Opinion
Hearing Granted and Retransferred to Court of Appeal June 26, 1968.
For Opinion on Remand see, 78 Cal.Rptr. 873, 456. P.2d 145.
Arthur F. Fisher, Bakersfield, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., by Stephen Cooper, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.
OPINION
CONLEY, Presiding Justice.
Tiny H. Odom was charged with the assault of James Lynn Maxwell with intent to commit murder, which occurred during a saloon brawl in Bakersfield on December 5, 1966. The assault was accomplished with the aid of a knife, and Maxwell sustained two deep cuts, one over the heart and one lower down over the intestines; it was only by grace of a strong body and skillful medical treatment that he survived. When originally taken to the hospital, he had no measurable blood pressure and only the faintest possible pulse over his heart. The jury, after a three-day trial, however, was not convinced that the assault had been made with the intent to commit murder and convicted the defendant of the lesser, but necessarily included, offense of assault with a deadly weapon. (Pen.Code § 245.)
Numerous arguments are made by appellant's counsel looking toward a reversal of the judgment of conviction. We have closely examined all of these contentions but have determined that none of them except one constitutes error and that the one error is not of sufficient weight or importance to constitute prejudice; consequently, the judgment must be affirmed; we shall examine in turn the arguments of appellant's counsel.
The main position of the defendant is that he was not guilty of assault with a deadly weapon in using the knife, but that he employed it only in self-defense.
In examining the record, we have necessarily kept in mind that at the appellate stage of a criminal case we are not permitted to retry the accusation or to assume, as a jury must, that proof of essential elements must be made beyond a reasonable doubt; it is only the duty of an appellate court to make sure that there is substantial evidence, if believed, to justify the finding of the jury; in examining the record we are bound to assume that all facts supported by proper evidence at the trial are true and that testimony at variance with such proven facts is untrue.
With these principles in mind, we turn to an examination of the evidence which shows that at about 11 p. m., on December 4, 1966, the victim, Maxwell, entered Renie's bar in Bakersfield. He was alone; he sat down at the bar where the defendant and a woman variously called Carlotta and Carla were already sitting. Carlotta was talking pleasantly with the bartender, and this appeared to anger the defendant, who made threatening motions toward him on several occasions, but was restrained by Carla.
At that time, Lester Dale White was seated in a booth with two young women. While he and Maxwell had not known each other previously, he nevertheless asked Maxwell several times to join his party; Maxwell did so about an hour after he had entered the bar. Carla served drinks to the people in the booth during which time she spoke to Maxwell and one of the women. White left the bar at one point to take a female companion to her car, but he afterwards returned to the booth. During the evening, Maxwell went from the booth to the bar on several occasions to buy drinks; the last time he did so was at about 10 minutes to 2 a. m. On that occasion, while ordering the drinks, Maxwell leaned against The police and an ambulance arrived at Renie's shortly after they were called following the assault. Maxwell was taken to a hospital where his serious wounds were treated; he ultimately recovered.
The first and most important contention made by the appellant is that the evidence is not sufficient to support a conviction of assault with a deadly weapon for the reason that he used the knife wholly in self-defense. If this were true, as was argued during the trial of the case itself, the point would be sufficient to require a reversal. The trouble is that the record does not bear out the argument for the reason that there is directly opposite evidence, which, as we have already pointed out, the jury had a right to believe. The defendant contends that he did not use the knife against Maxwell until after the bar stools had been thrown at him. However, there is specific testimony that, after the exchange of obscenities, Odom reached into his pocket, pulled out his knife and said he was going to cut Maxwell's 'guts out,' and that he then moved toward Maxwell. It was at this point that Lester White made his attempt to prevent a fight. The defendant also argues that, even if he voluntarily began the fight with the knife, he thereafter retreated as far as possible to the end of the bar in order to withdraw; but it is the rule that, if there is an attempt by an aggressor to withdraw, in order for him to have available a claim of self-defense he must inform his opponent of his withdrawal. In this connection, appellant testified that he had so informed Maxwell, but there is a contrary showing, and, in the circumstances, it must be proven that the person attacked understood that the appellant was withdrawing from the fight, and such proof is absent. (See 1 Witkin, California Crimes, § 162, p. 154.)
