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

PEOPLE of State of Californla, Plaintiff and Respondent, v. Jewell Ashby GOULD and Andrew Peter Marudas, Defendants and Appellants. *

Cr. 6673.

Decided: December 30, 1959

George Stahlman, Earle K. Stanton, Los Angeles, for appellant Jewell Ashby Gould. Max Solomon, John J. Bradley, Los Angeles, for appellant Andrew Peter Marudas. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

Defendants were jointly accused and convicted by a jury of second degree burglary. The indictment also charged against defendant Marudas two prior felony convictions, and three against defendant Gould, which were admitted.

The evidence viewed in a light most favorable to the judgment (People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911) discloses that the apartment of one Mrs. Fenwick was entered and a sum of money taken. At noon Mrs. Fenwick left her apartment, returning a few minutes later to pick up a foregotten item, and as she approached the premises she observed a man standing on her apartment steps and that her front door was slightly ajar. She entered, closing the door behind her, and as she started toward her bathroom a second man walked out of the bedroom into the living room. She asked him what he was doing but he did not answer; when he passed her she turned around and again asked him, in response to which he shouted ‘Go into the bedroom. * * *’ She did so and upon hearing the front door close went to the living room and observed two men running to an automobile parked down the street. Some change and a safety deposit key lay on the floor and $15 was missing from her wallet.

Approximately an hour later Officer Brewer arrived at her apartment and showed Mrs. Fenwick a packet of photographs (Ex. 3), from which she selected two—one of Gould and one of Marudas. (Exs. 1 and 2)—as the men she saw in and near her apartment. After she described their appearance, he left and returned shortly with enlarged photographs (Exs. 4 and 5), to which she pointed ‘as being similar’ to the small ones she had selected.

The next day another officer, deputy Cataldi went to Mrs. Fenwick's apartment and showed her the same packet (Ex. 3) from which she again picked out the photographs of Gould and Marudas (Exs. 1 and 2).

After his arrest, Gould had four conversations with the police. During the first, when asked if he committed the burglary, he replied ‘I don't know what you are talking about.’ Upon being told there was an eyewitness who placed him inside the apartment, Gould then said ‘I know what you are talking about’; but he did not recall whether he ‘shimmed the door or the door was lawfully unlocked’ in gaining entry. He said he took ‘a few dollars.’ Several hours later in another conversation he repeated substantially the same story. In a third, he again admitted he had been in Mrs. Fenwick's apartment and had taken some money. Later police took him to the street on which her apartment is located which he identified as the one on which he had been, but was not sure which apartment he had entered.

At the trial Gould denied he committed the crime and sought to establish an alibi by testimony that at the time he was in Oakland enroute to Lake Tahoe. In connection with his confession he testified that after his arrest he became ill at the station and did not remember having any conversation with police, but denied he admitted he had been to Mrs. Fenwick's apartment and said that when taken to the street he pointed out a building an acquaintance had managed. He said he had not been with Marudas and would not go any place with him.

Marudas denied he committed the offense, testified he and Gould were not on good terms, and offered alibi testimony that he had been home taking care of his children while his wife went to pick up her unemployment check.

Appellant Marudas contends that the admission of evidence pertaining to Mrs. Fenwick's extra-judicial identification of him as the man she saw standing on her steps and subsequently run from the premises was erroneous as hearsay, and constituted a prosecution effort to impeach its own witness; and that without this evidence there is not sufficient in the record to connect him with the offense. His position finds support in the law of this state.

Mrs. Fenwick, the only eyewitness, testified at the trial that at her home, on two occasions within a day after the burglary, she identified the man on the steps and who fled the premises as Marudas from photographs displayed to her by the officers and selected his photograph as depicting that person; and asked by police to describe him she testified that she had only a very slight glance as he passed her and couldn't tell them too much but said he had wavy hair, was a short man ‘probably my height’ and wore a blue sport shirt. Two police officers testified that they were present in her home when she selected the photograph of Marudas and identified him.

As to any further identification of Marudas as a participant in the burglary, none appears in the record. Mrs. Fenwick could not, and did not, identify him at the trial. Referring to the person she saw standing on her steps, when asked by the prosecution ‘do you see this man’ in the courtroom she answered ‘I can make no positive identification.’ Then asked: ‘* * * do you see anybody that resembles that person? she said: ‘I am sorry, I can't point out anyone who would be that person.’ Then the following occurred:

‘The court: That wasn't the question. The question is, do you see anybody that resembles that person?

