People v. Gould

A jury found defendants Jewell Ashby Gould and Andrew Peter Marudas guilty of burglary in the second degree. Each defendant appeals from the judgment of conviction and from the denial of his motion for a new trial.

At the trial Mrs. Marguerite Fenwick testified that at noon on August 26, 1958, she left her apartment on Shoreham Drive and went to the swimming pool. When she returned about six minutes later for suntan oil, she saw a man standing on the steps outside her door and found the door slightly ajar. She saw a second man in her apartment who shouted: “Go

About 1 p. m. Officer Brewer arrived and showed Mrs. Fenwick seven to ten small photographs. She selected two— one of Marudas as the man on the steps and one of Gould as the man inside her apartment. On several subsequent occasions she identified the same two photographs or enlargements thereof.

Officer Cataldi testified that when arrested Gould at first denied knowledge of any burglary on Shoreham Drive. On being told that an eyewitness had identified him Gould said: “I know what you are talking about.” He admitted taking “a few dollars” from the location and stated: “I don’t recall whether I shimmed the door or the door was legally unlocked. ’ ’ When asked about his accomplice he said: “Why don’t you check Pete? . .. Pete Lombardi.” Marudas at all times denied having any knowledge of the burglary.

At the trial Mrs. Fenwick pointed out Gould as having “some features but not all of the features” of the man she saw inside her apartment, and added that he seemed thinner than the burglar. She stated that she was unable to point out anyone in the courtroom as the man she saw on the steps. She also said that the pictures she selected shortly after the crime “looked similar to the men who were in my apartment but not all the features were the same.” Officer Brewer testified on cross-examination, however, that Mrs. Fenwick was sure of her identifications of the photographs at the time she first selected them.

Gould’s Appeal

Gould contends that the evidence was insufficient to sustain the verdict in that he was not adequately identified as the man Mrs. Fenwick saw in her apartment. It is true that Mrs. Fenwick’s identification of Gould was inconclusive. Her testimony, however, adequately established that a burglary had been committed. Gould’s admissions after his arrest could therefore be used to identify him as one of the burglars (People v. Amaya, 40 Cal.2d 70 , 75-76 [ 251 P.2d 324 ] ; People v. Mehaffey, 32 Cal.2d 535 , 544-545 [ 197 P.2d 12 ] ; People v. Griffin, 98 Cal.App.2d 1 , 46-47 [ 219 P.2d 519 ]), and sustain the jury’s finding that he participated in the crime.

Gould contends that the trial court erred in admitting evi

Mrs. Fenwick testified that Gould had “some features but not all of the features” of the burglar. She stated that “the man who was in my apartment seemed to have— he was a heavy man; he had rather fat cheeks and this man is very thin. ’ ’ Gould testified that after his arrest he became “very ill” and that he had “hernia trouble,” but he denied that he had lost weight. Mrs. Fenwick also testified that “'. . . it is awfully hard for me to point to someone after all of this time, saying that that is the person who looks like that person because my memory is rather vague about it now.” Although her testimony did not amount to an identification, the evidence of her extrajudicial identification was nevertheless admissible.

Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial {People v. Slobodion, 31 Cal.2d 555 , 560 [ 191 P.2d 1 ]), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached {People v. Hardenbroolc, 48 Cal.2d 345 , 351 [ 309 P.2d 424 ]; People v. Kynette, 15 Cal.2d 731 , 753-754 [ 104 P.2d 794 ]), evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness’ mind. {People v. Slobodion, 31 Cal.2d 555 , 559-560 [ 191 P.2d 1 ] ; United States v. Forzano, 190 F.2d 687 , 689; see People v. Hood, 140 Cal. App.2d 585 , 588 [ 295 P.2d 525 ]; People v. Bennett, 119 Cal. App.2d 224 , 226 [ 259 P.2d 476 ] ; 4 Wigmore, Evidence (3d ed. 1940), §1130, p. 208.) The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination. (See Judy v. State, 218 Md. 168 , 174-175 [ 146