Appellant also complains that there were six people in the bar at the time of the fight and that the prosecution only saw fit to produce two of these persons as witnesses. Defendant argues that if all of the witnesses had been produced their testimony would have been, as a whole, contrary to the prosecution's position. But it is an 'A-B-C' of criminal prosecution that it is not necessary to produce all material evidence or to call all persons who might know something about a factual situation in order to accord a defendant a fair trial. (People v. Stanley, 67 A.C. 837, 846, 63 Cal.Rptr. 825, 433 P.2d 913; People v. Tuthill, 31 Cal.2d 92, 98, 187 P.2d 16.) The Appellant next complains that the court committed prejudicial error by allowing heavily blood-stained clothing of Maxwell to be received in evidence and exhibited to the jury, saying that the clothing had no probative value but was clearly inflammatory. The general rule is that a trial court has broad discretionary power to weigh the probative value of evidence as against its prejudicial or inflammatory nature and to rule whether it should be admitted. (Evid Code § 352; People v. Ditson, 57 Cal.2d 415, 20 Cal.Rptr. 165, 369 P.2d 714.) There have been instances in extreme cases where the decision of the trial court to admit evidence of this category has been held improper on appeal. (People v. Burns, 109 Cal.App.2d 524, 241 P.2d 308, 242 P.2d 9, and People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880.) However, in People v. Reed, 38 Cal.2d 423, 240 P.2d 590, it was held that even cumulative evidence of an explanatory nature may be proper. People v. Ford, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892, in reversing a homicide conviction, held that a trial court abused its discretion as a matter of law in failing to weigh the probative value of certain evidence in resolving a material issue as against the danger of prejudice through a needless arousal of the passions of the jurors. However, it seems clear that where, as in the present instance, an appellate court can say that there was no prejudice, even if the evidence was wrongly admitted, it is not necessary to reverse the judgment even though the trial court did not specifically say that it weighed the probative value of the tendered evidence as against any prejudice that might arise. People v. Ray, 252 A.C.A. 1002, 61 Cal.Rptr. 1, indicates that a reviewing court need not automatically reverse a case even where the trial judge failed to exercise his duty to weigh the probative value of the tendered evidence as against the prejudice which might be aroused by it. We find no error in the ruling complained of.
Next appellant argues that it was prejudicially erroneous to permit partly in the same fashion as substantive evidence the use of a tape-recorded interview made by the sheriff's office with Murrill A. Stanfill, the bartender, after the defense had placed him on the stand. The recording was introduced in rebuttal by the People as an inconsistent statement of Stanfill in view of his testimony given at the trial which favored the defendant. Appellant complains of this admission saying that he believes the statement was not merely offered to impeach Mr. Stanfill but rather to prove an element of the People's main case.
The bartender testified on behalf of the defendant that the defendant had not drawn the knife until he was attacked, but in the taped statement given within a week of the commission of the crime he had said that when Odom drew the knife at the start he had gone into a 'knife-fighter's crouch,' and made threatening motions toward the victim, Maxwell. Thus, there was a complete turn-about on the part of the witness.
Section 1235 of the Evidence Code reads as follows:
'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.'
And section 770 of the same code provides:
'Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
'(a) The witness was so examined while testifying as to give him an opportunity '(b) The witness has not been excused from giving further testimony in the action.'
In view of sections 1235 and 770 of the Evidence Code, the statement was admissible, and as it was properly received without any limitation, it could be used in argument in the same fashion as substantive evidence.
The admissibility requirements of section 770 were complied with here. Stanfill was cross-examined extensively and he gave very indefinite answers about whether before the stabbing Odom had first jumped into a 'knife-fighter's crouch' and threatened Mr. Maxwell. He was given the opportunity required by section 770 to explain or deny his statement; therefore, the taped statement was admissible.
