PEOPLE v. JONES

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

The PEOPLE, Plaintiff and Respondent, v. Ray Edward JONES, Defendant and Appellant.

Cr. 20262.

Decided: March 16, 1981

Quin Denvir, State Public Defender, Eric S. Multhaup, Deputy State Public Defender, San Francisco, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Ray Edward Jones appeals from a judgment of imprisonment rendered after a jury found him guilty of robbery (Pen.Code, § 211) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)).

Shortly after 7:00 p. m. on August 2, 1977, appellant approached the check-cashing booth of a San Leandro Safeway. He handed a crumpled brown bag to cashier Betty Wiegand and instructed her to fill it with money. She thought appellant was joking until he showed her the butt of a gun hidden under his shirt. Wiegand emptied the cash drawer into the bag and removed some money from the safe. She handed back the sack with approximately $3,200 in it.

Appellant turned and headed toward the exit. He was observed by the night manager, Dennis Kaufman, who had just entered the store. Kaufman noted the crumpled paper bag and the flushed look on Wiegand's face. He watched appellant leave the store and take off running. Kaufman followed, chasing appellant around a corner and over a fence. Appellant jumped into a car but could not start the engine. He got out of the car and drew and cocked a pistol. He aimed at Kaufman, who was some 40 feet away, and told him to freeze. Kaufman complied and told appellant to leave; he would not interfere. As the car pulled away, Kaufman recorded its license number. The car was found to belong to appellant's wife. Both Kaufman and Wiegand selected appellant's photo from a set of five shown them by police. They also identified him at trial.

I

Appellant contends that his statutory and constitutional rights to a speedy trial have been violated. The time between his arrest and trial was 17 months. During this period he was shuttled between jurisdictions for trial. The federal prison at Leavenworth had primary custody, pursuant to an arrest in February 1978 for a federal parole violation.

On June 12, 1978, the District Attorney of Alameda County received a letter from appellant demanding immediate trial; he also wanted police reports on the charges against him. In late June Alameda officials contacted Leavenworth to request temporary custody of appellant; they were informed they would have to “wait in line” because other jurisdictions had already made such requests. Alameda County finally received custody in late April 1979. Trial began July 24, 1979.

The trial court denied a motion to dismiss the charges against appellant. Appellant argues that this was error. He contends that he suffered delays in excess of the statutory limits for beginning trial.

1. The 180-day limit of section 1389.

Penal Code section 1389 is California's enactment of the Interstate Agreement on Detainers. An out-of-state prisoner may request disposition of charges against him in California; absent good cause for further delay, trial must begin within 180 days of his demand. (Art. III, subd. (a).) Appellant contends that his demand for trial, received by Alameda on June 12, 1978, satisfied the requirements of article III, subdivision (a).

The demand for trial prescribed by section 1389 is formal in nature; it must be channeled through authorities at the place of confinement. Informal requests do not trigger the 180-day period of article III. Otherwise the goal of promoting the “expeditious and orderly disposition” of outstanding charges and detainers is frustrated. (Art. I.) “[A]rticle III, subdivision (b), does not permit a prisoner's self-help effort to start the running of the 180-day period. The prisoner must give or send the notice and request to the proper official in the prison where he is incarcerated.” (People v. Castoe (1978) 86 Cal.App.3d 484, 490, 150 Cal.Rptr. 237. See also People v. Wilson (1977) 69 Cal.App.3d 631, 636, 138 Cal.Rptr. 259.)

Appellant did not follow the procedure specified in section 1389. He sent his demand for trial to Alameda County directly, without working through prison authorities. He did not include his warrant number or explain what he was doing in Washington (where he was standing trial). Orderly disposition of his request was hampered by its informality.

In any event, appellant's arithmetic under article III is wrong. The 180-day limit is tolled whenever “the prisoner is unable to stand trial.” (Art. VI.) Obviously a prisoner cannot stand trial in more than one place at a time. Days spent in custody for trial elsewhere may be excluded from the article III count. (Young v. Mabry (8th Cir. 1979) 596 F.2d 339.)

Thirteen months elapsed between appellant's imperfect demand and trial (June 1978 to July 1979). Ten of those months may be excluded because appellant was on trial elsewhere (six months in Washington and four months in Contra Costa). Appellant spent only three months in Alameda County awaiting trial, or half the permissible delay.

2. The 120-day limit of section 1389.

Appellant was returned to California on December 20, 1978, to stand trial in Contra Costa County. He contends that his arrival triggered a 120-day limit for beginning trial in Alameda County. He bases his claim on article IV, subdivision (c), of section 1389.

