PEOPLE v. COLE

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

The PEOPLE, Plaintiff and Respondent, v. Eddie Ray COLE, Defendant and Appellant.

Cr. 11746.

Decided: June 16, 1981

Quin A. Denvir, State Public Defender, Paul Bell, Deputy State Public Defender and Joel Kriger, Panel Attorney, San Diego, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Patricia D. Benke and Peter Quon, Jr., Deputy Attys. Gen., for plaintiff and respondent.

Eddie Ray Cole appeals convictions of robbery, grand theft and burglary, and a three-year enhancement for personally inflicting great bodily injury caused by blows struck by an accomplice at Cole's command. (Pen.Code, s 12022.7.)1

Factual Background

Bryon Jackson, Cole's nephew, and a person identified as Cole, broke into victim's residence to steal firearms they had observed through a window. The victim awakened and saw both men had armed themselves with semi-automatic rifles from his collection. When victim was slow in reacting to a demand he stand up and turn around, Cole ordered Jackson to kill him. Jackson did his best to comply by using the unloaded rifle as a bludgeon, clubbing the victim several times and finally succeeding in lacerating his scalp severely. During the attack Cole stood in front of victim pointing a (fortuitously) unloaded rifle and blocking victim's escape until he was finally knocked aside when the victim fled to his bedroom. Cole sped away carrying some stolen weapons but Jackson followed the victim who finally succeeded in wresting the rifle away from Jackson and smashing him in the mouth causing profuse bleeding. Jackson then grabbed a revolver from victim's closet and left with it after unsuccessfully attempting to shoot the victim. Jackson and Cole were arrested in Cole's apartment with the weapons a few hours later. Jackson eventually confessed claiming his accomplice was not Cole, but his good friend Tony whose last name, address and other particulars were unknown. Each of the three convictions arose out of the same transaction.

Issues On Appeal:

IONE WHO ORDERS ANOTHER TO INFLICT GREAT BODILY INJURY AND PHYSICALLY PREVENTS THE VICTIM FROM ESCAPING THE DAMAGING BLOWS, PERSONALLY INFLICTS SUCH INJURY UNDER THE TERMS OF SECTION 12022.7.

We have found no published case directly in point. Section 213, completely rewritten effective July 1, 1977, previously called for an increase in punishment for any robbery committed by a defendant in which the defendant inflicted great bodily injury on the victim. Enhancement for robbery punishments involving infliction of great bodily injury on a victim are now covered by section 12022.7 which expands the enhancement to apply to great bodily injuries inflicted on any person (other than an accomplice) during the commission or attempted commission of any felony. The new provision limits its application to “(a)ny person who, with intent to inflict such injury, personally inflicts great bodily injury ” (Italics added.)

Here the blows causing the great bodily injury were physically struck by Jackson only in direct response to Cole's demand who also physically barred victim's escape route. Jackson was a 17-year-old youth while his uncle, Cole, was older and an ex-felon. There is no evidence Jackson would have gashed the victim if not ordered to do so by Cole, or that he would have succeeded but for Cole's assistance in blocking the escape.

From the standpoint of matching the penalty with culpability, imposing the enhancement on Cole, who is directly responsible for the injury, seems most just. The fact that, in cases of this nature, more than one person could receive an enhancement for a single incident of injury does not detract from our view.

Although the court instructed the jurors to find whether Cole personally inflicted great bodily injury2 it erred in submitting to the jurors a verdict form which did not contain the word “personally” in the portion relating to infliction of great bodily injury.3

The omission in the verdict form is more significant since the jurors were also instructed a true finding should be returned if they found Cole knowingly and intentionally aided, abetted, or encouraged Jackson to inflict the bodily injury even though he himself did not “directly and actively” inflict injury.4

In People v. Walker, 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306, a similar issue was addressed regarding the propriety of imposing a 12022.5 (gun use) enhancement on one aiding and abetting robbery. There the court found legislative intent not to impose derivative punishment for firearm use in the commission of a crime on persons who do not themselves commit the enhancing act. (Id., at p. 241-242, 133 Cal.Rptr. 520, 555 P.2d 306.)

In Walker the defendant had been found liable for additional punishment merely because he participated in a robbery in which his accomplice personally used a gun. Although it is not crystal clear, it appears the Supreme Court assumed the Walker trial court instructed the jurors they need not find Walker himself had personally used a firearm, but could find personal use if it were satisfied he participated in the robbery and were satisfied someone used a gun during its commission. (Id., at p. 239, 133 Cal.Rptr. 520, 555 P.2d 306.)

