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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Charles BELTON, Defendant and Appellant.

Cr. 28053.

Decided: January 25, 1977

Herbert F. Blanck, Encino, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Carol Wendelin Pollack, Deputy Attys. Gen., for plaintiff and respondent.

After a court trial defendant was found guilty of a violation of section 246 of the Penal Code—discharging a firearm at an inhabited dwelling. He appeals.


People's Case

Between 6:00 and 7:00 p. m., on February 11, 1975, defendant's stepson, Wardell Fouse, was in a fight in front of the dwelling in question, 16627 South Harris Avenue in Compton.

Mrs. Johnson, who lived at that address, was sitting in her living room sometime after 6:00 p. m. that evening. She heard a loud boom, which sounded like a shot. She looked out of the window and saw the taillights of a car driving away. She was unable to describe the car. There was a hole in the address plaque in front of her house. Later the police discovered an expended .12 gauge shotgun shell in front of the house and identified pellet marks and pellets in the house itself.

Wardell was called as a witness by the People. He admitted to having been in a fight, but denied having returned to the premises. He was then impeached with a statement he had given to the police the next day. At that time he admitted that after the fight he had returned to his own home, obtained a shotgun and driven with defendant back to the Johnson residence. He fired the weapon at the residence.

The People rested. Defendant made a motion for dismissal under section 1118 of the Penal Code. It was denied.1


Defendant then testified in his own defense. He claimed to have been at home at the time when the shooting occurred. He further testified that a certain 1963 Chevrolet, owned by his daughter's boyfriend, was inoperable at the time.2 Defendant's testimony was supported by other witnesses.


In rebuttal the People called one Lannie Bennett. Bennett, who had been involved in the earlier fight with Wardell, testified that he saw a blue 1963 Chevrolet pass the Johnson residence at the relevant time. Defendant was driving the car, Wardell and someone else were passengers and a rifle or shotgun was fired in the direction of the Johnson house. Bennett had testified to the same effect at defendant's preliminary hearing, but could not recall whether he had so testified at Wardell's juvenile court hearing the same day.


The only issue raised on appeal is the alleged erroneous denial of defendant's motion to dismiss under section 1118 of the Penal Code.

Defendant correctly asserts that at the time the motion was made the only evidence tying him to the crime was the prior inconsistent statement of Wardell, received on the merits under section 1235 of the Penal Code. (People v. Green (1971) 3 Cal.3d 981, 985, 92 Cal.Rptr. 494, 479 P.2d 998.) Wardell was clearly an accomplice whose testimony was insufficient to convict, unless corroborated. (Pen.Code, § 1111.) It is immaterial that Wardell was the person who actually committed the crime and that, under People's theory, defendant merely aided and abetted him. (People v. Shaw (1941) 17 Cal.2d 778, 800, 112 P.2d 241.)

The only corroboration was furnished by the witness Bennett. Bennett, however, testified in rebuttal, after the People and defendant had rested their case in chief.3

The question is whether under the particular circumstances of this case, the erroneous denial of the section 1118 motion for an acquittal calls for a reversal. We hold that it does not.

The problem of the erroneously denied motion to acquit, which is followed by evidence that fills the gap is not new, even though we know of no case involving procedural facts similar to this one.

The situation which has triggered the vast majority of such cases—mostly federal—is this: The motion to acquit is erroneously denied, but the defendant's own testimony or that of his witnesses fills the gap.

The majority rule is that by putting on a defense, the defendant ‘waives' the error.4 The waiver rationale has been criticized, partly on the ground that by erroneously denying the motion to acquit, the court exerts an impermissible compulsion on the defendant to testify. (See Comment, The Motion for Acquittal: A Neglected Safeguard (1961) 70 Yale L.J. 1151.) Nevertheless, it has the blessing of the United States Supreme Court at least by dictum (McGautha v. California (1971) 402 U.S. 183, 215–216, 91 S.Ct. 1454, 28 L.Ed.2d 711). The only California case in point People v. Crane (1917) 34 Cal.App. 760, 765, 168 P. 1055, 1057 is in accord, albeit in the most casual fashion.5 In any event, we are not concerned with these cases because here it was not the defendant's own evidence or that of his witnesses which furnished the corroboration.

