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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph C. HOSNER, Jr., Defendant and Appellant.

Cr. 11377.

Decided: May 03, 1974

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr. Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., William D. Stein, Robert N. Schiff, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Serra, Perelson & Metcalf, San Francisco, for defendant and appellant.

Defendant Joseph Charles Hosner, Jr., was convicted on a jury's verdicts of first degree burglary (Pen.Code, §§ 459, 460) with the use of a firearm, first degree robbery (Pen.Code, §§ 211, 211a) with the use of a firearm, and possession of a concealable firearm by an ex-felon (Pen.Code, § 12021). He was found by the court to be an habitual criminal. (Pen.Code, § 644, subd. (a).) His appeal is from the judgment which was thereafter entered.

Hosner and one Auday were identified by several witnesses as the persons who, around six o'clock one morning, entered a home and robbed its occupants. While Hosner was engaged in a violent struggle with one of the occupants Auday fled. Witnesses observed him enter a white Dodge with license number DBW 201, and drive off. Hosner was seen walking away from the home moments later. The automobile was registered to Auday's wife. Hosner and Auday, who lived together, had been seen driving away in it earlier that night. Around 3 a. m. a car with license number DBW 201 was stopped by a police officer because of a motor vehicle offense. Its occupants gave their names as Hosner and Auday. The next day Hosner twice endeavored to arrange with others a false alibi as to his whereabouts at the time of the crimes in question. Without consideration of testimony claimed to have been improperly allowed, the evidence of Hosner's part in the criminal affair may fairly be described as beyond any reasonable doubt.

I. Hosner's first contention of error results from the ‘admission of hearsay testimony.’

A witness was asked ‘what statement’ Auday made after coming home alone on the morning of the crime. Over a hearsay objection the question was allowed, but ‘limited to the fact that the statement was made and not for the truth of its contents.’ The answer was that Auday said he had become frightened, and left Hosner at a house in ‘Twin Peaks.’ The burglarized home was close to the ‘Twin Peaks' area of the city.

The ruling was obviously error; it was apparently recognized as such by the trial court which promptly prevented further inquiry into the matter. But we find the error to be harmless under the standards fixed by California Constitution, article VI, section 13, and People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243 [cert. den. 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55].

II. Next Hosner asserts that his ‘additional’ sentence for the Penal Code section 12021 violation constituted double punishment in contravention of Penal Code section 654.

The evidence disclosed that Hosner, previously convicted of felonies, had possessed a concealable handgun during the course of the burglary. He was separately sentenced for that offense.

The argument is that as a matter of law, the possession being established only as of the time of the criminal offenses, the possession was one of several crimes committed as incidental to a single objective. Citing People v. Roth, 228 Cal.App.2d 522, 534, 39 Cal.Rptr. 582, 589 it is urged that “defendant may be punished for any one of [the crimes] but not for more than one.”

There may, of course, be situations where it must reasonable be concluded that one previously convicted of a felony obtained and possessed a concealable firearm solely for use in a single criminal objective. An illustration might be where the gun is secured only for the purpose of destroying some real or imagined enemy. But where, as here, a recidivous felon uses such a weapon in a robbery or burglary, reason tells us that it is improbable that it was obtained for use only in that particular criminal objective.

Penal Code section 654, proscribing double punishment, is applicable to a case where the evidence reasonably ‘does not show possession [of the firearm] for any other purpose.’ (People v. Jurado, 25 Cal.App.3d 1027, 1033, 102 Cal.Rptr. 498, 502; see also People v. Coleman, 32 Cal.App.3d 853, 858–859, 108 Cal.Rptr. 573; People v. Venegas, 10 Cal.App.3d 814, 821, 89 Cal.Rptr. 103.)

Further it is observed that the clear legislative purpose of section 12021 is to discourage felons from carrying concealable firearms. Application of the rule urged by Hosner would tend to encourage such violations. For the felon then might reasonably believe that his weapon would probably not be discovered except in the perpetration of another criminal act, and in that event he could not be punished for the section 12021 violation.

On the evidence the trial court reasonably concluded that Hosner's gun was not possessed for use only in the single criminal objective of the early morning in question.

III. No merit is seen in Hosner's claim of error resulting from the trial court's denial of a transcript of the testimony of a previous trial.

