Opinion
Rehearing Denied Dec. 10, 1962.
Leo R. Friedman, San Francisco, for appellant.
Stanley Mosk, Atty. Gen., John S. McInerny, John F. Foran, Deputy Attys. Gen., San Francisco, for respondent.
AGEE, Justice.
Defendant appeals from a judgment entered upon a jury verdict fidning him guilty of a violation of section 288a of the Penal Code. A prior felony conviction was also charged and found by the jury to be true. Defendant did not testify nor did he offer any evidence in his own defense.
The only witness who testified was a woman, named Joan. She stated that defendant's brother had employed her to play a role in a motion picture production to be filmed at a studio on Jones Street, in San Francisco. The title of the film was 'Take Your Pick.' As called for by the plot, Joan inspected the sexual organs of the defendant, his brother, and another male person and selected the defendant as her choice. She and the defendant then completely disrobed and, among other sexual activities, she copulated her mouth with defendant's sexual organ.
Joan was shown the film and she testified that it correctly depicted the events that occurred in the studio at the time and place in question. The film was admitted in evidence and exhibited to the jury. It constitutes the only corroboration of Joan's testimony.
Even though an accomplice, Joan's testimony was competent evidence upon which to establish a sufficient foundation for the admission of the film. (People v. Santos, 134 Cal.App. 736, 746, 26 P.2d 522; People v. Flood, 41 Cal.App. 373, 377, 182 P. 766; People v. Trujillo, 32 Cal.2d 105, 115-116, 194 P.2d 681.)
In Santos, supra, the murder involved therein was committed by Santos with a knife. The court stated, at page 746, 26 P.2d at page 526: 'It is also claimed that the trial court erred in admitting the knife in evidence, the exhibit being a spring knife found in appellant's room after he was arrested. It is argued that the identification of this knife was insufficient in law as it was identified only by the 'accomplice Fajardo.' We assume that appellant has in mind the provision of section 1111 of the Penal Code. Said section merely prohibits a conviction '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.' Said section does not deal with the admissibility of evidence, but merely with the sufficiency of the entire evidence to sustain a conviction. Even assuming that Fajardo's testimony identifying the knife was uncorroborated, it was, nevertheless, admissible.' (Emphasis ours.)
In other words, section 1111 of the Penal Code does not render an accomplice incompetent to testify nor does it preclude the admission of evidence, in this case the film, merely because the foundation for such admission is based upon the testimony of the accomplice. As was said in People v. Flood, supra, at page 377, 182 P. at page 767: 'The fact that a witness is an accomplice constitutes no ground upon which to base an objection to his testimony, which as to its competency is governed by the same rules applicable to testimony of witnesses having no part in the commission of the offense charged.' (Emphasis ours.) The effect of such testimony, however, is a different matter.
The Santos case, supra, only goes so far as to hold that the accomplice's testimony, standing alone, was sufficient to establish a foundation for the admission of the knife in evidence. The decision does not hold that the knife was sufficient corroboration of the accomplice's testimony. This In People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792, a conviction of both participants for the same offense as is charged herein was upheld by reliance upon photographic evidence alone. No one other than the participants was present when the act occurred and neither of them testified. The camera was so equipped that it could take photographs without the necessity of a third party's assistance. It was stated therein, at page 409, 188 P.2d at page 794: 'The general rule is that photographs are admissible when it is shown that they are correct reproductions of what they purport to show. This is usually shown by the testimony of the one who took the picture. However, this is not necessary and it is well settled that the showing may be made by the testimony of anyone who knows that the picture correctly depicts what it purports to represent.'
The rule as to photographs is equally applicable to moving pictures. (People v. Dabb (1948) 32 Cal.2d 491, 197 P.2d 1.)
It is also contended that the entire film should not have been admitted because Joan only identified portions of it and, furthermore, it is not clear what those portions were. We do not agree.
Joan testified that, prior to the trial, she had been shown portions of the film by two police inspectors and that these portions were true representations of what took place at the studio on the occasion in question. She was questioned as to whether 'the film that you saw, * * * is that the film of the events in which you participated on this particular date at the Beaumont Studio * * *' Her answer was: 'Yes.' (Emphasis added.)
