PEOPLE v. RUSSELL (1981)

Following a jury trial, appellant was convicted of one count of assault with a deadly weapon and two counts of assault with intent to commit murder.   The jury found true the allegations that in each instance appellant inflicted great bodily injury upon the victim.   The jury also found true the allegations that he used a deadly weapon in the commission of the first assault and a firearm in the commission of the second and third offenses.   He was sentenced to state prison for a total of thirteen and two-thirds years, from which sentence and judgment he appeals.

The charges arose out of incidents which occurred on December 11, 1979.   Larry DuBois and Diane Arguellas were seated in DuBois' parked automobile at approximately 12:45 a. m.   A male Negro approached the automobile and fired four shots through the window, wounding both victims.   The victims immediately drove to a nearby hospital for treatment.   At the hospital, DuBois and Arguellas gave a description of the assailant to the police as a black man wearing a dark jacket, tinted glasses and a dark blue beanie.

Officer Gary Chennault, a police officer for the City of Oxnard, interviewed the victims at the hospital.   He took a description of the assailant from them and thereafter received information via police radio that appellant, John Clark Russell, had been stopped by a deputy sheriff in the vicinity of the crime at 12:20 a. m., and was suspected of having been involved in the shooting.   Chennault went to appellant's apartment and accosted the appellant near his carport.   Having observed that appellant matched the description given him by DuBois and Arguellas, and having verified his identity, the officer radioed the station for backup.   Thereafter, a fight developed between the officer and appellant while the officer was attempting to place handcuffs on him.   During the fight, appellant seized the officer's baton and struck him approximately four times on the head, causing serious injuries.   Other officers arrived on the scene, and appellant was arrested.

The bullets retrieved from DuBois' and Arguellas' wounds were .25 caliber.   Three brass casings were retrieved from the beach area where the victims were shot, and one live round was recovered from appellant's apartment.   All four showed extractor marks caused by the same gun.   In the early morning hours of December 11, 1979, a search warrant was executed at appellant's apartment.   A dark blue stocking cap was recovered from appellant's vehicle.

Appellant raises the following contentions on appeal:

1. The court erred in refusing to appoint an investigator for appellant at public expense.

2. The court erred in permitting testimony concerning the victim's in-court identification of appellant at the preliminary hearing.

3. The court erred in allowing cross-examination of appellant's character witnesses and in refusing to allow appellant to testify in rebuttal.

4. Trial counsel incompetently offered into evidence material which had previously been suppressed.

5. The prosecutor was guilty of misconduct in making reference, during closing argument, to evidence previously ruled inadmissible.

6. The court improperly enhanced appellant's sentence.

I

Appellant contends that, on March 3, 1980, defense counsel attempted to submit to the court an application for the appointment of an investigator, pursuant to Penal Code section 987.9.   Appellant's brief states that the trial court refused to hear the motion and subsequently denied funds therefor.

The record does not support this contention.   On March 3, 1980, appellant moved for a continuance, which motion was denied.   In considering the motion for continuance the court noted that this also appeared to be a motion for appointment of an investigator at county expense.   Appellant's attorney responded:  “There was a motion that was going to be pursuant to that, yes, your Honor, which—I have not submitted that motion yet.”

The court then considered, heard argument on and ruled on the motion for continuance.   At the conclusion of the hearing the court added, “․ and if you are requesting investigator's fees at County expense, that's denied, too.”

 The record does not reflect that at any time thereafter the motion for appointment of an investigator was in fact submitted to the court.   We do not believe that this record supports appellant's position that the trial court refused to hear the motion.   The fact that the court had indicated an initial unwillingness to appoint an investigator at county expense would not have prevented counsel from making a formal motion to that effect, supported by authority and argument.

 Further, a motion for investigative services must be supported by a statement of the reasons such services are required.   Obviously, no such explanation was offered below, nor is the brief enlightening on this issue.   The brief contends simply that, because the court refused to hear the motion and denied funds for the expert, defendant was precluded from eliciting testimony or introducing evidence tending to overcome the prosecution's case.   These allegations are insufficient to justify the appointment of an investigator in the first place or to compel the conclusion that prejudicial error resulted from the court's refusal to do so.

As stated in People v. Faxel (1979) 91 Cal.App.3d 327, 330–331, 154 Cal.Rptr. 132:  “Translation of the abstract right to ancillary defense services into practice in individual situations requires that the defendant exercising the right demonstrate a need for the service by reference to ‘the general lines of inquiry he wishes to pursue, being as specific as possible.’   [Citations.]  [¶] Here Faxel points to no showing at all justifying his request for the services of an investigator and runner.   He thus failed in the trial court to satisfy the predicate for the exercise of his right.”  (Fn. omitted.)

