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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clinton Lee COLLIER and William Earl Bentley, Defendants and Appellants.

Cr. 1691.

Decided: May 20, 1965

Mathews, Lewis & Bergen and Wesley H. Mathews, San Diego, for defendant and appellant Bentley. E. Werden Conway, San Diego, for defendant and appellant Collier, both under appointment by the District Court of Appeal. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and David S. Sperber, Deputy Atty. Gen., for plaintiff and respondent.

Appellants were found guilty by a jury in count one of violation of Penal Code, section 211 (robbery), and in count two of violation of Penal Code, section 182 (criminal conspiracy). Each was also charged with and admitted a prior conviction of a felony. Probation was denied and appellants were sentenced to consecutive terms of imprisonment on each count for the terms prescribed by law.

A robbery was committed at a liquor store in National City during the daylight hours of February 14, 1964. One of the robbers, who wore a hat and carried a sawed-off shotgun, was identified positively as Collier. The other robber was masked with a silk stocking and was not identified; he wore a fairly long coat and a hat, and he was about the size of Bentley. Both entered through the front door and left by a side door opening from a rear room onto a parking area. Collier and Bentley were seen together some hours later leaving a home on Highland Avenue occupied by one Billy Joe Alstadt, with whom Collier had been in the liquor store on February 13. Alstadt also had been the owner of another house to which he did not have access after March 20, when it was purchased by a new owner who found underneath it on April 1 a sawed-off shotgun similar to that used in the robbery. Shortly prior to the robbery a car passed the liquor store six times or more at intervals of 15 to 30 minutes, in which were two men and the driver, who may have been either a man or a woman, wearing a black wig.

On February 27, there were found in the house on Highland Avenue occupied by Alstadt, his brother and a woman, two hats, each similar to one of those worn by one of the two robbers, a coat similar to that worn by the unidentified robber, a wig and a knotted silk stocking.

On February 20, there were found in Collier's apartment two handwritten postcards and other papers, including two diagrams. The handprinted and handwritten parts of the diagrams were identified to be in the same handwriting or printing as that of Bentley by comparison with certain exemplars obtained by the police. A comparison of one of the diagrams (People's Exhibit 13) with an identified drawing of the floor plan and fixtures of the liquor store (People's Exhibit 7) would lead reasonably to an inference that the diagram (People's Exhibit 13) showed by printed words the location of the cash register, a beer box, the door into the rear room, the side door to the parking area, and, there, a position identified by the printed word ‘car.’

The other chart found in Collier's apartment compares with a large-scale drawing identified by the owner of a cleaning plant as the plan of his establishment and surrounding ground area. That witness testified that he had been accustomed to keep a large sum of money there on certain days of the month. Quite unnecessarily, he stated that he ceased doing so when he heard that his place was to be robbed. (At that point, both defendants moved for a mistrial, which was denied. The court admonished the jury to disregard the remark of the witness.)

Three exemplars of Bentley's handwriting and hand-printing (People's Exhibits 1, 15 and 16) were used by the expert, who testified they were in the writing and printing of the same person as the writer and printer of the other papers referred to. People's Exhibit 1 was obtained from Bentley at the city jail on an unspecified date, presumably November 4, 1963, the date it bears; People's Exhibits 15 and 16, on February 24, 1964, by the National City police while Bentley was in custody under suspicion in connection with the present charges.

There was testimony of two witnesses that Bentley was in San Diego at the time of the robbery in National City.

Neither defendant testified. The arguments of counsel are not before this court. The jury was instructed in part as follows:

‘It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. Thus, whether or not he does testify rests entirely in his own decision. As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or, if, though he does testify he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that, among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable.

‘In this connection, however, it should be noted that if a defendant does not have the knowledge that he would need to deny or to explain any certain evidence against him it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain such evidence.

‘The failure of a defendant to deny or explain evidence against him does not create a presumption of guilt, or, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. In deciding whether or not to testify the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove every essential element of the charge against him, and no lack of testimony on defendant's part will supply a failure of proof by the People so as to support by itself a finding against him on any such essential element.’

Appellants jointly urge on appeal that the trial court erred in admitting the plant owner's testimony, since it was immaterial and irrelevant to the charge, because no robbery of the plant was shown to have occurred; that the motions for mistrial should have been granted, for the reason that the plant owner's statement that he was told his plant was about to be robbed was clearly prejudicial and was not cured by the court's admonition; and that Penal Code, section 654, prohibits the consecutive sentences in this case. (The Attorney General concedes that the consecutive sentences were improper.)

In addition, Bentley argues that he was not informed of his rights to counsel and to remain silent before he gave the handwriting samples. He urges that the handwriting samples are as much an admission as are verbal statements.

Appellant Collier, in oral argument, made for the first time the claim that the sawed-off shotgun received in evidence should not have been admitted. The shotgun was found under a house owned by Billy Joe Alstadt at the relevant period, the address of which was written on a paper (People's Exhibit 18) found in Collier's apartment. All of this was relevant evidence which, together with the weapon, was properly received.

The testimony of the plant owner was admissible. It permitted the inference of a possible uniform plan of operation on the part of one or both defendants.

The district attorney disavowed any intention to elicit the statement that the jury was admonished to disregard, and any knowledge that such a statement would be made. Since the witness did not identify anyone as the possible robber or the source of his information, and the court admonished the jury to disregard the remark, the denial of the motions for mistrial was not improper.

The consecutive sentences should not have been imposed and the defendants should have been sentenced on only one of the two convictions. (People v. Keller, 212 Cal.App.2d 210, 27 Cal.Rptr. 805.)

