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PEOPLE v. MEREDITH

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Michael MEREDITH et al., Defendants and Appellants.

Cr. 8986.

Decided: November 02, 1979

Paul N. Halvonik, Quin Denvir, State Public Defenders, Gary S. Goodpaster, Chief Asst. State Public Defender, Richard E. Shapiro, Deputy State Public Defender, Raul A. Ramirez and John Ketelsen, Sacramento, for defendants and appellants. Evelle J. Younger, George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Marjory Winston Parker, John R. Duree, Jr., Deputy Attys. Gen., for plaintiff and respondent.

By information filed June 21, 1976, Michael Meredith, Frank Earl Scott and Jacqueline Otis were charged with the robbery and murder of David Wade. (Pen.Code ss 187, 211.) On September 13, 1976, after jury selection but before the presentation of any evidence, the charges were dismissed against Otis pursuant to the People's motion. Thereafter a jury found Scott and Meredith guilty of first degree murder and first degree robbery. The jury also found that Meredith was armed with a deadly weapon and Scott was not. The trial court sentenced both defendants to prison. Defendants filed timely notices of appeal.

Scott contends that his attorney-client privilege was violated, that the trial court misinstructed the jury in several respects, that the conviction of first degree robbery must be modified to second degree, and that multiple punishment was imposed in violation of Penal Code section 654. Meredith contends that his right to a speedy trial was violated and that the trial court erred in failing to instruct on manslaughter. We modify the judgment and affirm as modified.

I

On April 3, 1976, John Frank Elliot was at his mobile home on Stockton Boulevard in Sacramento, when David Wade, his next door neighbor and fellow army depot employee, came to the door. Wade, who had been drinking, accused Elliot of thinking he (Wade) was a “fairy” and told him to come to his trailer that night and he would show him otherwise. Elliot did not see Wade alive again.

That same day Jacqueline Otis was in an establishment known as Rich Jimmy's with her friend Laurie Anne Sam.1 Scott entered Rich Jimmy's while Wade waited outside. Scott told Otis that Wade wished to speak with her, and Otis went out. Wade asked Otis to perform sex acts with him and offered her $25, but she refused and returned to Rich Jimmy's. Wade also entered. At some point in time Otis saw Meredith arrive.

Otis asked a patron of Rich Jimmy's to go to a liquor store and buy her a beer, and when he stated he had no money Wade offered to buy it. The two walked to the liquor store, returned, and later Otis accompanied Wade to his car for the promised beer (which Wade had apparently placed in the car). Otis was standing next to the passenger door and Wade was on the driver's side, when Meredith came up behind Wade, seized him, and a struggle ensued. Shots were fired. She then returned to Rich Jimmy's and later saw Scott walk over to the car. Otis left Rich Jimmy's about an hour later.

When Otis arrived home she told her sister, Regina Thomas, that Meredith had shot a man by Rich Jimmy's. The two of them then walked toward the liquor store near Rich Jimmy's. On the way, Otis stopped to talk with some friends, and Thomas continued on. Thomas saw both Meredith and Scott near Rich Jimmy's. While Otis talked with her friends, both defendants drove up in Scott's car and Scott asked Otis to go with him. The three went to Scott's house.

At approximately 11:30 p. m. the same day, police officers Sousa and Barsotti received a call and proceeded to Seventh Avenue and Stockton Boulevard where they found the body of Wade lying in front of his car. The victim's right rear trouser pocket was pulled out. In the area near the body police found an expended .22 caliber bullet. The victim's pockets contained keys and change, $40 in currency, and a piece of brown paper on which was written “Jackie, I live alone. I am not married” signed “Dave” with a telephone number.

The victim was five feet four and one-half inches tall and weighed 116 pounds. An autopsy showed contusions and abrasions about the face, a compound fracture of the right fourth finger, bruises on the right shoulder and forearm, and a bullet wound in the left temple region of the head. Three fragments of a .22 caliber bullet were removed from the head. The head wound was the cause of death.

