PEOPLE v. MAESHACK

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Willie MAESHACK, Defendant and Appellant.

No. B025064.

Decided: May 10, 1988

Cynthia Barnes, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Donald de Nicola, Supervising Deputy Atty. Gen., and Paul C. Ament, Deputy Atty. Gen., for plaintiff and respondent.

Appellant Willie Maeshack was charged with and convicted of kidnaping for robbery, robbery, and grand theft auto.  (Pen.Code, §§ 209, subd. (b), 211, 487.3.)   He received a sentence of life imprisonment on the section 209 charge, plus ten years for two prior serious felonies and one year for personal use of a deadly weapon.  (Pen.Code, §§ 12022, subd. (b), 667, subd. (a).)  The robbery and grand theft charges were stayed pursuant to Penal Code section 654.   The sentence was ordered to run concurrently with the sentence imposed in another case, superior court case No. A755158.

Appellant contends that:  (1) he should not have been sentenced on the two prior convictions, as sentence on them had already been imposed in case No. A755158;  (2) the jury should not have been instructed on flight;  (3) there was insufficient evidence to show kidnaping for robbery;  and (4) prejudicial prosecutorial misconduct occurred in final argument.

The evidence showed that around 7 p.m. on November 17, 1985, Brenda Webb and a girlfriend drove to a Los Angeles dance bar called the Lobby Inn.   Ms. Webb's girlfriend left.   Ms. Webb spent the next few hours dancing and talking.   She danced a couple times with appellant, whom she had never seen before.   She consumed two beers during the evening.

About 1 a.m., Ms. Webb went to the parking lot alone.   As she was backing her car out, appellant guided her with hand directions.   Once her car was at the street, he jumped into the passenger seat, held a straight-edged razor at her throat, and said, “This is a robbery, bitch.”

Appellant forced Ms. Webb to drive three houses down and pull to the curb.   After ordering her to be quiet, he ascertained that her purse was at her feet, held money, and did not contain a gun.   Still holding the blade to her neck with one hand, he climbed over her and into the driver's seat.   He told her he was going to drive the car down the street and then return it.   Without moving the razor, he drove one-handed down the block, made a couple of turns, and stopped in front of a house which was one-quarter mile from the bar.   He told Ms. Webb they were going into the house.   He threw her purse into the back seat and forced her out of the car.

Although the razor was still at her throat, Ms. Webb managed to take it away from appellant.   After falling to the ground, Ms. Webb got up, ran away screaming, and was pursued by appellant.   He struck her in the back of the head, and then ran back to her car and drove away in it.

After trying unsuccessfully to obtain help, Ms. Webb ran back to the bar and called the police.   She told the police what had happened, and gave them the razor.

About 10:30 that morning, a police officer in a patrol car observed appellant and a passenger driving Ms. Webb's car.   Noting that the car had expired tags, the officer ran its license number and learned that it had been taken in a robbery.   Once backup officers arrived, the officer activated his red light.   At first the car appeared to stop, then it sped away.   A high speed chase ensued, which ended when the car had mechanical problems.   Appellant and a passenger were taken into custody.   Ms. Webb unequivocally identified appellant both from a photo line-up and at trial.

No defense was presented.

I

The trial court imposed five-year sentences on two prior serious felonies:  a 1981 conviction for robbery (case No. A619880) and a 1983 conviction for robbery (case No. A625219).   Enhancements for those same priors were imposed in another case, No. A775158, which involved a different robbery appellant committed with Ms. Webb's car shortly before his arrest.   The sentence in this case was made concurrent with that already imposed in No. A775158.   Appellant maintains that the same two priors can not be imposed in both cases.

Respondent argues that this issue is moot, because the priors imposed in case No. A775158 were remanded to the trial court by the appellate court (case No. B023637) due to an inadequate waiver of appellant's constitutional rights.1

We are cited to no authority as there appears to be no California case on point.   There remains the question of whether the priors can be imposed concurrently in both of the cases notwithstanding the remand in case No. A775158.