‘The witness: The person standing at the door?

‘Mr. Antram: Yes.

‘A (by the witness): I don't know.’

Three facts are apparent from the People's case: (1) Mrs. Fenwick not only made no identification of Marudas at the trial, but made no attempt to do so—unable to identify anyone in the courtroom as, or who even resembled, the man who stood outside her apartment; (2) the only evidence connecting Marudas with the offense was her testimony that shortly after the burglary she identified him from photographs displayed to her by police; and the officers' testimony they were present in her home when she made the identification; and (3) Marudas, not implicated in any other way, made no confession or admission. Hence, the only evidence connecting Marudas with the offense is Mrs. Fenwick's extra-judicial identification of him long before the trial. Both parties rely upon People v. Slobodion, 31 Cal.2d 555, 191 P.2d 1—the respondent, to justify the admission of the evidence ‘to corroborate the story of the identifying witness'; and appellant Marudas, to demonstrate that before a nonjudicial identification is admissible identity of the defendant must first be made in the courtroom.

Recognizing that the identification of the accused at the trial is of little real testimonial force because ‘(a)fter all that has intervened, it would seldom happen that a witness would not come to believe in the person's identify,’ the author in IV Wigmore, Evidence (3d Ed.) pointed out at page 208: ‘To corroborate the witness, therefore, it is entirely proper * * * to prove that at a former time, when the suggestions of others could not have intervened to create a fancied recognition in the witness' mind, he recognized and declared the present accused to be the person.’ This rule, now established by the weight of authority in California, obviously contemplates that such evidence, hearsay by nature, would be admissible only after the witness at the trial identified the accused and for the sole purpose of corroborating his identification in the courtroom. Hence, it has been applied to admit extra-judicial identification under certain circumstances (People v. Sieber, 201 Cal. 341, 257 P. 64; People v. Slobodion, supra, 31 Cal.2d 555, 191 P.2d 1; People v. Aguirre, 158 Cal.App.2d 304, 322 P.2d 478; People v. Hood, 140 Cal.App.2d 585, 295 P.2d 525; People v. Richardson, 74 Cal.App.2d 528, 169 P.2d 44), but in each instance, before it was received, an identification of the accused as the one who participated in the offense was made by the witness in open court, and it was admitted to ‘supplement’ the latter (People v. Bennett, 119 Cal.App.2d 224, 226, 259 P.2d 476) or ‘to corroborate’ it and rebut any suggestion that it ‘was the result of recent contrivance.’ People v. Slobodion, supra, 31 Cal.2d 555, 560, 191 P.2d 1, 4. It is clear that the rule permits evidence of extra-judicial identification to be admitted only ‘after a culprit has been identified in the courtroom’, People v. Savage, 66 Cal.App.2d 237, 245, 152 P.2d 240, 244, ‘to ‘bolster up’ the testimony of the witness', People v. Sieber, 201 Cal. 341, 349, 257 P. 64, 67, to corroborate the testimony of ‘eye-witnesses who identify the defendant in the courtroom’, People v. Richardson, 74 Cal.App.2d 528, 542, 169 P.2d 44, 54, or ‘to assist the jury in weighing the evidence of identification’, People v. Hood, 140 Cal.App.2d 585, 589, 295 P.2d 525, 528.

Inasmuch as there was no courtroom identification of Marudas, there appears to be nothing in the record for evidence of nonjudicial identification to corroborate and nothing creating any inference of recent fabrication to rebut. The reason for the rule does not exist in the People's case against Marudas and its absence makes the admission of Mrs. Fenwick's testimony relative to her out of court identification erroneous—as hearsay, for which no exception for its admissibility is found in the record; and as impeaching testimony actually inconsistent with the testimony of the prosecution's witness relative to the identity of the accused at the time of the trial. The same considerations apply to the testimony of the police officers who were present in her home when she identified Marudas from their photographs. Eliminating this testimony, we find no evidence connecting appellant Marudas with the commission of the offense and order the judgment of conviction as to him reversed.

Referring to appellant Gould, his first contention that it was error for the trial court to refuse to dismiss the case against him because the People failed to establish his identity with the crime is predicated on the common practice of defense counsel to move for dismissal at the close of the People's case on the ground of insufficiency of evidence. There is no merit to either claim—that the trial court erred in failing to dismiss, since no such motion is available to the defense at that time (People v. Faber, 29 Cal.App.Supp.2d 751, 77 P.2d 921; People v. Kimball, 23 Cal.App.2d 32, 33, 72 P.2d 157), or that his identity had not been established by sufficient evidence.

