Opinion
Rehearing Denied Aug. 4, 1961.
Hearing Granted Sept. 13, 1961.
Opinion vacated 18 Cal.Rptr. 729, 368 P.2d 353.
Ellery E. Cuff, Public Defender, Edward B. Olsen and James L. McCormick, Deputy Public Defenders, Los Angeles, for appellant.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George W. Kell, Deputy Atty. Gen., for respondent.
WOOD, Presiding Justice.
In count 1 of an information the defendant was accused of burglary in that on November 15, 1959, he unlawfully entered the apartment of Charlotte Young with the intent to commit theft therein. In count 2 he was accused of robbery, committed at said time and place while he was armed with a revolver. Count 1 was dismissed upon motion of the prosecution. In a jury trial, defendant was convicted, on count 2, of robbery in the first degree. The jury found that defendant was armed with a revolver at the time of the robbery. Defendant's motion for a new trial, on the ground of newly discovered evidence, was denied. Probation was denied, and he was sentenced to imprisonment in the state prison. He appeals from the judgment and from the order denying his motion for a new trial.
Appellant contends that the trial court abused its discretion in denying his motion for a new trial.
Earl Howe, a witness called by the prosecution, testified: On November 14, 1959, about 9 p.m., he and Charlotte Young left her home (which was in a duplex building) and went to a party. They returned to her home about 4 o'clock the next morning. After he (witness) opened the door and turned on the light, the defendant 'popped out' of the closet or the hallway. Defendant pointed a gun, which appeared to be a loaded revolver, at the witness and Charlotte. He told the witness to disrobe. In compliance therewith the witness removed his coat, pants, and shirt. A wallet, with identification cards in it, was in a pocket of the pants. Also, there was $36 in one of the pockets. Then the defendant pushed the witness into a corner, picked up the clothes, and started out the door. Defendant said he was going to use the clothes as evidence against Charlotte and he would mess her up. (It appears, from an affidavit in support of the motion for a new trial, that defendant and Charlotte formerly lived together about eleven years and they have two daughters, aged 3 and 9 years.) While defendant was going out the door, Charlotte grabbed him, and he pushed her against a table. Defendant poured some beer on On cross-examination, Howe testified that over a period of approximately five months, he had taken Charlotte to parties and dances, and he had visited her at her home.
Officer Nielsen testified that he arrested defendant about midnight of November 15; that defendant said: he had not been at Charlotte Young's house in recent days; he did not know anything about money and clothes having been taken forcibly from her; and he had never owned a gun.
Officer Dawson (an investigating officer) testified that on November 16 he had a conversation with defendant wherein the defendant said: that on the morning of November 15 he had been at a dance until approximately 2 o'clock; then he went to his home and stayed there until 4 o'clock; then he went to a party at the home of Napoleon Ball and stayed there until approximately 7 o'clock; then he went to a girl's home and stayed there until noon; he had not been at Charlotte's house in the early morning hours of November 15 or at all on the night in question; he did not take any money; and he did not own a gun.
Defendant testified: On November 14, 1959, about 10 p. m., he arrived at a dance hall on Vermont Avenue. About 11 p. m., while he was at the dance he telephoned Charlotte Young (who was then at her home) and invited her to come to the dance. She did not accept the invitation, and he told her that he would see her after the dance. About 2:15 a. m., after the dance, he telephoned her (at her home) and asked if he 'could come over and see her.' She said that he 'could' come. After making that telephone call he went to a party at the home of Irma Hobson, where he stayed until approximately 3:30 a. m. Then he went to a restaurant, where he stayed until approximately 4 a. m. Then he went to Charlotte's house. When he arrived there, dim lights were in the front room and 'music was playing.' He pushed the latch down, entered the house, went to the back bedroom, and observed that Charlotte, Earl Howe, and Sharon (defendant's three-year-old daughter) were asleep in the same bed. Howe's clothes were hanging on a chair. Defendant picked up Howe's coat and pants and put them in the linen closet, on the top shelf. Then defendant awakened Charlotte and told her he wanted to talk to her. She got up and they went into the front room. He told her that she and the man should not be in bed with the child. They got into an argument, and she rushed into the kitchen and got a knife. Then he threw beer in her face. He awakened Howe and told him that he did not want to catch him in that bed again. Then defendant left the house. He did not take any of Howe's clothes or money or property with him. He (defendant) did not own a gun, and did not have a gun when he was in Charlotte's house.
On cross-examination, defendant was asked if he told Officer Dawson (in the conversation on November 16) that he went to Charlotte's house at 4 a. m. He replied that he did not tell the officer he was there--but he did tell the officer that he was not there. He stated further that the reason he did not say he was at her house was that he was on probation and he was ordered not to go there.
Napoleon Ball, called as a witness by defendant, testified that on November 14, 1959, about 11 p. m., he saw defendant at a dance hall; when the dance place closed at 2 a. m., he, defendant, and others went to a party (at Hobson's) and stayed there until approximately 3:30 a. m.; then he, defendant, and others went to a restaurant; after they ate at that place, defendant went away and the others went to Ball's (witness') house.
The motion for a new trial was made upon the ground of newly discovered evidence.
