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District Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Enrique PEREZ, Defendant and Appellant.

Cr. 245.

Decided: May 04, 1966

Peter G. Fetros, Sacramento, for appellant. Thomas C. Lynch. Atty. Gen., Raymond M. Momboisse and Theodore T. N. Slocum, Deputy Attys. Gen., Sacramento, for respondent.

The defendant, Enrique Perez, was accused of a whole saturnalia of crime in Sacramento. The information under which he was convicted alleged two previous felony convictions for robbery in the first degree committed in March of 1962; they were ultimately admitted by the plea of the defendant. The charges of present crime were stated in four separate counts: the first alleged robbery of $50 from Fred Fauble, the bartender at the Viking Club, on the 3rd day of January, 1965; the second charged robbery of James Monahan at the Corner Market in Sacramento County on January 15, 1965, and the abstraction of $77, a brown leather wallet, and a G. E. radio; counts 3 and 4 grew out of the robbery of Ralph's Bar in Sacramento; count 3 involved the taking of an undetermined amount of money from Ralph's Bar in the lawful possession of the bartender, Ray Biner; and count 4 referred to money stolen from a guest of the bar, Eli Dragash, on the same date, January 13, 1965. Each of the four counts charged that the defendant was armed with a deadly weapon, to wit: an automatic pistol. The jury brought in a verdict of guilty as to all four charges. It is noteworthy that one David Perez, not related to Enrique, admitted participation in the robberies of the Corner Market and Ralph's Bar by pleading guilty.

The defendant appealed from ‘the final judgment and sentence made and rendered in said Superior Court on May 10, 1965, and from the whole thereof.’ This appeal is to be treated as a single appeal from the four counts covered by the judgment. (People v. McDonough, 198 Cal.App.2d 84, 86–87, 17 Cal.Rptr. 643.)

Appellant presents three arguments for reversal, saying:

(1) That it was prejudicial error for the court and the prosecuting attorney to comment on the failure of the appellant to testify regarding certain counts of the information (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106); (2) that the court committed prejudicial error by allowing evidence concerning the alleged robbery by the defendant of the Modern Variety Store, a crime which was not charged in the information, but which, according to the People, showed plan, design, and characteristic pattern of criminal activity; and (3) that, as a matter of law, there was insufficient evidence to sustain convictions on counts 3 and 4 of the information.

We shall treat these contentions in inverse order. The evidence very clearly establishes the propriety of the conviction on count 1 (the Viking Club robbery), in connection with which the defendant left his fingerprints at the scene of the crime, and on count 2 (the Corner Market robbery), in which there was identification of the defendant as a participant in the crime by eyewitnesses.

Count 1 alleged the robbery on January 3, 1965, of the Viking Club at 1445 33rd Street in Sacramento, at which time $325 in cash, a Shell credit card, and a BankAmericard were stolen. Frederick Fauble was working on the premises as the bartender. One of the participants was dark complexioned with dark hair and was armed with a small automatic pistol; the other robber was described as being blonde and light skinned; the darker-skinned criminal held a gun on Fauble and ordered him to lie on the floor.

Appellant took the stand and denied the robbery, saying that he had been with his brother, Miguel, and a friend, Joseph Rosales, from 7:30 p. m. on January 3, until 1 a. m. on January 4; this claim was supported by testimony of the brother and of Mrs. Joseph Rosales, but was rejected by the jury.

Enrique Perez admitted that he had made numerous purchases by using the BankAmericard stolen from Fred Fauble, but claimed that he had been given this card in early January by one Robert Gomes, after originally trying to sell it to him; when he used the card he signed the name ‘Fred Fauble’ as buyer.

