FOURT, J., Dissenting. The appellants have made two main contentions: first, that the evidence was insufficient to sustain the convictions, and secondly, that the district attorney was guilty of misconduct.
The statement of facts as set forth in the majority opinion, while sufficient, does not include many matters which are important. However, I will not extend the factual statement further for the reason that the majority has correctly ruled [579]and come to the conclusion that there was, in any event, sufficient evidence to find the appellants guilty.
Considering the claimed misconduct of the district attorney in his opening statement. There seemingly is no claim or contention that there was any bad faith upon the part of the deputy district attorney in this connection. In fact, at the time of the argument on the motion for a new trial, which was made upon the grounds of the misconduct of the district attorney, counsel for the defendants said: “In making this remark, I refer in no way or mean to suggest that the District Attorney was acting in any way in bad faith,” and again in the same argument counsel stated, “Again, I want to make it perfectly clear to the Court, the District Attorney, and the record, that I am not attempting to imply that he was acting in bad faith.”
The deputy district attorney told the jury, at the very start of his opening statement, the following:
“. . . Ladies and Gentlemen of the jury: Most of you have had experience in criminal cases, so it may be redundant to say this to you. What I may say by way of an opening statement is not evidence in the case. The evidence must come from the lips of the witnesses or physical objects which are introduced in evidence, and not from the statements of either one of the lawyers.
“If you will keep that in mind, I will attempt to trace briefly and cronologically the events as we expect and intend to prove them.”
Likewise, the court instructed the jury to the following effect: “As to any statement made by counsel in your presence concerning the facts in the case, you must not regard such a statement as evidence; ...”
The first statement made by the deputy district attorney which is questioned is as follows:
“Upon further search of the ear, the officers found Mr. McKenzie’s personal effects that had been in his wallet, photograph identification, a camp fire permit issued to him; all of his identification as to where he worked, and all that had been in his wallet were in the trunk of the car; his keys, and then the officers communicated with the various other authorities, including the Long Beach Police Department, and later the two defendants were taken from the Culver City custody and brought to Long Beach.”
The testimony disclosed that the keys, the nail clip and the campfire permit were found with the defendants. The camp[580]fire permit cited upon its face the name of the victim and his home address. The Long Beach police had, after the original investigation, picked up some other items which had been in the possession of the victim, some of which, namely, an “I.D. card and driver’s license,” had been seen by the victim in the possession of the inspector of the police department, but the victim did not “know what is all in there.”
There is no showing whatsoever in this case, nor can there be any, that the statement that “all” of the property of McKenzie was found in the possession of the defendants was made in bad faith, or with the view of distorting the People’s case. In People v. Lucas, 160 Cal.App.2d 305 at pages 308-309 [324 P.2d 933], it was said: ‘1 The opening statement did say that ‘the pictures will show’ that the final shot was fired into decedent’s head while he lay on the floor. In fact this was not established, but was disproved by evidence produced by defendant. However, there is no showing that the erroneous statement by the prosecutor was made in bad faith. In the absence of a positive showing of a deliberate attempt to misstate the case, such a remark cannot constitute prejudicial misconduct. (People v. Alexander, 41 Cal.App.2d 275, 282 [106 P.2d 450, 916].) Appellate courts recognize that such an overstatement reacts against the party making it, and thus often is not prejudicial to the opposing party. (People v. Berryman, 6 Cal.2d 331, 336 [57 P.2d 136], and cases there cited.) In the case at bar, defense counsel made effective use of the overstatement in his argument, quoting the opening statement and pointing out to the jury the respects in which the proof fell short of sustaining its assertions.” Also see People v. Alexander, 41 Cal.App.2d 275, at pages 282-283 [106 P.2d 450, 916], where it is said:
“In the absence of a positive showing of a deliberate attempt to misstate the case, such remark cannot constitute prejudicial misconduct. (Citing cases.) Also no objection was made to this remark nor was the alleged misconduct called to the attention of the court or jury at the close of the prosecution’s ease. We cannot assume that a public official deliberately injected false accusations in his opening statement. In the absence of any showing we must assume it was that officer’s honest belief that he would introduce such evidence. It may have been that the witnesses were not available or that owing to the development of the trial such evidence might by him have been deemed unnecessary and immaterial.”
[581]In my opinion the statement complained of had no effect whatsoever upon the final outcome of the case.
The next statement made by the deputy district attorney and complained of by the appellants is as follows:
“In the course of this conversation, Mr. Triandofilos asked the police officers in Long Beach if there was any chance to reduce this charge and permit them to plead to something less than robbery upon which they were booked. Mr. McKenzie will identify, not completely, Mr. Carr, and will not be able to identify Mr. Triandofilos. ”
At the conclusion of the testimony of a police inspector (cross-examination by appellants’ counsel), the following occurred:
“Mr. Cullum (Deputy Public Defender) : Nothing further. Might we have our recess at this time and we will discuss a legal matter with the Court t
“(The following proceedings had at the bench out of the hearing of the jury:)
“The Court: My inclination would be not to admit testimony of the defendant offering to plead guilty to a lesser offense. I can think of many reasons why a defendant would.