Laurie Anne was with Otis the night of the murder. She heard Scott tell Otis that he wished her to “turn a trick” with a white man (Wade was white, the others black), and Otis refused because the man wanted to go to a hotel rather than to her house. Laurie Anne then heard Scott propose that Otis get the man to go over to his car so that Meredith could “knock him in the head.” Both Otis and Meredith agreed to the plan. Outside Rich Jimmy's Laurie Anne asked Scott who the person by the fence was; Scott replied that it was Meredith and told her to “shush.” Laurie Anne then witnessed Otis and Wade go to Wade's car, Meredith come up behind Wade, and Meredith and Wade begin to struggle. Laurie Anne heard a gunshot and saw Otis run while the struggle continued, then she heard another gunshot. Meredith then ran past her, wearing a stocking pulled over his face.

Police officers found a live .22 caliber bullet in a bedroom dresser during a search of Scott's house pursuant to a warrant. Behind Scott's house in a garbage can was found a partially burned wallet belonging to Wade.2

Scott testified that on April 3, 1976, he resided with his three children and Meredith. On that night he met Wade at the Kit Kat Club on Stockton Boulevard, when Meredith introduced them. Wade told Scott he was looking for a girl and Scott offered to take him to some clubs to find one. Scott thought that Wade just wanted to talk to someone. Scott admitted that he agreed with Meredith to rob Wade but maintained that he later backed out when he realized that his fingerprints would be on the car and that he might be accused of the robbery.

Meredith's defense was alibi. Frederick Forte testified that on the night in question he played cards with Meredith from 9:30 or 9:45 to 10:30 or 10:45 p. m.; thereafter he met Scott and gave him a ride home. Meredith testified that he was staying with Scott on April 3, 1976, and that afternoon he went to Oak Park to gamble. He returned to Scott's house, and when he found no one there he went to the Kit Kat Club. He was wearing a woman's nylon stocking made into a cap because he had just had a “permanent.” He played pool at the Kit Kat Club, then went across the street to Honey's Domino Parlor to shoot dice. The dice game had not yet begun so he returned to the Kit Kat Club. Meredith again returned to Honey's Domino Parlor and talked for a while, then again returned to the Kit Kat Club; and on the way he met a friend who told him that Mr. Black had been killed.3 Meredith then went to another club in the area and played cards with Forte. Shortly after Forte left the game Meredith went back to the Kit Kat Club, then back to Honey's Domino Parlor where he told “Black Jerry” about Mr. Black being killed. When Honey's Domino Parlor closed he returned to the Kit Kat Club but they would not serve him because he had no identification, so he went to Scott's house and slept. Later he heard Scott arrive home and a woman's voice, but he did not get up.

Jerry Rhodes, a California Highway Patrol Academy supervisor and part owner of Honey's Domino Parlor, testified that he recalled Meredith coming into the Parlor about 10 p. m. and telling him that Mr. Black had been killed.

II

Scott contends that the trial court violated his attorney-client privilege. After Scott was arrested he gave police a version of the events of the night substantially similar to what he said at trial. He did not, however, tell police he had taken Wade's wallet. Scott told his first attorney, James Schenk, that he had taken the wallet and disposed of it in the trash can behind his house. Schenk hired an investigator, Steven Frick, and told him to search for the wallet in the trash can. Frick found the wallet and took it to Schenk's office, and Schenk promptly turned it over to police investigators. Schenk later withdrew from the case when a dispute arose over the admissibility of the wallet. Prior to the trial, Scott's third attorney made a motion to exclude the wallet and testimony concerning its finding in the trash can. The trial court ruled that the wallet was admissible and that Frick would be allowed to testify.

Scott does not object, as he cannot, to the admission of the wallet into evidence. (See People v. Lee (1970) 3 Cal.App.3d 514, 526, 83 Cal.Rptr. 715.) He objects to testimony concerning from whom the information concerning it was obtained.

Scott's counsel states that Frick was allowed to testify that he found the wallet in a trash can behind Scott's house, and that Detective Orlie Pane was thereafter allowed to testify that he obtained the wallet from Scott's first attorney, Schenk. But such a version of what occurred is misleading and incomplete. Frick was not initially identified to the jury as an investigator or a person connected with the defense. On direct examination, he testified without more that he found the wallet in a trash can behind Scott's house. On cross-examination thereafter, Scott's counsel specifically brought out that Frick was a private investigator employed by Schenk and that he had searched the trash can at the suggestion of Scott's attorney. Scott's counsel further brought out that Detective Pane was given the wallet by Schenk.