The record furnished us shows no more than that a motion for a transcript of the first trial was denied. Sufficient reason in support of such a motion must be shown in the trial court, and error results only from an abuse of discretion, on the showing made. And we observe that the same counsel represented Hosner at both trials; he was thus in a position to make a proper showing of the need of such a transcript, if it were needed. Neither abuse of discretion, nor error, is established. (See People v. Berry, 199 Cal.App.2d 97, 103–104, 18 Cal.Rptr. 388; People v. Hollander, 194 Cal.App.2d 386, 392–394, 14 Cal.Rptr. 917.)

IV. Hosner's next assignment of error states: ‘The court's instructions and admonition to the jury following its return, deadlocked . . . were improper and grossly prejudicial.’

After several hours of deliberation the jury reported itself ‘hung up’ on a point concerning the ‘credibility of witnesses.’ The trial court then, commenting on the evidence, indicated an opinion ‘that the credibility of the defendant is not entitled to a great deal of consideration.’ The court then properly stated to the jury:

‘Now, again, my comments are permitted by the Constitution, but you are at liberty to disregard my comments, and you do not have to take them into consideration if you do not want to. They're merely for your guidance, and I am not intimating that you should or should not find the defendant guilty of the charge.’

The foregoing statements of the court appear to be generally sanctioned by California's Constitution, article VI, section 10, and People v. Brock, 66 Cal.2d 645, 650, 58 Cal.Rptr. 321, 324, 426 P.2d 889, 892 where the court said, ‘By reason of his training in analyzing testimony, and experience in determining the credibility of witnesses, a trial judge is in a position to assist the jurors in determining what evidence has a bearing on the disputed issues in the case and to aid them in weighing the evidence, and comments which will so assist the jury are of substantial value and should not be discouraged.’

However, the trial court then gave the jury a version of the so-called ‘Allen’ charge, which was named after, and initially approved in, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528. This instruction may be paraphrased as an emphatic admonition that the court wishes the jury to return a verdict. It has been held that such an instruction, coupled with judicial comment suggesting that on the evidence a verdict of guilt was proper, constitutes error. (See People v. Carter, 68 Cal.2d 810, 817–818, 69 Cal.Rptr. 297, 442 P.2d 353; People v. Crowley, 101 Cal.App.2d 71, 73–79, 224 P.2d 748; see also People v. Crossland, 182 Cal.App.2d 117, 5 Cal.Rptr. 781; People v. Graham, 156 Cal.App.2d 525, 527, 319 P.2d 677.)

But here also, because of the strong proof of guilt established by legally admissible evidence, we conclude that the error was harmless under the standards of the state's Constitution, article VI, section 13, and People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243 [cert. den., 355 U.S. 846, 78 S.Ct. 70, 2 L.Ed.2d 55], as well as under the constitutional criteria established by Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

V. The People concede error in the proceedings leading to the trial court's determination that Hosner was an habitual criminal as defined by Penal Code section 644, subd. (a). Although Hosner admitted the pertinent prior convictions the record does not indicate that he had ‘served separate terms therefor,’ as required for operation of the statute. The cause will be remanded to the superior court for further, and appropriate, proceedings on that issue.

VI. Hosner's remaining contention also relates to his admission of the prior convictions upon which the adjudication of habitual criminality was based. He contends that before such admission he was entitled to a Boykin-like (Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; and see In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 877, 460 P.2d 449 [cert. den., 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d72]) admonition insuring that it would be a ‘knowing, intelligent, act done with sufficient awareness of the relevant circumstances and likely consequences.’

In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561 decided while this appeal was being considered, establishes that one ‘pleading’ to alleged prior convictions is entitled to such an admonition. But Yurko expressly held (at p. 860, 112 Cal.Rptr. at p. 515, 519 P.2d at p. 563) that the rule ‘applied prospectively only to admissions occurring after the [date] of this opinion,’ March 7, 1974. Accordingly, as to the instant contention Hosner is entitled to no relief.

The judgment is affirmed, except insofar as it declares Hosner to be an habitual criminal; the cause is remanded to the superior court for further appropriate proceedings on the issue whether the prison terms on his admitted prior convictions were separately served.

ELKINGTON, Associate Justice.

MOLINARI, P. J., and SIMS, J., concur.

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