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District Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Robert BRIGGS, Defendant and Appellant.*

Cr. 7296.

Decided: February 26, 1962

Russell E. Parsons, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gordon Ringer, Deputy Atty. Gen., for respondent.

In separate counts of an information, the appellant was charged with the attempted murder of his wife, Norma Briggs, and of his mother-in-law, Mary D. Nilson. He pleaded ‘not guilty’ and ‘not guilty by reason of insanity’. At the time of trial, the prosecution filed an amended information adding alternative counts of assault with a deadly weapon in violation of Penal Code, section 217. In a jury trial, appellant was found guilty of the two offenses of attempted murder. After the verdicts were entered, he withdrew his insanity plea and made a motion for a new trial, which was denied. Probation was denied, and he was sentenced to state prison for the term prescribed by law, the sentences to run concurrently. He appeals from the judgment of conviction.

On Sunday, July 19, 1959, Mrs. Mary D. Nilson spent the night at the home of appellant and his wife, Norma, who was the daughter of Mrs. Nilson, in the Pacific Palisades area of Los Angeles County. The next morning about 9 a. m. appellant and his wife prepared to drive Mrs. Nilson to her home in Los Angeles in a car which Mrs. Nilson had loaned them. The car was equipped with push-button automatic transmission and power brakes. Appellant drove the car, Norma sat in the middle and Mrs. Nilson sat on the right side of the front seat. Appellant drove to a gas station where he filled the gas tank and a five-gallon can with gasoline. He placed the can on the floor of the car between the front and rear seats. He turned the car into the mountains north of Sunset Boulevard in West Los Angeles and drove to a summit which overlooked a canyon below.

A short time later appellant stopped the car and got out. He opened the hood of the car, put both hands inside the engine, did something, and then said the motor was overheating. Norma looked at the temperature gauge and said it was not overheating. The car was idling and the door on the driver's side was open. Appellant shut the hood, returned to the driver's side of the car, pushed some buttons, took hold of the steering wheel and turned it until the front wheels began slowly to descend the mountain. Norma tried to struggle but appellant held the wheel until the car went over the edge.

When the car had gone down the slope about 50 feet, Norma put her foot on the brake and turned off the motor. Appellant ran down shouting, ‘Why did you put your foot on the brake?’ He put his own foot inside the car and tried to kick Norma's away. The brake pedal was a wide type and Mrs. Nilson put her foot on a part of it. Appellant put his hand in the car and tried to get hold of Norma's foot but failed to knock it off the brake. He then went to the back of the car, obtained a jagged rock and, with a savage look, began beating Norma in the face. Norma said, ‘Oh, Bob, why do you do this?’ Appellant struck Norma at least eight times. Mrs. Nilson had her arm around the back of the seat and attempted to ward off the blows, but was unable to do so.

Appellant went to the rear of the car. Norma got out and disappeared. Mrs. Nilson remained inside with her foot on the brake. The right door was wedged against the hillside. She moved farther to the left side of the car. Appellant returned to the driver's side with a rock and began beating her in the face. She took the rock away from him and threw it out of the window. Appellant then beat her with his fist. She seized his glasses and threw them out of the window. He stood there for a moment and then noticed that Norma was missing. He began to tremble and shake. He asked, ‘Where did Norma go? Where is Norma?’ He then sat on the floor of the car with his feet outside and his head on the door for a few moments repeating the question. Mrs. Nilson suggested he look for her on the road. He jumped up. The car groaned. Fearful that the brakes would no longer hold, she jumped out and it went down into the canyon some 450 to 500 feet. Mrs. Nilson landed in some shale. She could not walk nor stand in it; she fell. She asked appellant to help her and seized his arm. He pushed her aside, saying he wanted to find Norma. He went up to the road and disappeared. Mrs. Nilson remained in the shale for three and one-half hours in fear of her life, holding on to a clump of weeds. She finally attracted the attention of a passing motorist.

Shortly after noon Paul Weiss, a ranger at a nearby Boy Scout camp, arrived at the scene and saw Mrs. Nilson sitting in a dazed condition on a 2-foot by 4-foot ledge about 60 feet below the crest of the hill. About 12:20 p. m. Frank Gravante, a police officer, arrived at the scene. He discovered fresh tire marks made by the front and rear tires of an automobile. The marks commenced at the edge of the pavement and extended three or four feet to the edge of the cliff. At the bottom of the canyon he later discovered the car which belonged to Mrs. Nilson.