It was only after Scott's attorney brought out the foregoing that Pane testified that he obtained the wallet from Scott's first attorney. Thereafter Scott's trial attorney called Schenk to explain further the circumstances under which the wallet was found. The trial court's actual ruling was simply that Frick would be allowed to testify as to the place where he found the wallet, and his testimony on direct examination was so limited.

Defendant himself chose to bring out the circumstances surrounding the recovery of the wallet, and thus waived his attorney-client privilege as to the communications therein involved. (Evid.Code, s 912; People v. Poulin (1972) 27 Cal.App.3d 54, 64, 103 Cal.Rptr. 623.) This was a matter of trial tactics and constitutes no basis on which to predicate reversal of the judgment. The issue before us thus narrows to whether the attorney-client privilege was violated when Frick was allowed by the court's ruling to testify to the location of the wallet when found. If such testimony was proper then the further disclosures brought out by Scott's attorney do not constitute error.

As early as 1859 it was held that the attorney-client privilege protects only communications, and not knowledge coming to the attorney from an independent source. (Hunter v. Watson (1859) 12 Cal. 363, 377.) This rule has been consistently followed in California cases. In People v. Allen (1941) 47 Cal.App.2d 735, 118 P.2d 927, an attorney who as statutory agent was custodian of a corporation's books and records was required to disclose their contents, since the knowledge was gained as agent and not as attorney for the corporation. (47 Cal.App.2d at p. 746, 118 P.2d 927.) In Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 3 Cal.Rptr. 621, an expert witness was required to disclose the tests he made and his observation on the slipperiness of a sidewalk. Although the report he made to the attorney was privileged, his observation of the sidewalk was not a confidential communication. (179 Cal.App.2d at pp. 124-127, 3 Cal.Rptr. 621. See also, Mowry v. Superior Court (1962) 202 Cal.App.2d 229, 239-240, 20 Cal.Rptr. 698.)

In People ex rel. Dept. of Public Works v. Donovan (1962) 57 Cal.2d 346, 19 Cal.Rptr. 473, 369 P.2d 1, the California Supreme Court held that an appraiser could be examined concerning his subjective knowledge and opinion based on his observations of property, even though his report to the state's attorney was a privileged communication, since his direct observation of the property was not a confidential communication. (57 Cal.2d at p. 355, 19 Cal.Rptr. 473, 369 P.2d 1, accord, see San Diego Professional Ass'n v. Superior Court (1962) 58 Cal.2d 194, 200-201, 23 Cal.Rptr. 384, 373 P.2d 448; People ex. rel. Dept. of Public Works v. Cowan (1969) 1 Cal.App.3d 1001, 1004, 81 Cal.Rptr. 713.)

Analysis of California case law reveals that a distinction must be drawn between observable facts and privileged communications. While a confidential communication may not be disclosed, an observed fact is not privileged regardless of whether it is the subject of a confidential communication. A matter which is not itself privileged does not become privileged by delivery or communication to an attorney. (See People v. Lee, supra, 3 Cal.App.3d at p. 526, 83 Cal.Rptr. 715.)

In applying this principle to the facts of this case we must be aware of the distinction between the confidential communication from Scott to his attorney (that he burned the wallet and placed it in the trash can) and the objectively observable fact of the partially burned wallet lying in the trash can. Had the police or any individual observed the wallet in the trash can, no communication of any nature by Scott to his attorney would have made its location privileged. Scott now contends that since Frick observed the location as a result of the communication from Scott to Schenk, the location as well as the communication may not be disclosed. This contention is unacceptable. The location of the wallet did not become privileged merely because Scott told it to Schenk. And since the communication was not disclosed until Scott waived the privilege in cross-examination, Frick's testimony did not violate the attorney-client privilege.

The cases cited by Scott in support of his contention do not in fact support it. In those cases the communication itself was held to be privileged, whether brought out directly or indirectly, but the observable facts were not held privileged. (See Anderson v. State (1974) Fla.App., 297 So.2d 871, 875; State v. Olwell (1964) 64 Wash.2d 828, 394 P.2d 681, 685; State v. Sullivan (1962) 60 Wash.2d 214, 373 P.2d 474, 476; State v. Dawson (1886) 90 Mo. 149, 154-155, 1 S.W. 827.) In State v. Sullivan, supra, a client told her attorney where she had buried her husband's body near their home. The court held that it was reversible error to require the attorney to testify that he had called police and disclosed the location of the body, since the inference the jury would draw was that his client had given him this information. The court noted that on retrial the officials present when the body was located could testify to its location. (373 P.2d at p. 478.) The court noted that due to the number of witnesses to such location it would be unnecessary for the attorney to testify to establish this fact on retrial, but refused to hold that the attorney would be precluded from so testifying under other circumstances. (Id., at pp. 477-478.)

