THE PEOPLE, Plаintiff and Respondent, v. RUDY SAVALA, Defendant and Appellant.
Crim. No. 10608
Third Dist.
Feb. 20, 1981.
116 Cal. App. 3d 41
THE PEOPLE, Plaintiff and Respondent, v. RUDY SAVALA, Defendant and Appellant.
Paul H. Greisen, under appointment by the Court of Appeal, and Greisen & Stewart for Defendant and Appellant.
OPINION
CARR, J.—Defendant appeals from a judgment sentencing him to state prison for a total unstayed term of twelve and one-third years after a jury found him guilty of four counts of robbery; that in each robbery defendant personally used a firearm (
Defendant makes numerous contentions: (1) the in-court identification by eyewitnesses should have been suppressed because of an unduly suggestive confrontation at the scene of his arrest; (2) that the charges of robbery should have been severed for separate trials; (3) the trial court erred in refusing to grant a mistrial when a codefendant changed his plea to guilty pursuant to a plea bargain after jury selection but before evidence was taken; (4) the trial court coerced an original codefendant into invoking his privilege against self-incrimination; (5) the prosecutor suppressed evidence; and (6) the trial court erred in calculating his sentence by adding an enhancement for the use of a firearm in the commission of each of the four robberies for which consecutive sentences were imposed. We conclude defendant‘s sole, meritorious contention is the improper enhancement of his sentence.
The facts disclose that on the evening of March 15, 1979, at about 11:30 p.m., Cheryle Esparza was working at Sambo‘s restaurant on 16th Street in Sacrаmento. A man of Mexican descent was standing near the cash register looking “uptight,” when she asked if she could help him; he opened his shirt, showed her a pistol, and told her to give him the money from the cash register. He took the money handed to him, said thank you, and left. She saw the robber leave in a large car, which was either yellow or gold.
In the early morning hours of March 18, 1979, Tanya Inez Kumenkov was working as a cashier at the Pancake Parade on 30th Street in Sacramento. A man of Mexican descent walked up to the cash register, opened his shirt to show a pistol, and demanded money. She had difficulty understanding the robber, and said, “I beg your pardon,” at which time the robber took his gun, pointed it at her and again demanded money. During this robbery another person was standing by the door. Three witnesses heard this person address the robber as “Rudy.” After getting the money, both men left.
At 11 o‘clock on the evening of March 18, 1979, Dorothy Ballah was working at Denny‘s Restaurant on 15th and Broadway, in Sacramento. A man who appeared to be of Mexican descent entered, stood in front of the cash register, pulled open his jacket to reveal a pistol, and demanded money. Instead of opening the register, she backed down the counter. James Perry, the assistant manager, saw Ballah backing away and saw the robber. He opened the cash register, and the robber took between $100 and $125, mostly in ones and fives, and a roll of coins from Bank of America before leaving. Ballah in the meantime called the police.
Perry and two other Denny‘s employees saw the robber with a passenger driving away in a yellow car. They observed the car turn onto 15th Street and go east on Broadway. A few minutes later, the car passed Denny‘s going west on Broadway. While the suspeсt vehicle was still in sight, Sacramento City Police Officers Randall Twilling and Kent Thorpe arrived at Denny‘s, having received a call that an armed robbery had taken place about one minute before. Several people pointed out the yellow Dodge Polara as the robber‘s car. The officers followed the vehicle and activated their red lights and siren. The yellow vehicle accelerated.
The officers, joined by other police units, gave chase. When the vehicle went out of control and made an 180-degree turn, the pursuing police cars stopped in front of it. Officers Twilling and Thorpe got out of their unit and positioned themselves behind the vehicle doors to effect a felony vehicle stop. After Twilling and Thorpe yelled, “police
Several minutes later, after yet another chase involving several additional police units and a California Highway Patrol helicopter, the suspect and his companion were apprehended and arrested. The suspect was defendant.
When Officer Hoffman, the arresting officer, gave defendant a pat-down, he found a bundle of money protruding from defendant‘s jacket pocket. It consisted of one $20 bill, four $5 bills, and twenty-nine $1 bills.