Appellant was encountered on the road at a point one and one-half to two miles back toward Sunset Boulevard by Henry Brugger, a chauffeur for the Huntington Hartford Foundation, which was located nearby. Brugger saw him ‘picking himself up off the pavement’ and asked if he could help him. Appellant lay down and started to cry ‘to help find Norma’. His shirt was stained with blood, his eyes were glazed and he was fronthing at the mouth. Brugger was unable to find any wounds on him. Appellant appeared to be in a state of shock. Brugger went for help and an ambulance was summoned. When Brugger returned about ten minutes later, he found appellant 500 yards farther down the road toward Sunset Boulevard. Appellant lay down and again cried out for Norma. He twitched and shook; then his body became stiff.

An ambulance conducted by Bruce Owens and William Sidebotham encountered appellant and Brugger on the road. Owens examined appellant. He found blood on his clothing but no injuries other than an abrasion on his forehead. He noted that appellant was perspiring heavily but was claim. Appellant was tied to a stretcher and placed in the ambulance. The ambulance then followed a motorcycle officer to the summit. Owens saw Mrs. Nilson on the ledge and participated in the rescue which was completed about forty-five minutes later. Mrs. Nilson was questioned by the police officer and, contrary to her wishes, placed in the ambulance with Briggs, after which questioning by the officers continued.

In the meantime, Norma was found near the bottom of the canyon. Another ambulance arrived on the scene and Mrs. Nilson and Norma were transferred to it. They were taken to the U.C.L.A. Hospital. Mrs. Nilson suffered a skull-deep laceration over her right eyebrow and superficial abrasions on her arms and legs. The cut was caused by a blunt instrument, such as a rock, a stone, a sun visor or a dashboard. Norma had superficial lacerations on her legs and at least five lacerations on her face. The wounds were jagged and could have been produced by the same kind of instrument or by being thrown against any kind of metal.

The evidence revealed that Mrs. Nilson and Norma were wealthy women. Prior to Norma's marriage to appellant in 1950, Norma and appellant had executed an antenuptial agreement wherein appellant agreed that all property then belonging to Norma, or which she might acquire after the marriage, and any income arising therefrom, would remain her separate property. He also relinquished all rights of inheritance in her property.

Norma and appellant had executed individual holographic wills containing reciprocal provisions in the latter part of June, 1959. The wills were dated January 5, 1959. Appellant's will bequeathed his guns to their children, three minor sons; the residue of his estate to Norma; and the residue to the children if she failed to survive him. Norma's will bequeathed her jewelry to the children; the residue of her estate to appellant; and the residue to the children if he failed to survive her. Each will named the other as executor.

On June 24, 1959, Norma and appellant had executed individual applications for life insurance policies in the face amounts of $300,000 each. They had also applied for $300,000 accident policies. The children were named as beneficiaries. The first annual premium for each policy was paid in advance. The applications for life insurance and medical reports had been transmitted to the home office of the insurance company in Chicago, and the policies were in force on July 20, the day of the alleged crimes. They were not received from the home office by the agent who had written the insurance until the following day. After June 24 appellant had inquired of the agent about once a week whether the policies had been issued. The agent had told him he had not yet been informed. At no time prior to July 20 had the agent advised appellant that the policies had been issued. The accident policies were not yet effective on July 20, 1959, and after the events of that day, the applications were not processed.

Appellant asserts numerous errors and questions the sufficiency of the evidence to sustain the convictions. So far as the sufficiency of the evidence is concerned, it is not the province of a reviewing court to present a detailed argument to support the verdicts where it appears that the question was one primarily turning on the determination of which witnesses should be believed. (People v. Phillips, 186 Cal.App.2d 231, 235–236, 8 Cal.Rptr. 830.) Such was the case here. Hence, we have limited our statement of the facts to those favorable to the prosecution.

‘In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end * * *.’ (People v. Gallardo, 41 Cal.2d 57, 66, 257 P.2d 29, 35; People v. Camodeca, 52 Cal.2d 142, 145, 338 P.2d 903.)

At the trial, appellant and Norma testified to the effect that the car went over the cliff by accident. Mrs. Nilson testified that the facts were as we have recited them. Numerous witnesses testified to Mrs. Nilson's enmity toward appellant. The jury viewed the scene. The verdicts indicate that the jury chose to believe the circumstances were as related by Mrs. Nilson. Assuming the truth of her testimony: appellant filled the tank of the car and a fivegallon can with gasoline; he placed the can of gasoline between the seats of the car; he drove Mrs. Nilson and Norma to a high cliff; on the pretext that the motor was too hot, he stopped the car at the edge of the cliff; the bottom of the canyon was some 500 feet below; he deliberately pushed the automatic transmission button and cramped the wheels of the car while Mrs. Nilson and Norma were in it, sending it over the cliff. These facts are ample to sustain the convictions of attempted murder.