The policy of the attorney-client privilege is to promote the relationship of the attorney and client by safeguarding the confidential disclosures of the client and the advice given by the attorney. Since the privilege tends to suppress relevant facts which may be necessary for a just decision it has been said that the privilege should be strictly construed. (See Brunner v. Superior Court (1959) 51 Cal.2d 616, 618, 335 P.2d 484; Brown v. Superior Court (1963) 218 Cal.App.2d 430, 437, 32 Cal.Rptr. 527. But see City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227, 234, 231 P.2d 26.) When Frick found and removed the wallet from the trash can he rendered the location of the wallet unavailable to the People through other sources. It was therefore essential that Frick testify if the wallet's location was to be proved at all, and since his testimony did not reveal directly or inferentially the attorney-client communication it was proper.

III

The trial court instructed the jury in accordance with CALJIC No. 2.15, which provides:

“The mere fact a person was in conscious possession of recently stolen property is not enough to justify his conviction of the crime charged in count 2 of the information namely robbery. It is, however, a circumstance to be considered in connection with other evidence. To warrant a finding of guilty, there must be proof of other conduct or circumstances tending of themselves to establish guilt.

“In this connection you may consider the defendant's false or contradictory statements, if any, and any other statements he may have made with reference to the property. If a person gives a false account of how he acquired possession of stolen property this is a circumstance that may tend to show guilt.”

Scott contends that the second paragraph of this instruction should not have been given since in his view there was no evidence of false statements.

It is beyond dispute that the instruction correctly states the law. (People v. McFarland (1962) 58 Cal.2d 748, 754, 26 Cal.Rptr. 473, 376 P.2d 449; People v. Russell (1939) 34 Cal.App.2d 665, 669, 94 P.2d 400.) In his contention that he made no false statements concerning his possession of the wallet, Scott is mistaken. He made statements to the police after his arrest in which he purported to tell the truth about his involvement in the incident, but deliberately omitted the facts that he took the wallet, split the money with Meredith, burned the wallet, and placed it in the trash. Scott's omission to tell police about his possession of the wallet while purporting to tell the truth about the incident was the equivalent of a false statement that he did not possess the wallet. This supports the instruction.

Scott testified at the trial that he picked up the wallet from the street after Meredith had shot Wade. Meredith denied any involvement and presented evidence of an alibi. If the jury had believed Meredith's alibi then Scott's testimony would have been another false statement concerning his possession of the wallet. The jury may consider a defendant's testimony and conduct as a witness and may infer guilt if the testimony is believed to be untrue. (People v. Hurd (1970) 5 Cal.App.3d 865, 875, 85 Cal.Rptr. 718; People v. Andrew (1941) 43 Cal.App.2d 126, 129-130, 110 P.2d 459.) There is no reason to distinguish between false statements prior to trial and false testimony at trial in determining whether the instruction should be given. We find no error.

IV

The trial court instructed the jury in accordance with CALJIC No. 2.52, which provides that flight after the commission of a crime may be considered in determining guilt, although not sufficient in itself to establish guilt. Scott concedes that the instruction was correct as to Meredith, but contends that the trial court should have limited the instruction to Meredith since there was no evidence of his own flight.

Scott correctly states that in order for flight to be probative on the issue of guilt it must appear that the defendant was attempting to avoid apprehension for the offense. (See People v. Newton (1966) 244 Cal.App.2d 82, 85, 52 Cal.Rptr. 727.) He errs however in asserting an absence of evidence of flight on his part. After Wade had been shot, Scott walked to the body, took the wallet and the beer, placed them away from the body, then went home. He later returned in his car and took the beer and wallet. Scott left the scene of the crime without waiting for the police to arrive and with the knowledge, established by his own testimony, that he might be a suspect in the case. His action in hiding the beer and wallet indicates that he feared apprehension in connection with the crime and sought to avoid being found with such evidence. This constituted flight, and we find no error in the instruction.

