People v. Belton ( 1979 )

Opinion

BIRD, C. J.

Appellant, Robert Charles Belton, was found guilty in a court trial of violating Penal Code section 246 (discharging a firearm at an inhabited dwelling house).¹ Appellant contends that his motion for a judgment of acquittal pursuant to section 1118² should have been granted.

I

By an information filed May 5, 1975, appellant was charged with a violation of section 246. He was arraigned and pleaded not guilty. Appellant waived his right to a jury trial and was tried by a judge sitting without a jury. On October 24, 1975, the trial court found him guilty as charged.

In its case-in-chief, the prosecution produced testimony which showed that a shotgun had been fired at the residence of Sophronia Johnson on February 11, 1975. In addition, the prosecution called Wardell Fouse, the 16-year-old stepson of appellant. Fouse testified that neither he nor his stepfather had anything to do with the shooting. The minor acknowledged being questioned by Deputy Sheriff Michael Lugos on February 12, 1975, but denied having admitted to Lugos that he had fired a shotgun at the Johnson house from a car driven by appellant.

To contradict Fouse’s testimony, the prosecution called Lugos. Asked about his interview with Fouse on February 12th, Lugos testified that Fouse first denied but later admitted firing a weapon at the Johnson house. According to Lugos, Fouse stated that after losing a fight to one of Sophronia Johnson’s sons, he obtained a shotgun, had his stepfather drive him by the Johnson residence, and discharged the weapon in the direction of the home. This testimony by Lugos constituted the only evidence presented during the case-in-chief connecting appellant with the crime.

Following this testimony, the prosecution rested. Appellant then moved for a judgment of acquittal pursuant to section 1118. The trial court summarily denied the motion. The trial proceeded, and appellant was found guilty.

II

On appeal, appellant contends that the trial court should have granted the motion to acquit because the evidence before the court at the time the motion was made was insufficient to convict. When the prosecution rested, the only evidence linking appellant to the crime was the extrajudicial statement of Fouse to Deputy Lugos. Appellant asserts that this statement was the testimony of an accomplice and that section 1111 requires corroboration of accomplice testimony before a conviction may result.³ Since there was no corroborating evidence presented during the prosecution’s case-in-chief, appellant argues that the trial court erred in denying his motion to acquit pursuant to section 1118. In assessing this contention, it is necessary to review the fundamental concepts underlying the acquittal provisions of that section.

Two of the most basic premises of our criminal justice system—the presumption of innocence and the duty of the prosecution to prove guilt beyond a reasonable doubt—are embodied in section 1096 of the Penal Code: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquital . . . .” “These significant words express a cardinal rule of Anglo-American criminal jurisprudence. The presumption, intended originally to ameliorate the severity of the early English common law (5 A.L.R.3d 76), serves not to protect the guilty but to prevent conviction of the innocent. (People v. Hill, 77 Cal.App.2d 287, 293 [175 P.2d 45], and cases cited; Witkin, Cal. Criminal Procedure (1963) §339, p. 332; 14 Cal.Jur.2d 405.) It has been described as a fundamental right and an essential element of due process of law. [Citation.] It is the capstone in the protective arch of a citizen’s rights when accused of crime.” (People v. Morris (1968) 260 Cal.App.2d 848, 850 [67 Cal.Rptr. 566].)

Implicit in these principles is the duty of the prosecution to prove each element of the crime charged. “One of the greatest safeguards for the individual under our system of criminal justice is the requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense.” (Cephus v. United States (D.C.Cir. 1963) 324 F.2d 893, 895, italics added; see also United States v. Sutton (D.C.Cir. 1969)426 F.2d 1202, 1210-1211.)

Prior to the passage of present sections 1118 and 1118.1,⁴ California had no procedural method by which the defendant could move for acquittal on the ground that the prosecution had failed to prove a prima facie case at the close of the prosecution’s case-in-chief. Limited protection for the defendant was provided by section 1385 which permitted the court on its own motion or on the motion of the prosecution to dismiss an action in the furtherance of justice. However, this section did not “confer upon the defendant the privilege of moving to dismiss . . . .” (People v. Shaffer (1960) 182 Cal.App.2d 39, 44 [5 Cal.Rptr. 844], italics added.)