And see Puett v. Superior Court (1979) 96 Cal.App.3d 936, 939, 158 Cal.Rptr. 266:  “[I]t is only necessary investigative services to which an indigent defendant is entitled, and a motion for the appointment of an investigator at public expense must be supported by a showing that the investigative services are reasonably necessary.  [Citations.]”

The requisite showing was not made in the trial court, and appellant does not explain here the nature of the showing which could have been made nor the manner in which appellant was prejudiced by the lack of services of an investigator.   Further, our review of the record is not illuminating on these issues.   Appellant testified in his own defense that, on the night in question, he spent some time in the early evening with his brother-in-law.   His brother-in-law testified to the same effect.   He spent several hours driving around looking for his estranged wife and, at the time of the shooting, was attempting to repair his vehicle which had broken down in the course of the evening.   He denied having gone near the vicinity of the beach road where the shooting occurred.   He admitted the fight with the police officer, but explained that he was defending himself from the officer's aggression and explained that the officer was injured when he hit his head on the ground, the pedal of a parked motorcycle, and the bumper of a car.

We conclude that any error in denying appellant the services of an investigator was not prejudicial.

II

Appellant's next contention concerns the in-court identification of him by the victim, Diane Arguellas.   Prior to trial, appellant moved to exclude any testimony by the victim that she had previously identified him at the preliminary hearing.   The basis for that motion was the victim's inability to select appellant from a photographic lineup.   Appellant contends that the victim's identification of him at the preliminary hearing was not the result of independent recollection from the night of the crime, but the highly suggestible circumstances surrounding the hearing, where appellant was in jail clothing and in custody.

The trial court observed that the identification procedure was not per se violative of due process, and noted that appellant could have demanded a live lineup prior to the preliminary hearing.   The court held that appellant was free to cross-examine the witness as to the independent nature of her identification and denied the motion.

 We note first that no authority holds that the inability of a witness to select a defendant from a personal or photographic lineup vitiates any subsequent identification.   Nor is a preliminary hearing necessarily unduly suggestive, thereby tainting any subsequent identification.   Identification based on a one-person showup has been found reasonable, depending upon the totality of the circumstances.  (Manson v. Brathwaite (1977) 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140;  People v. Bisogni (1971) 4 Cal.3d 582, 587, 94 Cal.Rptr. 164, 483 P.2d 780.)   Among the factors to be taken into consideration in determining the suggestibility of a confrontation procedure leading to the likelihood of misidentification are:  “․ the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”  (Neil v. Biggers (1972) 409 U.S. 188, 199–200, 93 S.Ct. 375, 382–383, 34 L.Ed.2d 401.)

 The testimony of the victim Arguellas at trial demonstrates that her identification of the appellant was based on her memory of the shooting.   She testified that she recognized appellant the moment she walked into the courtroom on the date of the preliminary hearing.  “You don't forget people's faces when they are trying to kill you.”   The preliminary hearing took place only a few weeks after the shooting, and appellant's face was fresh in her memory at the time of that testimony.   There was a street light directly in front of the car, providing sufficient light to read the large print of a newspaper.   Appellant was two to three feet from her;  he was crouched down looking in the window at her, and she saw his face.   The victim's testimony supports the conclusion that her identification of appellant was based on her independent recollection of the events, and not upon the fact that he was the only person in custody in the courtroom on the day of the preliminary hearing.

Further, “[i]f a criminal defendant anticipates that an in-court identification may be suggestive, he has a readily available remedy to avert any prejudice expected to result from the courtroom showup procedure:  he may demand that a lineup be conducted preliminary to any in-court identification (Evans v. Superior Court, 11 Cal.3d 617, 625, 114 Cal.Rptr. 121, 522 P.2d 681 ․)”  (People v. Green (1979) 95 Cal.App.3d 991, 1004, 157 Cal.Rptr. 520.)

The trial court did not abuse its discretion in denying appellant's pretrial motion to exclude testimony of the preliminary hearing identification by the victim Arguellas.

III

Appellant's next contention concerns the cross-examination of his character witnesses.   Appellant called three witnesses who testified that appellant was not known as a violent person and that he had a good, peaceful reputation in the community.

Two of those character witnesses were cross-examined by the prosecution with respect to their knowledge of appellant's prior arrests.   Each of the witnesses was asked whether he had heard that in 1969 in Arizona appellant was arrested for aggressive assault, that in 1971 in Ventura County he was arrested for resisting arrest, and that in 1973 in Ventura County he was arrested for kidnaping and assault with a deadly weapon.   In each instance, the witness answered, “No,” and the prosecutor made no further inquiry.   The court on its own motion held an in-camera hearing to determine whether the questions were being asked in good faith.   The prosecutor presented to the court a United States Department of Justice rap sheet, authenticating each arrest.   The court concluded that the conduct referred to in the questions was relevant to impeach the character witnesses on the issue of their knowledge of appellant's propensity for violence.