It is not even suggested how or in what manner defendant was in any way prejudiced by any portion of the film which was not included in those portions shown to the witness by the inspectors. As a matter of fact, after the other two male 'actors' had been 'inspected,' they departed from the scene and thereafter, as shown in the film, appellant and Joan were together at all times and were the only characters shown. Thus, when Joan testified that the portions of the film which she had been shown depicted 'the events in which you participated,' this included all of the incriminating evidence.
Appellant does not question that the film depicts the commission of the offense denounced by section 288a or that Joan, who was not in any way disguised, was the woman participant therein. However, his counsel on this appeal states that the film does not corroborate Joan's testimony that appellant was the male participant therein because, he says, 'it is impossible to ascertain from an inspection thereof who was the man, let alone the defendant, who participated in the act.'
We realize that appellant's present counsel has probably not had the benefit of viewing the film. However, because of the contention being made, we have done so. It shows that the appellant was completely nude except for a skull cap on his head. He had a thin and evenly applied coat of black grease paint on his face. Much of this came off during the 15-minute orgy depicted. There were many 'close-ups' of appellant, particularly of his facial expressions during the orgy.
It is abundantly clear to us that the jury, simply by comparing the features, weight and build of the male participant, as he appeared in the film, with the features, weight and build of the appellant, as he appeared in court, could reasonably reach a conclusion that appellant was the participant. It is our opinion that the jury's identification of the appellant, necessarily implied from its verdict, is sufficiently supported by the film, independently of and without The trial judge instructed the jury that, if the crime charged was committed by anyone, Joan was an accomplice thereto as a matter of law and her testimony would have to be corroborated before a conviction could be had. (Pen.Code § 1111.)
The jury was also instructed as follows: 'In determining whether or not the testimony of an accomplice has been corroborated as required by law, you must, for the purpose only of your consideration of that question, assume to be removed from the case that portion of the testimony of the accomplice, if any, which directly or indirectly tends to connect the defendant with the commission of the offense charged.'
There is every indication in the record that the jury reached its conclusion in accordance with these instructions.
After two hours of deliberation, the jury returned to court and, in response to a question by the court, the foreman stated that they stood 11 to 1. The foreman then stated: 'Your Honor, may I request--this has been an opinion from the jurors--that the defendant stand without his glasses on?' Thereupon the court directed the defendant to do so.
After deliberating for about thirty-five minutes more, the jury requested that the film be run again. The foreman explained that 'they [the jury] want to confirm that this defendant is the man in the film.' After further discussion, the foreman added 'it is the idea of donfirming the fact that the faces are the same.' The court then advised the foreman to indicate whenever enough of the film had been shown to satisfy the jury's request. The film was partially re-run. The court then asked the foreman if there was anything else, and, upon replying that there was not, the foreman added: 'I think they got a full view of the man's face in the picture.' Eight minutes later, the jury reached a verdict.
Appellant requested the giving of only four instructions, CALJIC 821, 829, 830 and 537. The first three were given and 552 was given in lieu of 537. No objection is made to this substitution.
The only error claimed by appellant with respect to the entire charge to the jury is that the trial court, on its own motion, should have instructed the jury that the testimony of the accomplice could not be used or considered in giving direction to, or interpreting, the corroborative evidence (the film), or in identifying the male participant shown in the film.
This film does not need any direction or interpretation. It speaks very lucidly for itself. The crucial point in the instant situation, is whether the jury could reasonably identify appellant from the film without being aided by the accomplice's identification of appellant as being the male participant shown in the film. The point fails in this case because the attempted disguise was clearly insufficient to prevent such an identification.
Moreover, the court's instruction, quoted above, clearly and adequately covers the issue, and the jury demonstrated this in the manner stated above.
We are mindful that, in a criminal case, the trial court is under a duty, on its own motion, to give adequate instructions on all material points. The trial court did so in this case. If appellant desired a more specific instruction, such as he now indicates, this should have been called to the attention of the trial court and such an instruction tendered or requested. (People v. Andrew (1941) 43 Cal.App.2d 126, 133, 110 P.2d 459; People v. Owens (1953) 117 Cal.App.2d 121, 255 P.2d 114.)
Our Supreme Court, in People v. Reed (1952) 38 Cal.2d 423, 430, 240 P.2d 590, quotes with approval from People v. Carothers (1946) 77 Cal.App.2d 252, 255, 175 P.2d 30, 32, as follows: 'Where an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any, to it is that it is deficient or inadequate by reason of its generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or People v. Meichtry
Judgment affirmed.
KAUFMAN, P.J., and SHOEMAKER, J., concur.