PEOPLE of the State of California, Plaintiff and Respondent, v. John E. SILVER, Defendant and Appellant.
Appellant was charged by information (No. 96736) on April 28, 1978, with pimping (Pen.Code, s 266h),1 pandering (s 266i) and assault by means of force likely to produce great bodily injury (s 245, subd. (a)), the victim being Leila Hood. In addition, it was alleged he had a prior felony conviction (s 667.5, subd. (b)).
Appellant was likewise accused by an indictment (No. 97020), returned on May 17, 1978, with pimping (s 266h), pandering (s 266i) and having suffered a prior felony conviction (s 667.5, subd. (b)). The victim alleged in the indictment was Collette Blakeman.
The two actions (No. 96737 and No. 97020) were consolidated for trial on June 1, 1978. Appellant admitted the prior felony conviction. A jury trial resulted in his conviction on all counts. He was sentenced to seven years in state prison.
Appellant advances the following contentions on appeal.
1. The trial court erred in denying his Penal Code section 1538.5 motion in action No. 97020 (victim Blakeman).
2. The trial court improperly denied his peremptory challenge of the trial judge or alternatively, he was denied the effective assistance of counsel.
3. The trial court erred to his prejudice when it refused to instruct the jury according to CALJIC Nos. 2.60 and 2.61.
4. The trial court erroneously failed to instruct the jury sua sponte concerning his oral admissions.
5. Hearsay evidence was improperly admitted over objection.
6. Evidence which appellant believed had been suppressed was improperly admitted.
7. The trial court erred in sentencing appellant.
8. Appellant is entitled to additional good time/work time credit.
Leila Hood testified that on September 10, 1977, she arrived in San Francisco with her two and one-half year old son after driving up from her home in San Diego. She had intended to take a short vacation and had about $200 in cash. Upon arriving in downtown San Francisco, her purse, containing all of her money, was stolen from her car. Shortly thereafter her car broke down; she parked it and stayed with her son in the car for two nights.
On September 12, 1977, Leila approached three women standing on a corner, whom she suspected were prostitutes. Their names were Angie, Gayla and Judy. She asked if they knew any one who could baby-sit for her son while she looked for some kind of job. She told Angie (also known as Pat Morgan) that she and her son had no money and nowhere to stay. Angie advised her that she could stay with a friend who would help her.
Angie made a phone call and then took Leila and her son to room 1021 in the Holiday Inn. Appellant eventually came into the room and told Leila he would take care of her and her son, and fix her car so that she could go back to San Diego. He ordered dinner for her and left the room for a short while. When he returned appellant asked her if she would “be his lady and help him make money for the good of everybody.” He gave her some clothes, told her she ought to make $150-$200, and instructed her not to “date” any black men or men “on foot,” to watch out for the vice squad, not to talk to any black guys or “other bitches,” and not to “date” for less than $15. That night she joined Angie, Judy and Gayla on the street. She had four “dates,” whom she brought to room 1039 in the Holiday Inn. When she finished work she returned to room 1021 and gave appellant the $100 she had earned.
On the following day, appellant took Leila shopping and purchased clothing for her. Later that night Leila went to the area of Post and Leavenworth and worked until about 3:45 a. m., earning $110. She took her customers to room 1039 in the Holiday Inn. After work she returned to the Holiday Inn with two black men, driving a green Audi automobile, who had identified themselves as appellant's friends.
Upon her return to the hotel Leila gathered her earnings from room 1039 and took the money to appellant in room 1021. When she mentioned the two “friends” who had given her a ride back to the hotel, appellant became very angry and accused her of being “out of pocket,” i. e., concealing money from him. He began beating her savagely. When she pleaded with appellant to let her go home, he threatened repeatedly to kill her and continued beating her. Leila was terrified to the point she defecated on herself as she truly believed appellant was going to kill her. At the urging of one of the other girls who was then present, appellant stopped.
Leila cleaned the blood and fecal matter with some towels and left the room. She left the hotel with her son and immediately went to the police. This took place at approximately 9:30 a. m. on September 14. She gave the police a physical description of appellant, as well as his first name. She told the police that throughout the period she was with appellant she continually told him and others that she just wanted to go home.
On September 14, San Francisco police officers executed a search warrant for rooms 1021 and 1039 in the Holiday Inn. Many of the items specified in the warrant were seized, including a large quantity of prophylactics, hotel keys, articles of women's clothing and various papers bearing appellant's name. In addition, the officers found some towels which appeared to have dried blood and fecal matter on them. A young girl who identified herself as Judy Cannon was found in room 1021. A woman who identified herself as Angie Panzino (also known as Pat Morgan) also appeared and, having been named in Leila's statement, was placed under arrest.