Officer McHale, dispatched to the scene of the vehicle stop to investigate the suspect vehicle, found a rolled package of nickels from Bank of America on the front seat, a .38 caliber revolver with some bullets wrapped in a white tee shirt under the passenger side of the vehicle, and seven $5 bills crumpled together and jammed between the seat and the pаssenger door.
Ballah and Perry were brought to the scene of the arrest shortly after the arrest and identified defendant as the Denny‘s robber. They likewise identified defendant at trial.
After defendant‘s arrest a photographic lineup of ten photographs, including one of defendant, was composed and shown to witnesses to the robberies at Jimboy‘s, Pancake Parade, and Sambo‘s. The victim of the Sambo‘s robbery picked out defendant as the robber. She also identified defendant as the Sambo‘s robber at trial. Two witnesses to the Jimboy‘s robbery identified defendant from the photographic lineup and at trial. Four witnesses to the robbery of the Pancake Parade identified defendant from the photographic lineup and at trial.
An information was filed against defendant and one Daniel Moreno. A negotiated plea was entered by defendant, conditioned upon the right of the court to withdraw its acceptance of such plea after receipt of a probation report. When the court received and considered the probation report, it did withdraw its acceptance of the plea bargain and defendant‘s plea of not guilty was reinstated.
After the jury had been selected and sworn, Daniel Moreno advised the court that he had negotiated a plea bargain whereby he would plead guilty to one count of being an accessory (
When the prosecution rested its case, defendant advised the court, out of the presence of the jury, that he intended to call Moreno to testify. Moreno was called and sworn but asserted his privilege against self-incrimination. As the acceptance of the earlier plea bargain had been conditional, the court honored the claim of privilege. The defense then rested without calling any witnesses, having informed the court one potential witness could not be located and had not been interviewed. The witness allegedly had told police she could identify the robber of Sambo‘s.
I
Defendant contends the in-court identification of him as the robber of Denny‘s by Ballah and Perry1 should have been suppressed because of improper field identification procedures which were held in the absence of counsel and were impermissibly suggestive, creating a substantial likelihood of irreparable misidentification at trial.
The propriety of in-field identifications of a suspect without the presence of counsel has been repeatedly upheld. (People v. Craig (1978) 86 Cal.App.3d 905, 913 [150 Cal.Rptr. 676]; In re Richard W. (1979) 91 Cal.App.3d 960, 970 [155 Cal.Rptr. 11]; People v. Hall (1979) 95
When the defendant asserts pretrial identification was unnecessarily suggestive, he must show it gave rise to a very substantial likelihood of irreparable misidentification. (People v. Craig, supra, 86 Cal.App.3d 905; In re Richard W., supra, 91 Cal.App.3d 960.) In making this determination, the trial court should consider certain factors, i.e., the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of uncertainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. (People v. Hall, supra, 95 Cal.3d 299.)
In In re Richard W., supra, 91 Cal.App.3d 960, a case factually similar to the case at bench, the trial court rejected a contention that exhibition of the appellant in a police car in handcuffs with police offiсers nearly was impermissibly suggestive. The minor, apprehended at the scene, was identified minutes after apprehension. The court, while noting single person showups should not be used absent compelling circumstances, observed in-field identifications in close proximity in time and place to the scene of the crime are favored in the law.
The trial court‘s finding that the challenged pretrial identification procedure was proper is binding on this court if supported by substantial evidence. (People v. Greene (1973) 34 Cal.App.3d 622, 649 [110 Cal.Rptr. 160].) In the instant case, the trial court‘s finding is fully supported by substantial evidence.
Both of the witnesses who identified defendant in court had excellent opportunities to observe defendant during the robbery of Denny‘s, which took place in a well-lighted public restaurant in the immediate presence of the witnesses, who were the victims. The witness’ prior descriptions of defendant were accurate, and they were certain of their identifications at the time of confrontation. The field identificаtion
Moreover, the trial identification testimony of the witnesses was based on observations made during the robbery, independent of the challenged showup. (See People v. Craig, supra, 86 Cal.App.3d at p. 914.)
