982, of Proposition 8, California's Constitution (art. I, § 28, subd. (d)), has stated:  “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, [our emphasis]․  Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, sections 352,․”  This constitutional principle is now the supreme law of California, superseding all contrary preexisting state statutory and decisional law.  (People v. Brisendine (1975) 13 Cal.3d 528, 549–550, 119 Cal.Rptr. 315, 531 P.2d 1099.)

The former rule, excluding evidence of criminal propensity (Evid.Code, § 1101, subd. (a)), had no federal constitutional underpinnings.   Instead, it originated in the common law of England “(1 Wigmore, Evidence (3d ed., 1940) § 194, pp. 646–647):  Such evidence ‘[was deemed] objectionable, not because it has no appreciable probative value, but because it has too much.’  [Our emphasis.]   Inevitably, it tempts ‘the tribunal ․ to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge.’  (Id., at p. 646;  quoted in People v. Schader (1969) 71 Cal.2d 761, 773, fn. 6 [80 Cal.Rptr. 1, 457 P.2d 841].)”  (People v. Alcala (1984) 36 Cal.3d 604, 630–631, 205 Cal.Rptr. 775, 685 P.2d 1126.)

In enacting Proposition 8, the people of California by the clearest of implication, found it difficult to comprehend how evidence of guilt could be too probative or relevant.   They concluded that under proper limiting instructions of the trial court and in its discretion, such evidence should be admitted on the issue of guilt, and opined that no longer might a defendant on trial for a serious crime, with a record of such crimes, stand before a jury and argue that there is “no evidence” that he had previously committed such a crime.

And were we, arguendo, nevertheless to find the here claimed error, we are of the opinion that it was harmless under the criteria of the state's Constitution, article VI, section 13, People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.

 III.  Contention:  “Admission into evidence of numerous color photographs of the victim's body constituted prejudicial error.”

An issue at Jordan's trial for murder was whether homicide of Juanita was willful, premeditated, or deliberate.   The above noted photographs had some relevance to that issue.   Another issue, as to which the photographs were relevant, was whether a deadly weapon had been used by Jordan.   And, of course, whether the killing had been attended by malice, was at issue.

“ ‘ “The admission of photographs of victims lies primarily within the discretion of the trial judge who determines whether their probative value is outweighed by their prejudicial effect.” ’ ․  “ ‘[A] trial court's refusal to exclude otherwise admissible photographs under [Evidence Code] section 352 will not be disturbed on appeal unless the prejudicial effect clearly outweighs the photos' probative value.” ’ ․   Although the photographic evidence may properly be admitted even if largely cumulative ․, the necessity of admitting such evidence is a relevant factor in assessing its probative value.”   (People v. Allen (1986) 42 Cal.3d 1222, 1255–1257, 232 Cal.Rptr. 849, 729 P.2d 115.)

And:  “Our Supreme Court has recognized that ‘ “ ‘murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant․’ ” '   Photographs disclosing and corroborating the manner in which the crime was committed are clearly relevant to the issue of malice.”   (People v. Williamson (1985) 172 Cal.App.3d 737, 747, 218 Cal.Rptr. 550.)

Here again no error is discerned.

 IV.  Contention:  “The trial court erred by making an evidentiary ruling which restricted appellant's right to present a defense.”

Of a defense witness, a psychiatrist, the prosecutor asked the following question on cross-examination:  “Are you familiar with the study in which approximately 80 test persons went to different hospitals and were perfectly normal people working, having jobs, no history of mental illnesses.   They go into the hospital and all they ask to be is admitted, complained of mental illnesses, saying they are hearing voices and then when they get in, just to act completely normal but request to stay and they stay there for two months and are observed by psychiatrists and when that study was done they monitored with the psychiatrist what opinions they came to about these 80 normal people and 90 percent of the psychiatrists came to the opinion these people were paranoid schizophrenia in remission suffering from mental illnesses and that they then asked mental patients who were not normal, who were in there, what they thought of these 80 people.   And they—the great majority of them felt they were normal?”

The doctor said he had heard of the study.   During re-cross he said that he “would like to comment on it.”

Upon the prosecutor's objection the doctor was not allowed to comment upon the study.   The trial court said:  “I am not going to permit you to do it at this time.   He can come back and list enumerable studies he also disagrees with․   That's what he would have told you, he didn't believe in it.   He didn't like it and on and on and on.”

Evidence Code section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

We are of the opinion that the trial court reasonably concluded that the probative value of the doctor's comment on the subject study would be “substantially outweighed by the probability that its admission [would] (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Again, there was no error.

V. Contention:  “The trial court erred by allowing in evidence of appellant's pending case (sic).”

The evidence indicated, and the prosecutor argued, that a possible motive for Juanita's killing was the fact that she was soon to testify against him in a pending “child endangerment” case.

Jordan argues:  “In the instant case over defense counsel's objection, the court allowed the prosecution to bring in evidence that appellant had a pending misdemeanor child endangerment case.   In that pending misdemeanor trial Juanita was to be the complaining witness.   The pending court appearance was scheduled for ․, the day after Juanita was killed.   The prosecution argued that the pending case gave appellant a motive to kill Juanita.   The probative value of the pending case was minimal.   The prosecution was asking the jury to make an assumption that appellant would kill Juanita because of a pending misdemeanor.   Appellant was allowed to provide the jury with the background of the pending charge, which involved leaving his son unattended in a car for a short period of time.”

 Evidence of motive is always admissible in criminal cases.  “The presence or absence of motive is a circumstance going to the question of the guilt or innocence of the accused, and proof thereof is always admissible and often valuable and is sometimes of assistance in removing doubt and completing proof which might otherwise be unsatisfactory, and sometimes is relevant in solving a doubt as to the degree of the offense and may be material where the evidence as to the identity of the criminal is circumstantial.  [¶] Considerable latitude is allowed in the reception of evidence on the question of motive.   It is settled that evidence having a direct tendency, in view of the surrounding circumstances, to prove motive on the part of a person to commit the homicide, and thus to solve a doubt either as to the identity of the slayer, ․, or the justification or excusability of his act, is admissible, however discreditably it may reflect upon the defendant and even where it may show him guilty of other crimes.”  (People v. Gonzales (1948) 87 Cal.App.2d 867, 877–878, 198 P.2d 81.)

Here also no error appears.

The judgment is affirmed.

I concur in the result only.



ELKINGTON, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

HOLMDAHL, J., concurs.