An affidavit of Deputy Public Defender Olsen, in support of the motion for a new The affidavit of defendant, in support of the motion, stated in substance: That his testimony at the trial was true, 'with one exception, i. e., I testified that I called Charlotte Young's phone at about 2:00 A.M. and that she then told me to come on over--that was not true because there was no answer on the phone.' That he did not tell his attorney that Mrs. Miller was in Charlotte's apartment when he walked in there because he assumed that she would deny being there or would try to keep from getting involved--she and he had had some words a short time before and he did not think she would do anything to help him, and he did not ask her. It was not until after the trial that Mrs. Miller called him and said she had learned about the verdict and she believed the case had been allowed to go too far, and she would be willing to help bring out the true facts. He gave the telephone number of Mr. Olsen (his attorney) to her and asked her to call him. Until he talked to Mrs. Miller on the night of March 18, the date the verdict was returned, he had no way of proving that the testimony of Howe was a complete fabrication, except through the testimony of Virginia Barton. Miss Barton was called as a witness on his behalf but she was not permitted to testify as to a telephone conversation she had with Charlotte. Until he talked with Mrs. Miller he had no knowledge that Esmond or Willa Lewis knew anything about the case.
The affidavit of Nora Miller stated in substance: That in November, 1959, she lived in a flat in the same building where her daughter Charlotte Young lived. She (affiant) and her husband had been to a party the night of November 14 and did not return home until 3 a. m. About half an hour later, she heard her daughter come home. Later when the telephone in the home of the affiant rang once she knew it was a signal from her daughter, and affiant went to the daughter's flat. Earl Howe, who was there, had been drinking and he was asleep. About fifteen minutes after she arrived there, the defendant came in. She saw him look toward the bedroom and 'a man's clothes on a chair' at the end of the hall. He grabbed the clothes and threw them into a closet in the hall. Them he went into the living room and talked to Charlotte approximately an hour. He said he came in response to a message from Charlotte. Howe woke up and called Charlotte. Defendant told him to wait a few minutes. Then Howe 'yelled to Charlotte,' and she went into the other room. At that time, defendant walked out. While defendant was there he had no gun, and he did not threaten Howe or Charlotte in any way. When defendant left he did not take any clothes or anything belonging to Howe or Charlotte. Later that day, about 9 a. m., affiant and her daughter Willa Lewis and Willa's husband Esmond Lewis were in Charlotte's flat, and at that time Howe said he had figured out a scheme to 'fix' defendant and keep him away from there. He said he was going to call the police and say that defendant had broken into the place, pulled a gun on them, and forced him to take off his clothes, and had taken 'his clothes containing money.' Howe pulled off the screen of the back door, and that would 'make it look like he broke in.' Howe called the police and they came about 11 a. m. He told 'that story to the police.' She did not want to interfere in her daughter's affairs and she had no idea the story would cause all this trouble. Charlotte and defendant were together about eleven The affidavit of Esmond Lewis was in substance: On November 15, 1959, about 9:30 a. m., he and his wife Willa, went to Charlotte's house. Howe and Mrs. Miller were also there. Howe said that defendant had walked into the flat and found Howe asleep in the bed, and that defendant had taken Howe's 'clothes off a chair and had taken them out.' Howe also said he did not want defendant around there any more and he was going to fix it so that defendant would 'get some time.' The general idea of the conversation was that Howe and Charlotte were making up a story to get defendant into trouble. Charlotte said that she could say that defendant had a gun. Howe said that was a good idea and that is what he would say. Affiant did not take Howe seriously and did not think he would go through with such a wild scheme. Affiant did not know until recently that defendant had been accused on that story. If Howe testified that defendant held a gun on him and forced him to take off his clothes, that testimony is a lie.
Section 1181 of the Penal Code provides: 'When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. * * * 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given * * *.'
Appellant argues to the effect that (1) the affidavits set forth newly discovered evidence which probably would lead to a different result on a retrial; (2) the evidence referred to in the affidavits could not with reasonable diligence have been produced at the trial; (3) the affidavits meet the statutory requirements relative to a motion for a new trial; and (4) the trial judge abused his discretion in denying the motion.
Appellant argues further that since he 'could not have had awareness of a scheme conducted behind his back,' the evidence of a frame-up could not have been produced at the trial; and that such evidence was obtained because individuals, who heard the plot developed, were willing to come forward and make the affidavits.
The determination of a motion for a new trial on the ground of newly discovered evidence is a matter within the discretion of the trial judge, and 'an appellate late court will not interfere except upon a clear showing of an abuse of discretion by the trial court.' People v. Greenwood, 47 Cal.2d 819, 821, 306 P.2d 427, 429.
At the trial in the present case, the appellant testified that about 2:15 a. m., of said day of the alleged robbery, he telephoned Charlotte and she told him to come to her house. In his affidavit, in support of his motion for a new trial, he stated that that testimony was not true, because there was no answer when he telephoned. Since the appellant conceded that he testified falsely as to one part of his testimony, the judge would be justified in distrusting appellant as to other statements made by him in his testimony or in his affidavit. (See Code Civ.Proc. § 2061, subd. 3.) His affidavit states that he did not think to tell his attorney that Mrs. Miller was in Charlotte's apartment, because he assumed that she would deny being there or she would try to keep from getting involved--and she and he had had some words a short time before and he did not think she would do anything to help him, and he did not ask her. By reason of the circumstance herein that appellant testified falsely as to the telephone call, the judge might have concluded that appellant's statements in his affidavit, as to his reasons for not telling his attorney about Mrs. Miller, were false. Also, the judge was not required to accept, as true, appellant's statement in his affidavit that until he received a telephone call from Mrs. People v. Greenwood,
People v. Kirk, People v. Gompertz,In the present case, especially in view of the admittedly false testimony of appellant, it cannot be said that the trial judge abused his discretion in denying the motion for a new trial.
The judgment and the order denying the motion for a new trial are affirmed.
FOURT and LILLIE, JJ., concur.