The trial court properly denied the motion to suppress.
II
Prior to trial defendant moved to sever the four robbery counts for separate trials. On appeal he asserts error in the denial of this motion. We find no error.
Defendant was charged with four robberies, offenses of the same class. He was further charged with being a convicted felon in possession of a firearm, a charge connected with his use of the firearm during the robberies. Finally, defendant was charged with assaulting a police officer during his attempt to escape arrest after the last robbery; this offense was thus connected in its commission with that robbery. The offenses meet the test of joinder, and the denial of the motion to sever may be disturbed only upon a showing of an abuse of discretion by the trial court. (People v. Matson (1974) 13 Cal.3d 35, 39 [117 Cal.Rptr. 664, 528 P.2d 752].)
Defendant argues the charges of robbery of the Sambo‘s Restaurant, Jimboy‘s Tacos, and the Pancake Parade should have been severed from the charges of the robbery of Denny‘s Restaurant because of the similarity of the crimes and the resultant danger of the jury finding him guilty of all or some of the crimes simply because they were similar.
The robberies were remarkably similar. The four robberies occurred on four consecutive nights, at approximately the same hour, in eating establishments of a similar class, each within a short distance of the others. In each instance the robber entered, approached the cashier, opened his shirt or jacket to reveal a pistol, demanded money, and left upon receiving money. Under such circumstances, if the trial court had granted the motion to sever, the People properly could have introduced evidence of the severed offenses to prove modus operandi, common scheme and identity. (
III
Defendant next contends the trial court erred in refusing to grant a mistrial when his codefendant, Daniel Moreno, accepted a plea bargain after selection of the jury but before presentation of any evidence. A motion for mistrial is addressed to the sound discretion of the trial court. (People v. Romero (1977) 68 Cal.App.3d 543, 548 [137 Cal.Rptr. 675]; People v. Slocum (1975) 52 Cal.App.3d 867, 885 [125 Cal.Rptr. 442].) We find no abuse of discretion in the denial of the motion for a mistrial.
Case law discloses no error in permitting a defendant to change his plea and testify against a codefendant during the People‘s case. (See People v. Terry (1962) 57 Cal.2d 538 [21 Cal.Rptr. 185, 370 P.2d 985]; People v. Robinson (1960) 184 Cal.App.2d 69, 78 [7 Cal.Rptr. 202].)
The facts before us are far less likely to cause prejudice to defendant than the situations contemplated by
IV
Defendant also contends the trial court coerced Moreno into refusing to testify. During trial a plea bargain was made pursuant to which Moreno would plead guilty to one count of being an accessory in the Denny‘s robbery (
We note this issue is presented to this court at the specific behest of defendant personally. We note further that the record is barren of any factual support for this allegation of judicial misconduct.
Moreno‘s plea bargain included no sentence recommendation. The trial court retained the power to set an appropriate sentence, including a grant of probation, upon consideration of the probation report. In addition to being advised of and waiving his constitutional rights, at the time of taking the plea, Moreno was advised the maximum sentence for a violation of
V
A further contention pursued at the special request of defendant personally is that the prosecution suppressed evidence. Defendant contends Priscilla Tracy, a waitress at Sambo‘s on the night of that robbery, could have positively identified the real robber had she been called to testify. The prosecution is alleged to have suppressed evidence in failing to call Tracy to testify.
Defense counsel informed the court that he had attempted since April (the case was tried in September) to contact the witness both in person and by telephone but was unable to do so; that he did not know whether, after interviewing her, she would be used as a witness. Defendant stated he desired to have her testify because she had said that she
If indeеd the potential witness could have provided exculpatory evidence and trial counsel‘s efforts to contact her were not sufficient to meet the test of a reasonably competent attorney, then defendant‘s contention is better made in the context of an attack on the competency of trial counsel. (See People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].) The record, however, fails to establish if counsel‘s efforts were insufficient or the failure to interview the potential witness withdrew a potentially meritorious defense. In such circumstances any relief, if appropriate, should be sought by writ of habeas corpus. (Id., at p. 426.)