In enacting present sections 1118 and 1118.1, the Legislature provided the defendant with the benefit of a procedure by which to move for acquittal when the prosecution fails to prove a prima facie case. The bill digest prepared by the Senate Judiciary Committee on the legislation proposing these sections recognized the dilemma a defendant faced without a procedure by which to test the sufficiency of the prosecution’s evidence in its case-in-chief. The bill digest stated in pertinent part, “Under present California law, a defendant is not permitted to argue that the prosecution has not made a prima facie case. His alternatives are (1) to rest at the close of the prosecution’s case, gambling that the court shares his opinion, or (2) to proceed with presenting his defense. Proponents acknowledge that there will be very few cases wherein the prosecution will not present a triable issue, however state that it is in these cases that defendant should have the right to terminate the matter at the close of the prosecution’s evidence.”⁵ (Italics added.)

In giving substance to this right, the Legislature provided that a motion to acquit could be made by either the defendant or the trial court, without any requirement that the motion be made in a particular form. The Attorney General nevertheless contends that appellant’s motion to acquit made pursuant to section 1118 should have included a statement of specific grounds.⁶ However, to so construe this section would force a defendant to face the same kind of dilemma from which the Legislature sought to extricate defendants. In effect, a defendant would be forced to choose between: (1) specifying the defects in the prosecution’s case, thereby affording the prosecutor an opportunity to seek to reopen the case in order to cure such defects; (2) making no motion and resting, thereby sacrificing his right to present a defense for fear that later evidence might cure the defects in the prosecution’s case; or (3) making no motion, thereby waiving the right to challenge the prosecution’s case-in-chief, and proceeding to present a defense. Forcing a defendant to elect among these alternatives would deny him the intended protection of the section. Further, to require a defendant to state specific grounds in support of the motion for acquittal would place the burden upon him to point out to the prosecutor, as well as to the court, the gaps in the prosecution’s case. Such a requirement would come perilously close to compelling a defendant to aid in his own prosecution and would lessen the prosecutor’s burden to prove each and every element of the case beyond a reasonable doubt.⁷

The Attorney General’s analogy to cases interpreting Code of Civil Procedure section 581c⁸ is inapposite. Those cases require a defendant in a civil action to specify the particular grounds upon which he is relying in making a motion for nonsuit. (Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 868 [86 Cal.Rptr. 359]; Inderbitzen v. Lane Hospital (1932) 124 Cal.App. 462, 465 [12 P.2d 744, 13 P.2d 905].) However, such an analogy fails to give proper weight to the distinctions between civil and criminal actions—distinctions which the Legislature recognized by utilizing different language in providing for motions for acquittal and motions for nonsuit. Most notably, section 1118 authorizes the trial court to order a judgment of acquittal on its own motion in a criminal case, whereas a nonsuit cannot be had in a civil case unless the defendant initiates the motion (4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 358, p. 3156). The fundamental rights at stake in a criminal action are deemed so important that the Legislature has chosen to give the trial court the authority, independent of any action by the defendant, to acquit should the prosecution fail to meet its burden during the case-in-chief.

To decide the proper interpretation of a rule of criminal procedure by reliance upon rules of civil procedure would be to ignore the underlying rights of the presumption of innocence and proof beyond a reasonable doubt which the Legislature sought to protect in enacting section 1118. Nothing in the history of this section supports the contention that the Legislature intended a defendant to be deprived of such protection unless he first specified the defects in the prosecution’s case-in-chief.

“If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment of nonsuit operates as an adjudication upon the merits.”