 With respect to the foregoing questions, appellant raises two assertions of error.   He argues first that the prosecution should not be allowed to make inquiry concerning prior arrests, which did not result in convictions.   However, it has long been recognized that cross-examination of a character witness may include inquiry concerning the witness' knowledge of rumors, talk, reports circulating in the community, hearsay, conduct not amounting to a criminal offense, arrests, or convictions.  (See People v. Eli (1967) 66 Cal.2d 63, 78–79, 56 Cal.Rptr. 916, 424 P.2d 356;  Michelson v. United States (1948) 335 U.S. 469, 482–483, 69 S.Ct. 213, 221–222, 93 L.Ed. 168.)   Although the danger to a defendant from the innuendo contained in the questions is obvious, nonetheless, such cross-examination is allowed on the rationale that it tests the witness' knowledge of a defendant's reputation.   (People v. Wagner (1975) 13 Cal.3d 612, 619, 119 Cal.Rptr. 457, 532 P.2d 105.)

While often subject to intense and emphatic criticism (see, e. g., 4 Wigmore on Evidence, § 1117, p. 252;  Jefferson, Cal. Evidence Bench Book, subs. 28.13;  People v. Eli, supra, 66 Cal.2d at p. 78, 56 Cal.Rptr. 916, 424 P.2d 1356;  Michelson v. United States, supra, 335 U.S. at p. 482, 69 S.Ct. at p. 221), the practice continues to have the sanction of the law (see People v. Rist (1976) 16 Cal.3d 211, 222, fn. 10, 127 Cal.Rptr. 457, 545 P.2d 833).   It cannot be doubted that a jury, no matter how thoroughly and carefully instructed, may use information concerning a defendant's three prior arrests for violent crimes not only to determine the competency of the character witnesses testifying as to defendant's reputation, but also to help them decide whether defendant committed the violent offense with which he is presently charged.

The distinction between these purposes may be lost on the jury which cannot reject what they have heard, not recognizing that it violates the rule against particular facts.   We agree with the author who says:  “(1) it violates the fundamental rule of fairness ․ that prohibits the use of such facts, (2) it gets at them by hearsay only, and not by trustworthy testimony, and (3) it leaves the other person no means of defending himself by denial or explanation, such as he would otherwise have had if the rule had allowed that conduct to be made the subject of an issue.”  (3A Wigmore on Evidence, § 988, pp. 920–921;  fn. omitted.)

 Nonetheless, the only limitations on this form of impeachment of character witnesses are that the prosecution must ask the questions in good faith (that is, he must be able to establish that the acts referred to in fact occurred) and he must accept whatever answer he receives from the character witness and may go into no further detail concerning those acts.   (People v. Wagner, supra, 13 Cal.3d at p. 619, 119 Cal.Rptr. 457, 532 P.2d 105.)   Those restrictions were observed in the instant case.   A prosecutor may inquire concerning prior arrests, even when no convictions resulted.   (People v. Hurd (1970) 5 Cal.App.3d 865, 880, 85 Cal.Rptr. 718.)   The trial court did not err in allowing the challenged cross-examination of defendant's character witnesses.

Appellant's next contention with respect to this issue is that the court should have allowed defendant to testify in rebuttal concerning those arrests.   Two requests were made of the trial judge, (1) that one of the character witnesses be allowed to testify in rebuttal concerning the reasons for their lack of knowledge of defendant's arrests, and (2) that defendant be allowed to take the stand and testify that none of those arrests had in fact resulted in conviction.

The first request was granted and one of the character witnesses testified that, during the period [of the Watts' riot] covered by the prosecutor's questions, it was not uncommon for members of the black community to be arrested and that an arrest would generate little discussion within the community.   He stated that the only thing he would be likely to hear about was a conviction.

 With respect to defendant's request that he be allowed to testify, the court ruled that such testimony was not permissible, citing People v. Aguilar (1973) 32 Cal.App.3d 478, 108 Cal.Rptr. 179.   The Aguilar court did not rule that a defendant may not testify in rebuttal to implications raised by such impeachment questioning.   It held that it was not error for a trial court to disallow it.   Therefore, the trial court was not bound by any prohibition in Aguilar.   However, the trial court's ruling properly reflected existing law and was not error.

Appellant sought permission to testify to introduce evidence on the substantive issue of his prior arrests.   But the arrests themselves had not been introduced into evidence and were not properly in issue.   The questions were asked only for the purpose of discrediting, and addressed only the issue of, the witness' competency.   As illusory as the distinction may be, at issue is not whether the defendant was or was not arrested or convicted, but whether this particular character witness had sufficient knowledge of defendant's reputation in the community to testify to it.   Therefore, the testimony which defendant sought to introduce would have been irrelevant and was properly excluded.