“Mr. Cochran (Deputy District Attorney): Let me refresh the recollection of the Court to the proposed testimony: The two defendants were together at the jail elevator. Mr. Triandofilos said to Mr. Lambert and Ragsdale, ‘If we plead guilty can we get any lesser sentence?’ That is a little different than the Court’s contention. If there is any question about the importance of it I am sure there are eases in Pricke which the Court may have read, but are not in your mind.
‘ ‘ The Court : They are not in my mind. If you will obtain them and we will discuss them after the recess outside of the presence of the jury.
“ (In open court.)
“Mr. Cullum : Before we commence, may counsel approach the bench ?
“The Court: Yes.
“ (Discussion at the bench.)
“Mr. Cochran: People rest.
“Mr. Cullum: The defense rests.
“The Court: Proceed with the argument.”
It is obvious to me that the judge indicated to the deputy district attorney that he would not permit the receipt of evidence of any conversation to the effect that defendant [582]Triandofilos had asked the officers if there was any chance to reduce the charge and permit them to plead to some lesser offense.
In my opinion, if there was evidence which could have been presented to demonstrate that the defendant Triandofilos did ask the officers, in effect, if they could plead guilty to a lesser charge, such was admissible. It was appropriately stated in People v. Cooper, 81 Cal.App.2d 110, at pages 117-118 [183 P.2d 67] :
“Other material evidence was the implied admission of guilt of the charges herein when he offered to plead guilty to petty theft. In People v. Carroll, 92 Cal. 568 [28 P. 600], an officer testified that the defendants, who were arrested upon a charge of robbery, asked him if he would allow them to plead guilty to petty theft. On appeal therein it was contended that the conversation with the officer was not admissible, upon the ground that the defendants were not acting voluntarily. The court held therein that the conversation was voluntary and was properly admitted. In People v. Boyd, 67 Cal.App. 292 [227 P. 783], the defendant was charged with grand theft and obtaining money under false pretenses. When that case was called for trial, after several continuances had been had, defendant therein offered to plead guilty to obtaining money under false pretenses if the case would be continued to another date. That case was tried, and evidence therein as to the offer to so plead was received over the objection of the defendant, and defendant was convicted of obtaining money under false pretenses. On appeal therein the District Court of Appeal held that such objection should have been sustained, but the Supreme Court in denying a petition for a hearing disapproved that part of the opinion and held that the trial court was right in overruling the objection and receiving the evidence as to the offer to plead guilty to one of the offenses charged. The Supreme Court said therein at pages 302 and 303: ‘The action of the defendant in that regard was an admission on his part of the truth of the charge that he obtained money under false pretenses, which, with the other evidence, was properly left to the consideration of the jury. . . . Such admission was not, of course, conclusive evidence against the defendant. It was competent evidence merely, its weight and sufficiency being proper subjects for consideration by the jury. . . . The defendant’s own admission, voluntarily made, was clearly competent evidence against him.’ ”
From the colloquy at the bench and out of the presence and [583]hearing of the jury, it may be gathered that apparently Triandofilos did not, in fact, ask if a lesser charge could be filed, but rather asked in effect, “if we plead guilty can we get any lesser sentence?” Depending upon the circumstances under which the statement was made, it may or may not have been an admission. In any event, we are not concerned about that particular matter here because the testimony was never presented to the jury, and from the record before us, such presentation was not because of any bad faith upon the part of the prosecutor, but rather because of an indication of the court that the testimony would not be admitted in any event. There is not the slightest showing by the appellants that the statement made by the deputy district attorney had any adverse effect whatsoever as to their status.
Now turning to the statements made by the deputy district attorney in the final argument. The statement in question is as follows:
“Another thing that Hr. Cullum did not mention was the fact that these men were driving very slowly down Washington Boulevard in a westerly direction with a gun on the floor under each one of them, and I say they were out working at their trade and looking for somebody to rob.
“Mb. Cullum: I feel there is no evidence to support this statement of Mr. Cochran’s. Objected to as an improper statement.
“The Coubt: I took it as an inference that the District Attorney was drawing. There is no evidence except what we have heard in the courtroom except that there was their trade. It is up to the jury to draw whatever inference they wish.
“Mb. Cochean: I am presenting an inference they may draw. They were not very affluent. Here was a piece of hose, an old coffee can, a rough funnel, what were those there for: The rubber hose smelled of gasoline.
“Mb. Cullum: I apologize to Mr. Cochran for the purpose of interrupting his argument: The purpose of closing argument is to answer points in the argument raised by me and he is going into points not gone into by me or in his opening argument.
“Mb Cochean : I am answering Mr. Cullum on the reasonableness.
“The Coubt: The objection is overruled.
‘ ‘ The Cochean : Those are things you have a right to take into consideration. They have not been of any assistance to this jury by taking the stand and explaining any of the cir[584]cumstances placed against them if they did not have some very compelling reason that kept them off of the witness stand, you are deprived of having an opportunity to see either of them under oath on the witness stand or to see them cross-examined.”