Penal Code section 669 provides in pertinent part:  “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently orconsecutively․”   The trial court in the instant case, the second judgment, followed the requirements of section 669 in ordering that the two cases run concurrently.

In arguing that the same priors could not be imposed in both cases, appellant cites Penal Code section 1170.1, subdivision (a), People v. Carter (1980) 104 Cal.App.3d 370, 372, 163 Cal.Rptr. 475, and People v. Tassell (1984) 36 Cal.3d 77, 89–92, 201 Cal.Rptr. 567, 679 P.2d 1.   None of those authorities support his position.  Section 1170.1, subdivision (a) provides rules for computing an aggregate sentence where “a consecutive term of imprisonment is imposed․”  Carter and Tassell are both consecutive sentence cases construing that section.   The instant case involves a concurrent sentence, for which the section 1170.1 computation procedure is inapplicable.  (8 Cal. Judges Benchguide:  Felony Sentencing, Cal. Center for Jud. Ed. & Research (5th ed. 1987) § 87, p. 245–94.)

 Because the sentence here was concurrent, rather than consecutive, appellant is not exposed to additional incarceration if the priors are imposed in both cases.   Multiple imposition of the same priors does, however, punish him twice for commission of the priors, in apparent violation of Penal Code section 654.2  The solution is to stay the priors in this case, the second case, pending completion of any sentence which may be imposed on them in case No. A775158, with the stay then to become permanent.  (See People v. Beamon (1973) 8 Cal.3d 625, 640, 105 Cal.Rptr. 681, 504 P.2d 905;  People v. Flowers (1982) 132 Cal.App.3d 584, 590, 183 Cal.Rptr. 276.)3  We modify the judgment accordingly.

II

Appellant next contends that the jury should not have been instructed on flight (CALJIC No. 2.52).

The giving of a flight instruction has been held to be erroneous where, although the perpetrator fled the scene of the crime, the defendant denies that he is the perpetrator.   The rationale is that the perpetrator's flight is not relevant unless the jury believes that the defendant is the perpetrator.   (People v. Anjell (1979) 100 Cal.App.3d 189, 199–200, 160 Cal.Rptr. 669;  People v. Salazar (1980) 108 Cal.App.3d 992, 998, 167 Cal.Rptr. 38.)

 The above cases are inapposite because the issue of flight arose here not in the context of the perpetrator's leaving the crime scene, but rather, an appellant's effort subsequent to the crime to avoid apprehension.   The fact that appellant attempted to elude the police, while driving Ms. Webb's car, had a tendency in reason to prove that he was the person who stole the car.   Since flight was relevant to identity here, the flight instruction was appropriate.

Appellant asserts that any consciousness of guilt evidenced by his flight went to the robbery which he had just committed rather than to the Webb robbery earlier that day.   We disagree, since the flight may have been occasioned both by the new robbery and the use of the stolen car.   There was no error in this instruction.

III

Appellant next contends that there was insufficient evidence to support his conviction of kidnaping for robbery.

 To constitute the crime of kidnaping for robbery, appellant's movement of Ms. Webb had to be more than merely incidental to the crime of robbery, and had to increase the risk of harm over and above the robbery itself.  (People v. Daniels (1969) 71 Cal.2d 1119, 1139, 80 Cal.Rptr. 897, 459 P.2d 225;  In re Earley (1975) 14 Cal.3d 122, 129, 120 Cal.Rptr. 881, 534 P.2d 721.)