A second group of cases—apparently quite small—involves situations where the erroneous denial of a motion to acquit is followed by evidence from a co-defendant, whose witnesses fill the gap in the prosecution's evidence. One such case was Cephus v. United States (1963) 117 U.S.App.D.C. 15, 324 F.2d 893, 896.6 People v. Valerio (1970) 13 Cal.App.3d 912, 920, 92 Cal.Rptr. 82, concluded that in the precise situation involved in Cephus, the rule of that case was correct. Although this conclusion was unnecessary to the Cephus decision—the court later found that the People had proved a prima facie case when they rested—we accept it.

This case involves neither the usual situation where by putting on a defense the defendant does or does not waive the erroneous denial of the motion to acquit, nor the Cephus-Valerio variant. It is, as far as we know, sui generis: the People had a perfectly good prima facie case (People v. Rosoto (1962) 58 Cal.2d 304, 331, 23 Cal.Rptr. 779, 373 P.2d 867) which only lacked the corroboration required by section 1111 of the Penal Code. This defect—the linchpin of defendant's argument on appeal—was never brought to the trial court's attention.7

While we appreciate the differences between civil and criminal trials, the analogy to the procedural requirements relating to motions for nonsuits is relevant. It is basic that such a motion ‘should state the precise grounds on which it is made, with the defects in the plaintiff's case clearly and particularly indicated. This gives the plaintiff an opportunity to cure the defect by introducing additional evidence.’ (4 Witkin California Proc. (2d ed. 1971) Trial, § 361, pp. 3158–3159. Italics added.)

Procedural fairness is not the monopoly of civil litigation. Without suggesting that civil nonsuit procedures are totally applicable in criminal trials, we think that the rule referred to governs this case. It seems certain that if defendant's trial counsel had so much as whispered the word ‘corroboration,’ matters would soon have been back on the track: the prosecutor would have asked and been granted permission to reopen and Bennett would have given his evidence as part of the People's case in chief. The problem would have evaporated.8

Our holding that a defendant has some duty to articulate the grounds for a motion under section 1118 does not obligate the defense to aid the prosecutor in proving his case. A defendant who perceives a hole in the People's case has every right to keep quiet about it and raise insufficiency of the evidence on appeal from the judgment after the case is tried to a conclusion. The granting of a motion to dismiss under section 1118, however, means that the case will not be tried to a conclusion—it being the ‘manifest purpose’ of the section ‘to terminate the case at the earliest possible time . . ..’ (People v. Valerio (1970) 13 Cal.App.3d 912, 920–921, 92 Cal.Rptr. 82, 87.) We see no impermissible dilemma in telling a defendant who seeks a statutory shortcut to an acquittal that he must state a reason for his request. Section 1118 does not grant a vested right to prosecution oversights.9

Defendant also points out that section 1118 gives the trial court the power to acquit ‘on its own motion’ if the prosecution has not proved a prima facie case in chief. He points out that the court cannot be required to inform the prosecution of the specific deficiencies in its case before acquitting. Assuming this to be so, it proves too much: the point amounts to an argument that defendant would be in just as good a position on this appeal if he had never made a motion at all, but the trial court had failed to act on its own initiative.

It may be suggested that the People were keeping Bennett in the wings to ‘sandbag’ the defense in rebuttal. If so, it was a clumsy ploy which not only a properly articulated motion for an acquittal, but also a routine objection on ‘improper rebuttal’ grounds could have thwarted. Actually, from where we sit it is uncertain who was engaging in legal gamesmanship and who was simply operating in a procedural fog. What is certain, however, is that a reversal of this conviction would amount to appellate sandbagging of the prosecution: it would encourage deliberate obfuscation of the true grounds of a motion to acquit, so as to deny the People a fair opportunity to remedy a defect in their proof.


I respectfully dissent.

Since the factual posture of the case from time to time during the trial is crucial, I set the facts forth in greater detail than stated in the majority opinion. The prosecution presented its case in chief:

On February 11, 1975, between 6 and 7 p. m., Wardell Fouse, stepson of appellant, was involved in a fight with another individual in front of the house in question. After the fight, Mr. Fouse went home.

Some time after 6 p. m. that evening, Mrs. Sophronia Johnson was seated in the living room of the dwelling in question. She heard a loud boom that sounded like a shot. She went to the window, looked out and viewed the taillights of a car going by. Mrs. Johnson could not describe the car further. Mrs. Johnson subsequently discovered a hole in the address plaque that hangs in front of her house.