Among the purchases made by the defendant with the stolen BankAmericard on days closely following the robbery were the following:

On January 4, 1965, it was used to purchase a $24.95 watch from the Ben Franklin Store in Davis; on the same day, the stolen card was used at the IXL, Inc. store at 804 ‘j’ Street in Sacramento, to purchase a pair of black imitation leather gloves similar to those received in evidence; on January 4, 5, or 6, 1965, Fauble's card was used at Devlin's Shoe Den, 1007 11th Street, Sacramento, to purchase the pair of shoes which appellant was wearing in court at the time of the trial; on January 5 and 7, 1965, the credit card was used to purchase gasoline at two different Shell service stations in the Sacramento area for appellant's vehicle bearing license number LDT 141; on January 7, 1965, a black, narrow-brimmed hat was bought from Jim Patterson's Men's Store, 9th and ‘K’ Streets, Sacramento.

Count 2 involves the robbery of the Corner Market at 1700 ‘V’ Street, Sacramento. James Monahan, the storeowner, and his wife were the victims. Appellant took the witness stand in his own behalf and testified to an alleged alibi, which was rejected by the jury. This robbery occurred at about 7 p. m. David Perez was the ‘heavy set’ robber armed with an automatic pistol, who confessed to this crime and also to the holdup of Ralph's Bar. Appellant, the smaller robber with a lighter build, carried an ‘odd looking,’ revolver with a ‘hexagonal’ barrel. Both participants wore dark coats and black gloves, probably leather, dark narrow-brimmed hats, and dark pants.

Each of the men held a glove or cloth up to his face during most of the time so that his nose and mouth were covered. Appellant had his hat pulled down to the level of his eyebrows; he went to the counter with gun in hand and said, ‘This is a stickup,’ and he made Mrs. Monahan put all the money from the cash register into a paper bag. Mr. Monahan was ordered to hand over his wallet which contained $14 to $17. The storekeeper testified that appellant said ‘to drop our hands and not make a move, or not to look at him or he would kill us.’

When the appellant walked behind the counter, he dropped the covering from his face, and the Monahans got a momentary full face view. He took Mrs. Monahan's radio from the counter beneath the cash register, and left the store with his partner, David. Besides stealing the radio, the robber took $69 in cash.

Each of the Monahans, in open court, identified appellant as the shorter of the two robbers who held them up.

Counts 3 and 4 are concerned with the robbery of Ralph's Bar at 1730 16th Street in Sacramento, and of a customer there, one Eli Dragash. Here, there was no evidence of fingerprints or of personal identification; the verdicts on counts 3 and 4 depend on circumstantial evidence. There were three participants; they took coins and bills from the cash register; one of the robbers was a large man with a ‘footballtype’ build, and the other two were smaller. David Perez, the large man, pleaded guilty to both the Ralph's Bar robbery and the Corner Market robbery; he was wearing a white Halloween mask over the lower part of his face at Ralph's Bar. Neither the bartender nor Dragash was able to look at the faces of the shorter men. Dragash, who was partly blind, testified as to some of the items of clothing worn by one of the participants and the weapon used in the crime.

A criminal conviction will ordinarily not be reversed on insufficiency of the evidence unless it is clear to the appellate court that there is not sufficient substantial evidence, upon any hypothesis, to support the verdict. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Hickok, 230 Cal.App.2d 57, 59, 40 Cal.Rptr. 687.) The jury was in a position to view the witnesses who testified and to weigh the evidence both direct and indirect leading to their verdict, and ‘[t]his court may not disturb such finding or the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction.’ (People v. Farrington, 213 Cal. 459, 463–464, 2 P.2d 814, 815.)

The appellant contends that the evidence in support of the convictions on counts 3 and 4 (Ralph's Bar) merely raises a suspicion of guilt. However, the record does contain substantial, even though circumstantial, evidence supporting the jury's finding on those two counts. It was stipulated that David Perez was one of the robbers—the one who was said to have had a ‘football player’ physique. Enrique Perez was with David Perez at Sylvia Moreno's apartment, which was located approximately three blocks from Ralph's Bar, at about 1 or 1:30 a. m. on January 13, 1965; that was just before or just after the robbery. Eli Dragash stated the approximate weight and height of one of the shorter robbers and Ray Biner, the bartender, also estimated the height of one of them; the jury, of course, had a full opportunity to observe appellant. Eli Dragash testified that one of the shorter robbers wore a hat, mask, and a three-fourths length coat and also that he carried a .38 revolver. This dress was identical with, or at least markedly similar to, that worn by appellant in the Corner Market robbery, which took place two nights later in virtually the same neighborhood. The weapons used by the robber in both places were apparently identical in size and shape.