At the outset, the nonjudicial identification problem besetting respondent in the case against Marudas does not here exist, for Mrs. Fenwick testified at the trial concerning the identity of Gould as the man she saw in her apartment. She described him from the witness stand as a tall, large man about six feet; and although advising the trial court that her memory is now vague and it is ‘awfully hard’ to point to someone after ‘all this time,’ upon being asked ‘Do you see anyone in the courtroom that resembles that person?’ she responded: ‘Some features, yes,’ and pointed to Gould. Further questioned, she said ‘Well, the man (Gould) who is sitting at the far end of the counsel table has some features but not all of the features of the man I saw in my apartment * * * but the man who was in my apartment seemed to have—he was a heavy man; he had rather fat cheeks and this man is very thin’.

Even though she admitted her identification was not positive and a doubt existed in her mind, we read Mrs. Fenwick's testimony to mean that Gould resembled the man she saw in her apartment. It is too well settled for argument that the identity of an accused as the perpetrator of a crime need not be positive or free from doubt, and testimony that he resembles him is sufficient (People v. Waller, 14 Cal.2d 693, 96 P.2d 344; People v. Fleming, 58 Cal.App.2d 37, 136 P.2d 88; People v. White, 44 Cal.App.2d 183, 112 P.2d 60; People v. Hightower, 40 Cal.App.2d 102, 104 P.2d 378); and that uncertainty of recollection and lack of positiveness goes to the weight of the testimony to be determined by the trier of fact (People v. Avery, 35 Cal.2d 487, 218 P.2d 527; People v. Arenas, 128 Cal.App.2d 594, 275 P.2d 811). The testimony of Mrs. Fenwick and the police officers relative to her identification of Gould from the ‘mug’ photos displayed to her at her home served the purpose the rule relating to extra-judicial identification was originally established to serve—it corroborated her testimony in court relative to her belief that Gould resembled the man who was in her apartment, and rebutted any inference of recent fabrication on her part or suggestion by the prosecution, by demonstrating that at a time when the man's appearance was clearest in her mind she identified Gould as that person; and it was properly admitted against Gould.

As to the sufficiency of the evidence, in addition to Mrs. Fenwick's testimony and her extra-judicial identification, Gould's voluntary confession that he was in her apartment and took some money, and his identification of the street on which she lived, appears in the record. The People having established that the burglary had been committed, the confession itself was sufficient to prove that Gould was present at the scene (People v. Moran, 144 Cal. 48, 77 P. 777; People v. King, 30 Cal.App.2d 185, 85 P.2d 928).

Much has been argued concerning the weakness of Mrs. Fenwick's testimony. Gould testified he stands between 5 feet, 11 1/2 inches to 6 feet, corroborating her description of his height; and it is for the trier of the fact to determine if, in the six months between the offense and the trial, he lost weight. Identity is a factual question and the strength or weakness of the identification is a matter for the determination of the jury (People v. Knight, 44 Cal.App.2d 887, 113 P.2d 226; People v. Farrington, 213 Cal. 459, 2 P.2d 814)—that a witness was not positive does not destroy its value (People v. Waller, supra, 14 Cal.2d 693, 96 P.2d 344), and that a witness has qualified his identification goes to its weight. People v. Robarge, 111 Cal.App.2d 87, 244 P.2d 407. Many factors, including his admission that he had been three times convicted of a felony, were no doubt taken into consideration by the jury in determining the credence of Gould's testimony, and it is obvious that the jury rejected his alibi and denial of guilt and confession, and accepted the testimony of the prosecution witnesses as worthy of belief; and the jury's implied finding as to identity we accept as final (People v. Harris, 87 Cal.App.2d 818, 198 P.2d 60).

Gould's next contention that the trial court's refusal to declare a mistial because of an officer's testimony that after Gould's arrest and before his wife was taken to the station he found in their apartment numerous fur pieces not involved in the burglary, is reversible error—is without merit.

On redirect examination, upon describing the circumstances surrounding the apprehension of Gould at his apartment, deputy Cataldi testified, in response to why defendant's wife and son were taken down to the station, that a search of the premises resulted in the finding of ‘numerous fur pieces * * *’ He was interrupted by defense counsel who moved to strike this testimony. The motion was granted and the jury instructed and admonished ‘to disregard the entire answer or any inference to be drawn therefrom.’ The motion for mistrial made thereafter was denied.