In People v. Thornton (1974) 11 Cal.3d 738, 767–768, 114 Cal.Rptr. 467, 523 P.2d 267, the defendant forced his way into a woman's car, seized her by the throat, and said he wanted money.   Maintaining his hold on the woman, he drove the car one-handed for several blocks, parked it, and robbed and raped her.  Thornton found sufficient evidence of kidnaping for robbery, as the asportation was not merely incidental to the robbery and necessarily increased the risk of harm beyond that of a robbery.  “Clearly, any substantial asportation which involves forcible control of the robbery victim ․ exposes her to grave risks of harm to which she would not have been subject had the robbery occurred at the point of initial contact.”  (Id., at p. 768, fn. omitted, 114 Cal.Rptr. 467, 523 P.2d 267.)

The facts here obviously resemble those of Thornton.   Appellant increased the risk of harm to Ms. Webb by driving one-handed for several blocks with a razor at her throat, instead of releasing her at the initial point of contact.   Indeed, Ms. Webb testified that the blade made little scratches on her throat.   Moreover, instead of simply robbing Ms. Webb, appellant tried to make her enter a house with him once the car stopped.

Appellant relies on People v. Timmons (1971) 4 Cal.3d 411, 414, 93 Cal.Rptr. 736, 482 P.2d 648.   There, the defendant entered a car shortly before noon without exhibiting a weapon, forced the occupants to give him money, and made them drive to a location five blocks away.   He got out without harming them, walked to the car of a waiting confederate, and drove away.   While Timmons found insufficient evidence of kidnaping for robbery, the facts here are obviously closer to those of Thornton.   Moreover, according to In re Earley, supra, 14 Cal.3d 122, 131, 120 Cal.Rptr. 881, 534 P.2d 721, the Timmons holding that the five block distance was merely incidental to the robbery has been impliedly overruled by Thornton and by People v. Stephenson (1974) 10 Cal.3d 652, 658, 111 Cal.Rptr. 556, 517 P.2d 820, which found sufficient evidence of kidnaping for robbery where the defendant forced a woman to enter his car, drove five or six blocks, demanded money, and raped her.

We therefore conclude that the evidence supports appellant's conviction of kidnaping for robbery.

IV

 Finally, appellant contends that the following statement in the prosecutor's final argument constituted prejudicial misconduct:  “Now, defendant's attorney in this case had a year to investigate this crime.   He had a year to go out and talk to witnesses.   He had a year to interview his client.   I will tell you something.   If there had been something, if there had been a bias or a motive or some reason why Miss Webb wanted to see this defendant convicted of this crime, you would have heard about it.”

Appellant maintains that this argument constituted an improper reference to his failure to take the witness stand, in violation of Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.   We do not so construe the prosecutor's words.   The prosecution may comment upon the state of the evidence or the failure of the defense to introduce material evidence or call logical witnesses.  (People v. Szeto (1981) 29 Cal.3d 20, 34, 171 Cal.Rptr. 652, 623 P.2d 213.)   References to the failure of the defense to present evidence do not violate Griffin.  (People v. Ratliff (1986) 41 Cal.3d 675, 691, 224 Cal.Rptr. 705, 715 P.2d 665.)

Moreover, assuming arguendo that there was any misconduct, appellant suffered no prejudice, in light of Ms. Webb's unimpeached identification of him and the fact he was arrested while driving her car on the day it was stolen.   We do not view as significant either Ms. Webb's consumption of two beers over a six-hour interval or the failure of the police to observe scratches when Ms. Webb showed them her neck.

The judgment is modified;  execution of the sentence imposed on the priors in this case is stayed pending the finality of judgment and service of sentence, if any, on the priors in case No. A775158;  and the stay is to become permanent upon completion of the sentence imposed on the priors in case No. A775158.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   There is no issue regarding the validity of the priors in the case at bench, as the trial court properly found them true after the prosecution presented evidence on them.

2.   Penal Code section 654 provides:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

3.   This remedy appropriately resolves respondent's concern that the priors which were properly found true in this case might not be imposed in either case.   The priors can be imposed in the other case or, if they are not eventually imposed on remand there, in this case.   They cannot be imposed in both cases.

WOODS, Presiding Justice.

McCLOSKY and ROTHMAN,* JJ., concur.