PEOPLE v. HUNT

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jerroll Ray HUNT, Defendant and Appellant.

Cr. 6838.

Decided: January 27, 1975

Appellate Defenders, Inc. by William Raven, Cheryl Rhodes and Harold F. Tyvoll,, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Steven Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Defendant Jerroll Ray Hunt appeals a judgment convicting him of assault with a deadly weapon (Pen.Code § 245(a)), and first degree robbery (Pen.Code § 211a) while using a firearm (Pen.Code § 12022.5). He received concurrent sentences to prison.

The case involves two separate crimes committed during the early evening of Friday, December 21, 1973, assault with a deadly weapon and robbery. Who committed them? The finger pointed to Hunt, mainly because of the borrowed car he used.

Just after dark the Reverend Joseph Swanner, a former San Diego City Police Officer, saw the car, a 1969 Mustang, license number ZZV 905, partially blocking a driveway in his church parking lot. The temperature outside was cold; yet the window on the driver's side was down. The keys and a large Afro comb were in the car. Swanner did not recognize the car as belonging to any of his parishioners. There was no regularly scheduled church function going on at the time. Swanner's parsonage was on the church property. In addition in a cul-de-sac, all located off the beaten path. Swanner became suspicious about the presence of this strange car. He took the keys from the ignition, looked in the trunk for identification, and found the name ‘Johnnie Bolden’ on a letter. He inquired of the neighbors if anyone was visiting; the answer was always no. He walked down to Parris Winkler's grocery store on Sunnyside and asked Winkler if he had seen any black men in the area. Winkler said no. He asked the same question at the restaurant across the street, and got the same response. Swanner then went home, telephoned the sheriff's office for help and gave the car's description. On walking outside he saw someone running across the back of the church lot. He hollered at the person, walked toward him, and met him in the parking lot. Swanner asked him what he doing. The man in turn asked about his car keys. Swanner tried to stall for time so the sheriff would arrive, but the man demanded the keys and stuck a gun in Swanner's face to emphasize his request. Swanner handed over the keys. He countered the man's order to get in the car or get his head blown off, by hitting the gun with his hand and running away. Swanner had a good look at the man, with the aid of overhead lighting, and again called the sheriff's office, describing his assailant as 6′ to 6′2″ tall, weight 175–180 pounds, black male between 21–25 years old, wearing a white sleeveless Tshirt, dark trousers, with brown Naugahyde bag and pistol.

About 10 minutes after Swanner had talked to Winkler, a black man entered the store, approached Winkler with a pointed gun, demanded his money, forced him to open the cash register, took the bills from it and fled. Winkler had a good look at the man in the well lit store.

Later that evening Detective Streed of the Sheriff's office contacted Johnnie Bolden, the car's owner and learned Hunt had borrowed the car from him for an errand during the time the crimes were committed. The crimes occurred near the middle of the hour and a half to two hour span Hunt had the car.

Hunt was arrested. He was black, about 6′ tall, weighing 175 pounds. The day after the crimes the victims went to the police station. Independently each looked at photographic lineups of six persons. Winkler was unable to identify the robber positively; Swanner made a qualified identification of Hunt as the perpetrator. Swanner was asked if voice identification would be helpful. He said yes, and while walking through the lobby he glanced in a room, saw Hunt, and blurted out ‘I am absolutely certain that is the man that assaulted me.’ Winkler thought Hunt looked like the robber, but he was not positive. Until that time neither Swanner nor Winkler knew Hunt was at the station. Swanner and Winkler each identified Hunt in court as the assailant and robber, respectively.

Hunt claims the pre-court identification procedures impermissively suggest him as the culprit, and spoil his court identification.