Later that evening, Deputy Lonnie Timney of the Los Angeles Sheriff's Office arrived at Mrs. Johnson's residence. He examined the premises and observed pellet indentations and pellets from a shotgun embedded in the frame of the wood in front of the house and pellet marks on the garage door. Deputy Timney also discovered in front of the house an expended twelve gauge shotgun shell casing.

The People called Wardell Fouse as a witness on their behalf. Mr. Fouse admitted having a fight that evening, but denied both shooting at the house and that appellant drove him to the premises.

On February 12, 1975, the day after the shooting, Deputies Michael Lugos and Paul Foster questioned Wardell Fouse about the shooting. Mr. Fouse was advised of his Miranda rights. Deputy Lugos repeated the conversation which he had with Wardell Fouse which contained the following: ‘The minor told me that he had been involved in a fist fight with the victim Kenneth and that after loosing the fight he—that is, Wardell Fouse—returned home, obtained a shotgun, had his stepfather, Mr. Belton, drive him back to the victim's residence at which time Wardell Fouse fired the weapon at the residence.’

After a renewed questioning of Deputy Timney about the expended twelve gauge shotgun shell, the prosecution rested.

Appellant then moved for a judgment of acquittal under Penal Code section 1118. The motion was based on insufficient evidence to convict appellant. The court summarily denied the motion without hearing argument from the prosecution. The prosecution made no effort to reopen its case in chief.

The defense subsequently presented its case calling to the witness stand Robert Charles Belton, appellant; Denise Belton, appellant's sister; Mary Alice Belton, appellant's wife; and Thomas Perez, owner of the car alleged to have been used in the perpetration of the crime. The essence of the testimony was that appellant was in the house when the shooting occurred and that the 1963 Chevrolet, allegedly involved in the crime, had a frozen transmission and could not have been driven at the time.

During the course of appellant's defense evidence, the People offered Deputy Cusiter as a rebuttal witness. In rebuttal, Deputy Cusiter testified that appellant was on the porch when the police arrived and that appellant had asked the deputy to write off a ticket for equipment violation which appellant had been issued on the 1963 Chevrolet.

At the end of appellant's defense, the People called Lannie Bennett as a witness in their behalf. Lannie Bennett testified that he saw the 1963 Chevrolet pass the dwelling in question twice on February 11, 1975.

Mr. Bennett testified that he saw appellant, Wardell Fouse, and someone else in the car, and that the shooting occurred from the car. Defense counsel then cross-examined Lannie Bennett.

The court then called Wardell Fouse to the stand. Mr. Fouse continued to deny shooting at the house.


1. Whether the defendant has the burden of going forward with evidence to prove that a witness is an accomplice in order to invoke the corroboration requirement (Pen.Code, § 1111)?

2. Whether it was sufficient to base the Penal Code section 1118 motion for judgment of acquittal on insufficient evidence to support a conviction or did defense counsel have to raise the specific objection that the accomplice's testimony was uncorroborated?

3. Should an appellate court review a motion for judgment of acquittal (Pen.Code, § 1118) on the evidence presented when the motion is made or does defense waive this motion by going forward with its evidence and by allowing rebuttal testimony?

4. Was the evidence insufficient to convict appellant at the time the motion was made?



Accomplice Testimony

Under Penal Code section 1111 an accomplice is defined: ‘[A]s one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.’ Under Penal Code section 1111: ‘A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.’

The question is whether Wardell Fouse, stepson of appellant, was an accomplice whose testimony (as described by Deputy Lugos) needed to be corroborated?

The court was aware that as of the time of the trial Wardell Fouse was in the custody of the juvenile authorities. Wardell Fouse testified at the trial that he was involved in a fight in front of the dwelling in question on February 11, 1975, between 6 and 7 p. m. (just before the shooting was about to have occurred). Wardell Fouse thus confirmed the facts which the prosecution said motivated the shooting. Though Mr. Fouse denied doing the shooting, his extrajudicial inconsistent statements, which were admitted for the truth of the matter asserted, implicated him as the principal in the crime. One who is liable to the prosecution for the offense when the act was committed is an accomplice under Penal Code section 1111. (People v. Gordon, 10 Cal.3d 460, 469, 110 Cal.Rptr. 906, 516 P.2d 298.)