Mr. Dragash was ordered to lie down by one of the shorter robbers, and he was then ‘frisked.’ Similarly, in the Viking Club holdup, one of the two relatively short robbers ordered his victim, Fred Fauble, to lie down and he then took Fauble's credit card and other personalty. In the Viking Club robbery, Enrique Perez was certainly a participant because his fingerprints were found on a cigar box, which he had handled.

While there is difficulty in relying upon this circumstantial evidence, we would not feel justified in interfering with the jury's determination in this case as to counts 3 and 4, except for the violation of the rule set forth in Griffin v. State of California, supra, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106, as hereinafter discussed.

Appellant next argues that it was prejudicial error to permit evidence of the robbery of the Modern Variety Store in Sacramento on November 10, 1964, allegedly by defendant and another person, as that crime was not charged in the information. Of course, a defendant cannot be tried for any offense other than that specified in the indictment or information (People v. Albertson, 23 Cal.2d 550, 576, 145 P.2d 7), and evidence of collateral crimes is not admissible, except when such evidence is material to the issues before the court. (People v. Brown, 168 Cal.App.2d 549, 553, 336 P.2d 1; People v. Sanders, 114 Cal. 216, 230, 46 P. 153.) In this connection, evidence of other crimes may be admitted to show plan, scheme, system, design, or a characteristic pattern of criminal activity by the accused. (People v. Houston, 219 Cal.App.2d 187, 192–193, 33 Cal.Rptr. 26; People v. Rosoto, 58 Cal.2d 304, 330, 23 Cal.Rptr. 779, 373 P.2d 867; People v. Mims, 160 Cal.App.2d 589, 597, 325 P.2d 234; People v. Peete, 28 Cal.2d 306, 314–315, 169 P.2d 924.)

People v. Gay, 230 Cal.App.2d 102, 104, 40 Cal.Rptr. 778, holds that the admissibility of evidence of this type is, generally speaking, a question for the trial court.

The collateral offense allegedly committed by the defendant at the Modern Variety Store has notable similarities to one or more of the four robberies for which appellant was on trial. In the crimes charged in the information as in the Modern Variety Store offense, the robbers were masked in various ways. At Ralph's Bar and the Corner Market, one robber was the taller. In the Viking Club and Corner Market incidents, one robber, short in stature, wore a dark coat or jacket. As in the robberies of Ralph's Bar and the Corner Market, the shorter criminal wore a narrow-brimmed hat and carried a revolver.

In the robberies of Ralph's Bar and the Corner Market and also in the Modern Variety Store holdup, the larger robber gave the major orders to his victims. In several of the offenses charged, the shorter robber carried on most of the activity involved in gathering the loot. In the Modern Variety Store holdup it was the shorter criminal who went behind the counter, cleared out the currency in the cash register and searched for the money orders. In the Viking Club and Ralph's Bar holdups, a robber of limited height moved the victims out from the bar, made them lie down, and then ‘frisked’ them. In the Corner Market and Viking Club crimes, a short participant went behind the bar and rummaged through the items there in search of something of value in addition to cash.

As in the Modern Variety Store robbery, the perpetrators of the Viking Club and Corner Market holdups sought to steal more than cash. At the Modern Variety Store robbery, they took money orders which they obviously hoped to negotiate. In the Viking Club affair, the participants stole two credit cards from the victim and afterwards used one card repeatedly to buy various articles. In the Corner Market holdup, the shorter robber closely investigated the counter near the cash register and removed Mrs. Monahan's radio. In the Ralph's Bar holdup, the robbers ‘frisked’ their victims and found that the bartender had no wallet and the partly blind customer had only six dollars; but one robber looked around the cash register for other types of property, moving cigar boxes as he did so.