VI
Defendant was convicted of four counts of robbery (
In Harvey, supra, the Supreme Court was confronted with what it characterized as a close and subtle question of statutory construction. In resolving an apparent inсonsistency between
In obvious response to Harvey, supra, 25 Cal.3d 754, the Legislature enacted Assembly Bill No. 2123 (Stats. 1980, ch. 132) (hereinafter the Act), which was signed into law on May 28, 1980, as an urgency statute which became effective May 29, 1980. The self-described intent of the Act is to “... clarify and reemphasize what has been the legislative intent since July 1, 1977.” (Id., § 1, subd. (c).)6
Viewing the Harvey decision in light of the Act‘s purported clarification of legislative intent, the broad question before us is what affect, if any, should we as an intermediate court of appeal give to the Act, given the chronology of operative events in the case at bench.8
Three other appellate courts have addressed the general issue now before us. Each case has adhered to the Harvey decision, albeit for different reasons. In People v. Matthews (1980) 108 Cal.App.3d 793 [167 Cal.Rptr. 8], Division One of the Fourth District Court of Appeal based its adherence to Harvey upon the rule of stare decisis. Division Two of the same appellate district, in People v. Cuevas (1980) 111 Cal.App.3d 189, at pages 199-200 [168 Cal.Rptr. 519] held: “Chief Justice Marshall, writing in Marbury v. Madison (1803) 5 U.S. 137, 177 [2 L.Ed. 60, 73], set out clearly and simply the role of the judiciary in American jurisprudence: ‘It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.’ The California courts have been equally forthright in expressing the courts’ role in the legal process: ‘The ultimate interpretation of a statute is an exercise of the judicial power.’ [Citations.] And our Supremе Court has succinctly stated the part which it, as the highest
The Second Appellate District concurred that application of the subsequently enacted clarifying legislation would contravene the prohibition against ex post facto laws. (People v. Fulton (1980) 109 Cal.App.3d 777 [167 Cal.Rptr. 436].) The First Appellate District aligned itself with stare decisis as delineated by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937]. (People v. Harvey (1980) 112 Cal.App.3d 132 [169 Cal.Rptr. 153]; the identity of names is coincidental.)
In People v. Matthews, supra, 108 Cal.App.3d at page 796, the court stated, without further elaboration, that, “[w]hile we agree with the People in its interpretation of
The Supreme Court has also stated that “[t]he rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each instance by the discretion of the court. Previous decisions should not be followed to the extent that error may be perpetuated and that wrong may result.” (County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679 [312 P.2d 680]; see also People v. Hallner (1954) 43 Cal.2d 715, 720 [277 P.2d 393].)
Because the result reached in Harvey was based upon the court‘s construction of legislative intent, and because the Legislature, by subsequent enactment has more than hinted that its intent has been judicially misconstrued, the question arises whether Harvey-situation cases present a circumstance permitting a departure from the rule of stare decisis.
Respondent has cited no case, nor are we aware of any California case in which an intermediate Court of Appeal properly departed from a prior and controlling holding of the state Supreme Court, although the Supreme Court has departed from a previous holding of its own. (See, e.g., In re Tartar (1959) 52 Cal.2d 250, 258 [339 P.2d 553]; County of Los Angeles v. Faus, supra, 48 Cal.2d at p. 679; People v. Hallner, supra, 43 Cal.2d at p. 720; Porter v. Bakersfield & Kern Elec. Ry. Co. (1950) 36 Cal.2d 582, 590 [225 P.2d 223].) Appellate сourts have avoided the precedential confinement of stare decisis by determining that otherwise controlling language of a prior Supreme Court opinion was either dicta or otherwise distinguishable. (See, e.g., Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 950-951 [120 Cal.Rptr. 186, 84 A.L.R.3d 1234]; People v. Gregg (1970) 5 Cal.App.3d 502, 505-507 [85 Cal.Rptr. 273]; Childers v. Childers (1946) 74 Cal.App.2d 56, 61 [168 P.2d 218].) Harvey, however, admits to no such fine distinctions. It was the court‘s clear holding that “...properly construed,
In People v. Wilson (1943) 59 Cal.App.2d 610 [139 P.2d 673], the Second District reluctantly concluded it was bound by the construction of legislative intent placed upon a particular statute by the Supreme Court in two prior decisions. Of particular interest is the concurring opinion in which the concurring justices emphatically dispute the Supreme Court‘s construction of the law at issue therein. (Id., at pp. 612-613.)10 Although strenuously protesting the Supreme Court‘s construction, and despite “...the logical construction placed upon the language...” by a recent legislative enactment, the concurring justices concluded that they were required to follow the controlling Supreme Court decisions, even if those decisions were “...at variance with a legislative intent clearly appearing in the language [of the statute].” (People v. Wilson, supra, at p. 612.)