From the facts capsulized above, the court could reasonably have drawn the inference that Wardell Fouse was an accomplice under Penal Code section 1111. ‘Whenever evidence at a trial raises a reasonable inference a witness implicating defendant is an accomplice, it is the duty of the court to instruct the jury regarding accomplices and accomplice testimony. Failure to do so is error whether or not the implicated defendant requests the instructions.’ (People v. Brown, 6 Cal.App.3d 619, 623–624, 86 Cal.Rptr. 149, 152.)

When the inference is that a witness is an accomplice, the defendant does not have the burden of presenting the issue to the court. A requirement that the defendant must explicitly present the issue to the court in order to invoke the corroboration requirement of Penal Code section 1111 would cripple the purpose of the rule which is that corroboration is necessary to guard against testimony from tainted sources given in the hope of receiving leniency or immunity. (People v. Hoover, 12 Cal.3d 875, 894, 117 Cal.Rptr. 672, 528 P.2d 760.)

The trier of fact, in his concluding statement, was convinced that Wardell Fouse was an accomplice when he said: ‘I am convinced that his son got into a fight with some young man and that he got hit by that man and he went home and hold his father and he got a shotgun and his father got in the car and drove by the house and he fired the shotgun.’ ‘Those who actually committed the criminal act are accomplices of those charged with aiding and abetting them.’ (54 Cal.Jur.2d Witnesses, § 195.)

People v. Tewksbury, 15 Cal.3d 953, 544 P.2d 1335, is not to the contrary. There the court held that the defense has the burden of producing evidence to raise the accomplice issue and that in the absence of any such proof the witness is treated as not being an accomplice. (People v. Tewksbury, supra, at p. 963, 544 P.2d 1335.) Whether the evidence is produced by the defense or by the prosecution, the defense may benefit thereby. In this case there was adequate evidence (as defined in Tewksbury, supra, at page 969, 544 P.2d 1335) that would direct the court to conclude that Wardell Fouse was an accomplice.


Specific Objection on Motion for Judgment of Acquittal

When the defense made its motion under Penal Code section 1118 for a judgment of acquittal, it based the motion on insufficient evidence to convict the appellant of any crime.

The motion was adequate to raise the issue. ‘In presenting to the court the defendant's right to be acquitted, all that is necessary is that in some intelligible form there shall be presented to the court for its ruling and decision the question whether there is sufficient evidence to warrant a conviction.’ (75 Am.Jur.2d Trial, § 549.)

The grounds for the motion need not be stated with specificity unless the People demand specificity. (United States v. Jones (7 Cir. 1949) 174 F.2d 746, 748.) The People have the burden of proof to sustain a conviction and they are assumed to know the significance of a motion for judgment of acquittal unless they demand clarification. (United States v. Jones, supra.) The defendant does not have to lead the People by the hand.

In this case it was perfectly obvious that the defect in the People's case was as to appellant's connection at the scene of the crime, and that the only evidence showing the appellant actually drove the car was that of an accompleice whose testimony required corroboration.


Motion for Judgment of Acquittal and the Doctrine of ‘Waiver’

Under Penal Code section 1118: ‘In a case by the court without a jury, a jury having been waived, the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal at the close of the evidence offered by the prosecution is not granted, the defendant may offer evidence without first having reserved that right.’

Following the trend established by People v. Valerio, 13 Cal.App.3d 912, 92 Cal.Rptr. 82, we should hold that an appellate court should decide whether the evidence was sufficient to convict the defendant when the motion was made regardless of whether the defendant subsequently goes forward with evidence or allows rebuttal evidence of the prosecution. (People v. Lines, 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793.)

To conclude otherwise, a motion for judgment of acquittal pursuant to Penal Code section 1118 would be but an empty right. Also by allowing the prosecution to withhold evidence which belongs in its case in chief and offer the evidence in rebuttal in order to dramatize the evidence, would be giving the prosecution an unfair advantage. (People v. Castro, 182 Cal.App.2d 255, 264–265, 5 Cal.Rptr. 906.)

‘One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense.’ (Cephus v. United States (1963) 117 U.S.App.D.C. 15, 324 F.2d 893, 895.)

The facts of this trial present a unique situation. Defendant's evidence, put on after the motion for judgment of acquittal was denied, did not supply the deficiencies in the prosecution's evidence. Courts have frequently held the ‘waiver’ doctrine (that is, defendant waives his motion of acquittal by putting on evidence) applies only when the defendant fills the gaps in the prosecution's case. (United States v. Arias Diaz (5 Cir. 1974) 497 F.2d 165, 168–169.) The issue in this case is one of first impression, because the prosecution filled in its own deficiencies by its rebuttal evidence. Though I conclude that whoever cures the deficiencies of the prosecution's case, the motion is to be judged on the evidence presented before the motion was made, it must be pointed out that if the prosecution had put on the rebuttal witness, Lannie Bennett, in their case in chief, the denial of the motion for judgment of acquittal would have been correct.