Thereafter the police went to the garage area of the Holiday Inn and observed a green Audi automobile which was similar to the car described by Leila. Sleeping inside the car were appellant and Collette Blakeman. Appellant was placed under arrest and subsequently booked on charges of pimping and pandering. Ms. Blakeman was not arrested, but voluntarily accompanied the officers to the Hall of Justice, because she was concerned about appellant and wanted to make his bail.
Collette testified that she first met appellant in September or October of 1976 in Sacramento when she was prostituting for another pimp. She was 17 years old at the time. Appellant convinced her to leave her pimp and “choose” him as her pimp. Appellant taught her how to be his prostitute, how much to charge, how to get more money from customers, where to work, how to work, and when to turn the money over to him.
Collette testified concerning the “two room” modus operandi which appellant set up. She worked for appellant in many cities and states. During the one year she worked for appellant, he paid for her clothing, transportation, lodging, bail and fines.
On several occasions, appellant assaulted her. After one such assault, Collette escaped to her parents' home. While staying there she related to her mother, for the first time, that she was appellant's prostitute and that he had beaten her. One week later, however, appellant “talked her back.” Accompanied by Pat Morgan (aka Angie Panzino) and Judy Cannon, she and appellant returned to San Francisco and in the usual manner rented two rooms in the Holiday Inn.
In mid-September 1977, Leila Hood approached her, Angie and Judy on the street and asked for their assistance in finding a baby-sitter for her son, explaining that she knew no one in San Francisco. Thereafter Angie took Leila to the hotel where she met appellant.
During the trial, the jury heard evidence that after appellant's arrest on the charges being tried, he made bail but thereafter failed to appear in court, with the result that a bench warrant was issued. He was rearrested seven months later.
On October 26, 1978, appellant failed to appear for the fourth day of his trial and it proceeded in his absence. The defense did not offer any evidence. Appellant remained at large until he as arrested in Tulare County on May 1, 1979.
1. Denial of the 1538.5 Motion in Action No. 97020 (Blakeman Victim).
The procedural sequence leading up to the denial of the 1538.5 motion in action No. 97020 and the subsequent relief sought, which are central to our decision, are as follows: On April 28, 1978, an information (No. 96736, Hood victim) was filed against appellant. On May 16, 1978, appellant filed a written motion to set aside the information pursuant to Penal Code section 995. On May 17, 1978, the grand jury returned an indictment (No. 97020, Blakeman victim) against appellant. On May 19, in action No. 96736 (Hood), appellant filed a written motion to suppress evidence pursuant to Penal Code section 1538.5. On May 25, 1978, the district attorney filed a motion to consolidate for trial action Nos. 96736 and 97020. The 1538.5 motion, the 995 motion and the motion to consolidate were all set for hearing on May 30, 1978. The motions were set before the Honorable Walter F. Calcagno.
Judge Calcagno commenced with the 1538.5 motion first as he felt it might dispose of the other matters before him. He was unable to complete the hearing on the first day due to a witness' absence. The hearing was concluded the next day, June 1, 1978. Appellant's 1538.5 motion challenged the validity of the search warrant which authorized the search of the hotel rooms which had been described by Leila. The motion sought to suppress items of evidence which were located in rooms 1021 and 1039 of the Holiday Inn. These items of evidence included prophylactics, clothing, towels, and other miscellaneous items. Appellant further argued that the identity of Collette and statements taken from her and the other girls were “fruits” of the illegal search. At the hearing certain items of property were returned to appellant based upon a stipulation between counsel. The stipulation was based not on any admission of illegality but rather on the statement of the district attorney that the items of evidence were unnecessary to their case.
Officer Prentice of the San Francisco Police Department was the only witness called during the 1538.5, subdivision (i) hearing except for the admission into evidence of a page of testimony from the preliminary hearing. He testified that the information contained in the affidavit for the search warrant, as well as the description of the property, came from Leila. The description of appellant and the green Audi also was provided by Leila. At the conclusion of the hearing, Judge Calcagno ruled that the search warrant was proper and that the seizure of all the evidence complained of was valid.
He accordingly denied the 1538.5 motion, the 995 motion, and ordered consolidation. Appellant on this appeal does not question the rulings made by Judge Calcagno on these motions.
On June 9, 1978, appellant filed a written motion under sections 995 and 1538.5 of the Penal Code in action No. 97020 (Collette), which was identical in all respects to the written motion which had been heard and denied on the merits in action No. 96736.2 The same challenge was made to the search warrant and the same items of evidence were sought to be suppressed. On June 16, 1978, the motions were set for hearing before the Honorable Joseph Karesh. Following argument, Judge Karesh denied the motions. The 1538.5 motion was denied by Judge Karesh since it was the identical motion which had been previously denied by Judge Calcagno in action No. 96736 (Hood). Judge Karesh indicated “I don't think you have a good motion to suppress anyway. But I'm not deciding it on that ground. I'm doing it on the ground that the motion is denied on the 1538 on the grounds of the doctrine of estoppel.” The written order denied the motion solely on the basis of collateral estoppel.