As authority for the proposition that the People could not use the statement in the manner in which it was used, appellant cites the following: Witkin, California Evidence, section 1272, pages 1178-1179; People v. Flores, 37 Cal.App.2d 282, 99 P.2d 326; People v. Wilson, 156 Cal.App.2d 728, 320 P.2d 117; People v. Williams, 104 Cal.App.2d 323, 231 P.2d 554. The Witkin reference is merely a summary of the three cases cited. The citations by appellant do not seem to be in point. The cases are treated in Witkin in a section dealing with impeachment of a party's own witness. These rules have, of course, been extensively changed in the new Evidence Code, which provides for unlimited impeachment. Thus, in People v. Wilson, supra, 156 Cal.App.2d 728, 320 P.2d 117, counsel, after claiming surprise, introduced a statement of his own witness for impeachment. At the time, in California, this could only be done if counsel were surprised at the testimony of his own witness. The court held that in that case it was clear that counsel was not surprised but was just interested in getting the statement in and attempted to do so under the guise of impeachment. In People v. Flores, supra, 37 Cal.App.2d 282, 99 P.2d 326, a witness was called and questioned about certain alleged statements by him to the police relative to the charges against the defendant. The witness denied the statements. The prosecution, for purposes of impeachment and over objection, was allowed to introduce evidence of these statements through the police officers. This was held to be error because the court said there was nothing to impeach in the witness's testimony. The only purpose of the examination of the police officers was to establish an element of the People's case by inadmissible hearsay. In People v. Williams, supra, 104 Cal.App.2d 323, 231 P.2d 554, the prosecuting attorney was held guilty of prejudicial misconduct in attempting to prove an element of his case by inadmissible hearsay and in arguing to the jury what the evidence would have shown if it had been admitted. The court held that the evidence was not proper for impeachment, but was offered only as an attempt to prove an element of the prosecution's case. Some language in these cases is difficult to reconcile with what went on in this trial, except that these cases all arose before the new Evidence Code which allows inconsistent statements to be introduced as substantive matter and allows impeachment of one's own witnesses.
Appellant's fourth contention is that the trial court wrongfully disallowed the cross-examination of Stanfill at the request of the defendant after the introduction of the tape containing his prior extra-judicial statement. After the recording was played, defendant asked to be allowed to question Stanfill as though he were on cross-examination. While a trial court has some degree of discretion to permit such cross-examination if it thinks that a fair trial requires it, the court here was technically correct when it required counsel to question the witness as though he were on direct examination. Appellant claims that once Stanfill's inconsistent statement was admitted, the bartender became an adverse witness to defendant. However, it remains true that Stanfill was called by the defendant Appellant alleges that the trial court committed prejudicial error in giving CALJIC instruction No. 325, which reads:
'The right of self-defense is not available to a person who has sought a quarrel with the design to force a deadly issue and thus through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.'
Appellant is in error by apparently believing that this instruction is only applicable where there has been a long-standing quarrel between the assailant and his victim; he argues that, since there was no showing that appellant and the victim had any previous quarrel, this instruction should not have been given. While the cases dealing with this element often involve situations where there has been a longstanding quarrel between the parties involved, there is nothing in the applicable law to indicate that it would be incorrect to give the instruction in a case where the parties were previously strangers. This instruction properly applies to any situation where a person attempts to force a quarrel with another and uses that as an excuse for an assault. It is humanly possible for a person to take a dislike to one who has previously been a stranger; it would follow that there is no reason why the person initiating a quarrel should be entitled to claim self-defense in such a situation.