When Harvey, supra, 25 Cal.3d 754, was decided, the Supreme Court did not have the benefit of the subsequent legislative declaration of purported intent. A subsequent expression of the Legislature as to the intent of a prior statute is not binding on the court, though it may properly be used in determining the effect of a prior act. (See California Emp. etc. Com. v. Payne (1947) 31 Cal.2d 210, 213-214 [187 P.2d 702].) The Supreme Court may now deem it appropriate to
Stare decisis is grounded upon the need for stability, consistency and predictability within the judiciary. Notwithstanding the doctrine of stare decisis, our decision herein is compelled by a further policy concern on the separation of powers. We recognize the fundаmental importance of preserving autonomy between the three branches of government. (
A decision by us to implement the legislative “clarification” contained in the Act necessarily includes adoption of a broad policy that intermediate appellate courts may depart from an otherwise controlling holding of the California Supreme Court whenever the Legislature declares its intent has been misconstrued.11 There are two prospective unfortunate results from such a policy. First, the meaning and application of the law wоuld be in a state of confusion, to the disadvantage of other courts and the public in general—the avoidance of which forms the basis of the stare decisis doctrine. Second, there could result an unnecessary obfuscation of the distinction between the judicial and the legislative functions of government. Such a course could well increase the potential for political intrusion into the judicial function.
VII
Defendant has communicated with this court to express his dissatisfaction with the representation on appeal by appointed counsel. Defendant sought certain orders, including an order discharging counsel and permitting him to proceed in propria persona. We denied the motions and herein note our reasons for doing so. (See People v. Johnson (1971) 18 Cal.App.3d 458, 465 [95 Cal.Rptr. 316, 96 Cal.Rptr. 695].)
Appointed counsel raised six issues on appeal. Two of the arguments were virtual verbatim repetition of the points and authorities submitted by trial counsel in support of pretrial motions. While this displeased defendant, we do not find it to be inadequate representation as the points and authorities of trial counsel competently raised the issues and supported the contentions with relevant authorities and factual arguments. Appellant counsel raised and briefed two issues on appeal which had not been previously briefed, and presented two arguments defendant requested him to present. As is our custom, we have considered the entire record to determine whether it raises issues not presented by
The cause is remanded to the trial court with directions to set aside the sentence and to resentence defendant in accordance with People v. Harvey, supra, 25 Cal.3d 754. In all other respects, the judgment of conviction is affirmed.
Blease, J., concurred.
EVANS, Acting P. J.—I concur in the affirmance of the conviction; however, I dissent from that portion of the majority opinion requiring the trial court to resentence the defendant in accord with People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396].
In Harvey, the Supreme Court ruled that
“(a) The commission of ‘violent felonies’ as defined in subdivision (c) of Section 667.5 of the Penal Code represents a substantial threat to the welfare of the people of the State of California.
“(b) The legislative intent in enacting subdivision (c) of Section 667.5 of the Penal Code was to identify these ‘violent felonies’ and to single them out for special consideration in several aspects of the sentencing process.
“(c) This act is intended to clarify and reemphasize what has been the legislative intent since July 1, 1977.” (Italics ours.)