On June 22, 1978, appellant filed a petition for a writ of prohibition and/or mandate (1 Civil No. 44448) challenging Judge Karesh's ruling. Citing Madril v. Superior Court (1975) 15 Cal.3d 73, 77, 123 Cal.Rptr. 465, 539 P.2d 33, the petition was denied. Appellant's petition for hearing by the Supreme Court was subsequently denied.
At trial appellant made another motion to suppress, purportedly in action No. 97020, pursuant to section 1538.5, subdivision (h). The motion was denied as untimely since appellant had from June 16, 1978 to October 23, 1978 “to make a supplementary motion alleging as grounds the newly discovered evidence in the transcript.”
It is appellant's contention that the denial of his motion to suppress evidence under Penal Code section 1538.5 as related to action No. 97020 (Blakeman) was improper and constituted reversible error.
On appeal the People agree that Judge Karesh erred in denying the motion to suppress on the grounds of collateral estoppel. It is therefore conceded that some other basis must be found to support the ruling made by Judge Karesh. We must therefore determine whether there are other grounds which would support the trial court's ruling. (See People v. Garrett (1972) 29 Cal.App.3d 535, 540, 104 Cal.Rptr. 829; People v. Towner (1968) 259 Cal.App.2d 682, 685, 66 Cal.Rptr. 559.)
Whether a defendant, against whom two separate actions are filed, and which are thereafter consolidated, has the right to two 1538.5 motions in superior court, on the same grounds and concerning the same evidence, is a question of first impression.
We recognize that a defendant's right to a pretrial suppression motion is determined by statute and is not a matter of judicial discretion. (Moreno v. Superior Court (1978) 80 Cal.App.3d 932, 146 Cal.Rptr. 35.) We agree that ordinarily appellant should have been given the opportunity to raise a 1538.5 motion in action No. 97020. However, in light of the record before us and the particular circumstances and posture of this case, we find that any error in denying the 1538.5 motion in action No. 97020 was harmless.
The People argue that the judge of one department is always bound by the order of another department, citing People v. Grace (1926) 77 Cal.App. 752, 247 P. 585 and Williams v. Superior Court (1939) 14 Cal.2d 656, 96 P.2d 334. Therefore, they argue, had Judge Karesh entertained the motion and the merits in action No. 97020, he would have acted in excess of his jurisdiction. This argument is not very helpful since it only resolves the issue of whether a judge in one department is bound by the order of another department on the same motion in the same case. The People's analogy is not applicable to a situation involving two separate actions.
The People next argue that Madril v. Superior Court, supra, 15 Cal.3d 73, 123 Cal.Rptr. 465, 539 P.2d 33, is dispositive. Madril, however, is distinguishable as it dealt with a situation where the defendant sought review or reconsideration of an adverse ruling rendered after a hearing on the search and seizure issues in the same action. (See also People v. Superior Court (Green) (1970) 10 Cal.App.3d 477, 481, 89 Cal.Rptr. 223.)
The Madril and Green cases do not address the issue before this court inasmuch as they dealt with further attempts to suppress in the very same case. A rehash of the same issue was not permitted. Here, however, appellant wanted a further 1538.5 hearing to suppress identical evidence, under identical facts, on an identical motion but in a separate consolidated action. While there may be some authority for this when a motion has been granted, no case has been found where the first motion was denied.3 The court in People v. Brooks (1980) 26 Cal.3d 471, 162 Cal.Rptr. 177, 605 P.2d 1306, permitted a subsequent 1538.5 hearing in the same case where the defendant had not had an opportunity to litigate all suppression issues. However, Brooks would not have permitted a second motion where such a motion would have involved a relitigation of precisely the same issues with respect to the same evidence, so long as there had been an opportunity for a full hearing on the merits of his entire motion. In view of the record before us, we do not see why the identical issues should be relitigated in this consolidated action. A relitigation of the suppression motion would have had no impact on appellant's subsequent conviction. Appellant would have been convicted on all counts in any event.