Appellant next contends that the court committed prejudicial error in failing to instruct the jury that evidence of the oral admissions of a party ought to be viewed with caution. The statement referred to here is one made by the defendant to an officer of the Kern County Sheriff's Department as testified to by the latter. It has been held that, generally speaking, any statement by an accused relative to the offense charged is an admission. (People v. Atchley, 53 Cal.2d 160, 170, 346 P.2d 764.) And the instruction should have been given by the court on its own motion. (People v. Ford, supra, 60 Cal.2d 772, 800, 36 Cal.Rptr. 620, 388 P.2d 892.) This instruction was formerly based on Code of Civil Procedure section 2061, which was repealed as of January 1, 1967. According to the comment of the Law Revision Commission, it was felt that section 2061 and similar provisions confused the issue of what instructions must be given by a criminal court on its own motion, and the Commission, therefore, felt that it was best to leave this matter to the case law. But it is clearly established that this instruction should be included in the charge on the court's own motion, and, in fact, the respondent concedes that there was error in not giving the cautionary instruction. However, respondent contends, and we think correctly, that there was no prejudice in view of the facts of this case; respondent points out that the statement containing the admission is really nothing more than a summary of what defendant himself testified to at trial. However, there is one significant discrepancy which should be referred to: the witness, Detective Cooper, said that appellant admitted that he had cut Maxwell. When appellant testified at the trial he stated that originally he was unaware that he had cut either Maxwell or White; when questioned about this inconsistency, he admitted that he did make such a statement to Officer Cooper but only because he had learned from a deputy sheriff in Seligman, Arizona, at the time of his arrest, that he had cut a man; in other words, his explanation of the inconsistent statements was that at the time the fight took place he did not know that he had stabbed anyone, but when he talked to Officer Cooper afterwards he had already The error alone in failing to give the instruction is insufficient to justify a reversal.
Finally, the defendant objects to several features of the probation officer's report. There is no detailed requirement as to just how the probation officer should investigate or report. The purpose of the report, of course, is to supply the judge with facts which will help him to make a sound estimate of the character of a convicted prisoner in view of his impending duty to sentence him or admit him to probation. A probation officer owes a duty to be fair to both the People and the defendant, and to this end he should, by all readily available means, learn the nature of the crime and the life history of a defendant. As part of such an investigation, the defendant is given an opportunity to name persons who have known him in the past; it is not usual for a prisoner to give such names unless he believes that their letters in response to the probation officer's queries will be favorable to him. It is not required by law, however, that there be included in a probation officer's report anything which his friends or acquaintances may say in his behalf. If this were an iron-clad requisite, it is apparent that in many instances due to many factors there would be regrettable delays in the filing of a probation report; the proper administration of justice requires that the report be filed in a timely fashion. Over-all it should be remembered that while a probation officer's report is theoretically, and often actually, helpful to a judge the judge himself has the duty of determining whether probation should be granted or a sentence to the county jail or to the state's prison should be administered.
Turning to the specific situation in the present case, it is true that the officer said in his report that the defendant's prior record is 'quite long,' while this is not correct. As a matter of fact, the prior record is rather short and contains no felony convictions. But inasmuch as the whole record of the defendant's conflicts with the law was set out in the report it cannot be assumed that the trial judge misapprehended what was said. The appellant complained and the probation officer conceded that he read only the transcript of the preliminary examination and not the transcript of evidence at the trial; usually when a probation officer is asked to report he has a specifically fixed and rather short time to do so; when there is no trial transcript available, the probation officer must learn as best he can the nature of the charges against the defendant; the reading of the transcript of evidence at the preliminary hearing together with his interviews with defendant and the woman, Carla, and his contacts with prosecuting officers apparently were sufficient for the purpose as is shown by a comparison of the basic statements in his report relative to the crime with a present reading of the trial transcript. In this connection, the trial judge who heard all of the evidence unquestionably did apprehend the actual course of the trial.
The persons whose names were given as references by the defendant did not have their responses included as exhibits in the probation officer's report itself, but the letters that did come in prior to sentencing were forwarded to the judge, through the clerk's office, or were in the process of being forwarded and were referred to by the probation officer in oral testimony prior to the pronouncement of the sentence. This is an acceptable procedure (People v. Valdivia, 182 Cal.App.2d 145, 5 Cal.Rptr. 832), and the probation officer indicated that the contents of the late reports would not have changed his opinion. Furthermore, appellant could have presented evidence in mitigation of the sentence if he felt that the report was inadequate or misleading. (Pen.Code § 1204; People v. Valdivia, supra.) Appellant chose not to do this. And counsel for the People and appellant stipulated that the persons whose names have been given by the defendant to the probation officer for a solicitation of their viewpoint would testify that defendant was a man of good character and not known to be violent. We find no error in the record except in the one instance of the failure of the trial court to give the instruction that testimony of the admissions of a defendant should be viewed with caution, and we do not in this case believe that the error in question was prejudicial or that it gives any ground for a reversal of the conviction.
The judgment is affirmed.
STONE and GARGANO, JJ., concur.