People v. Treloar

WOOD, P. J. —Defendant was accused in one count of murder, in 13 counts of armed robbery, and in two counts of kidnaping for the purpose of robbery. He admitted that he had been convicted previously of two felonies. In a jury trial, he was found guilty as charged, and it was found that the robberies were of the first degree, the murder was of the first degree, and defendant was armed at the times the offenses were committed and at the time of his arrest. The jury fixed [548]the punishment on the murder count at life imprisonment. Defendant was sentenced to prison for life on that count, and was sentenced to prison for the term prescribed by law on the other 15 counts, with the sentences to run consecutively. Defendant appeals from the judgment and from the order denying his motion for a new trial.

There have been two appeals previously in this ease (People v. Treloar, 64 Cal.2d 141 [49 Cal.Rptr. 100, 410 P.2d 620]; People v. Treloar, 61 Cal.2d 544 [39 Cal.Rptr. 386, 393 P.2d 698]). The facts with respect to the commission of the crimes were summarized in the opinion in People v. Treloar, supra, 61 Cal.2d 544, 545-546 (see People v. Treloar, supra, 64 Cal.2d 141,143).

Appellant contends that the court erred in imposing consecutive sentences, erred in instructing the jury on defendant’s failure to testify, and erred in permitting the reading of testimony given by two witnesses at one of the previous trials. He also contends that the evidence is insufficient to support his conviction on one of the robbery counts (robbery of Mr. Rangel). He does not question the sufficiency of the evidence to support the jury’s determination of guilt on the other counts.

Regarding the reading of testimony given by two witnesses at the previous trial, the court, before permitting such reading, heard testimony (out of presence of jury) by a process server to the effect that he had made efforts to locate the two witnesses, but had been unable to locate either of them. The court did not err in receiving the reading. (Pen. Code, § 686; People v. Zurica, 225 Cal.App.2d 25, 33 [37 Cal.Rptr. 118].)

Regarding the instructions given (and not given), defendant’s counsel requested that the following instruction be given to the jury: “ It is a constitutional right of a defendant in a criminal trial that he need not testify. Thus, whether or not he does testify rests entirely in his own decision. You are thus instructed that you must not draw any inference adverse to the defendant simply because he exercises his constitutional right and chooses not to testify.” The record shows that defendant’s counsel withdrew the aforementioned instruction (his initials appear on said instruction under a notation “withdrawn and CALJIC 51 Revised submitted in lieu thereof”), and that the court gave the following instruction (requested by plaintiff and defendant) ; “It is a constitutional right of a defendant in a criminal trial that he