This is especially true in this case because appellant does not challenge the ruling made by Judge Calcagno on the very same motion. Necessarily, then, appellant is saying that the search warrant was valid, that all evidence obtained was properly seized, and that the identity of the witnesses and their statements could not be suppressed. Appellant therefore concedes that the particular search, which he later wanted to attack again, was valid. Appellant impliedly is telling us that any subsequent ruling on the same facts, if not in conformity with the rulings of Judge Calcagno, would be erroneous. Having conceded the correctness of Judge Calcagno's ruling, we fail to see how appellant was prejudiced by a refusal on the part of Judge Karesh to in effect rehear the same motion.4
Appellant attempts to argue that the proposed “second” 1538.5 motion was different from the first. This contention is based on the fact that at the time he made the “second” 1538.5 motion, he had a transcript of Collette's testimony before the grand jury. This he argues was “new evidence.” In her testimony before the grand jury it was revealed that in exchange for her testimony, the prosecution would assist her with respect to matters then pending against her. Appellant argues that this revelation has something to do with the voluntariness of her statements to the police. We disagree. The offer of assistance by the prosecution may have had an effect on her interest, bias or motive in testifying against appellant, but in no way affected the 1538.5 motion which was heard by Judge Calcagno. The possible motives for Collette's testimony were subjects to be considered in accordance with the rules of evidence at trial. A review of the record of the trial clearly demonstrates that they were fully explored on cross-examination and in final argument.
If instead the “voluntariness” of Collette's statements have to do with possible Miranda (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) violations as appellant obliquely suggests, then such possible violations could not, in any event, be the subject of the 1538.5 motion. Her statements to the police did not lead to any evidence which could have therefore been tainted and subject to suppression. Her statements indicated her activities as a prostitute and the fact that appellant benefited therefrom. We therefore conclude that under the facts presented to us in this case, if the section 1538.5 motion in action No. 97020 was erroneously denied, the error was harmless and no miscarriage of justice resulted.5 (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; Cal.Const., art. VI, s 13.)
We also conclude that the trial court's denial of appellant's 1538.5, subdivision (h), motion at trial as untimely was proper since by its terms subdivision (h) requires that appellant must be unaware of the “new evidence” prior to trial. (See People v. Martinez (1975) 14 Cal.3d 533, 121 Cal.Rptr. 611, 535 P.2d 739.)
2. The 170.6 Challenge.
When the master calendar judge assigned appellant's case out for trial his counsel attempted to challenge the trial judge pursuant to Code of Civil Procedure section 170.6; however, counsel did not properly invoke the challenge and the motion was therefore denied. Shortly thereafter counsel attempted once again to invoke the challenge and it was denied once again.
It is the contention of appellant that the proceedings below were invalid since the master calendar judge refused to honor trial counsel's peremptory challenge of the trial judge pursuant to Code of Civil Procedure section 170.6. This contention is based on the fact that the master calendar judge did not point out to trial counsel the defect in his attempted challenge nor did he offer guidance to him as to the proper manner and form to invoke the challenge. Alternatively, appellant argues that he was denied the effective assistance of counsel due to trial counsel's inept challenge pursuant to Code of Civil Procedure section 170.6. We find appellant's first contention to be without merit.
Code of Civil Procedure section 170.6 guarantees litigants an extraordinary right to disqualify a judge. “The right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required.” (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531, 116 Cal.Rptr. 260, 526 P.2d 268.) The affidavit is a formal means of expressing that belief. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 193, 137 Cal.Rptr. 460, 561 P.2d 1148), but it is not a “hollow formality.” “(I)t is an essential part of the statutory scheme of safeguards bearing upon the constitutionality of the disqualification statute.” (People v. St. Andrew (1980) 101 Cal.App.3d 450, 456, 161 Cal.Rptr. 634.) In the instant case, trial counsel did not file the requisite affidavit or declaration nor did he make an oral statement under oath. He later attempted to be sworn under oath for purposes of invoking the challenge, but was advised by the master calendar judge that “he was too late.” Consequently, where the challenge is defective because not supported “by affidavit or declaration under penalty of perjury or an oral statement under oath” (Code Civ.Proc., s 170.6, subd. (2)), a denial is proper. (St. Andrew, supra, at p. 456, 161 Cal.Rptr. 634.) Inasmuch as the denial of the challenge was proper, the trial judge, to whom the matter was assigned, had the authority to proceed with the trial of the action.
Like Justice Grodin in St. Andrew, we are concerned about the role of the master calendar judge in the face of an obviously inept attempt to invoke the 170.6 challenge “when a single statement of the procedural requirement would presumably have cured the defect on the spot ....” (Id., at p. 457, 161 Cal.Rptr. 634.) The inaction of the master calendar judge, however, does not require reversal as contended by appellant. The trial court does not have the duty to educate counsel in a situation where the pellucid language of Code of Civil Procedure section 170.6 leaves no doubt as to what is required for a proper challenge. St. Andrew, contrary to appellant's contention, does not require a reversal per se under these circumstances.6 We also note that the master calendar judge did not have a duty to reconsider defense counsel's motion minutes after the motion had been submitted and ruled upon as appellant contends.7
Having determined that the denial of the Code of Civil Procedure section 170.6 motion was proper, we consider appellant's claim of ineffective assistance of counsel as a result of the defective attempt to invoke the Code of Civil Procedure section 170.6 challenge.