Having determined that appellant’s motion for acquittal was made in proper form, this court must now consider whether that motion should have been granted. Appellant contends that the only evidence presented against him during the prosecution’s case-in-chief was the uncorroborated testimony of an accomplice and that since under section 1111 such evidence is insufficient to convict, his motion to acquit was improperly denied. Before this court may consider the validity of this contention, it must be determined whether or not section 1111 is applicable here. That section’s corroboration requirements come into play only when “the testimony of an accomplice” (italics added) constitutes the basis for a conviction. Thus, section llll’s applicability to the present case turns on whether or not Fouse was an accomplice and if so, whether or not his extrajudicial statement incriminating appellant constituted “testimony” within the meaning of that section.

In order to establish that an individual is an accomplice, a defendant bears the burden of both producing evidence raising that issue⁹ and of proving the accomplice status by a preponderence of the evidence. (People v. Tewksbury, supra, 15 Cal.3d at pp. 963, 968.) “The burden of producing evidence on an issue means the liability to an adverse ruling . . . if evidence on the issue has not been produced.” (McCormick on Evidence (Cleary rev. ed. 1972) § 336, p. 784, italics added; see Evid. Code, §§ 110, 550.) In the case before this court, evidence was produced during the case-in-chief that Fouse was an accomplice. His extrajudicial statement was evidence that he had perpetrated a crime, aided and abetted by appellant. Since perpetrators are accomplices within the meaning of section 1111¹⁰ (People v. Gordon (1973) 10 Cal.3d 460, 468 [110 Cal.Rptr. 906, 516 P.2d 298]; see People v. Tewksbury, supra, 15 Cal.3d at p. 960), Fouse was an accomplice according to the prosecution’s own evidence and theory of the crime.¹¹ The fact that the prosecutor introduced this evidence relieved the appellant of his initial burden of producing evidence on the issue. (See Evid. Code, § 604.)

Once this burden of producing evidence has been met, “the burden of proof is on the defendant to establish that a witness is an accomplice.” (People v. Johnson (1971) 18 Cal.App.3d 458, 464 [95 Cal.Rptr. 316, 96 Cal.Rptr. 695].) The burden of proving a fact is “satisfied when the requisite evidence has been introduced or the persuasion accomplished, and . . . it is of no consequence whether the evidence was introduced by one party rather than the other,... or whether the persuasion was due to the evidence or to the argument of either counsel . . . .” (Morgan, Basic Problems of State and Federal Evidence (Weinstein rev. ed. 1976) p. 14.) In the present case, to have denied appellant’s motion to acquit, the trial court must have disbelieved Fouse’s testimony that neither he nor appellant participated in the crime and believed Fouse’s extrajudicial statement. That statement, presented during the testimony of Deputy Lugos, was sufficient to establish the accomplice status of Fouse by a preponderance of the evidence.

However, before section 1111 may be applied, it must also be decided whether Fouse’s extrajudicial statement constituted “testimony,” as the term is used in that section. In order to determine the proper interpretation of the word, this court must look not only to its literal meaning but also to the Legislature’s intent in enacting section 1111.

“Testimony” is generally described in both statutory and decisional law as oral statements made by a person under oath in a court proceeding. The term “testify” is referred to in identical language in the Penal Code, the Code of Civil Procedure, and the Civil Code: “. . . every mode of oral statement, under oath or affirmation, is embraced by the term ‘testify,’ . . ,”¹² (Pen. Code, § 7; Code Civ. Proc., § 17; Civ. Code, § 14; see also Evid. Code, § 710 [oath or affirmation required before witness may testify].) Decisional law of this state has interpreted the word “testimony” in similar fashion. Testimony, “strictly speaking, means only that evidence which comes from living witnesses who testify orally.” (Mann v. Higgins (1890) 83 Cal. 66, 69 [23 P. 206].) “All evidence is not testimony. Testimony is limited to that sort of evidence which is given by witnesses speaking under oath or affirmation [citation] . . . .” (Stern v. Superior Court (1947) 78 Cal.App.2d 9, 13 [177 P.2d 308]; see also People v. Gilbert (1963) 217 Cal.App.2d 662, 666 [31 Cal.Rptr. 920].)