In Walker the Supreme Court correctly identified the liability imposed to be derivative and stated: “Generally, if a statute is intended to impose a derivative liability on some person other than the actor, there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.” (Id., at p. 241-241, 133 Cal.Rptr. 520, 555 P.2d 306.) Finding no such express legislative direction, and applying the well recognized rule of construction that a Penal Statute is to be construed as favorably to a defendant as reasonably permitted by its language and the circumstances of its application, (Keeler v. Superior Court, 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617), the court found the language of 12022.5 did not permit a finding of personal use of a firearm derivatively solely drawn from the fact of aiding and abetting in the commission of the underlying felony.

This case is significantly different than Walker. Here, the “aiding and abetting” relied on is not in the commission of the underlying felony but was knowingly, intentionally, and directly for the purpose of causing the specific injuries. Cole's liability is not derivative, but direct. The specific enhancing incident originated with, and was carried out by, the direct involvement of Cole.

The aiding and abetting instructions given permitted a true finding on that basis only if jurors found Cole acted knowingly and with the specific intent to inflict the great bodily injury, rather than, as in Walker, generally aided and abetted in the underlying felony. The proved conduct directly involves him in the infliction of this injury as much as if he had pinioned the victim and held him to insure the successful infliction of injury.

In view of the trial court's carefully drawn instructions and the clear evidence in the case, the failure to supply the word “personally” in the verdict form was harmless.

II

THE BEAGLE ERROR WAS NONPREJUDICIAL.

Cole has a previous conviction for robbery. Upon learning Cole intended to take the stand, the prosecutor alerted the court he intended to question Cole about his prior to rebut the anticipated alibi (that Cole permitted Jackson to bring guns into his apartment, and he himself would take one into his bedroom knowing it was a felony for him to possess concealable firearms). Defense counsel asked the court to determine the admissibility of the prior conviction in accordance with the discretionary guidelines of People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1. Although there was no suggestion Cole's prior was to be introduced to impeach Cole's general credibility, the discussion got side-tracked and no decision was made concerning the admissibility of the felony conviction to rebut Cole's alibi. In order to rebut the alibi, there is no significance as to the type of felony involved and no reference need be made to the fact it was for one of the same offenses charged here, robbery, even in a sanitized version as one involving theft.

In an effort to avoid the Beagle proscription against advising jurors a defendant has previously been convicted of the same offense for which he is now on trial, and to comply with People v. Fries, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, which recognizes robbery contains elements other than those reflecting on honesty and is somewhat less relevant to credibility than the crime of theft standing alone, the court stated it would allow the prosecutor to ask Cole if he had ever been convicted of a felony involving theft. Forewarned, Cole's counsel attempted to diminish the shock aspect of this disclosure by bringing it out on direct examination.

True to his word, the prosecutor did question Cole concerning this conviction to rebut his alibi. Although the prosecutor limited himself to the noncredibility impeachment purpose which he originally discussed, the jurors were instructed the felony conviction did relate to credibility.

The court erred in overlooking the significance of the charges other than robbery facing Cole, grand theft and burglary. Although there may be some benefit in sanitizing a prior robbery conviction and referring to it as one “involving theft” where the charge is limited to robbery (People v. Moultrie, 99 Cal.App.3d 77, 86, 160 Cal.Rptr. 51), there is no such benefit where a second charge is theft.

Where the previous conviction is for the same or substantially similar conduct charged in the present trial, its introduction is especially condemned because of the “ ‘inevitable pressure on lay jurors to believe ”if he did it before he probably did so this time.“ ‘ ” (People v. Beagle, supra, 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1, quoting Gordon v. United States, D.C.Cir., 383 F.2d 936, 940.)

In this case the reference to the felony conviction as theft is unwarranted; the prosecutor did not intend to use the previous conviction to impeach Cole's general credibility but only the fact of a felony conviction to rebut Cole's anticipated alibi he would innocently allow Jackson to bring firearms into his home, and to go so far as himself secreting a concealable firearm in his own bedroom closet. On that issue the fact the previous conviction had anything to do with honesty (credibility) was not relevant. Accordingly, we hold the court abused its discretion under Evidence Code section 352. However, the error was not reversibly prejudicial, a more favorable result to Cole, in its absence, not being reasonably probable. (Cal.Const., art. VI, s 13; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.)