Appellant argues that he was deprived of his constitutional right to effective assistance of counsel (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859) and that as a result his conviction must be reversed. We find no prejudice to appellant and accordingly disagree with this contention as well. Clearly, a reasonably competent trial attorney should be aware of the formal requirements necessary to invoke the Code of Civil Procedure 170.6 challenge. However, under Pope more than mere negligence is required. Appellant must show “that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates. In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (Id., at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859, emphasis added.) As the Attorney General correctly notes, appellant has not pointed to any withdrawal of a “potentially meritorious defense” by reason of his counsel's failure to properly invoke the Code of Civil Procedure section 170.6 challenge. Further, appellant has not shown that he suffered any prejudice whatsoever as a result of defense counsel's action.8 True, as appellant points out, the majority in St. Andrew did determine that “trial counsel should have been aware of the formal requirements (of Code Civ.Proc., s 170.6), and that his failure to assert the motion in proper form constituted a departure from the standards of professional competency applicable under Pope.” (St. Andrew, supra, at p. 456, 161 Cal.Rptr. 634.) However, the court in St. Andrew did not deal further with the Pope problem, nor did it discuss whether a “potentially meritorious defense was withdrawn,” nor did it discuss the consequence of the departure from Pope standards. Contrary to the position argued by appellant, it is clear that the St. Andrew court did not determine that the ineffective Code of Civil Procedure section 170.6 challenge, which they found to be a deviation from Pope standards, requires reversal per se. If, as appellant contends, the opinion had so held, it would have ended at that point. The balance of the opinion would have been pointless. However, a careful reading of the St. Andrew opinion clearly reveals that the reversal was ordered due to the erroneous admission of prejudicial evidence. (St. Andrew, supra, at pp. 464-465, 161 Cal.Rptr. 634.) The “procedural taint” of the Code of Civil Procedure section 170.6 challenge did not, of itself, result in the reversal. The court found St. Andrew to be a close case. The instant case is not close at all. The evidence of appellant's guilt is overwhelming and uncontradicted. No prejudice of any kind was suffered by appellant.
We do not believe that appellant has demonstrated that any potentially meritorious defense was withdrawn or lost as a result of the inept challenge. However, even if defense counsel's inaction brings appellant under the mantle of Pope, we would agree with the implication in St. Andrew, that prejudice must result.9 Under the circumstances of this case, we determine that the failure to properly invoke the Code of Civil Procedure section 170.6 challenge was not prejudicial in the sense that it brought about a miscarriage of justice under article VI, section 13 of the California Constitution or that the conviction must be reversed since the error, if any, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)
3. Refusal to Instruct Pursuant to CALJIC Nos. 2.60 and 2.61.
Appellant contends that the trial court committed prejudicial error in refusing to instruct the jury in accordance with CALJIC Nos. 2.60 and 2.6110 upon defense counsel's request. The trial court refused to instruct upon CALJIC Nos. 2.60 and 2.61 because appellant absented himself before the prosecution completed its case. The court determined that inasmuch as appellant had failed to appear for the conclusion of his trial he was “not available to take the stand or not to take the stand.” In our opinion the trial court should have given an instruction on appellant's right not to testify even though appellant was absent at the conclusion of the trial. However, we determine that in light of the overwhelming evidence of appellant's guilt which was presented in this case, and further in light of appellant's flight during trial, if it was error to refuse the proffered instructions, it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; People v. Spencer (1967) 66 Cal.2d 158, 169, 57 Cal.Rptr. 163, 424 P.2d 715.)11
Appellant also argues that the prosecutor committed Griffin error in commenting that appellant failed to present any witnesses in his defense. (Griffin v. California (1967) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.) This argument is without merit. “It is now well established that although Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule ‘does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. (Citations.)’ (Citations.)” (People v. Vargas (1973) 9 Cal.3d 470, 475, 108 Cal.Rptr. 15, 509 P.2d 959; see People v. Medina (1974) 41 Cal.App.3d 438, 459, 116 Cal.Rptr. 133; People v. DeVaney (1973) 33 Cal.App.3d 630, 109 Cal.Rptr. 276.) The comments of the prosecutor did not violate the proscription of Griffin.
4. Failure to Instruct Sua Sponte Concerning Appellant's Oral Admissions.
Appellant next argues that the trial court erred in failing to instruct the jury sua sponte on CALJIC Nos. 2.70 and 2.7112 concerning appellant's oral admissions.