Appellant contends that he was denied due process because the amended information did not give him notice of the specific charge against him. The amended information charged appellant, in Counts I and III with ‘the crime of ATTEMPTED MURDER, in violation of Sections 187 and 664, Penal Code’. Appellant says, ‘By reading these two sections, an attempt is made in the Indictment to coin a crime, for there is no such specific crime defined in the statute or penal code as attempted murder’. The argument seems to be that Penal Code, section 187, defines murder and that Penal Code, section 664, states the punishment for an attempt to commit a crime but that nowhere in the statutes is the crime of attempted murder defined or declared to be a public offense.

There is no merit in the argument. Section 664 clearly sets forth that one who attempts to commit a crime is punishable and section 187 defines the particular crime which it is alleged appellant attempted to commit. These sections establish attempted murder as a public offense (Penal Code, sections 6 and 15) and the information, substantially in the form in common use (Penal Code, section 951), alleges that appellant committed such public offense (Penal Code, section 950) in words sufficient to give him notice of the offense of which he was accused (Penal Code, section 952). Notice of the particular circumstances of an offense is given, not by detailed pleading, but by the transcript of the evidence before the committing magistrate; appellant was entitled to such transcript under Penal Code, section 870. (People v. Anderson, 55 Cal.2d 655, 657–658, 12 Cal.Rptr. 500, 361 P.2d 32.)

Likewise without merit is appellant's contention that the court erred in permitting him to withdraw his plea of not guilty by reason of insanity. He indirectly asserts that he did not know he was entitled to a jury trial of the question of his sanity, or that at such a trial he would have the right to re-examine a court-appointed psychiatrist and to present evidence in his own behalf. He argues there is nothing in the record to show that he knew he was waiving these substantial rights when he withdrew his plea.

The minute order of February 23, 1960, states: ‘Defendant personally and his counsel withdraw plea of ‘Not Guilty by Reason of Insanity’'. Appellant does not dispute the record. It must be presumed that his counsel advised him of his rights before he withdrew the plea. Where he appeared with competent counsel, it was not the duty of the court to urge him to reconsider or to explain his rights. (People v. Langdon, 52 Cal.2d 425, 432–433, 341 P.2d 303.)

Appellant asserts there was a serious violation by the district attorney of his right of discovery. During the cross-examination of appellant's wife, Norma, the trial deputy asked her if she had made a particular statement in the presence of Officer Thomas. She denied it. Out of the hearing of the jury, appellant's counsel objected to the use of any statement on the ground that under discovery proceedings a demand had been made for the production of statements made by all persons concerning any conversations and police reports in the matter, whether made then or at any other time. The deputy who was handling the case at that time had assured appellant's counsel on the telephone that the district attorney's office had no other documents relative to any statements that had not been produced for the defense and no statement of Officer Thomas was ever received by appellant.

The trial deputy explained that he had learned from other officers that Officer Thomas had had a conversation with Norma in the canyon. He asked Thomas if he had made any notes with reference to it and Thomas told him he had not. A few days before the trial began, the trial deputy asked Thomas to make a typewritten report embodying his conversation with Norma and any statements he had heard her make.

The court overruled appellant's objection and allowed appellant's counsel to inspect the report during a recess called immediately thereafter. After the recess, the trial deputy requested that three exhibits tending to show his good faith be filed: (1) a letter of October 9, 1959, from appellant's counsel thanking the district attorney's office for delivery of certain documents; (2) a demand made by appellant's counsel for certain specific documents; and (3) an affidavit of appellant's counsel made in connection with the demand. He stated that he was not aware of any telephone conversation nor of any ‘continuing demand’ for documents. The deputy who originally handled the matter stated to the court and counsel out of the hearing of the jury that his telephone conversation regarding documents demanded by appellant did not pertain to any documents which might come into the possession of the prosecution in the future.

The record shows there were in existence at the time of the preliminary hearing two crime reports and the arrest report incorporating statements of Norma which were inconsistent with her subsequent testimony. Appellant's counsel had inspected them. Officer Gravante testified that he, Thomas and a Sergeant Anderson prepared the crime reports. Thomas' name appears thereon. Gravante testified that the statements attributed to Norma were read to him by Thomas from notes he had made of his conversation with her, which he had then destroyed. Officer Peterson testified that the police report was prepared to show only a prima facie case.