The requested instructions clarify the application of the general doctrine requiring proof beyond a reasonable doubt to a case in which the defendant’s guilt must be inferred from a pattern of incriminating circumstances. (See People v. Rayol, 65 Cal.App.2d 462 , 465 [ 150 P.2d 812 ]; People v. Hatchett, 63 Cal.App.2d 144 , 154-155 [ 146 P.2d 469 ].) They deal with proof of “each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt,” the use of evidence “susceptible of two constructions or interpretations,” and the relationship required between “the proved circumstances” and possible hypotheses. Such instructions should not be given when the problem of inferring guilt from a pattern of incriminating circumstances is not present.

•Testimony as to an extrajudicial admission is indirect evidence of the matter admitted because the jurors are called upon not only to believe what is said in court—that the admission was made—but to infer that the admission was true. (People v. Koenig, 29 Cal.2d 87 , 91 [ 173 P.2d 1 ].) Thus such testimony is indirect evidence only because it is hearsay.

The requested instructions on circumstantial evidence clearly do not refer to the problem of evaluating hearsay. They are unnecessary, and may be misleading, when the jury is to consider only whether the admission was made, and if made, whether it was true. (People v. Bretagna, 298 N.Y. 323 , 326 [ 83 N.E.2d 537 , 538]; see Morgan, Admissions and the Hearsay Rule, 30 Yale L.J. 355 , 356-358.)

Other jurisdictions agree, though on somewhat different grounds, that the standard instructions on circumstantial evidence are not applicable to evidence of extrajudicial admissions. (Annot., 40 A.L.R. 571 ; 22 C.J.S., § 530, p. 839, § 816 subsec. a., p. 1422 and Supp. 1960, p. 313; 1 Underhill,

In People v. Koenig, 29 Cal.2d 87 [ 173 P.2d 1 ], we noted that section 1832 of the Code of Civil Procedure cites testimony as to an extrajudicial admission as an example of “indirect evidence” and we concluded that the refusal to give a requested instruction on circumstantial evidence was erroneous. In that ease, however, the prosecution relied heavily on proof of incriminating circumstances other than the defendant’s alleged admissions. The requested instruction on circumstantial evidence was appropriate there without regard to the testimony as to admissions, since the jury might have believed the defendant’s denial that he made the admissions and yet have inferred his guilt from the other incriminating circumstances alone. (People v. Hatchett, 63 Cal.App.2d 144 , 153 [ 146 P.2d 469 ]; see People v. Zerillo, 36 Cal.2d 222 , 233 [ 223 P.2d 223 ]; People v. Simeone, 26 Cal.2d 795 , 807 [ 161 P.2d 369 ].) Since the statutory definition of “indirect evidence” includes both hearsay and presumptions (Code Civ. Proc., §§ 1957-1963), to which the requested instructions on circumstantial evidence obviously do not apply, it could not have been its purpose to affect the giving of those instructions. Any statements or implications to the contrary in People v. Koenig, supra, and People v. Candiotto, 128 Cal.App.2d 347 [ 275 P.2d 500 ], are disapproved.

Gould’s contentions are without merit and his conviction must be affirmed.

Marudas’ Appeal

Marudas contends that the evidence tending to identify him as the man Mrs. Fenwick saw on the steps outside her apartment was insufficient to sustain his conviction. Mrs. Fenwick testified that she was unable to point out anyone in the courtroom as the man she saw on the steps. Gould did not identify Marudas as his accomplice, but suggested that the police check one “Pete Lombardi.” Unlike Gould, Marudas at all times denied having any knowledge of the burglary. The People contend, however, that Marudas’ conviction should be sustained on the basis of an allegedly evasive statement made by him at the time of his arrest and Mrs. Fenwick’s extrajudicial identification of his photograph.

When asked upon arrest where he had been on the