V

Scott contends that the trial court erred in failing to instruct the jury in accordance with CALJIC No. 17.10,4 which provides that if the jury is not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged he may still be found guilty of any lesser included offense. The failure to so instruct was error, but not prejudicial.

In People v. Dewberry (1959) 51 Cal.2d 548, 334 P.2d 852, the California Supreme Court held that when the defense requests such an instruction and the evidence warrants it, the instruction must be given. (51 Cal.2d at p. 556, 334 P.2d 852.) In People v. Aikin (1971) 19 Cal.App.3d 685, 97 Cal.Rptr. 251, the Court of Appeal held that the instruction should be given Sua sponte where the evidence supports the possibility of guilt of a lesser included offense. (19 Cal.App.3d at pp. 703-704, 97 Cal.Rptr. 251.) The trial court instructed the jury on theft as a lesser included offense in the charge of robbery, and should have given the instruction on the effect of a reasonable doubt between the offense charged and the lesser included offense. Nevertheless, it is not reasonably probable that a different result would have obtained in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; People v. Aikin, supra, 19 Cal.App.3d at p. 705, 97 Cal.Rptr. 251.)

The prosecution theory was that Scott was guilty as a conspirator, and the evidence showed that Scott was guilty, if at all, on a conspiracy theory. There was no evidence that Scott himself had struggled with or shot Wade. The jury was instructed on the requirement and meaning of proof beyond a reasonable doubt, aiding and abetting, and conspiracy. After a period of deliberation the jury requested that it again be read the instructions on conspiracy, and returned the verdicts of guilty shortly after the rereading. It is undeniable that Scott's guilt of the crime was due to his participation in the conspiracy, not only because of the jury's action but also by the very strong evidence on the subject. The jury was properly instructed on the conspiracy theory, and the failure to instruct on the effect of a reasonable doubt as between robbery and theft could not have affected the jury's determination as to the conspiracy and there was no evidence that Meredith's offense was less than robbery.

VI

Scott contends that either the court erred in failing Sua sponte to instruct the jury on guilt as an accessory after the fact, or that defense counsel was incompetent in failing to request such an instruction.

The offense of accessory after the fact provided by Penal Code section 32 is not included in a charge of committing the crime itself. (People v. Preston (1973) 9 Cal.3d 308, 319, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Brown (1955) 131 Cal.App.2d 643, 658, 281 P.2d 319.) It would have been error to instruct the jury on guilt as an accessory. (People v. Preston, supra, 9 Cal.3d at p. 319, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Baker (1958) 164 Cal.App.2d 99, 107-108, 330 P.2d 240.) The jury was fully instructed on the elements of the charged crime and told that if all those elements were not present Scott should be acquitted. If the evidence supported only a charge of accessory after the fact, then the elements necessary to convict of the charged offense would not have been present, and under the instructions the jury would have had to find Scott not guilty. There was no error.

VII

Scott contends that the verdicts are inconsistent since he was found guilty of first degree robbery and yet not to have been armed during the offense. Former Penal Code section 211a, in effect at the time of the offense, required that the robber be armed with a dangerous or deadly weapon in order to support a charge of first degree robbery. Scott relies upon People v. Crittenden (1936) 14 Cal.App.2d 589, 591-592, 58 P.2d 680. That case is inapposite, however, for Crittenden acted alone, and the finding of first degree robbery was clearly inconsistent with a finding that he was not armed. Scott was not the robber here. His guilt was the derivative guilt of a conspirator.

It is established that a conspirator can be found guilty of first degree robbery if any one of the robbers is armed with a deadly weapon whether or not he is personally armed. (People v. Perkins (1951) 37 Cal.2d 62, 64, 230 P.2d 353; People v. Dutch (1967) 254 Cal.App.2d 163, 169, 61 Cal.Rptr. 727; People v. Navarro (1963) 212 Cal.App.2d 299, 304, 27 Cal.Rptr. 716.) The evidence supported a finding that Meredith was armed with a deadly weapon during the robbery, and the jury so found. Scott was guilty of first degree robbery as a conspirator despite the fact that he was not personally armed, and the verdicts are thus not inconsistent.