Two of the three handwriting and handprinting specimens obtained from Bentley (Peoples Exhibits 15 and 16) were given by him while in custody on suspicion of having committed the present offenses, and after the police had obtained the chart of the liquor store (People's Exhibit 13), the comparison of the printing on which, with the specimens of Bentley's printing, furnished the essential element otherwise lacking to sustain a verdict of guilty.

Before giving People's Exhibits 15 and 16, Bentley was not advised of his right to counsel and his right against self-incrimination. He contends that under People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, the failure to advise him of his right to counsel made the admission into evidence of People's Exhibits 15 and 16 reversible error, although no objection was made at the trial to their admission.

The third exemplar (People's Exhibit 1) was obtained before the crimes charged here were committed and no point has been made with regard to it.

It has long been held in California that the giving by a defendant in custody of a non-coerced exemplar of handwriting does not violate the defendant's rights against self-incrimination under California Constitution, article 1, section 13, or the Fifth Amendment of the Constitution of the United States. (People v. Harper, 115 Cal.App.2d 776, 252 P.2d 950; People v. Smith, 113 Cal.App.2d 416, 248 P.2d 444; People v. Gormley, 64 Cal.App.2d 336, 148 P.2d 687.)

Respondent, at page 14 of his brief, states:

‘* * * an attorney could not have advised appellant to refuse to give the handwriting exemplar. It has long been held a handwriting exemplar is not within the privilege against self-incrimination. People v. Matteson, 61 A.C. 511, 514 [61 Cal.2d 466, 39 Cal.Rptr. 1, 393 P.2d 161]; People v. Harper, supra. It would have been improper for appellant to refuse to have submitted the sample of his handwriting, and no attorney would have advised him to do that.’

With that statement we must disagree. In People v. Matteson, supra, 61 Cal.2d 466, at page 469, 39 Cal.Rptr. 1, at page 3, 393 P.2d 161, at page 163 cited by respondent, it is said:

‘Evidence obtained by the state from a defendant by brutality is not admissible against him. (Rochin v. [State of] California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183 [, 190–191, 25 A.L.R.2d 1396, 1403].) It is irrelevant that a handwriting exemplar does not fall within the privilege against self-incrimination; the rule of the Rochin case is a rule of exclusion, and the fact that the evidence does not fall within other exclusionary rules does not save it.’

Even if the obtaining of an exemplar and its use in evidence do not constitute self-incrimination, it is probable that there must be a preliminary showing of voluntariness. In People v. Whitaker, 127 Cal.App. 370, at page 373, 15 P.2d 883, at page 884 it was said:

‘Furthermore, it cannot be said that the exemplar is analogous to a confession and governed by the rules pertaining to its introduction into evidence, for, as it is said in People v. Hall, 105 Cal.App. 359, 287 P. 533, 534: ‘It is only with respect to confessions, which are acknowledgments in express terms by a party in a criminal case, of the truth of the crime charged, that the rule prevails that preliminary proof that they were voluntary must be made before they can be admitted in evidence.’'

If the furnishing of an exemplar does indeed constitute an admission, we doubt that the quoted language as applied to handwriting specimens is any longer true in view of People v. Atchley, 53 Cal.2d 160, 346 P.2d 764, which requires preliminary proof of voluntariness of admissions as well as confessions.

At the time People's Exhibits 15 and 16 were given by Bentley, the police had in their possession the chart of the liquor store (People's Exhibit 13). Had they presented People's Exhibit 13 to Bentley and inquired if he had placed thereon the printed words, his affirmative answer would have been a damning admission. Logic compels the conclusion that the obtaining of an exemplar of his handwriting or printing equally amounts to an implied admission (that the handwriting or handprinting of the exemplar is his handwriting or printing) which might serve to complete the chain of circumstances indicating his guilt.

The problem raised by appellant Bentley receives extended treatment in 10 Vanderbilt Law Review (‘Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination,’ Weintraub). Since the appeals now before us can be disposed of on another ground, we do not reverse on the ground that it may have been error to admit People's Exhibits 15 and 16; and we leave unanswered the question whether the possible error was non-prejudicial under section 4 1/2, article 6, California Constitution, since one exemplar, People's Exhibit 1, was, without question, properly received. The obtaining of the exemplars amounted to no more than an implied admission. The Dorado rule, as applied to admissions as distinguished from confessions, is subject to section 4 1/2, supra. (People v. Hillery, Cal., 44 Cal.Rptr. 30, 401 P.2d 382, May 3, 1965.)

However, since the judgments must be reversed as to each appellant because of the giving of the instruction condemned in Griffin v. State of California (April 28, 1965), 85 S.Ct. 1229, the objection to the exemplars may perhaps be obviated on a re-trial by the use of other available samples of Bentley's handwriting. It appears from the record that Bentley had been on parole from a facility of the California Institution for Men. No doubt, therefore, such samples, as well as People's Exhibit 1, could be used.

In Griffin v. State of California, supra, the court said:

‘We take that in its literal sense and hold that the Fifth Amendment, in its direct application to the federal government and its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.’

From the record before us and from other available records in the court below, it cannot be determined whether the instruction condemned in Griffin and given in the instant case was requested by the defendants or either of them. We cannot speculate, therefore, whether the unthought-of error was invited.

The record on appeal, moreover, does not include the arguments of counsel. The sweep of Griffin, as indicated by the language quoted, is so broad as to apply, even though the district attorney may not have commented on the defendants' failure to testify. Although the trial judge could not have been expected to be clairvoyant as to the decision in Griffin v. State of California, supra, rendered long after the trial of the present case, we must nevertheless bow to the higher authority and reverse because of the instruction given.

Judgments reversed.

WHELAN, Justice.

BROWN, P. J., and COUGHLIN, J., concur.