Although section 1111 speaks in terms of “testimony,” it is instructive to note that courts of this state have focused on the source of the statements rather than their evidentiary form in articulating the legislative intent behind that section. “The rationale for requiring corroboration of an accomplice is that the hope of immunity or clemency in return for testimony which would help to convict another makes the accomplice’s testimony suspect, or the accomplice might have many other self-serving motives that could influence his credibility. [Citation.]” (People v. Marshall (1969) 273 Cal.App.2d 423, 427 [78 Cal.Rptr. 16].) For these reasons, “the evidence of an accomplice should be viewed with care, caution and suspicion . . . .” (People v. Wallin (1948) 32 Cal.2d 803, 808 [197 P.2d 734].) To prevent convictions from being based solely upon evidence from such inherently untrustworthy sources, the Legislature enacted section 1111 to require corroboration whenever an accomplice provided the evidence upon which a conviction was sought.

In the present case, the fact that the accomplice’s incriminating out-of-court statement was not part of his testimony at trial does not in any way lessen the danger that such a statement “comes from a tainted source and is often given in the hope or expectation of leniency or immunity.” (Ibid.) It is the source of the statement that renders it suspect. Thus, the reasons for the requirement of corroboration would seem to be equally present whether the accomplice’s statements were made in court or out of court. However, when section 1111 was enacted in 1872, the Legislature had no reason to take into account anything other than an accomplice’s in-court statements. At that time, there was no means by which a prior inconsistent statement such as Fouse’s could have been admitted to prove the truth of the matter stated. Thus, in 1872, the word “testimony” was the term most precisely suited to expressing the Legislature’s intent that a conviction must be based on more than just the inherently suspect statements of an accomplice incriminating the defendant.

It was not until 1967, when section 1235 came into effect as part of the newly enacted Evidence Code, that evidence of a witness’ prior inconsistent out-of-court statement became admissible other than for the purpose of attacking the witness’ credibility. (Albert v. McKay & Co. (1917) 174 Cal. 451 [163 P. 666].) If the case before this court had arisen prior to 1967, evidence that Fouse had made prior statements incriminating defendant as a participant in the crime charged against defendant would have been admissible solely to impeach the exculpatory testimony of Fouse. Since these statements would not have been admissible to prove the truth of the matter stated, there would have been no evidence in the prosecution’s case-in-chief capable of sustaining the conviction of defendant. When it enacted section 1111 in 1872, the Legislature could not have envisioned the admissibility of evidence of an accomplice’s out-of-court statement for any purpose other than to attack the credibility of the accomplice as a witness. However, when the Legislature did enlarge the purposes for which such evidence could be admitted with the enactment of Evidence Code section 1235, it neglected, through apparent oversight, to substitute a more inclusive word for the term “testimony” so that section 1111 might clearly be applicable to this new form of accomplice evidence.

This court is thus called upon to construe the term “testimony” so as to give full effect to the legislative intent of section 1111, thereby avoiding the anomalous situation that would be created by a literal reading of that term. “ ‘The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the legislature apparent by the statute; and if the words are sufficiently flexible to admit of some other construction it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’ ” (In re Haines (1925) 195 Cal. 605, 613 [234 P. 883].)

In enacting section 1111, the Legislature intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility. If an accomplice’s testimony under oath is suspect, unreliable and untrustworthy, evidence of his prior inconsistent statements, not made under oath or in the presence of the trier of fact, must be deemed even more suspect, untrustworthy and unreliable.

To conclude that such evidence does not fall within the ambit of section 1111 merely because an out-of-court statement is not, strictly speaking, synonymous with “testimony” would be to thwart the purposes of that section. Accordingly, applying the basic principle that legislative intent prevails over literal construction, this court concludes that Fouse’s prior inconsistent statement constituted “testimony,” as the term is used in section 1111.