IV

Appellant next contends that he suffered from ineffective representation of counsel at trial.   Appellate counsel, who was also trial counsel, asserts that he inadvertently introduced into evidence a police report containing statements which had previously been ordered suppressed.   The record reflects that the prosecution intended to play for the jury a tape recording of an interview with defendant on the night of his arrest.   Defense counsel objected to certain portions of the tape, and following a hearing, some segments were excised.   Included in the eliminated segments, which were not played to the jury, was a conversation concerning a request to search appellant's home.   Appellant consented to the search of his car, but stated that he was concerned that if the officers searched his home they would find marijuana.   Despite police assurances that he would not be prosecuted for any drug possession, appellant insisted that the officers obtain a warrant.

During cross-examination of Detective Elliott, defense counsel questioned him concerning a follow-up police report written by Elliott.   After cross-examining him concerning the report's account of the fight between appellant and Officer Chennault, defense counsel introduced the report into evidence.

 Appellate counsel now contends that that report contained a direct quote from the tape concerning the defendant's refusal to allow the police to search his home.   That report is not a part of the record on appeal and appellate counsel's contention in this regard cannot be verified.   However, even if we accept as true the statement concerning the contents of the report and appellate counsel's confession of error, that conduct does not amount to ineffective assistance or incompetency.   A criminal defendant is entitled to the assistance of trial counsel acting in a manner to be expected of a reasonably competent attorney acting as a diligent advocate.   (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Appellant bears the burden of establishing his counsel's ineffectiveness (People v. Stanworth (1974) 11 Cal.3d 588, 114 Cal.Rptr. 250, 522 P.2d 1058), and he must establish that counsel's conduct resulted in the withdrawal of a crucial defense (People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487;  People v. Martinez (1975) 14 Cal.3d 533, 538, 121 Cal.Rptr. 611, 535 P.2d 739).

 Appellant does not contend that any crucial defense was withdrawn by virtue of his attorney's inadvertent introduction of the report, nor can we conceive of any.   The error on the part of his attorney was harmless.

 Appellant next contends that the prosecutor was guilty of misconduct in closing argument, in that he directed the jury's attention to this previously suppressed evidence.  “No objection was raised to these comments at the time they were made or request made for an admonishment to the jury and therefore these examples may not be urged as misconduct for the first time on appeal.”  (People v. Reyes (1974) 12 Cal.3d 486, 505, 116 Cal.Rptr. 217, 526 P.2d 225.)

V

 Finally, appellant contends that the enhancement of his subordinate terms was improper, citing People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.   We agree.

The trial court imposed consecutive sentences, including enhancements for the imposition of great bodily injury and the use of a firearm, in each of the three counts of which defendant was convicted.   Appellant points out that pursuant to Penal Code section 1170.1, consecutive sentences for subordinate terms must exclude any enhancements unless the offense is a “violent felony” as defined in subdivision (c) of section 667.5.   None of the offenses committed by appellant is such a violent felony, unless subdivision (c)(8) is considered such, in which case the offenses do qualify as violent felonies, in that great bodily injury was inflicted and weapons were used.

In November 1979, the California Supreme Court, in People v. Harvey, supra, 25 Cal.3d at page 761, 159 Cal.Rptr. 696, 602 P.2d 396, held that an offense is not a violent felony for purposes of enhancement of subordinate terms if it is included only in subdivision (c)(8) of Penal Code section 667.5.  Penal Code section 1170.1 was amended in 1980 expressly to include offenses described in paragraph (8) of subdivision (c) of section 667.5.   However, that amendment was not effective on the date of the instant offense, which was committed on December 11, 1979.   At the time the offense was committed, the statute did not contain such express inclusion and had been interpreted by the Supreme Court not to allow the enhancement here complained of.

We are not persuaded by respondent's argument that the 1980 legislative amendment added nothing to the Penal Code but “merely made it clear that the legislative intent was and always has been that a consecutive sentence be enhanced in every case in which the use of a firearm or the infliction of great bodily injury was involved.”   Instead, we reiterate our position as stated in People v. Fulton (1980) 109 Cal.App.3d 777, 783, 167 Cal.Rptr. 436:  “Appellant contends that to apply this subsequently enacted legislation against him would contravene the prohibitions against ex post facto laws, relying on People v. Ward (1958) 50 Cal.2d 702, 328 P.2d 777, in that it alters his situation to his disadvantage.   We agree.   The effect of the legislation was to change appellant's punishment by making it greater.   Accordingly it is of an ex post facto nature.  [Citation.]”

The judgment of conviction is affirmed.   Appellant's sentence is ordered modified by reducing it from thirteen and two-thirds years to eleven and one-half years.

WOODS, Associate Justice.

FILES, P. J., and KINGSLEY, J., concur. Hearing denied, MOSK, J., dissenting.