The previous conviction was relevant and admissible on the issue for which it was originally offered, to wit: Cole's state of mind as testified to by him. The fact a mention of the prior felony conviction without identification of the underlying previous crime may allow jurors to speculate on the nature of that crime (see People v. Rollo, 20 Cal.3d 109, 119, 141 Cal.Rptr. 177, 569 P.2d 771) does not outweigh its probative value on the issue of rebutting Cole's alibi. Indeed, defense counsel never objected to the admissibility of the felony on that basis. Therefore, the jurors were going to be exposed to the fact Cole had been convicted of some felony before the occurrence of the present incident. Admittedly, this would be coupled with a cautionary instruction equivalent to CALJIC No. 2.50 advising the jury evidence of the prior conviction was admitted for a limited purpose, rather than on the general issue of credibility.

We view the evidence against Cole, other than the evidence of the prior conviction, as very strong. Cole's alibi, as supported by his nephew Jackson, is incredible. In spite of the fact Jackson and Cole shared a common jail cell for many weeks before the trial (during which Cole made it clear he expected Jackson to exonerate him), Jackson had difficulty in even remembering the first name of his good friend, Tony, referring to him on one occasion as “Tommy” and another as “what's his name.” Cole was positively identified by the victim, was found in possession of the stolen firearms, possessed similar articles of clothing as worn by one of the perpetrators, his nephew Jackson was found bleeding and asleep shortly after the incident in Cole's apartment, ammunition and one of the weapons were found in Cole's bedroom where he was sleeping, ammunition and a clip was found in one of Cole's socks. Several shots were test fired from the stolen weapons adjacent to Cole's apartment, which he claims not to have heard although they were heard several blocks away. There was no miscarriage of justice.

III

THE COURT DID NOT PLACE UNDUE PRESSURE ON THE JURY.

A. After deliberating eight hours the jury announced itself deadlocked. Without inquiring whether further deliberations would be futile, the court sent the jurors home for the weekend to return the following Monday to resume deliberations. There was no objection by defense.

B. Upon the court's direction to return after the weekend, one juror stated she was reluctant to return because the small jury room made her claustrophobic. A conference between court and counsel revealed the defense did not wish to allow this juror to be excused but wanted her to return with the others. The court suggested perhaps a larger deliberating room would be available at that time. The record does not reveal whether the continuing deliberations resumed in the same or a larger jury room, but there were no more complaints.

Cole did not object to the court's conduct and his counsel on appeal points to no evidence of prejudice. We refuse to join in suggested speculation the rendering of a jury verdict after two and a half hours of resumed deliberations, may have been influenced by the court. On the face of this record we are satisfied there is no showing of jury pressure which makes us in the least “uncertain of the accuracy and integrity of the stated conclusion.” (People v. Gainer, 19 Cal.3d 835, 850, 139 Cal.Rptr. 861, 566 P.2d 997.)

IV

The grand theft conviction must be reversed because it is a necessarily lesser included offense of the crime of robbery. People v. Moran, 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763, dictates this result and the Attorney General concedes.

The grand theft conviction is reversed. Otherwise the judgment is affirmed.

FOOTNOTES

1.  All references are to the Penal Code unless otherwise specified.

2.  “ ‘It is charged in Counts One and Two that in the attempted commission of the crimes therein described the defendant, Eddie Ray Cole, with the specific intent to inflict such injury personally inflicted great bodily injury on a person. The term ”great bodily injury“ as used in this instruction means a significant or substantial physical injury. (P) If you find the defendant guilty of a felony, it will then be your duty to determine whether or not the defendant with a specific intent to inflict such injury did personally inflict great bodily injury as herein defined on such person. (P) Such defendant may be found to have personally and intentionally inflicted great bodily injury on a person only if the proof shows beyond a reasonable doubt that he so inflicted such injury upon such person.’ ”

3.  “We, the jury, further find that at the time of the commission of the crime of Robbery, the defendant, Eddie Ray Cole, (did/did not) inflict great bodily injury on the victim of the Robbery, within the meaning of Penal Code section 12022.7, as alleged in Count One of the Information.”

4.  “ ‘You will include a finding on that question in your verdict using a form that will be supplied for that purpose. A defendant who in the commission of an offense knowingly and with specific intent to inflict great bodily injury either aids and abets and/or advises and encourages the infliction of great bodily injury by a co-perpetrator upon a victim is equally responsible under the law with his co-perpetrator for the infliction of great bodily injury even though the defendant did not himself directly and actively inflict such injury. (P) A person aids and abets in the infliction of great bodily injury if he knowingly and with specific intent’ Strike that. ‘A person aids and abets in the infliction of great bodily injury if he knowingly and with specific intent with the specific intent required aids, promotes, encourages or instigates by act and advice the infliction of such injury.’ ”

WORK, Associate Justice.

COLOGNE, Acting P. J., and WIENER, J., concur.