VIII

Meredith contends that the trial court violated his right to a speedy trial. The information was filed on June 21, 1976. On August 17, 1976, Scott moved for a continuance of the trial date, which was then set for August 18, 1976. Scott and Otis, who was a defendant at that time, waived their right to a trial date within 60 days of the filing of the information. (Pen.Code, s 1382, subd. 2.) Meredith did not waive his right and objected to a continuance. The trial court nonetheless granted the continuance and set the trial date for September 2, 1976.

Penal Code section 1382, subdivision 2, provides in relevant part that unless good cause is shown for delay the trial court must order the prosecution dismissed if a defendant is not brought to trial within 60 days of the filing of the information unless the defendant requests or consents to the delay or neglects or fails to appeal. September 2, 1976 was 73 days after the filing of the information and was thus in violation of the time requirements of Penal Code section 1382, subdivision 2.

In People v. Wilson (1963) 60 Cal.2d 139, 32 Cal.Rptr. 44, 383 P.2d 452, the court held that a defendant must both object to the date set for trial beyond the 60 days and file a timely motion to dismiss the charges in order to raise the issue on appeal. (60 Cal.2d at p. 146, 32 Cal.Rptr. 44, 383 P.2d 452.) In order to be timely the motion must be made after the expiration of the 60-day period and before the beginning of the trial. (Ibid.) Although Meredith objected to the date set for trial, he failed to file a timely motion to dismiss and thus cannot now object. (See also People v. Snyder (1969) 276 Cal.App.2d 520, 524, 80 Cal.Rptr. 822; People v. Gray (1964) 224 Cal.App.2d 76, 80-81, 36 Cal.Rptr. 263.)5

IX

Meredith contends that the trial court erred in refusing to instruct on manslaughter. He requested an instruction on second degree felony murder, asserting that the jury could find that the underlying felony was only grand theft and not robbery. On appeal Meredith contends that the jury might have believed that when he approached Wade he intended only to commit grand theft from the person and not robbery, and that a fight ensued in which Wade was killed. Meredith argues that this would require a finding of manslaughter and not murder.

Robbery is the felonious taking of personal property in possession of another from his person or immediate presence against his will by means of force or fear. (Pen.Code, s 211.) The crime of robbery is not confined to the act of taking the property from the victim, it is not complete until the robber wins his way to safety. (People v. Carroll (1970) 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400; People v. Anderson (1966) 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366.) Thus where possession is acquired without the use of force or fear but force or fear is used to maintain possession until the robber escapes, the jury may properly find the defendant guilty of robbery. (See People v. Phillips (1962) 201 Cal.App.2d 383, 385-387, 19 Cal.Rptr. 839.)

Scott testified that he had earlier agreed with Meredith to rob Wade. Laurie Anne testified that she heard Scott and Otis agree that Otis would get Wade over by his car so that Meredith could “knock him in the head.” Although there was conflicting evidence on some portions of the event, the evidence was clear as to the struggle. The assailant came up behind Wade, grasped him, told him to “hold it,” and began to struggle with him. Wade was beaten to the ground and shot. Although Wade had been drinking, there was no testimony that he was intoxicated or otherwise incapacitated. There was no evidence by which the jury could infer that the assailant intended to do anything other than take Wade's property from him by force. Meredith did not dispute that the offense was robbery, but rather denied that he was the robber. He offered an alibi. It has been held repeatedly that it is not error to fail to instruct the jury on lesser included offenses where the evidence discloses that the defendant is either guilty of the offense charged or not guilty at all. (People v. Gibbs (1970) 12 Cal.App.3d 526, 548-549, 90 Cal.Rptr. 866; People v. Stanton (1969) 274 Cal.App.2d 13, 16-18, 78 Cal.Rptr. 771; People v. Pruitt (1969) 269 Cal.App.2d 501, 508, 75 Cal.Rptr. 125.) The California Supreme Court has said that there is no error committed in failing to instruct on lesser included offenses where the evidence does not suggest that the offense is less than that charged. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.) The evidence herein did not suggest that the offense was less than robbery, and it was thus not error for the trial court to refuse to instruct on manslaughter based upon the contention that the underlying offense may have been theft.

X

Scott contends, and plaintiff concedes, that the judgment must be modified to avoid double punishment prohibited by Penal Code section 654. We agree and note that the modification must be applied to Meredith as well as to Scott.