The record discloses that this testimony was elicited to rebut the inference established by the defense that Mrs. Gould and their 14 year old son were taken to the police station and held several hours to bring undue influence upon Gould to confess; the people attempted to show that they were taken, not for that reason, but because the officers found numerous fur pieces in the apartment. Whether this constituted error, the fact remains that the testimony was nevertheless stricken and the jury adequately admonished to disregard it; and we fail to apprehend any prejudice to Gould. Although we are advised that at a prior trial Cataldi gave the same testimony for which a mistrial was declared, the record of that trial is not before us and we are unaware of the circumstances under which it was elicited and which led the court to grant the motion. ‘We find nothing in the conduct of the Deputy District Attorney which would indicate bad faith and the mere fact that improper questions may have been asked, and objections thereto sustained, does not necessarily result in misconduct.’ People v. Andrus, 159 Cal.App.2d 673, 680, 324 P.2d 617, 622. Finally, the evidence, especially in view of Gould's confession, is clearly strong enough to negative any finding of prejudice, or that a miscarriage of justice resulted (California Constitution, Art. VI, Sec. 4 1/2).

Nor do we find error in the trial court's refusal to give requested instructions Nos. 26 and 27. No. 26 relates to evidence susceptible of different constructions, and No. 27 to the test of sufficiency, both basic criminal instructions pertaining to circumstantial evidence (Cal.Jic). The giving of No. 27 is predicated upon the posture of a case in which ‘circumstantial evidence alone,’ or ‘circumstantial evidence is substantially relied on’ in the People's case, and so relates. Gould claims that proof of his identity was circumstantial. Although it is true that identity may be proved by circumstantial evidence, a reading of the record before us leaves no other conclusion than that the identity of the accused was based primarily upon direct evidence—Gould's voluntary confession and testimony of an eyewitness concerning what she observed at the time of the offense, identifying Gould entirely from her observations of his appearance. Inasmuch as circumstantial evidence was neither ‘alone’ nor ‘substantially’ relied on in the People's case, the court was not required to give the instructions in question. Even assuming that circumstantial evidence corroborated the eyewitness' testimony, our conclusion would remain the same for ‘(w)hen any circumstantial evidence is merely incidental and corroborative of direct evidence, an instruction on circumstantial evidence is not necessary. People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805. In the instant case, direct evidence established the presence and participation of appellant at the scene of the robbery. Not only was he caught in the very act but subsequently he fabricated a falsehood to explain why he had gained possession of the cigarettes and then confessed.’ People v. Shannon, 147 Cal.App.2d 300, 304, 305 P.2d 101, 104. ‘The reason for this rule is found in the danger of misleading and confusing the jury where the inculpatory evidence consists wholly or largely of direct evidence of the crime’ (People v. Jerman, 29 Cal.2d 189, 197, 173 P.2d 805, 809).

As to Instruction No. 26, the court properly and adequately instructed the jury on the burden of proof by reading Instructions 21 and 22, and 71 and 73, relative to criminal and specific intent.

Appellant finally contends that his motion for new trial should have been granted. In support of that portion of the motion based on newly discovered evidence, he submitted the affidavits of two persons, from which he argues it might be inferred he was in a motel in Oakland on the date of the burglary. At most, the socalled new evidence appears to be cumulative, for he and his wife testified at the trial to his whereabouts in Oakland enroute to Tahoe on the date of the burglary; and it is the rule that a new trial because of newly discovered evidence will be granted only where it is material and not cumulative, due diligence has been shown, and it is likely that if offered it would produce a different effect. People v. Baltazar, 159 Cal.App.2d 595, 323 P.2d 1062. Gould made no showing to the trial court that the evidence he seeks to offer on a new trial could not have been produced at the trial had he exercised due diligence; nor was it demonstrated to the trial judge that if offered it would likely produce an acquittal. We find no abuse of discretion on the part of the lower court in denying the motion. People v. Fluery, 161 Cal.App.2d 630, 327 P.2d 47; People v. Williams, 155 Cal.App.2d 328, 318 P.2d 106.

For the foregoing reasons, the judgment against appellant Andrew Peter Marudas is reversed and the judgment against appellant Jewell Ashby Gould and the order denying his motion for new trial are affirmed.

LILLIE, Justice.

PARKER WOOD, P. J., and FOURT, J., concur.

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