On appeal it is not asserted that there was any bad faith or deliberate misconduct on the part of the prosecution. It is appellant's contention that he should have been provided with the typewritten statement or some memorandum of it well in advance of cross-examination so that he could have examined it with a view to impeachment of its author. There is no rule pursuant to discovery proceedings that requires the prosecution voluntarily to produce all documents for the defense. They can, of course, be obtained upon demand for their production, and a violation of the right to discovery may be ground for reversal on appeal from a judgment of conviction (People v. Estrada, 54 Cal.2d 713, 716, 7 Cal.Rptr. 897, 355 P.2d 641; People v. Cartier, 51 Cal.2d 590, 594, 335 P.2d 114). But no case had been cited to us, and we are aware of none, which holds that the prosecution must produce all documents which it obtains subsequent to a demand on the theory of a ‘continuing demand’. There was no violation of appellant's right of discovery.

The remaining contentions of appellant concern the admission of evidence. He contends it was prejudicial error to admit: (1) the testimony of witnesses (Weiss, Brugger, and Officers Gravante and Peterson) taken at the time the jury viewed the scene of the crime; (2) a rock which Mrs. Nilson testified resembled the rock with which appellant hit her and Norma; (3) the testimony of the ambulance driver, Owens, of Mrs. Nilson's statements to the police immediately after her rescue; and (4) the testimony of an attorney M. Craig Medoff, regarding the back-dated wills.

The first contention appears to be that it was error for the court to take any testimony while the jury view was in progress. We have reviewed the record and find no objection was made to the testimony, except for an objection which does not pertain to the present contention of appellant. In the absence of objection, the point may not now be urged on appeal In any event, we not that aside from certain introductory information supplied by the witnesses, their testimony merely pointed out the positions of objects observed by them when they were present at the scene shortly after the alleged crime and laid the foundation for the admission of photographs taken there at that time. (Cf. People v. Pompa, 192 Cal. 412, 421–422, 221 P. 198.) No prejudicial error appears.

Mrs. Nilson testified on direct examination that appellant ‘went to the back of the car and he got a rock that he brought from the rock pile at home * * *.’ No rock or other weapon was recovered at the scene although a search was made of the brush-covered terrain. There was evidence that Mrs. Nilson had also stated that appellant struck her with a tire iron. On cross-examination she admitted she did not actually see appellant take the rock out of the back of the car but ‘it is the same kind of rock exactly that he has in the rock pile at home’. She was also cross-examined with respect to the size, shape and color of the rock. She testified it was blue; she denied that she had ever said it was gray. Appellant's counsel read, in part, her testimony from the transcript of the preliminary hearing as follows: ‘* * * and he brought a big rock about this big, a jagged gray rock * * *.’

On redirect examination of Mrs. Nilson, the rock in question was displayed before the jury and marked for identification. No objection was made at that time. Mrs. Nilson testified: she had brought the rock from a rock pile at appellant's home; the rock resembled the rock with which appellant hit her and Norma; it was the same kind and same color; it was bigger than the one he used; the one he used was about three-fourths the size of the rock shown.

At the end of the prosecution's case, the prosecuting attorney offered numerous exhibits, including the rock, in evidence. At that time the following discussion occurred with respect to the rock: ‘MRS. ROOT [appellant's counsel]: If your Honor pleases, we do not believe that there has been a foundation laid—* * * And there is an objection to it, even for illustration purposes. * * * THE COURT: They will all be received and marked in evidence in the same manner as they have heretofore been received for identification, and with reference to the rock, the rock was only—the only identification that was given to that exhibit was for the purpose of illustrating the color of the rock allegedly used by the defendant, as stated by the witness Nilson, and to show a type of rock formation. Other than that, it has no other evidentiary value.’

It has been held, as urged by the prosecution, that objects similar to those connected with the commission of crime may be introduced in evidence for the purpose of illustration. (People v. Miner, 96 Cal.App.2d 43, 51, 214 P.2d 557; People v. Brown, 49 Cal.2d 577, 587, 320 P.2d 5.) The articles introduced for purposes of illustration in these cases cited by the prosecution, were similar to those used in the commission of abortions. In the latter case, the witness testified that the instrument, a syringe, was similar to one used by defendant but also that it differed in a number of particulars from that used. The court said (p. 587, 320 P.2d at p. 11): ‘While we do not commend the practice of introducing in evidence as illustration an object which is not substantially identical with the object to be illustrated, it does not appear that the use of the syringe as illustrative evidence could have prejudiced defendant.’