Section 2 of the act amends
The amendment did not add new enhancement material to
The question arises whether this court may consider and give effect to the recent restatement of the original and present legislative intent underlying
Under the doctrine of stare decisis all courts exercising inferior jurisdiction are required to follow decisions of courts exercising superiоr jurisdiction; it is not a lower court‘s function to attempt to overrule decisions of a higher court. (57 Cal.2d at p. 455.) Although there are no true “exceptions” to the rule of stare decisis, there are, however, exceptional situations in which a lower court is not required to blindly follow precedent which has only facial applicability.
The right and power of the Legislature to adopt legislation clarifying its intent is well established. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836 [157 Cal.Rptr. 676, 598 P.2d 836]; People v. Superior Court (Douglass) (1979) 24 Cal.3d 428 [155 Cal.Rptr. 704, 595 P.2d 139]; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 675 [114 Cal.Rptr. 345, 522 P.2d 1345]; State Bd. of Equalization v. Board of Supervisors (1980) 105 Cal.App.3d 813 [164 Cal.Rptr. 739]; Los Angeles County Democratic Central Committee v. County of Los Angeles (1976) 61 Cal.App.3d 335 [132 Cal.Rptr. 43]; Burgess v. Board of Education (1974) 41 Cal.App.3d 571, 581 [116 Cal.Rptr. 183]; Friends of Lake Arrowhead v. Board of Supervisors (1974) 38 Cal.App.3d 497 [113 Cal.Rptr. 539]; People v. Rozell (1963) 212 Cal.App.2d 875 [28 Cal.Rptr. 478]; Flewelling v. Board of Trustees (1960) 178 Cal.App.2d 168 [2 Cal.Rptr. 891].)
As stated by the court in Bates v. McHenry (1932) 123 Cal.App. 81, at page 93 [10 P.2d 1038], “In view of the legislature‘s own interpretation as thus clearly set forth by its amending section 52, supra, there remains only оne duty to be performed by the court, and that is to accept the interpretation as not only equitable but final.”
In People v. Harvey, supra, the court did not find the statute ambiguous, but rather candidly observed that a literal reading of the statute would permit enhancement of consecutive sentences for the use of a firearm or infliction of great bodily injury in every case in which those factors were present. (25 Cal.3d at pp. 760-761.)2
In Forde v. Cory (1977) 66 Cal.App.3d 434 [135 Cal.Rptr. 903], this court considered the application of a provision of the Judges’ Retirement Law. Under that law a judge could provide fоr survivor benefits for his spouse in the event he should die before reaching retirement eligibility, but if he chose to do so, his estate was not entitled to the normal lump sum death benefit. A similar law was enacted with respect to surviving children of a judge which was parallel to the surviving spouse provisions except that it omitted the provision that election to provide survivor benefits for children would be in lieu of the lump sum death benefit. After electing to provide survivor benefits for his children, and before becoming eligible to retire, a superior court judge died and his executor applied for both survivor benefits and a lump sum death benefit. In construing the provision this court relied, in part, upon a legislative enactment passed more than two years after the judge‘s death. We reasoned that the legislative expression of intent in the later statute was merely a clarification and not a change in the law. (66 Cal.App.3d at p. 438; see also People v. Poggi (1980) 107 Cal.App.3d 581, 587-588 [165 Cal.Rptr. 758].)
The subsequent expression of legislative intent related to the enactment of
Under the circumstances I do not believe the clear legislative intent should be thwarted. Stare decisis should not be used as a means of avoiding distasteful legislative enactments. I would conclude that the defendant‘s sentence was correctly determined by the trial court, and the intervening decision in Harvey has been rendered inapplicable.
My conclusion does not impose an ex post facto punishment upon the defendant. At the time defendant committed his crimes,
In my view, the majority blindly follow Harvey and conclude the Legislature did not intend “to impose an enhancement for firearm use or great bodily injury in every case involving such factors.”
I would affirm the judgment.
A petition for a rehearing was denied March 16, 1981. Evans, Acting P. J., was of the opinion that the petition should be granted. The petitions of both parties for a hearing by the Supreme Court were denied May 13 and May 15, 1981.