Was the Evidence Sufficient to Convict Appellant

The test to be applied by the trial court and the appellate court in evaluating a motion for judgment of acquittal is ‘whether from the evidence, including reasonable inferences to be drawn therefrom, there is substantial evidence of the existence of each element of the offense charged.’ (People v. Valerio, supra, 13 Cal.App.3d at p. 919, 92 Cal.Rptr. at p. 86.)

A conviction for a violation of Penal Code section 246 requires that the defendant be proved to have discharged a firearm at an inhabited dwelling house or occupied building with intent to hit the building. (People v. Chavira, 3 Cal.App.3d 988, 993, 83 Cal.Rptr. 851.) The prosecution in its case in chief proved that a crime was committed. But when there is insufficient evidence to connect defendant with the crime charged, the court must grant a motion for acquittal. (People v. Norwood, 26 Cal.App.3d 148, 158, 103 Cal.Rptr. 7.)

In this case the only evidence connecting appellant with the crime was the uncorroborated testimony of an accomplice. Proof of the connection of defendant with the commission of the crime cannot rest on uncorroborated testimony of an accomplice. (People v. Neely, 163 Cal.App.2d 289, 301, 329 P.2d 357.)

Since there was not substantial evidence of such element of the crime at the time of the making of the 1118 motion, the motion for judgment of acquittal should have been granted. I would reverse the judgment.


1.  ‘[PROSECUTOR]: People rest.‘THE COURT: Call your first witness,‘[DEFENSE COUNSEL]: I would make a motion to have this case dismissed under 1118 at this point. [¶] I don't think that we have sufficient evidence here to convict Mr. Belton of any crime—of the crime charged and I ask Your Honor to dismiss the case at this point.‘THE COURT: The motion to dismiss is denied.‘[DEFENSE COUNSEL]: Take the stand, Mr. Belton.’

2.  The prosecution's evidence did not purport to identify the car from which the shot had been fired.

3.  The defense did not object to Bennett's testimony on the ground that it was improper rebuttal. Any error in that respect was, therefore, waived. (People v. Alvarez (1963) 212 Cal.App.2d 406, 409, 28 Cal.Rptr. 141.) Further, it would have been harmless. (People v. Fitzgerald (1961) 56 Cal.2d 855, 861, 17 Cal.Rptr. 129, 366 P.2d 481.)

4.  Many authorities are collected in 8A Moore's Federal Practice (2d ed. 1976) section 21.05.

5.  ‘. . . the required evidence was hereafter supplied by the defendant himself, and we cannot say, therefore, upon the whole record, that defendant was prejudiced in said ruling.’

6.  The Cephus court was obviously not in sympathy with the waiver doctrine. It distinguished the waiver cases by holding that ‘the waiver doctrine cannot fairly be applied’ where the incriminating defense evidence is triggered by a co-defendant. (324 F.2d at p. 897.) The court pointed out that if the two defendants were separately tried, the government would be unable to call the co-defendant as a witness. (Id. at p. 898, fn. 22.)

7.  It does not appear that the trial court summarily denied the defense motion to acquit without giving counsel a chance to argue it. All that the record shows is a routine motion routinely denied. (See fn. 1, supra.) The thoroughly courteous way in which the case was tried negatives any suggestion that counsel was intimidated by the court.

8.  We need not decide whether the denial of the section 1118 motion would have been reversible error if defendant had properly stated his grounds and the People had, nevertheless, waited until rebuttal to produce Bennett—over or without objection.

9.  There is a dilemma, of course: by keeping quiet and not making a 1118 motion the defense increases the risk that, given more time, the prosecution will also discover the hiatus in its case and appeal to the court's discretion to permit it to reopen. (People v. Kohn (1968) 258 Cal.App.2d 368, 377, 65 Cal.Rptr. 867.) That dilemma, however, is no different from hundreds of tactical decisions defense counsel must routinely make in the course of trials—whether or not to object, whether to open up a line if inquiry, or whether to ask a risky question or leave well enough alone.

KAUS, Presiding Justice.

HASTINGS, J., concurs.