Our concern is proper identification. Is Hunt the right man? Did he do the crimes? The chief link is the Mustang car. The crimes were committed when Hunt had the car. The car is like a fingerprint, linked to Hunt and an aid in identifying the perpetrator. Swanner and Winkler had good views of the culprit; there is no reason to believe that seeing the valid and unsuggestive photographic lineup would leave an impermissibly suggestive image of Hunt in their minds. When Swanner was walking through the lobby and saw Hunt alone in a station room, the suspect was not manacled or accompanied by uniformed officers, circumstances which indicate he is not a suspect. There was no lineup or showup; rather Swanner unexpectedly saw his assailant and spontaneously identified him. Winkler was taken by an officer to see Hunt and asked if he could identify him. The officer did not refer to Hunt as a ‘suspect’ and Hunt did not look like a suspect. There was nothing impermissibly suggestive. The single fact that a person is sitting alone in a side room, unmanacled and unguarded does not make the circumstances unduly suggestive and does not taint his identification (see People v. Burns, 270 Cal.App.2d 238, 245, 75 Cal.Rptr. 688; People v. Floyd, 1 Cal.3d 694, 714, 83 Cal.Rptr. 608, 464 P.2d 64).

On April 22, 1974, after the argument and denial of the motion for new trial, Hunt waived arraignment and the court sentenced him to prison on each count for the term prescribed by law, the sentences running concurrently. In the pronouncement of judgment the court did not specifically mention the use of a firearm which had been found by the jury and Hunt now contends this must be deleted. He also contends the robbery, although fixed by the jury as first degree, must be reduced to second degree, because the court in pronouncing judgment did not mention the degree of the offense.

The pronouncement of judgment is, except in unusual circumstances, a judicial act (People v. Hartsell, 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627) and as such cannot be corrected by amendment. However, clerical error ‘in recording the judgment rendered’ may be corrected so the record reflects the true facts (In re Candelario, 3 Cal.3d 702, 705, 91 Cal.Rptr. 497, 477 P.2d 729). Here at sentencing the court was silent on the degree of robbery, saying only ‘As to each Count it is the judgment and sentence of the court that the defendant be imprisoned in the State Prison for the term prescribed by law.’ Silence as to degree, when there is no contrary evidence, may operate as an act of leniency (In re Candelario, supra, 3 Cal.3d 702, 706, 91 Cal.Rptr. 497, 477 P.2d 729). The fact that argument on motion for new trial immediately preceded pronouncement of judgment, supports the inference that the judge knew the finding of the jury and intended to reduce the sentence by omission equally as well as it supports the inference that having reviewed the jury findings the judge intended to incorporate them in his pronouncement (see People v. Mason, 34 Cal.App.3d 281, 291, 109 Cal.Rptr. 867). However, the rationale of Mason and the standards for criminal justice approved by the American Bar Association require that a defendant be told clearly and precisely the bases for his sentence. This may be done through a formal arraignment or by the trial court specifically stating the offenses covered by the sentence. Here Hunt was told he was sentenced on ‘each Count.’ Returning to the original information this included: violation of Penal Code section 211, robbery; violation of Penal Code section 12022.5, use of a firearm while committing a robbery; and violation of Penal Code section 245(a), assault with a deadly weapon. The phrase ‘each Count’ covers all of these offenses but does not specify the degree of the robbery. Just as a verdict which does not specify the degree is ‘deemed to be of the lesser degree’ (Pen.Code §§ 1192, 1157; People v. Stephenson, 10 Cal.3d 652, 656, 111 Cal.Rptr. 556, 517 P.2d 820) so the pronouncement of judgment which does not specify the degree of the crime should be treated likewise. Hunt was sentenced under the pronouncement of judgment for robbery which did not specify the degree; therefore, the degree must be deemed second, and the minutes and abstract must be amended to show this change. Hunt's use of a firearm is included in Count One, and thus the court's saying ‘each Count’ covered this infraction and informed Hunt it would affect the length of his sentence. There is no merit to his contention this charge should be deleted.

In a criminal case the pronouncement of judgment is an important step which is not amenable to short cuts. We recently suggested that trial courts not waive arraignment (People v. Hartsell, supra, 34 Cal.App.3d 8, 15, 109 Cal.Rptr. 627). If there had been a proper arraignment here the trial court would have had all facets of the conviction, including the degree of the robbery, brought into the open as he pronounced judgment, and no phase would have been left to conjecture. We repeat our previous admonition that the few minutes saved by omitting arraignment do not compensate for the many hours spent at the appellate level resolving problems resulting from the omission (People v. Hartsell, supra, 34 Cal.App.3d 8, 15, 109 Cal.Rptr. 627).

Modified and affirmed.

GERALD BROWN, Presiding Judge.

AULT and COLOGNE, JJ., concur.

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