Opinion
For Opinion on Rehearing, see 34 Cal.Rptr. 519. Jimmie Lee Cooper, in pro. per.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.
JEFFERSON, Justice.
In an information filed by the district attorney of Los Angeles County, defendant was charged with the crime of robbery, a violation of Penal Code, section 211. The information alleged a prior felony conviction. Defendant pleaded not guilty and denied the prior conviction. During the course of the trial, however, defendant, out of the presence of the jury, admitted the prior conviction to be true. Defendant was Defendant petitioned this court for the appointment of counsel to represent him on appeal. This court, having made an independent investigation of the record and having determined that it would be neither advantageous to defendant nor helpful to this court to have counsel appointed, denied the application, whereupon defendant prosecutes this appeal in propria persona.
Defendant requested that this court augment the record on appeal with a supplemental reporter's transcript which included the transcript of the preliminary hearing and the closing argument of the prosecutor. The request was granted and the entire record is now before us.
The following evidence was presented at the trial:
On December 7, 1961, between the hours of 2:00 and 2:30 a. m. William Cecil Harris testified he left a tavern and went to a hamburger stand at 45th and Avalon streets. He ordered a cup of coffee and a bowl of chili from its owner and operator Robert Willrich. While the food was being prepared, he told Mr. Willrich he would like to visit the restroom which was located at the rear of the stand. He was on his way there when he heard someone walking behind him. Before he could look back he was hit on the head. He fell to the ground, rolled over on his back and while looking up saw three men. One of them was kicking him in the chest area and another was going through his pockets. Robert Willrich testified that just after Mr. Harris left to go to the restroom he heard a noise and went to the back door of the stand to investigate. He saw Mr. Harris on the ground and three men standing over him, one of whom was going through his pockets. He had previously noticed that three men had followed the victim to the hamburger stand. He recognized defendant as one of the men he saw standing over Mr. Harris. When he asked the men what they were doing they ran down 45th Street to an alley. He ran down Avalon Boulevard and cut them off at the end of the alley. He recognized the three men and told them, 'I know you three fellows,' and further told them he had seen what they had done; that Mr. Harris was a good customer and that they should return his money to him or he would turn them over to the police. They denied taking anything from Mr. Harris and then fled. He got in his car and proceeded to look for them. When a police car came by, he explained to the officers what had happened. He further testified defendant had been at the hamburger stand as a customer earlier in the evening and had been a frequent customer in the past.
The victim at the time of this incident had $30 in his wallet and $15 in one pocket. This money and his cigarette lighter were taken. Mr. Harris was unable to identify any of the men who struck and robbed him.
Defendant testified in his own behalf. He denied he committed the robbery, stating he was in the area of Wadsworth and Vernon on December 7 about 2:00 a. m., not at the corner of Avalon and Vernon where the robbery occurred. He admitted however, that he knew Willrich, having patronized his place of business about 18 or 20 times in the past but denied being there on the morning of the robbery. He admitted he was with two other persons in the general area where the robbery took place, but stated he did not know their names. He testified that Willrich had accosted him and the other two men in the alley; that Willrich and two other fellows jumped out of a car and stopped them; that Willrich said 'Well, I'm going to call the police,' that Willrich and his companions then proceeded to assault him. He acknowledged that Mr. Willrich had asked, 'Why don't you give me the money?' and that he had replied, 'We don't have any money.'
Defendant contends there was insufficient evidence to support the judgment. With The weight of the evidence and credibility of witnesses are not reviewable by this court. (People v. Williams, 150 Cal.App.2d 171, 176, 309 P.2d 525.) The court on appeal will decide only whether upon the face of the evidence it can be held that sufficient facts could not have been found by the jury to warrant the inference of guilt. Before the verdict of the jury, which was approved by the trial court, can be set aside on appeal on the grounds of insufficiency of the evidence, it must appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. The court on appeal must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence and then determine whether such facts are sufficient to support the verdict. If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that these circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination made by the jury. (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)
Defendant further complains that there were some inconsistencies in the Willrich testimony. He argues that what Willrich said at the trial was inconsistent with what he said at the preliminary hearing. We have reviewed the testimony given at the preliminary hearing by witness Willrich as well as the testimony he gave before the jury and we have found only minor inconsistencies, if any.