When a defendant commits multiple violations incident to a single objective, conviction is proper for each violation but the defendant may not be punished for more than one. (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) The evidence reveals a single course of conduct with one objective, and thus defendants may be punished only for the most serious offense, first degree murder. Conviction for the robbery is appropriate, but the execution of sentence for the robbery must be stayed pending the service of sentence for the murder, such stay to become permanent upon the completion of the murder sentence. (Id., at p. 886, 135 Cal.Rptr. 654, 558 P.2d 552.)

XI

Finally, the judgment must be modified in respect to the finding that Meredith used a firearm in the commission of the offense.

The information charged that Meredith was armed with a deadly weapon, to wit, a pistol. The court instructed the jury on being armed with a deadly weapon. The verdict returned by the jury was that Meredith was armed with a deadly weapon, to wit, a pistol. The abstract of judgment states that Meredith used a firearm in the commission of the offense. This finding must be stricken. The allegation and finding that a defendant was armed with a deadly weapon will not support a finding that the defendant used a firearm. (People v. Najera (1972) 8 Cal.3d 504, 509-510, 105 Cal.Rptr. 345, 503 P.2d 1353.) The judgment may not be modified to include the finding of being armed with a deadly weapon, since being armed with a deadly weapon is an essential element of the offense of first degree robbery. (People v. Hartsell (1973) 34 Cal.App.3d 8, 12, 109 Cal.Rptr. 627.) Nor may the judgment be modified to make the special finding of being armed with a deadly weapon during the murder, for the terms of Penal Code section 12022 cannot be applied to a conviction where the sentence is life imprisonment. (People v. Walker (1976) 18 Cal.3d 232, 243, 133 Cal.Rptr. 520, 555 P.2d 306.) Penal Code section 3024 is inapplicable to a life sentence, since the minimum date for parole for a life sentence exceeds the minimum sentence under Penal Code section 3024. (See Pen.Code, s 3046.)6

The Sacramento County Superior Court is directed to modify its judgment to stay the service of sentence upon the robbery convictions of both defendants, such stay to become permanent upon completion of the service of their sentence for murder, and to strike from the abstract of judgment of Meredith the finding of use of a firearm. The trial court is directed to forward a certified copy of the amended abstracts of judgment to the Director of Corrections. The judgment, as modified, is affirmed.

I

I dissent. The trial court violated defendant's attorney-client privilege by allowing Investigator Frick to testify as to the location from whence he obtained the wallet. Whether the error, in the context of the facts of this case is reversible, is close. Upon reconsideration I conclude that it is.

On direct examination Frick testified that he obtained the burned wallet in the garbage can at the rear of Scott's residence. Although the nature of Frick's testimony upon direct was limited and did not reveal the source from where his information came, Frick linked the victim's wallet to the residence of Scott. By cross-examination Scott's trial attorney established that Frick was the investigator retained by Scott's then attorney, Schenk. It was also established that Schenk had given Frick directions as to how to get to 3300 40th Avenue (Scott's residence) and instructed him that “an old oil drum back there that is being used as a garbage can and there should be a wallet back there.” Upon finding the wallet Frick took it to Schenk. Schenk then turned the wallet over to police investigators.

As the majority points out, Scott does not appeal the introduction of the wallet; the court correctly ruled it admissible into evidence. (See People v. Lee (1970) 3 Cal.App.3d 514, 526, 83 Cal.Rptr. 715.) The physical object, criminal evidence, does not become privileged by reason of its transmission, although indirect, to the attorney. (Id. at p. 514, 83 Cal.Rptr. 715.) Rather, Scott objects to the court's admission of Frick's testimony concerning the location of the wallet. The issue turns on whether Scott's attorney-client privilege was violated by Frick's disclosure of the location of the wallet when the source of Frick's knowledge emanated from a confidential communication between Scott and Schenk. There is no question that Attorney Schenk retained Investigator Frick for the purpose of pursuing his, Schenk's, lawyerly duties. Frick became an extension of the attorney “to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, . . . ” (Evid.Code, s 952.) “A communication ‘by any form of agency employed or set in motion by the client is within the privilege.’ ” (Attorney-Client Privilege in California (1958) 10 Stan.L.Rev. 297, 304.) It is also evident that the original communication emanated in confidence from the client Scott. (See San Diego Professional Ass'n v. Superior Court (1962) 58 Cal.2d 194, 201, 23 Cal.Rptr. 384, 373 P.2d 448.) “When an individual is the original source of information communicated to an attorney, the attorney-client privilege should protect the communication only if . . . the agent was appointed to ascertain certain facts.” (10 Stan.L.Rev. 297, supra, at p. 204.) Certainly the agent was retained to investigate the facts, so as to prepare the best defense and that the trial stage would not be “sandbagged” by sudden surprises. The agent's communications are treated as those of the client whether the agent is agent of the attorney, the client, or both. (City & County of S. F. v. Superior Court (1951) 37 Cal.2d 227, 237, 231 P.2d 26; see also, 10 Stan.L.Rev., supra, at p. 304.)