At trial, the People introduced the following spontaneous statements made by appellant to Officer Prentice upon his rearrest in May 1978: ‘You motherfuckers are wasting your time. Those bitches gave me money cause they wanted to. I have a high priced attorney that's going to get me out of this. No bitches live with me unless they give me money, and I got five bitches working for me on the streets right now.’ “
The prosecutor also introduced statements made by appellant to his bail bondsman stating that he did not intend to appear in court and would reimburse the bondsman for the bail money.
Appellant's statements were clearly admissions and failure of the trial court to sua sponte give a cautionary instruction on the weight to be accorded oral admissions was error. (See People v. Beagle (1972) 6 Cal.3d 441, 455, 9 Cal.Rptr. 313, 492 P.2d 1; People v. Ford (1964) 60 Cal.2d 772, 799, 36 Cal.Rptr. 620, 388 P.2d 892, cert. den. 377 U.S. 940, 84 S.Ct. 1342, 12 L.Ed.2d 303.) However, the trial court's error does not require reversal if upon a reweighing of the evidence, it does not appear reasonably probable that a result more favorable to appellant would have been reached in the absence of the error. (Beagle, supra, at pp. 455-456, 9 Cal.Rptr. 313, 492 P.2d 1; People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243.)
There is no probability that the jury in the present case would have returned a different verdict had a proper instruction been given or even had the admissions not been introduced into evidence. The testimony of Leila and Collette overwhelmingly established that appellant pimped, pandered, and assaulted both victims. Their testimony corroborated one another's concerning appellant's mode of operation and the events leading up to appellant's assault on Leila on September 14, 1977. Collette's account was corroborated by the testimony of her mother, Norressa Blakeman. Many specific items of physical evidence described in their testimony were retrieved by the police and admitted into evidence. On two occasions appellant fled prosecution such that the jury was entitled to draw an inference of consciousness of guilt.
5. Hearsay Objection.
Over appellant's hearsay objection, Norressa Blakeman, Collette Blakeman's mother, was permitted to testify to a conversation she had with her daughter in August 1977 during which Collette told her mother for the first time that she had been working for appellant as a prostitute. Appellant claims this was error. We do not agree.
The testimony was properly admitted as a prior consistent statement for rehabilitation purposes or as an exception to the hearsay rule. (Evid.Code, ss 791, subd. (b), 1236.) Counsel for appellant cross-examined Collette at length concerning the story she had given the police at the time of appellant's arrest and the testimony she gave at trial on direct examination. He sought to establish that Collette was testifying against appellant because the district attorney had arranged to have a number of charges then pending against her dismissed. In effect, a charge was made that her testimony at the trial was a recent fabrication and was influenced by bias or other improper motive. The purpose of Norressa Blakeman's testimony was to establish that before any possible motive or bias developed, Collette had related to her mother essentially the same facts as she testified to at trial. (People v. Duvall (1968) 262 Cal.App.2d 417, 68 Cal.Rptr. 708, cert. den. 393 U.S. 1070, 89 S.Ct. 729, 21 L.Ed.2d 714; Jefferson, Cal.Evidence Benchbook (1972) s 10.2, pp. 143-145.) The admission of this evidence was proper.
6. Admission of Evidence Believed to Have Been Suppressed.
Appellant next argues that certain items which he believed had been suppressed were introduced into evidence as a result of trial counsel's ineffectiveness and/or due to the misconduct of the prosecutor and the police.
A number of keys were seized from room 1021 at the Holiday Inn during the execution of the search warrant, some from Judy Cannon's purse and some from a green suitcase. A set of three keys seized from the purse were suppressed pursuant to stipulation. At trial a set of nine keys seized from the suitcase was introduced into evidence. The day after those keys were introduced into evidence, defense counsel, in chambers, brought up the fact that he believed all keys had been suppressed. The district attorney rejoined that the keys which were suppressed were not the same as those presented at trial. The officer who made the inventory of the items seized was called into chambers, and he admitted that he had inadvertently omitted listing keys seized from other than Ms. Cannon's purse. The district attorney argued that even though the keys from the suitcase were not specifically listed in the inventory, trial counsel had been shown all keys long before trial and that they were marked as to the location from which they were seized. Defense counsel admitted viewing the keys, but contended that he was not told their source. The trial court ruled that because defense counsel had the opportunity to view all keys, he had no grounds to object.