Appellant asserts the rock was ‘too remote’ and had no probative value. As the record indicates, the credibility of Mrs. Nilson was in issue. She had been impeached by a reading of her prior inconsistent statement regarding the color of the rock. If the jury on viewing the rock found that she could have in truth described it as either blue or gray, it tended to make her testimony credible despite what earlier appeared to be an inconsistency in her testimony, or at least an adverse reflection on her powers of observation or memory. We conclude that the admission of the rock for the limited purpose of illustration with that specific instruction by the court was not prejudicial error under the circumstances.

It is next contended that the court erred in allowing in evidence the testimony of Owens, the ambulance driver, concerning certain accusatory statements made by Mrs. Nilson to the police when she was being placed in the ambulance with appellant.

Accusatory statements may be properly admissible where there is a failure to make proper objection (People v. Stepp, 82 Cal.App.2d 49, 51, 185 P.2d 417; People v. Vacca, 185 Cal.App.2d 125, 129, 8 Cal.Rptr. 64), and where the court, through misadventure or neglect, neither rules nor reserves its ruling on an objection or motion to strike and the point is not pressed by the party making it, he is deemed to have waived or abandoned it. (People v. Staver, 115 Cal.App.2d 711, 724, 252 P.2d 700; Campbell v. Genshlea, 180 Cal. 213, 220, 180 P. 336.)

We conclude the assignment of error is not well taken for two reasons. In the first place, a substantial part of the testimony was given before objection was made and appellant's motion ‘that it go out’ was too indefinite to apprise the court and opposing counsel of the particular portion of the testimony and the ground on which it was contended it was inadmissible. In the second place, appellant did not press for a ruling on the motion. Had he done so, the questions whether each of the numerous statements was made in the actual presence of appellant and whether he had the opportunity to deny each of them could have been determined, in which case the court might well have construed some or all of the statements as properly admissible.

Over objection made by appellant's counsel on behalf of appellant and Norma on the ground of ‘privileged communication’, M. Craig Medoff, an attorney, was permitted to identify the holographic reciprocal wills of appellant and Norma as documents which he received from Norma while acting as her attorney a day or two after the alleged crime. Appellant contends this was a violation of the attorney-client privilege. No argument appears in his brief and we are unable to comprehend the basis for his claim of error.

An attorney is not incompetent to testify; he is excepted only when his testimony would reveal a communication declared to be privileged. (People v. Boford, 117 Cal.App.2d 576, 580, 256 P.2d 334.) Whether a matter claimed to be privileged was actually a communication, whether it was made in confidence, and whether it was received by the attorney in the course of business in his professional capacity are primary questions for determination by the trial court. (Holm v. Superior Court, 42 Cal.2d 500, 507, 267 P.2d 1025, 268 P.2d 722.) One who claims privilege has the burden of establishing the factual basis for application of a privilege. (Safeway Stores, Inc. v. Superior Court, 193 ACA 271, 274–275, 14 Cal.Rptr. 243; Tanzola v. De Rita, 45 Cal.2d 1, 6, 285 P.2d 897.) An act, done by the client in the sight of the attorney and during consultation with him, may conceivably be done as the subject of a communication or as part of a communication to him which was intended to be confidential. The question is whether it was intended to be done as such. (San Francisco v. Superior Court, 37 Cal.2d 227, 235–236, 231 P.2d 26, 25 A.L.R.2d 1418.)

The limited testimony of the attorney reveals only the fact that Norma left the wills with him. No affirmative showing appears in the record to indicate that this act was a part of a communication intended to be confidential. As far as the record indicates, the wills were simply transmitted by her to the attorney without explanation.

A document which is not merely a communication to an attorney but which has independent significance does not become privileged by transmission to an attorney. If the document has such independent existence as to be subject to compulsory disclosure while in the client's possession, it remains subject to disclosure despite its physical delivery to the attorney. (Greyhound Corp. v. Superior Court, 56 A.C. 353, 394–395, 15 Cal.Rptr. 90, 364 P.2d 266.)

Even if we were to assume, contrary to their obvious purpose, that the documents in question were simply confidential communications between husband and wife, they would not have been privileged to either spouse where they were in possession of the wife and material and relevant to the issues in a criminal action for a crime committed by the husband against the wife (Code Civ.Proc., § 1881 (1)), as is the case here. The transmission of these nonprivileged documents to counsel does not create a privilege where none existed before they were handed to him. Under the circumstances, there is no basis for any claim of privilege either as to the wills and their contents or as to the fact that Norma left them with the attorney. The question of whether there was a waiver of privilege, relied on by the prosecution at the trial and argued in the briefs, becomes moot.

The judgment is affirmed.

HERNDON, Justice.

FOR, P. J., and ASHBURN, J., concur.