Appellant here attempts to twist the meaning of section 1389. Once a prisoner has been received under the detainer agreement, the receiving jurisdiction has 120 days to begin trial. The 120-day limit applies only to the proceeding which prompted the detainer. “In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state․” (Art. IV, subd. (c).) Appellant's arrival in December gave Contra Costa officials until April to begin trial. The December arrival does not, however, apply to the Alameda County proceeding. Alameda did not receive custody until late April 1979; trial commenced within 120 days of that time.

3. The 90-day limit of section 1381.5.

Federal prisoners may request disposition of outstanding California charges. (Pen.Code, § 1381.5.) California authorities are required to seek temporary custody of a prisoner who demands trial. Once federal assent is given to release the prisoner, trial must begin within 90 days. Appellant contends that federal assent was given here on June 27, 1978, over one year before his trial.

The contention that assent was given on June 27, 1978, is not supported by the record. June 27 is the day Alameda authorities contacted Leavenworth. They were told that they would have to “wait in line.” Assent did not come until April 24, 1979, when federal officials authorized direct release of appellant from Contra Costa to Alameda. Trial began July 24, 1979, specifically to meet the deadline imposed by section 1381.5.

4. Constitutional Requirements

Appellant argues that his constitutional rights to a speedy trial were violated by the 23-month delay between offense and trial. His claim is based on the Sixth Amendment to the United States Constitution (“the accused shall enjoy the right to a speedy and public trial”) and article I, section 15, of the California Constitution (“The defendant in a criminal cause has the right to a speedy public trial.”). The California constitutional requirements were met here by compliance with the time safeguards of Penal Code sections 1381-1389, which are designed to implement the speedy trial guarantee. (People v. Godlewski (1943) 22 Cal.2d 677, 140 P.2d 381.)

The speedy trial requirements of the United States Constitution were also fulfilled: compliance with reasonable state implementation procedures satisfies the speedy trial mandate. “We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.” (Barker v. Wingo (1972) 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101.) The state procedures followed here were reasonable; trial began soon after Alameda gained custody.

Appellant contends that his right to a speedy trial was also violated by denial of requested information. He complains that he was not given the details of the charges until he arrived in Alameda County for trial. If appellant's claims are valid, his speedy trial right was infringed. Although the statutes deal only with timing safeguards for beginning trial and do not cover an accused's right to discover information, discovery is fundamental to the speedy trial guarantee. Without basic information, an accused cannot prepare his defense. “[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system․ Loss of memory … is not always reflected in the record because what has been forgotten can rarely be shown.” (Barker v. Wingo, supra, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101.)

Appellant has not shown that necessary information was withheld. Although a warrant was never served on him, he was told of outstanding Alameda charges when arrested in San Francisco. Alameda officials did not respond directly to his demand letter, but they did exchange records with Leavenworth. Copies of the warrant and the complaint were included in the exchange. The record shows proper official conduct; it must be presumed, in the absence of any showing to the contrary, that appellant was fully informed by his San Francisco and Leavenworth custodians.

II

About three weeks before trial, appellant appeared with counsel to present a variety of motions. Appellant addressed the court during that hearing complaining that counsel had not put into usable form material which appellant had prepared in support of one of his motions. Appellant then asked that counsel “be discharged off my case for being incompetent.” Consistent with People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, the court asked “What's the incompetence that you had in mind that you want to bring to my attention?” After hearing appellant out, the court declared that ground for appointment of new counsel had not been shown and denied appellant's request. Appellant then inquired about representing himself and announced, “I'll represent myself rather than have this fool do it.” The court remarked that it appeared that this Faretta1 motion was made “only out of frustration.” The cause was already calendared for further hearing of miscellaneous motions three days later and the court stated that after the other motions had been heard “I'll hear what he has to say about a Faretta motion before trial.”

At the later hearing on the motions appellant at first declared that he did wish to proceed without counsel. In a lengthy colloquy the court inquired concerning appellant's knowledge of trial procedure and explained to him the disadvantages of proceeding without counsel. Appellant then began to move away from the idea of proceeding without counsel and asked whether new counsel could be appointed. The court attempted to get back to the Faretta issue but appellant kept returning to the question of having new counsel rather than proceeding without counsel. Finally, appellant declared “That's what I want, an outside attorney.” The court inquired further concerning the reason for appellant's dissatisfaction with this attorney and denied the motion. The court then inquired, “Do you want to represent yourself” and appellant responded, “No.”

When the cause went to another department for trial, a few days later, the judge recited that there had been a motion for self-representation and that appellant had withdrawn that motion. The judge inquired, “Is that correct Mr. Jones?” Appellant responded, “Yes.”