It is true that had Frick independently obtained certain knowledge from an independent source, such acquired knowledge would not be protected by the attorney-client privilege from full examination. (10 Stan.L.Rev., supra, at p. 305.) Frick neither “independently obtained” knowledge of the location of the wallet nor did he acquire such facts from an independent source. Frick's knowledge is directly traceable to the confidential communication between Schenk and Scott. His knowledge of the “location” of the criminal evidence, as linked to Scott, emanates from the initial privileged attorney-client communication. Thus, the investigator's recovery and submission of the wallet to the attorney should be treated no differently than had Scott himself brought forth the evidence.

Competing public policy reasons exist. The attorney-client privilege safeguards communications in the interest of encouraging full disclosure of communications which a client might not make in the absence of the privilege, and assures that such communications will remain confidential. (City & County of S. F. v. Superior Court, supra, 37 Cal.2d at p. 234, 231 P.2d 26; People v. Kor (1954) 129 Cal.App.2d 436, 277 P.2d 94.) Some authorities maintain that the policy reasons of the privilege support a liberal construction in its application. (See City & County of S. F. v. Superior Court, Supra, 37 Cal.2d at p. 234, 231 P.2d 26.) However, other authorities have suggested a narrow application of the privilege since it tends to suppress evidence. The trial court made its ruling in light of these competing interests and tried to reach a fair determination.

The error lies only in permitting the witness to identify the site where he found the wallet. That disclosure tied the defendant to the crime on the basis of a privileged communication. When the attorney turned in evidence to the prosecutor, only that piece of evidence and its identity was admissible.

FOOTNOTES

1.  Jacqueline Otis was then 21 years old and mentally retarded. She had known both defendants prior to the incident in question, and was the mother of one of Scott's children. Rich Jimmy's is a place where people involved in the case gather at times, but the nature of the establishment was not made clear at trial. Liquor is not served there, nor apparently is food. Just how the owner of the place profits from the establishment was not established. Laurie Anne Sam knew both defendants. She was 13 years old at the time, and pregnant.

2.  The circumstances surrounding the discovery and introduction of the wallet into evidence will be detailed below in consideration of Scott's first contention.

3.  Mr. Black is a man who apparently is known by most of the crowd that frequents the area in question. On the night in question he was killed by his wife, and the Meredith defense made use of the Black homicide in order to establish that the witnesses were testifying about the same day that Wade was killed. Mr. Black does not enter into this case for any other purpose.

4.  The trial court did instruct on the lesser included offenses of theft by larceny and theft by appropriation of lost property with knowledge of the means of inquiry as to the true owner. But it did not do so in the language of CALJIC No. 17.10.

5.  The dismissal of the charges pursuant to Penal Code section 1382, subdivision 2, does not bar subsequent trial on the same charges. (People v. Faulkner (1972) 28 Cal.App.3d 384, 395, 104 Cal.Rptr. 625; People v. Nelson (1964) 228 Cal.App.2d 135, 138, 39 Cal.Rptr. 238.) When the People file a new information on the charges there is a new 60-day period within which to bring defendant to trial. (Ibid.) Meredith was thus not prejudiced by the trial court's action.

6.  The provisions of the code sections involved in this issue have been amended or repealed by the Uniform Determinate Sentence Act of 1976 and legislation amending that Act. We do not consider the effects of the amendments herein, since that is a matter entrusted to the Community Release Board under the terms of the Act.

PARAS, Acting Presiding Justice.

EVANS, J., concurs.

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