We agree with the trial court that appellant's attorney had the opportunity to litigate the admissibility of the nine keys and having failed to avail himself of that opportunity, the keys were properly admissible. Defense counsel's own inventory of the items which he sought to suppress, found in his moving papers filed in support of the section 1538.5 motion, belies his assertion at trial that he was unaware of the two separate sets of keys or the fact that only those recovered from the purse were suppressed. Furthermore, no evidence of prosecutorial misconduct appears; the police officer's erroneous inventory was not prejudicial because trial counsel saw all keys and noted that two sets existed. As to the ineffectiveness of counsel's argument, appellant has made no showing that not only did his attorney below act unreasonably but that he was deprived of a potentially meritorious defense. (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) We conclude that the keys were properly admitted.
7. Sentencing Error.
Appellant next contends that the trial court erred in sentencing him.
A. Count One (Action No. 96736).
The principal offense in this case was count one in action No. 97020 (pimping) (Blakeman) for which the aggravated term of four years was imposed. The trial court then made count one (pimping) in action No. 96736 (Hood) consecutive to the principal term because “the Defendant's prior convictions are numerous.” Appellant argues that the trial court's use of his felony conviction both to enhance the sentence pursuant to section 667.5, subdivision (b), and to justify the consecutive term pursuant to section 1170.1, subdivision (a), constituted an improper dual use.13
It is fundamental that a sentencing court may not use the same fact which is used to enhance the sentence as the basis for imposing the upper term. (Pen.Code, s 1170, subd. (b); Cal.Rules of Court, rule 441(c); People v. Roberson (1978) 81 Cal.App.3d 890, 146 Cal.Rptr. 777.) This court recently determined in People v. Flores (1981) 115 Cal.App.3d 67, 171 Cal.Rptr. 365, that the same factor may also not be used to impose two enhancements. There we stated: “Common sense leads to the conclusion that the Legislature, having expressed its concern with the dual use of facts both to aggravate and enhance, has expressed a policy equally applicable to dual use of the same fact to impose two enhancements. Further indication of this policy can be seen in the prohibition of Penal Code section 654 against multiple punishment for one criminal act.” (Id., at p. 79, 171 Cal.Rptr. 365.)
The People suggest, however, that there is no dual use problem where the court considers the fact that a prior offense has been committed in imposing a consecutive sentence and not the fact that a prior prison term has been served, which is the basis for a one-year enhancement under section 667.5, subdivision (b). The distinction is untenable since the effect is the same, and appellant would be multiply punished for one criminal act.14
The fact that appellant suffered a prior juvenile adjudication does not cure the dual use problem. California Rules of Court, rule 421(b)(2) provides that if a defendant's prior convictions as an adult or adjudications of commission of crimes as a juvenile are numerous this may be considered by the sentencing court in deciding whether to impose a consecutive sentence. (Cal.Rules of Court, rule 425(b).) Even were we to read the trial judge's language referring to “convictions” as encompassing juvenile adjudications, without the invalid factor of appellant's prior felony conviction, there are not “numerous” convictions or adjudications. (See People v. Simpson (1979) 90 Cal.App.3d 919, 154 Cal.Rptr. 249.) The sentence on count one in action No. 96736 (Hood) must be reversed and remanded to the trial court for resentencing.
B. Count Two (s 266i) (Action No. 97020) (Blakeman).
The trial court imposed the upper term on count two in action No. 97020 because appellant “was convicted of other crimes for which concurrent sentences are being imposed.” Sentence on this count was then stayed pending completion of the sentence in count one, pursuant to section 654. Appellant contends that the trial court had no jurisdiction to impose the upper term on a “subordinate” offense and asserts that the correct sentence should have been one-third of the middle term pursuant to section 1170.1.
Count two is not a “subordinate offense” within the meaning of section 1170.1, subdivision (a), which applies to consecutive sentences, because it was ordered to run concurrent to the sentence in count one. There is no parallel limitation in concurrent sentencing to bar the imposition of the upper term with respect to count two.
8. Good Time/Work Time Credits.
Appellant finally contends that he is entitled to good time/work time credit for time spent in presentence custody. In light of People v. Sage (1980) 26 Cal.3d 498, modified 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 (as modified), appellant may be entitled to good time/work time credit for presentence jail time served. Since this case will be remanded for resentencing on count one in action No. 96736, such credits can be computed at that time.
The judgment is reversed for the limited purpose of resentencing in accordance with the principles expressed herein and for computation of appellant's Sage credits. In all other respects the judgment is affirmed.
1. Unless otherwise indicated, all citations are to the Penal Code.
2. The motions filed are verbatim except that those items of property which were returned to appellant by stipulation were eliminated from the second 1538.5 motion.
3. See People v. Gephart (1979) 93 Cal.App.3d 989, 156 Cal.Rptr. 489, which dealt with the problem of a second 1538.5 motion in a different case where the first motion had been granted. This case confirms that collateral estoppel is not here applicable.