Appellant contends that the court erroneously denied a timely and effective Faretta motion. This contention cannot be sustained. The constitutionally mandated right of self-representation in a criminal trial depends upon “an unequivocal assertion of that right.” (People v. Windham (1977) 19 Cal.3d 121, 127-128, 137 Cal.Rptr. 8, 560 P.2d 1187, cert. den. 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116, reh. den. 434 U.S. 961, 98 S.Ct. 495, 54 L.Ed.2d 322.) Here, although appellant's colloquy with the court commenced with an unequivocal statement of desire to proceed without counsel, he vacillated between that desire and the desire to have a new counsel appointed. Finally, there was an explicit withdrawal of the Faretta motion and that withdrawal was confirmed for the record before the commencement of trial. There was no Faretta error.

III

Appellant contends that trial counsel was constitutionally inadequate (see People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859) in neglecting to challenge pretrial photographic identification procedures. This contention is also not supported by the record. The photographs displayed to the witnesses were not unfairly selected and there is no evidence that they were displayed in a suggestive manner. Absent any evidentiary showing (either in the appellate record or by means of habeas corpus) that a challenge useful to the defense was neglected, this court has no basis for determining that counsel was constitutionally inadequate.

IV

Assault with a deadly weapon is an attempted battery committed with a dangerous object; the assailant must have present ability and intent to cause injury. (Pen.Code, §§ 240, 245.) Appellant contends that the present ability element is lacking in his case. He disputes the sufficiency of evidence showing the gun was loaded. However, the jury made an implied finding that the gun was loaded when it found appellant guilty. Menaces made with a gun imply ability to harm, thus supplying circumstantial evidence supporting the finding. (People v. Orr (1974) 43 Cal.App.3d 666, 117 Cal.Rptr. 738.)

Physical harm is not a necessary element of assault, but some step toward violence is required. Threats or preparation are not sufficient. An attempt to harm must be made with physical force. “In order to constitute an assault there must be something more than a mere menace. There must be violence begun to be executed.” (People v. Yslas (1865) 27 Cal. 630, 633.)

The line between “menace” and “violence” is indefinite. However, very little is required where a battery is thwarted by interruption. For example, reaching for a gun has been held an attempt where the intended victim escaped through a window. “The actual transaction had commenced which would have ended in murder if it had not been interrupted.” (People v. Hunter (1925) 71 Cal.App. 315, 319, 235 P. 67.)

Compliance with conditional threats is recognized as a form of interruption. (LaFave & Scott, Handbook on Criminal Law (1972) p. 613.) Violence is only averted because the victim fulfills some demand made by his assailant. The attempt requirement is satisfied by whatever force is used to exact compliance. “Where a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence … and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him.” (People v. McMakin (1857) 8 Cal. 547, 548-549.)

The McMakin standard encompasses the actions of appellant. He was ready to fire on the store manager if he came any closer; he only desisted because his victim froze as directed. In McMakin the defendant was convicted though he never pointed the gun. Here appellant both aimed and cocked his gun. (See People v. Swansboro (1962) 200 Cal.App.2d 831, 19 Cal.Rptr. 527 [[[[threats to kill officers if they entered house] and People v. Mosqueda (1970) 5 Cal.App.3d 540, 85 Cal.Rptr. 346 [demand that victim leave enforced with cocked gun].)

V

Appellant contends that the trial court should have instructed on Penal Code section 417 as an included offense. Under section 417, a person commits a misdemeanor by exhibiting a weapon “in a rude, angry or threatening manner․”

A trial judge must instruct the jury about any lesser offenses necessarily included in those charged. (People v. Orr, supra, 43 Cal.App.3d 666, 672, 117 Cal.Rptr. 738.) The test for necessary inclusion is a two-tiered one. First the specific allegations of the accusatory pleading are examined; then the statutory definition of each offense is considered. (People v. St. Martin (1970) 1 Cal.3d 524, 536, 83 Cal.Rptr. 166, 463 P.2d 390.) Where inclusion is based on the accusatory pleading, it must appear from the allegations that a lesser offense was included within a more serious one. Where inclusion is by statutory definition, one crime cannot be committed without commission of a second, lesser one. The classic example is theft and robbery; taking money by force always involves stealing.

The specific allegation test is not satisfied in appellant's case. The pleading does not indicate that he brandished a weapon. The information charged an assault on the store manager with a “firearm: to wit a handgun.” His manner of displaying the gun is not described. “[T]he Penal Code section 417 offense … is not within the offense charged in the accusatory pleading …; the pleading charged the assault in a general manner without alleging a weapon was ‘drawn or exhibited’ in a rude, angry, or threatening manner․” (People v. Orr, supra, 43 Cal.App.3d 666, 672, 117 Cal.Rptr. 738.)