Enrique Perez was implicated in the crime at the Modern Variety Store by his confession to Richard Bostic in his apartment at San Francisco that he had acquired the personal property that day in a Sacramento robbery. Appellant was implicated in the Viking Club robbery by leaving his fingerprints at the scene of the crime and through the use by him afterwards of the stolen BankAmericard. He was implicated in the Corner Market holdup by eyewitness identification by two of his victims.

The record in its totality substantiates that the Modern Variety Store robbery was similar in significant respects to one or more of the four offenses charged in the information. In admitting proof of the collateral offense, the trial judge, after holding an extensive hearing of the question out of the jury's presence, cannot be held to have abused his discretion.

Finally, appellant contends that the ruling of the United States Supreme Court in Griffin v. State of California, supra, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106, requires a reversal. Both the deputy district attorney in his argument and the trial court in its instructions followed the authorization apparently given by the California Constitution (art. I, § 13), and stated to the jury that, while a defendant did not have to take the stand, still, if he did not do so and thereupon try to explain facts of which he must have had knowledge, an adverse inference might be indulged against him. The Griffin case holds that a state may not constitutionally permit either a judge or a prosecutor to comment in a criminal action upon a failure of the defendant to testify (U.S.Const., 5th and 14th Amends.). In the Griffin case, the trial judge had instructed the jurors that they might consider the defendant's failure to take the stand, and that among the inferences they could draw therefrom, those unfavorable to the defendant were the more probable. Prior to the issuance of that opinion, it had been assumed by the court that the Fifth Amendment prohibited any such comment in federal courts, but that the Fourteenth Amendment did not make the Fifth Amendment applicable in that respect to state trials. (Adamson v. People of State of California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903.) However, Malloy v. Hogan, 378 U.S. 1, overruled Adamson v. People of State of California, to the extent of making the privilege to remain silent applicable to defendants in state trials; and the Griffin case held that the Fifth Amendment ‘commands the no comment rule’ in cases like the present. (See Mishkin, The Supreme Court 1964 Term, 79 Harv.L.Rev. 56, 159–160.)

In the majority opinion, Mr. Justice Douglas suggested that there are many reasons besides guilt which might lead a defendant to decide not to testify; he quoted with approval the following excerpt from Mr. Justice Field's opinion in Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650:

‘It is not every one who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not every one, however, honest, who would therefore willingly be placed on the witness stand. The statute, in tenderness to the weakness of those who from the causes mentioned might refuse to ask to be witnesses, particularly when they may have been in some degree compromised by their association with others, declares that the failure of a defendant in a criminal action to request to be a witness shall not create any presumption against him.’

To the argument that a jury would inevitably draw such inferences anyway from a defendant's failure to take the stand, Justice Douglas replied:

‘What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.’

The Griffin case unquestionably applies to the instant action and it warrants a reversal: (1) unless by taking the witness stand and testifying with respect to two of the counts, the defendant waived the constitutional privilege as to all of them, or (2) unless the error was not prejudicial by reason of article VI, section 4 1/2 of the California Constitution. (People v. Bostick, 62 Cal.2d 820, 823, 44 Cal.Rptr. 649, 402 P.2d 529; Witkin, California Criminal Procedure, 1965 Supplement, § 497A, p. 106; § 762A, pp. 141, 142.)

Was there a total or only a partial waiver here of the constitutional right granted by the Fifth Amendment in that Perez did testify as to the charges contained in counts 1 and 2 but did not give evidence with respect to counts 3 and 4? In Redfield v. United States, 315 F.2d 76, at page 80, cert. denied 369 U.S. 803, 82 S.Ct. 642, 7 L.Ed.2d 550, it is said:

‘* * * the privilege against self-incrimination is one which may be waived (Hashagen v. United States, 9 Cir., 283 F.2d 345), and such a waiver occurs when a defendant elects voluntarily to testify. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054.’

(See Dyson v. United States, 9 Cir., 283 F.2d 636, 637.)