'To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]' (People v. Penrice, 195 Cal.App.2d 360, 363, 15 Cal.Rptr. 733, 735.)
'In considering the sufficiency of the evidence to support a verdict, the Appellate Court determines only whether there is any substantial evidence in the record, either direct or indirect, contradicted or uncontradicted, which justifies the conclusion reached. [Citations.]' (People v. Moore, 196 Cal.App.2d 91, 96, 16 Cal.Rptr. 294, 297.)
Defendant next contends that the prosecutor made inflammatory remarks about defendant in his argument to the jury. One of the remarks which defendant complains about was to the effect that Willrich was a more reliable witness than defendant because defendant '* * * was a man with a prior felony conviction. * * *' Defendant also complains that he was referred to by the prosecutor as an 'ex-convict' while in referring to Mr. Willrich the term 'businessman' was used.
Defendant urges the court committed error in allowing the prosecutor to comment that defense counsel's argument about the testimony of Mr. Harris did not make sense. He had testified that he could not identify the men who robbed him. Defense counsel argued that since Mr. Harris could not identify defendant, neither then should Mr. Willrich have been able to make an identification. The prosecutor in refuting this argument stated it was not unreasonable under the circumstances that a man could We can find nothing prejudicial in the remarks of the prosecutor. 'As prosecuting attorney has a wide range in which to state his views as to what the evidence shows and the conclusions to be drawn therefrom [citation], and he may comment as to the manner in which a witness testifies. [Citation.] As stated in Judge Fricke's work on Criminal Procedure at page 311:
"Arguments to the jury must be based upon the evidence adduced at the trial, the absence or lack of evidence and the legitimate inferences and conclusions to be drawn therefrom and may include a discussion of the credibility and reliability of testimony and evidence.' [Emphasis added.]' (People v. Mason, 184 Cal.App.2d 317, 364, 7 Cal.Rptr. 627, 657.)
It will be noted no objection was made to these remarks of the prosecutor, nor did the defendant request the jury to be admonished.
Defendant also argues that the prosecutor was guilty of misconduct because he kept inquiring about the first time defendant was convicted of a felony. On this subject the following questions and answers were given:
'Q [by the prosecutor] Ever been convicted of a felony?
'A Yes, I have.
'Q What was it?
'A Assault with caustic chemicals.
'Q Serve time in the State Prison?
'A (Witness nodding affirmatively.)
'Q (Defense counsel) Your Honor, I don't believe that is proper.
'The Court: It certainly is. Overruled.
'Q (Prosecutor) Did you?
'A Yes, I have.' (Rep.Tr. p. 58, lines 6-16.)
This line of questioning for impeachment is proper. The test applied to determine the existence of prejudicial error has been stated as follows: 'That a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254; People v. Miller, 188 Cal.App.2d 156, 171, 10 Cal.Rptr. 326.) Applying this test, even if there was error, we find there was no cause for reversal of the judgment.
Defendant further contends that he was not properly represented by counsel. We find no merit in this contention. The charge is made in defendant's brief that the deputy public defender only visited him twice and then only for 20 or 25 minutes each visit. He asserts that the attorney did not allow him to read the transcript of the preliminary hearing; that his attorney had prejudged his case and told defendant's uncle he (the deputy public defender) could do nothing for defendant. These were all statements made in defendant's brief. None of these matters were in the record before us.
The record in this case indicates that defendant was ably represented at all stages of the trial proceedings by the deputy public defendant. The handling of the defense by counsel will not be declared inadequate, except in the rare case where counsel displays such a lack of diligence and competence as to reduce the trial to a farce or a sham. (People v. Ricks, 161 Cal.App.2d 674, 678, 327 P.2d 209.) There is absolutely no such showing in the instant case. Defendant received a fair trial and was properly represented by counsel.
Judgment of conviction is affirmed.
BURKE, P.J., and KINGSLEY, J., concur.