4. In fact a review of the record of the 1538.5 motion heard by Judge Calcagno demonstrates the lack of merit in appellant's 1538.5 motion. It is difficult to see how a second judge hearing the identical motion could have ruled differently.
5. The doctrine of harmless error is applicable to the case before the court since the context of the appeal is not under section 1538.5, subdivision (m). (See People v. Hill (1974) 12 Cal.3d 731, 769, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.)
6. The dissent in St. Andrew by Newsom, J., recognizes that the majority opinion implies that there is a duty on the part of the trial judge to advise counsel as to the proper means of invoking Code of Civil Procedure section 170.6, an implication which he disapproves. However, the majority in St. Andrew, at page 465, found prejudicial error as a result of other rulings by the trial court, which, when considered with the “taint” of procedural errors, required reversal.
7. The Attorney General has brought to our attention the fact that appellant exercised his peremptory challenge in action No. 96736 at the preliminary hearing (i. e., prior to consolidation). From this he argues that the master calendar judge was without authority to grant the later challenge in the consolidated proceedings. (Code Civ.Proc., s 170.6, subd. (3).) Having determined that the master calendar judge ruled properly, we need not reach this issue. We note with some interest, however, that apparently trial counsel was able to properly invoke the Code of Civil Procedure section 170.6 challenge at the preliminary hearing.
8. Appellant argues that an inquiry into prejudice is “totally irrelevant,” but he fails to distinguish between prejudice for the purpose of Code of Civil Procedure section 170.6 and prejudice for purposes of reversal based on Pope type error. We would agree with appellant were we reviewing a challenge which had erroneously been denied. Conversely, when dealing with alleged ineffective assistance of counsel, a defendant is entitled to relief only when prejudiced thereby.
9. See dissent of Newsom, J., St. Andrew, page 467, 161 Cal.Rptr. 634, wherein he indicates “I may add that I do not see in what way Code of Civil Procedure section 170.6 involves, or affects, the interests of justice.” We agree.
10. At the time of appellant's trial, CALJIC No. 2.60 (1973 rev.) read as follows: “It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. You must not draw any inference of guilt from the fact that he does not testify, nor should this fact be discussed by you or enter into your deliberations in any way.”CALJIC No. 2.61 (1971 rev.) provided: “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove every essential element of the charge against him, and no lack of testimony on defendant's part will supply a failure of proof by the People so as to support a finding against him on any such essential element.”
11. In any event, it appears from defense counsel's closing arguments to the jury that they were preinstructed on the substance of CALJIC Nos. 2.60 and 2.61 by the trial judge.
12. At the time of appellant's trial, CALJIC No. 2.70 read as follows: “A statement made by a defendant other than at his trial may be either an admission or a confession. (P) An admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence. (P) A confession is a statement by a defendant which discloses his intentional participation in the criminal act for which he is on trial and which discloses his guilt of that crime. (P) You are the exclusive judges as to whether an admission or a confession was made by the defendant and if the statement is true in whole or in part. If you should find that such statement is entirely untrue, you must reject it. If you find it is true in part, you may consider that part which you find to be true. (P) Evidence on an oral admission or an oral confession of the defendant ought to be viewed with caution.”CALJIC No. 2.71 provided: “A statement made by a defendant other than at his trial may be an admission. (P) An admission is a statement by a defendant, which by itself is not sufficient to warrant an inference of guilt, but which tends to prove guilt when considered with the rest of the evidence. (P) You are the exclusive judges as to whether an admission was made by the defendant and if the statement is true in whole or in part. If you should find that such statement is entirely untrue, you must reject it. If you find it is true in part, you may consider that part which you find to be true. (P) Evidence of an oral admission of the defendant ought to be viewed with caution.”
13. Appellant's alternative argument that the court improperly considered his juvenile court disposition in imposing the consecutive sentence is both meritless (Cal.Rules of Court, rules 421(b)(2), 425(b)) and moot.
14. The People also made the distinction that under the amended version of section 1170, subdivision (b), no dual use problem obtains. The former section read in part, “The court may not impose an upper term by using the same fact used to enhance the sentence under Section 667.5, ...” (Emphasis added.) As amended it reads in part: “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under Section 667.5, ...” (Emphasis added.) One problem with the argument is that section 1170, subdivision (b), which only applies analogously, was not effective until January 1, 1979 and does not apply to crimes committed before that date. (People v. Lawson, (1980) 107 Cal.App.3d 748, 751, fn. 3, 165 Cal.Rptr. 764.)
PANELLI, Associate Justice *. FN* Assigned by the Chairperson of the Judicial Council.
WHITE, P. J., and SCOTT, J., concur.