The majority opinion indicates that “. . . in view of the lack of any evidence to support prior arrests, suspected participation in other robberies, or any kind of trouble with the law, and their denials to police that they were in any way involved in the McKenzie robbery,” the statement was unwarranted. I am not aware of any rule to the effect that the prosecution must show prior arrests or suspected participation and other robberies, or some other conflict with the law, before the district attorney can draw a proper inference in an argument before a jury. I am at a further loss to understand how the prosecution could have introduced evidence of prior arrests under the circumstances of this case, unless the defendants took the witness stand and testified in their own behalf, and that they refused to do.
In this particular case there is nothing in the record which would indicate that the defendants were timid and shy and therefore thought that they might not be good witnesses in their own behalf. In my view, if they were wholly innocent they had every good reason to take the witness stand and to tell the jury just what the facts of the matter were and what they had been doing. Prom what was said by their own counsel, I am inclined to the belief that each of them had some previous record and they did not care to testify, and then be impeached by a showing which could have been made. In this connection, their own attorney apparently advised them not to testify, and apparently so stated to the jury. He said at the conclusion of the trial, “There may be some doubt as to the eligibility of one of these defendants, some doubt of his eligibility for probation.” Both defendants, in fact, asked the court to impose sentence at once, without any application for probation or pre-sentence report. At the time of sentence counsel for the defendants said: “In my opinion, the defendant Triandofilos is not eligible for probation,” and “In review of the facts in this case, and my knowledge of the previous record of the defendant Carr, would lead me to believe that the Court probably would not grant probation in the case. ...” Later on, in the same proceeding the court questioned the defendants as to their desire to be sentenced forthwith, and Triandofilos himself stated that he was ineligible for proba[585]tion, and Carr stated in effect that because of his background he wanted to be sentenced then and there. As I view it, the defendants preferred not to explain to the judge how and why they happened to be along the streets, driving an automobile in the early morning hours with a license number substantially covered to the end that it could not be read, and with two fully loaded automatic pistols immediately at hand; nor did they care to explain how the blood got onto the slide of the .45 automatic which was in their immediate possession; nor did they care to explain to the jury how they happened into the possession of certain items which had been forcibly taken from the possession of the victim.
The prosecution has a wide field of discretion in a closing argument. As stated in People v. Eggers, 30 Cal.2d 676, at page 693 [185 P.2d 1] : “ ‘It is the province of a district attorney to state to a jury the various conclusions that he draws from the evidence, and to make it clear to the jury what conclusions in his opinion should be drawn from the evidence introduced, so long as he keeps within the scope of conclusions which may properly be drawn.’ (People v. McKenzie, 12 Cal.App.2d 614, 615-616 [55 P.2d 1200].) ‘The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.’ (People v. Sieber, 201 Cal. 341, 355-356 [257 P. 64].) In the argument before the jury, any reasonable inference may be drawn from the evidence, and it is a matter within the discretion of the trial court to determine whether counsel stays within the permissible range of discussion. (People v. Hoyt, 20 Cal.2d 306, 318 [125 P.2d 29].) Assuming that, giving effect to these rules, counsel ‘illogieally deduced’ that a finding of torture could be inferred from the evidence, at least in the absence of objection, it does not amount to misconduct which has prejudiced defendant’s rights.”
I have read the entire opening statement, the opening argument and the closing argument, and in my view there was nothing said which was prejudicial error, nor which brought about a miscarriage of justice. There was evidence from which the judge and jury believed that the defendants had robbed McKenzie, and that they were later found roaming [586]the streets in an automobile, the rear license number of which was obscured, and that the defendants were armed with loaded guns in their immediate possession (one of which had blood upon it); that the defendants were unemployed and had no stationary place of abode, and had very little money in their immediate possession. I am of the opinion that for the district attorney to state what he did state, and to infer that the defendants were plying their trade, was not prejudicial error. The defendants never explained to the jury what their business or occupation was, and by their course of conduct any proper inference could be drawn and argued to the jury. Robbery, in my opinion, was not an unreasonable inference under the circumstances.
Lastly, the appellants complain of the prosecutor referring to their poverty, or that they had a small amount of money. The appellants themselves have answered that contention by admitting that they made no objection to the introduction of such evidence as to what property they had in their possession, and further that they made no objection to the comment upon their financial standing by the deputy district attorney. Such an objection cannot be made for the first time upon appeal. (People v. Lindsey, 90 Cal.App.2d 558, 567 [203 P.2d 572]; People v. Sellas, 114 Cal.App. 367, 378 [300 P. 150]; People v. Agajanian, 97 Cal.App.2d 399, 405 [218 P.2d 114].) However, in my opinion, if there had been an objection, it would not have been well taken and should have been overruled.
As I view it, the appellants in this case were properly convicted of robbery. The evidence was ample and sufficient. There was no error. However, assuming that there was error, it was not prejudicial nor sufficient to warrant a reversal. I would affirm the judgment.
A petition for a rehearing was denied October 14, 1958. Pourt, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied November 13, 1958. Shenk, J., Schauer, J., and McComb, J., were of the opinion that the petition should be granted.