Since Fouse was an accomplice and his prior inconsistent statement was testimony, the prosecution had a duty pursuant to the requirements of section 1111 to corroborate his testimony in order for there to be sufficient evidence to convict. By not producing any corroboration during its case-in-chief, the prosecution failed to present a prima facie case. Appellant’s motion to acquit was therefore improperly denied by the trial court, and a reversal of the judgment entered below is required. However, a general reversal is not adequate, since a retrial would result. (Pen. Code, § 1262.) Such a retrial would allow the prosecution to accomplish by indirection that which this court holds it cannot do directly. To be consistent with the Legislature’s intent in enacting section 1118, this court cannot afford the prosecution, having once failed to prove a prima facie case, a second opportunity to present the evidence against a defendant.¹³ When appellant moved pursuant to section 1118 in the present case, he was entitled to a judgment of acquittal.

Therefore, the judgment entered below is reversed, and the trial court is directed to enter a judgment of acquittal.

Tobriner, J., Mosk, J., Richardson, X, and Manuel, X, concurred.

1 Penal Code section 246 provided at all times here pertinent: “Any person who shall maliciously and wilfully discharge a firearm at an inhabited dwelling house or occupied building, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for not less than one or more than five years or by imprisonment in the county jail not exceeding one year.”

Unless otherwise indicated, all statutory references are to the Penal Code.

2 Section 1118 provides in pertinent part: “In a case tried by the court without a jury, . . . the court on motion of the defendant or on its own motion shall order the entry of a judgment of acquittal . . . after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty. . . .”

3 Section 1111 provides in pertinent part: “A conviction can not be had 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; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

4 Section 1118.1 provides for acquittal motions when the trial is by jury.

5 Bill digest prepared by the Senate Judiciary Committee for the April 13, 1967, hearing on Senate Bill No. 312, 1967 Regular Session.

6 In making the motion, appellant’s trial counsel stated that he did not “think that we have sufficient evidence here to convict Mr. Belton of any crime . . . .”

7 In reviewing section 1.118, this court is cognizant of its resemblance to rule 29 of the Federal Rules of Criminal Procedure. Federal courts, in interpreting rule 29, have held that the grounds of a motion made pursuant to the rule need not be specifically stated. (Huff v. United States (5th Cir. 1959) 273 F.2d 56, 60; see also United States v. Jones (7th Cir. 1949) 174 F.2d 746, 748.)

8 Code of Civil Procedure section 581c reads: “After the plaintiff has completed his opening statement, or the presentation of his evidence in a trial by jury, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.

9 “[I]t is uniformly held that the defense initially bears the burden of producing evidence to raise the accomplice issue (Evid. Code, § 550) and that in the absence of any such proof the witness is treated as not being an accomplice. [Citations.]” (People v. Tewksbury (1976) 15 Cal.3d 953, 963 [127 Cal.Rptr. 135, 544 P.2d 1335], italics added.) ■

10 Under section 1111, an accomplice is “defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

11 In his final argument to the court, the prosecutor characterized Fouse’s extrajudicial statement as the “confession of an accomplice . . . .”

12 This reference has been contained in each of these sections since their original enactment in 1872, the same year in which section 1111 was initially codified. (1872 Pen. Code, § 7; 1872 Code Civ. Proc., § 17; 1872 Civ. Code, § 14; 1872 Pen. Code, § 1111.)

13 In a federal criminal proceeding, the United States Supreme Court held that the double jeopardy clause of the Fifth Amendment prohibits a second trial following reversal of a conviction in the first trial for lack of sufficient evidence to sustain the jury’s verdict: “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Burks v. United States (1978) 437 U.S. 1, 11 [57 L.Ed.2d 1, 9, 98 S.Ct. 2141, 2147].) The court concluded that “the only ‘just’ remedy available ... is the direction of a judgment of acquittal.” (Id., at p. 18 [57 L.Ed.2d at p. 14, 98 S.Ct. at p. 2150].)