In Johnson v. United States, 318 U.S. 189, 195–196, 63 S.Ct. 549, 552–553, 87 L.Ed. 704, the United States Supreme Court, speaking through Mr. Justice Douglas, held that in a proper case the privilege against self-incrimination granted by the Fifth Amendment could be waived:

‘The case of an accused who voluntarily takes the stand and the case of an accused who refrains from testifying (Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257) are of course vastly different. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054. His ‘voluntary offer of testimony upon any fact is a waiver as to all other relevant facts, because of the necessary connection between all.’ 8 Wigmore, Evidence (3d ed., 1940) § 2276(2). * * * As stated by this Court in Caminetti v. United States, 242 U.S. 470, 494, 37 S.Ct. 192, 198, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168, an accused who takes the stand ‘may not stop short in his testimony by omitting and failing to explain incriminating circumstances and events already in evidence, in which he participated and concerning which he is fully informed, without subjecting his silence to the inferences to be naturally drawn from it.’ But where the claim of privilege is asserted and unqualifiedly granted, the requirements of fair trial may preclude any comment.'

(See People v. Clapper, 233 Cal.App.2d 34, 43 Cal.Rptr. 105.)

In Caminetti v. United States, 242 U.S. 470, 494, 37 S.Ct. 192, 198, the United States Supreme Court also said:

‘The accused, of all persons, had it within his power to meet, by his own account of the facts, the incriminating testimony of the girls. When he took the witness stand in his own behalf he voluntarily relinquished his privilege of silence, and ought not to be heard to speak alone of those things deemed to be for his interest, and be silent where he or his counsel regarded it for his interest to remain so, without the fair inference which would naturally spring from his speaking only of those things which would exculpate him and refraining to speak upon matters within his knowledge which might incriminate him.’

In the instant case, when appellant Enrique Perez took the stand to testify in his own behalf, all of the People's accusations relating to his participation in the four offenses charged had been admitted in evidence. His counsel did not state that the defendant would take the stand only for a limited purpose. But it is now claimed by his counsel that he selectively asserted a privilege against self-incrimination by testifying only as to counts 1 and 2 and remaining completely silent about the charges contained in counts 3 and 4.

The People, on the contrary, contend that the defendant must be deemed to have waived his privilege against self-incrimination as to all counts and that he thus lost any right to have his conviction reversed on the basis of the Griffin rule as to any count. We cannot agree with this conclusion of the Attorney General. The constitutional privilege against self-incrimination, in our opinion, applies in full force to each of the separate crimes alleged in an information.

We must, therefore, inquire whether these errors of the court and the prosecuting official were prejudicial as to the convictions on counts 3 and 4 within the meaning of article VI, section 4 1/2 of the California Constitution. (People v. Bostick, supra, 62 Cal.2d 820, 823, 44 Cal.Rptr. 649, 402 P.2d 529; People v. Steele, 235 Cal.App.2d 798, 814; Witkin, California Criminal Procedure, 1965 Supplement, § 497A, p. 106; § 762A, pp. 141–142.)

As already pointed out, the evidence proving count 1 (Viking Club) and count 2 (Corner Market), when viewed most strongly in favor of the respondent, as we must after conviction, differs markedly from the evidence separately considered on counts 3 and 4 (Ralph's Bar); there is strong proof of guilt as to the first two counts, including fingerprints in one and specific identification by two witnesses in the other. On the last two counts, however, there is no such overwhelming evidence, and the showing of guilt is questionable. The test to be applied in measuring the effect of Griffin case errors is whether it is ‘* * * reasonably probable that a result more favorable to defendant would have been reached in the absence of the error arising from the argument of the prosecution and the giving of the instruction on the subject of defendant's failure to testify.’ (People v. Keller, 234 Cal.App.2d 395, 399, 44 Cal.Rptr. 432, 435.) With respect to counts 1 and 2, we necessarily determine that the evidence would have compelled conviction irrespective of the errors, but we are forced to reach an opposite conclusion as to the weaker showing on counts 3 and 4; accordingly, the convictions on these two latter counts must be reversed.

The judgment is affirmed as to counts 1 and 2 of the information and reversed as to counts 3 and 4.

CONLEY, Presiding Justice.

STONE, J., concurs.

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