People v. Costa

California Court of Appeal Jul 15, 1963 No. Crim. 8423Published

Before: Wood

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Holding. The court held that the trial court was not required to instruct the jury on circumstantial evidence, lesser included offenses, or self-defense absent a specific request, and that an erroneous instruction regarding the use of a weapon was not prejudicial.

Issues

Whether the trial court erred in failing to instruct the jury on circumstantial evidence, lesser included offenses, and self-defense without a request.
Whether the trial court erred in giving an instruction regarding the possession of a dangerous weapon when the evidence showed actual use of the weapon.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence.”

“Among those matters necessitating a specific request for instruction on the part of a defendant is an instruction as to lesser degrees of the offense charged.”

“Under the evidence herein, the instruction should not have been given, but the giving of it was not prejudicial.”

WOOD, P. J.

In a jury trial defendant Costa was convicted of first degree robbery. He appeals from the judgment, and from the order denying his motion for a new trial. Such an order is not appealable.

Appellant contends that the court erred in failing to give certain instructions regarding circumstantial evidence, included lesser offense, self-defense, and a dangerous weapon.

Mr. Johnson (the victim) was playing cards at the Embassy Club in Gardena from 10 p.m. on March 3, 1961, to approximately 2 a.m. on March 4, except that on two or three occasions during that time he went into a nearby bar and had four or five drinks of liquor. While he was playing cards, he first saw defendant who was then standing outside the rail watching the game. About 1:30 or 2 a.m., while Johnson and defendant were in the bar, Johnson asked defendant whether he might ride with defendant toward town—to

[313]

Manchester Avenue or Florence Avenue, where he would get out of the car and catch the bus. After they entered defendant's car about

a.m., defendant drove north on Vermont Avenue and then turned onto the Harbor Freeway. Johnson, who sat in the right front seat, had $74 on his person. When they came to Manchester Avenue, Johnson said that he would get out of the car. Defendant replied that they would go to Las Vegas. When they came to Florence Avenue, Johnson said that he would get out and catch the bus. Defendant did not stop there, but kept driving for a long distance on the freeway and finally pulled off to the side and stopped. Then defendant grabbed Johnson around the neck and slugged him on the head with something hard. When Johnson regained consciousness, he was lying on the back seat of the moving car, he felt sticky and blood was on his fingers, his jaw was swollen, and his false teeth were broken. He picked up a jack-handle lug wrench, which was back of him on the car seat, and when the car slowed down he struck defendant’s head with the wrench. Then the car hit the curb and a fire hydrant and came to a stop on Alameda Street in front of the Union Station (railroad station). Johnson jumped out of the car and hollered for help and the police. A car, driven by Jack Baker, came up back of them and stopped. Johnson went into the Union Station and telephoned the police. Defendant went to the police station (which was about 5 blocks away) and reported that he had been hit by Johnson. In response to Johnson’s telephone call, Police Officer Lively went to the Union Station where Johnson reported the alleged robbery. While Johnson was awaiting the arrival of the police, he noticed that his $74 was missing. The police officer observed that the left side of Johnson’s head was bleeding and that there was a bruise on his cheek. As a result of being struck with the wrench, it was necessary to make stitches in two places on Johnson’s head.

People v. Costa

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WOOD, P. J.

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