Appellant also fails the statutory definition test. Assault with a deadly weapon does not always include a violation of Penal Code section 417. A person can easily assault another without brandishing a weapon, “as by firing through a coat pocket without either drawing or exhibiting the weapon․” (People v. Torres (1957) 151 Cal.App.2d 542, 544-545, 312 P.2d 9.) Many courts have applied this rule. (See People v. Birch (1969) 3 Cal.App.3d 167, 176-177, 83 Cal.Rptr. 98; People v. Escarcega (1974) 43 Cal.App.3d 391, 396-397, 117 Cal.Rptr. 595.)

Appellant relies heavily on People v. Wilson (1967) 66 Cal.2d 749, 59 Cal.Rptr. 156, 427 P.2d 820. His reliance is misplaced. The Wilson court did reverse a judgment for failure to instruct on Penal Code section 417. Wilson claimed he entered his wife's apartment only to scare those present rather than to assault them with his gun. However, necessary inclusion was not an issue. The problem instead was felony murder. A court must instruct on general principles of law pertinent to the evidence in a criminal proceeding. Failure to instruct on the section 417 misdemeanor deprived Wilson of an important defense: that the felony-murder charge was not supported by the felony of burglary.

VI

1. Does the abstract of judgment reflect the sentence imposed by the trial court?

Respondent concedes that appellant's sentence was not correctly entered on the abstract of judgment. The total sentence is correct (8 years), but the computation does not show what part is derived from his prior conviction in Contra Costa County (4 years for principal term and 2 years enhancement). Neither does it correctly show what portion of the eight years comes from the Alameda conviction (2-year consecutive sentence). The abstract must be corrected.

2. Is the sentence imposed correct in light of People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396?

The trial judge imposed an eight-month enhancement for firearm use. A person who uses a firearm in a felony may generally be sentenced to an additional term. (Pen.Code, § 12022.5.) However, when the sentence imposed is consecutive, an enhancement is appropriate only for certain violent felonies. (Pen.Code, § 1170.1.) “[P]roperly construed, section 1170.1, subdivision (a), permits enhancement only for those specific offenses listed in section 667.5, subdivision (c).” (People v. Harvey (1979) 25 Cal.3d 754, 761, 159 Cal.Rptr. 696, 602 P.2d 396; People v. Vizcarra (1980) 110 Cal.App.3d 858, 866, 168 Cal.Rptr. 257; In re Ferrie (1981) 115 Cal.App.3d 729, 171 Cal.Rptr. 496, 81 D.A.R. 365, contra.) Listed in 667.5, subdivision (c), are extremely violent crimes; assault with a deadly weapon—without bodily harm—is not included. Defendant's eight-month enhancement cannot stand.

Appellate courts have the power to modify a sentence where there is error in the proceedings. (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.) The abstract of judgment may be corrected to conform to a modification of the judgment. Adjustment of the figures in the abstract is all that is necessary; reversal for resentencing is not required. (See People v. Thomas (1976) 65 Cal.App.3d 854, 858, 135 Cal.Rptr. 644.)

VII

Appellant argues that he is entitled to a credit for presentence custody. He contends that he was an unsentenced prisoner from February through July 1978.

A prisoner is entitled to credit for time spent in custody prior to the beginning of his term of imprisonment. (Pen.Code, § 2900.5.) However, the time credited must be related to the criminal conduct underlying his conviction. “The crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather where the custody to which he has been subjected ‘is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.”’ (In re Watson (1977) 19 Cal.3d 646, 651, 139 Cal.Rptr. 609, 566 P.2d 243, quoting an earlier version of Pen.Code, § 2900.5.)

Appellant was arrested in San Francisco in February 1978. He was placed in federal custody for a parole violation. He remained a federal prisoner throughout the period in question. The reason for the parole revocation does not appear in the record. It is possible that revocation was related to the San Leandro robbery. However, appellant has made no showing that this was the case. For all that appears in the record, federal custody was not connected to the San Leandro incident. Where a federal proceeding is “wholly unrelated to the state matter and custody under it was not attributable to the state case … [[[c]redit in the state proceeding for the federal time is not allowed under Penal Code section 2900.5.” (In re Shute (1976) 58 Cal.App.3d 543, 547, 130 Cal.Rptr. 270.)

The judgment is modified to show a principal term of imprisonment of four years (the upper base robbery sentence in Contra Costa County) and a two-year enhancement of the Contra Costa term (under Penal Code section 12022.5). The Alameda County conviction will be designated a consecutive sentence of two years (imposed for a felony not listed in section 667.5, subdivision (c)). The total unstayed prison term will be eight years. The clerk of the trial court is directed to issue a corrected abstract of judgment.

FOOTNOTES

1.  Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur.