PEOPLE v. MINJARES

Reset A A Font size: Print

Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Michael MINJARES, Defendant and Appellant.

Cr. 15834.

Decided: April 17, 1978

C. Douglas Floyd, Dane J. Durham, San Francisco, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth, Patricia D. Benke, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

Defendant, Paul M. Minjares, appeals from a judgment1 entered on a jury verdict finding him guilty of two counts of first degree robbery (Pen.Code, s 211), and using a handgun during the commission of these offenses (Pen.Code, s 12022.5). He contends that: 1) the search of the trunk and subsequent search of the tote bag found in the trunk were invalid, as they were made without a warrant and not based on probable cause; 2) the single suspect confrontation and subsequent identifications were impermissibly suggestive and deprived him of due process; 3) failure to disclose the nature of the prior felony convictions that were used to impeach him constituted prejudicial error; and 4) he was not sufficiently advised of the effect of admitting his priors and of being armed with concealed weapons at the time of his arrest. We have concluded that the judgment must be reversed for a limited new trial on the issue of the prior convictions.

In view of the absence of any contentions concerning the sufficiency of the evidence, a brief summary of the pertinent facts will suffice.

Around 8:30 p. m. on December 19, 1975, James Gondal and Mariana Mungia were bagging and checking groceries at checkstand four in a Fremont Safeway store. A tall person, subsequently identified as the codefendant, B. Aguirre,2 came up, showed them he had a gun, and told them to put the cash register money in a paper bag. Gondal and Ms. Mungia complied.

After taking the money from checkstand four, Aguirre joined the second and smaller robber (subsequently identified as defendant), who was at checkstand one. Defendant asked the checker there, Tim Prinster, for money, at gunpoint. Prinster turned over his cash register money after he noticed the gun in Aguirre's hand and a “bulge” under defendant's belt.

Mark Sollitt, who was waiting for Prinster to get off duty, was in the Safeway store and witnessed the robbery and defendant's participation in it. After defendant and Aguirre left the store, Sollitt followed and saw them get into a car. He pursued them in his own car for about 5-10 minutes, at times at a speed of 80 miles per hour, until he got close enough to read the license and determine that the getaway vehicle was a 1968 or 1969 Ford Fairlane. He then went to the police department to report the robbery, describe the robbers, their vehicle and its license number. Prinster indicated that defendant was about 5 feet 6 inches tall, weighed about 150 pounds, and was wearing a blue stocking cap and had a “fumanchu-type” mustache.

About 9 p. m., the Fremont police received and then broadcast the information concerning the Safeway robbery. One of the robbers was described as a male Mexican adult, about 28 years old, wearing levis and a tan leather jacket. A subsequent broadcast informed units that the getaway car was a white Ford with the confirmed license number 075 ALC.

Fremont Police Officer William Perry received this information on a radio dispatch shortly thereafter and about 15 minutes later, he observed a white Ford with license number ALC 075 proceeding north on Highway 680. Perry requested cover units and then stopped the vehicle. Perry then ordered its only occupant, the driver, subsequently identified as defendant, out of the car. Defendant fit the physical description of one of the Safeway robbery suspects. He was searched and advised he was under arrest for armed robbery. A search of the passenger compartment of the vehicle revealed nothing to connect defendant to the robbery. Defendant was then asked if he had a key to the trunk and replied negatively.

Sollitt, Prinster and Ms. Mungia were brought out to the location of the auto stop. Prinster and Sollitt were told that the vehicle identified by Sollitt had been stopped; Ms. Mungia was told that the police had “gotten one.” Prinster and Sollitt declined to make a positive identification of defendant at that time and indicated they wanted to see him under better conditions. Subsequently, they identified defendant as one of the robbers at a photo lineup, a physical lineup, the preliminary hearing, and a pretrial hearing. On their way to and from the road showup, Sollitt, Prinster and Ms. Mungia discussed their ability to identify the robbers. Neither Prinster nor Sollitt were certain of their identification at the roadside showup on the night of the robbery. Ms. Mungia was not able to identify defendant at that time; she subsequently indicated that the only reason she was able to identify defendant from the photographs and at the lineup was because of the one-man showup.

In order to search the trunk for the second suspect, whom the authorities believed might be hiding there,3 and to further examine the vehicle, the Ford was towed to the Fremont City Corporation Yard about 11 p.m. Armed officers stood by as a precaution as the trunk lock was picked. No suspect was found inside. However, among the many items, a red Samsonite tote bag stood out, was removed, and photographed and then opened by Sergeant Phillips. The tote bag contained, among other items, clothing matching the description of that worn by the suspects, three handguns with defendant's and Aguirre's fingerprints, and a roll of pennies in a bank wrapper identical to those used by the Safeway store. All of these items were admitted into evidence for purposes of identification, after denial of two defense motions to suppress.4

Defendant took the stand and denied any participation in the robbery or any knowledge of the use of his car in the robbery. He admitted, however, that his vehicle had been borrowed on that evening by a friend to transport some guns to San Jose to be sold. Defendant was to receive $75-$100 for the use of his car. He helped load the guns into the trunk. His vehicle had been returned to him shortly before he was stopped by the police. This alibi was impeached by the introduction of a statement made by defendant immediately after his arrest and advisement of Miranda rights. This statement indicated that he had been with the codefendant all evening and that no one else had driven his car. Defendant was further impeached by his admission of two unspecified prior felony convictions in 1971 in two different counties.

Defendant's major contentions on appeal concern the legality of the search of the trunk of his automobile and its contents, the one-man showup and the fact that the nature of his admitted prior convictions was not revealed to the jury.

We turn first to the warrantless search of the trunk and the closed tote bag. Defendant's contention concerning the illegality of the search of the trunk need not detain us long here. Defendant, relying on Wimberly v. Superior Court, 16 Cal.3d 557, 128 Cal.Rptr. 641, 547 P.2d 417, argues that here, as there, the initially reasonable search of a car's interior became unreasonable when extended to the locked trunk that was a distant part of the car in which there is a reasonably greater expectation of privacy than in the passenger's compartment. Our Supreme Court said at page 568, 128 Cal.Rptr. at page 648, 547 P.2d at page 424: “A search based on probable cause which reasonably only tends to support the inference that contraband or evidence will be found in the passenger compartment will be of intolerable intensity and scope if expanded to include a closed trunk. In such a situation there must be some specific articulable facts which give reasonable cause to believe that seizable items are, in fact, concealed in the trunk.”

The court then, at page 569, 128 Cal.Rptr. at page 649, 547 P.2d at page 425, distinguished People v. Laursen, 8 Cal.3d 192, 104 Cal.Rptr. 425, 501 P.2d 1145, where the vehicle had been identified by eyewitnesses as the one used by the robbers in an aborted attempt to escape. The court said: “We upheld the search, including a search of the trunk even though there was no specific information that the trunk contained any evidence relating to the crime. It is important to note, however, that the probable cause upon which we upheld that search pertained to the vehicle as a whole. Thus, we said: ‘Having connected the robbery with the Mercury on the basis of these reports the officers had reason to suspect that some evidence helpful in the apprehension of the culprits and investigation of the crime would be contained within.’ (Id., at p. 201, fn. 8, 104 Cal.Rptr. (425,) at p. 431, 501 P.2d (1145), at p. 1151.)” (Emphasis added.) Here, also, where the vehicle used in the robbery was stopped shortly after the robbery, there was probable cause for the search of the trunk.

Defendant, relying on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, argues that even if so, the subsequent search of the tote bag required a warrant. Chadwick, supra, summarized in footnote 5 below,5 is inapposite here as it involved the search of a personal effect, not an automobile. Here, there was a nexus between the vehicle and the search, as the vehicle was an instrumentality of the crime.

We agree with the People that the search of the tote bag here was proper pursuant to the rule of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Chambers, supra, held that a search without a warrant of an automobile stopped on the highway is permissible if based on probable cause, and further that under the circumstances present in Chambers, a delay in the search until the car had been taken to the station house was permissible. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209, held that the probable cause for a search of a car at the scene of the arrest still obtains at the station house (Id., at p. 68, 96 S.Ct. 304). The Chambers exception to the warrant requirement in the limited class of searches of automobiles rests on two factors: (1) the “exigent circumstances that exist in connection with movable vehicles” (Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325); and (2) the diminished expectation of privacy that attends automobiles, as opposed to a house, a person, or personal effects (Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 37 L.Ed.2d 596).

United States v. Soriano (5th Cir. 1974) 497 F.2d 147, demonstrates that the Chambers rationale can be used to sustain the legality of a search under analogous circumstances. In Soriano, supra, the evidence showed that federal law enforcement officials followed a taxi occupied by three people whom the agents had probable cause to believe were transporting heroin. Upon arrival at the Miami International Airport, the agents arrested the occupants of the cab, and removed three suitcases from that vehicle. The agents peeked into one of the suitcases at the place of arrest; the other two were searched at a place other than that of arrest. The searches were sustained as to all three suitcases.

The California Supreme Court has clearly indicated that whatever the proper scope of Chambers, supra, 399 U.S. 42, 90 S.Ct. 1975, as a matter of federal constitutional law it must not be extended so far beyond its original rationale under the “more exacting standard for cases arising within this state” established by article I, section 13 of the California Constitution (People v. Brisendine, 13 Cal.3d 528, 545, 119 Cal.Rptr. 315, 326, 531 P.2d 1099, 1110). The standard was summarized by our Supreme Court in People v. Hill, 12 Cal.3d 731, at page 751, 117 Cal.Rptr. 393, at page 409, 528 P.2d at page 17, as follows: “ ‘. . . when there is probable cause to believe that an automobile stopped on a highway contains contraband, evidence of a crime, or was itself an instrumentality of the commission of one, law enforcement officers need not obtain a warrant before conducting a search since there is no distinction of constitutional proportion between an immediate search on probable cause without a warrant and the automobile's immobilization until one is secured,’ ” quoting from People v. Laursen, supra, 8 Cal.3d 192, 201, 104 Cal.Rptr. 425, 501 P.2d 1145; emphasis added.

Thus, here, under both the federal constitutional rule and the more stringent state one, probable cause6 pertained to the vehicle as a whole. The vehicle was an instrumentality of the crime, and was seized in hot pursuit within a short period after the commission of the robbery. Thus, the vehicle and all of its contents, including the tote bag, were subject to a detailed examination after the seizure (cf. People v. Teale, 70 Cal.2d 497, 511, 75 Cal.Rptr. 172, 450 P.2d 564). Here, as in People v. Hill, supra, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1, there were circumstances that led the officers to reasonably believe that the fruits of the robbery or some evidence helpful in the investigation of the robbery would be contained within the tote bag (People v. Laursen, supra, 8 Cal.3d fn. 8 at p. 201, 104 Cal.Rptr. 425, 501 P.2d 1145). It follows that the search of the tote bag was also lawful and the defense motions to suppress the items found in it properly denied.

We turn next to the contention concerning the unfairness of the single suspect on-the-road confrontation and that this was the basis of the subsequent identifications of defendant by Sollitt and Prinster. While a less suggestive procedure would have been preferable to the initial roadside showup, we need not discuss this contention in detail. As this court (Division One) indicated in People v. Rodriguez, 10 Cal.App.3d 18, 30, 88 Cal.Rptr. 789, where it is asserted under the rule of Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and In re Hill, 71 Cal.2d 997, pages 1004-1005, 80 Cal.Rptr. 537, 458 P.2d 449, that the pretrial identification procedures were so unfair as to taint any subsequent in-court identification, the proper procedure is an initial hearing outside the presence of the jury. At this hearing, the defendant must demonstrate that the pretrial confrontation infringed on his right to due process of law. Where, as here, the trial court decides that the pretrial identification procedures, in their totality, were not so unfair as to taint an in-court identification, the identifying witness may identify the defendant in court without the necessity of showing that the courtroom identification had an origin independent of the pretrial proceedings. The defendant may then offer evidence of unfairness which affects the weight rather than the admissibility of the identification.

Here, the requisite hearing was held and the trial court ruled that the pretrial identification procedures were not so unfair as to taint an in-court identification. The record shows that both Sollitt and Prinster declined to make a positive identification of defendant at the single person roadside showup. After they had an opportunity to see defendant under better conditions, they picked him out as one of the robbers from a series of photographs and in a lineup. As the record substantially supports the trial court's determination and also indicates an independently reliable basis for the identification, we cannot disturb it on appeal (People v. Greene, 34 Cal.App.3d 622, 646-647, 110 Cal.Rptr. 160).

Next, we turn to the contentions concerning defendant's admitted prior convictions for robbery that were used to impeach his testimony.7 The record indicates that defendant admitted four prior convictions for robbery, three of which occurred in Riverside County in 1971, and the fourth in San Bernardino County in 1971.8 The court permitted the use for impeachment of two of the 1971 priors, one from each county.

The instant case was tried prior to People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, wherein our Supreme Court held that it was error to impeach a defendant by prior convictions, whose nature is not revealed to the jury. In Rollo, supra, the court pointed to two fundamental reasons for the rule: (1) the jury is deprived of information essential to its deliberations; and (2) the defendant is initially prejudiced as he must choose between remaining silent and subjecting himself to improper speculation by the jury or incurring the risk that by divulging the nature of the priors, the jury will draw an impermissible inference of guilt.

As Rollo is aimed at the integrity of the fact-finding process pursuant to the applicable rules of retroactivity as most recently set forth in People v. Gainer, 19 Cal.3d 835, 853, 139 Cal.Rptr. 861, 556 P.2d 997, the Rollo rule should be applied to the instant case, which was pending on appeal when Rollo was decided on October 11, 1977. The record indicates that the jury was left to speculate not only as to the nature of defendant's prior convictions, but also as to the critical issue of the relationship between the character of defendant's undisclosed priors and his credibility. The jury was not admonished to refrain from speculation and the prosecution also elicited the fact that defendant was on parole at the time of the instant robbery.

In Rollo, supra, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771, however, the court held that such an error was not prejudicial per se and in Rollo was not of prejudicial dimension, as the case against the defendant was overwhelming. Defendant here was apprehended shortly after the robbery and driving the getaway car, which contained some of the loot, the guns and the clothing worn by the robbers. He had attempted to flee at great speed and was identified by two eyewitnesses. His only defense consisted of his rather strained alibi that the jury obviously did not believe.

Here, as in Rollo, supra, 20 Cal.3d at pages 120-121, 141 Cal.Rptr. 177, 569 P.2d 771, none of this evidence was tainted by the error of failing to identify the nature of the prior. Defendant also was not kept from testifying and had ample opportunity to present his case to the jury. That it was unconvincing was not the result of the Rollo error, but of the weakness of defendant's story. We conclude, after an examination of the entire cause, including the evidence, that it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of this error (Cal.Const., art. VI, s 13; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243).

Finally, we turn to the contention that defendant was not fully advised of the effects of his admission of the prior convictions and his being armed with concealed weapons at the time of the arrest, as required by In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561. Yurko, supra, held, at page 864, 112 Cal.Rptr. at page 517, 519 P.2d at page 565, that before a court can accept a defendant's admission of prior convictions, the accused is entitled to express and specific admonitions as to the constitutional rights (confrontation, jury trial and privileges against self-incrimination) waived by an admission and to be advised: “(2) of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see, e. g., ss 666, 667); and (3) of the effect of any increased term or terms of imprisonment on the accused's eligibility for parole.”

The record indicates that although the jury found that defendant had used a firearm during the commission of the instant offenses, he was not sentenced on the use count (Pen.Code, s 12022.5), which would have added another five years to his sentence. As to the habitual criminal statute, the record indicates that the court initially refused to make a finding that defendant was not a habitual criminal. However, at the time of sentencing, the court clearly indicated defendant was not found to be a habitual criminal or sentenced pursuant to that statute. The record indicates that defendant was sentenced pursuant to former Penal Code section 3024, subdivision (b), which provided, so far as here pertinent, that the minimum term of sentence and imprisonment shall be four years “For a person previously convicted of a felony . . . and armed with . . . a concealed deadly weapon at the time of his arrest . . .” (emphasis added). Although defendant was subsequently advised that his admission of prior felony convictions could increase the minimum term served to four years, it was not specifically pointed out to him that this increased minimum sentence mandated by Penal Code section 3024, subdivision (b) was the result of his admission of the priors and of his admission of being armed at the time of arrest.

Defendant complains that the record discloses that he was not advised as to: 1) his right to confront his accusers; 2) the precise term which might have been imposed had he been adjudged a habitual criminal pursuant to former Penal Code section 644; 3) the effect of his admissions on his eligibility for probation pursuant to Penal Code section 1203, subdivision (d)(4)9 and section 1203.06, subdivisions (a)(2) and (b)(4)10 (In re Yurko, supra, 10 Cal.3d, p. 862, 112 Cal.Rptr. 513, 519 P.2d 561); 4) the fact that the prior convictions he was admitting could be used to impeach him if he chose to testify; and 5) prior to his admission that he was armed at the time of the arrest,11 he should have been advised of the additional minimum four-year term of Penal Code section 3024, subdivision (b).

We need not discuss defendant's contentions in detail as, except for Penal Code section 1203.06, each of the above mentioned statutes either have been repealed or substantially modified by the Uniform Determinate Sentencing Act of 1976 (Stats.1976, ch. 1139, effective July 1, 1977).12 Thus, on retrial, the admission of his priors and his admission that he was armed at the time of the arrest will be subject to the newly enacted provisions of Penal Code sections 667.5, 1170.1a, subdivision (a), and 1203.11.13 The new statutes provide for general enhancements and repealed all of the specific enhancements inconsistent therewith. The Uniform Determinate Sentencing Act of 1976 provides for an enhancement of punishment for adults who have served a separate prison term for at least one year for a felony (Pen.Code, s 667.5), prevents the granting of probation to persons previously convicted of certain specified felonies, including robbery (Pen.Code, s 1203.11), and provides for the enhancement of sentences under specific circumstances, such as being armed with or using a deadly weapon (Pen.Code, s 1170.1a), a continuation of the current provisions of Penal Code sections 12022 and 12022.5. Thus, under the new statutes and the applicable Yurko rules (supra, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561), defendant's admissions still involve “severe” sanctions applicable under numerous and complex circumstances that can be explained to an accused without imposing undue burden on the judicial process (Yurko, supra, p. 864, 112 Cal.Rptr. 513, 519 P.2d 561).

We conclude that these multiple omissions indicate that defendant's waiver of his constitutional protections, revealed by the instant record, was not based on a full understanding of the adverse consequences of the admissions of his prior convictions and of being armed at the time of the arrest (Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274; In re Tahl, 1 Cal.3d 122, 130-133, 81 Cal.Rptr. 577, 460 P.2d 449). Thus, the instant case requires only a limited new trial on the priors (People v. Fisk, 50 Cal.App.3d 364, 371, 123 Cal.Rptr. 414).

The purported appeal from the sentence is dismissed. The judgment of conviction is affirmed. That part of the judgment declaring the existence of the prior felony convictions is reversed. The cause is remanded to the trial court, with directions to resentence defendant after a limited new trial on the priors following a finding that defendant's waiver was based on an understanding of all of the consequences of his admission of the priors, as well as the consequences of his admission of being armed at the time of his arrest.

I concur in the judgment affirming defendant's conviction. The evidence of defendant's guilt was demonstrably overwhelming. There are two areas discussed in the main opinion, however, which call for some elaboration and which involve judicially declared rules of law which in my opinion are unsound, unnecessary and inimical to the fair administration of justice. Exercising my authority to criticize existing law (rule 976, Cal. Rules of Court), I proceed:

The first point involves the Rollo rule (People v. Rollo (1977) 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771) holding that it is error for a trial court to permit impeachment by an unidentified prior felony conviction. As pointed out by Justice Richardson in his dissent in Rollo, the Supreme Court beginning with its decision in People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, has continued to dissolve the heretofore firmly accepted principle now legislatively recognized in Evidence Code, section 788 that a witness can be impeached by proof of conviction of a felony. The courts have without any foundation through purely gratuitous opinions converted a simple, workable rule into a breeding ground for frivolous appeals. For example, consider the bare assertion that a prior conviction for a crime of violence does not reflect upon the trait of credibility (People v. Rollo, supra, fn.4, p. 120, 141 Cal.Rptr. 177, 569 P.2d 771). Why doesn't it? Who says it doesn't? The basic, unrefuted theory for the rule that a prior conviction of any felony may affect the witness' credibility is simply a common sense conclusion that anyone who commits a felony, i. e., who breaches society's most serious penal statutes, is considered by society to be untrustworthy.

I agree with Justice Richardson that for all intents and purposes section 788 of the Evidence Code has been effectively erased by Beagle and its amorphous progeny. By judicially excluding prior felony conviction evidence, we are depriving our juries of an important tool which the citizens, through their elected representatives, have emphatically said that they want and need in order to properly perform their role as judges of the credibility of witnesses.

If the judicial branch is to achieve any credibility with the law-abiding segments of society, I suggest that it start with a re-examination of this unfortunate trend toward the obliteration of an explicit statute (Evid.Code, s 788) and its underlying sound basic principles of common sense.

And, in my opinion, the first step should be to return to the pre-Beagle rule that evidence of any prior felony conviction is unqualifiedly admissible for impeachment purposes. Arguments that a particular type of felony does or does not bear on one's credibility are peculiarly matters of weight to be resolved by the trier of fact.

The second point I wish to address concerns the burden placed upon the trial judge under In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, which requires that in addition to the admonition of the constitutional rights, i. e., confrontation, jury trial, and privilege against self-incrimination, the judge advise the defendant “(2) of the precise increase in the term or terms which might be imposed, if any, in the accused's case pursuant to section 644 or other applicable statutes (see, e. g., ss 666, 667); and (3) of the effect of any increased term or terms of imprisonment on the accused's eligibility for parole.” (In re Yurko, supra, at p. 864, 112 Cal.Rptr. at p. 517, 519 P.2d at p. 565.)

This requires the judge to make computations based on factors which are not always readily discernible at the time of trial. An element of clairvoyance thus becomes a necessary ingredient in the process; yet I am unaware of any competent judge who is so endowed. And, of course, any error in advising the defendant of the “precise increase” vitiates the admission of the prior, requiring reversal. In my opinion, due process in the context of advice as to the effect of admitting priors would be fully satisfied by simply advising the defendant that such an admission can provide a basis for an increased term of imprisonment and/or parole. Period!

In the case at bench, the record is abundantly clear that appellant was advised that by admitting the five charged priors his minimum term would be increased to four years under Penal Code, section 3024, subdivision (b), which required the combination of prior felony conviction and being armed with a deadly weapon either at the time of the offense or being armed with a concealed deadly weapon at the time of arrest. Appellant's contention that he was not advised of the effect of his admission that he was armed with a concealed deadly weapon at the time of his arrest is technically correct. In the context of the entire voir dire regarding the enhancement of the minimum term, however, it is obvious that the arming admission was part and parcel of the mechanism which activated section 3024. Appellant cannot possibly claim any prejudice by reason of the inarticulateness of his own counsel's voir dire, since appellant acknowledged and accepted the potential of an increase to the four-year minimum which was precisely what the arming admission plus priors provided for (§ 3024, subd. (b)).

The record does fail to show that appellant was advised that he could be impeached by the priors if he elected to testify. But appellant cites no authority that such advice is required. On the contrary, the theory of Yurko is that advice and waiver are required as to consequences in terms of increased penalty (In re Yurko, supra, 10 Cal.3d at p. 864, 112 Cal.Rptr. 513, 519 P.2d 561). Clearly, impeachment presents no such potential. I therefore would reject this contention of Yurko error.

Likewise, the lack of admonition concerning the possible application of the Habitual Criminal Law is without merit, since the court did not sentence appellant as an habitual criminal.

However, I agree that remand is necessary in this case because (although not discussed by the parties) the record fails to show that the trial court made any finding that the admissions and waivers by appellant were knowing and intelligent (In re Yurko, supra, 10 Cal.3d at p. 865, 112 Cal.Rptr. 513, 519 P.2d 561). I observe in closing, however, that the preferred practice in taking guilty pleas or admissions of prior convictions or waiver of constitutional rights is for the trial judge to conduct the voir dire personally. We have observed in this and other cases that where the inquiry is delegated to counsel the margin for error increases demonstrably.

On Denieal of Rehearing After Decision.

The Court.--(12) On his petition for rehearing, defendant argues that the People conceded at oral argument that the People v. Rollo, 20 Cal.3d 109, 141 Cal.Rptr. 177, 569 P.2d 771 error here was per se reversible. There is no transcript of the argument. However, the People's brief contended that a Rollo error would not be reversible per se, but would be subject to the rule enunciated in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243. If the concession was made at oral argument, it was clearly erroneous and this court is not bound by such concession in rendering its opinion.

FOOTNOTES

1.  The notice of appeal erroneously indicates that an appeal is also taken from the sentence. As the sentence is not separately appealable but merged in the judgment, this purported appeal must be dismissed.

2.  Aguirre was acquitted.

3.  A search warrant had been considered but rejected because of the immediacy of getting into the trunk, in light of the suspicion that the second robber might be hidden there.

4.  At the initial pretrial suppression hearing on March 29, 1976, Officer Phillips testified that the tote bag was open when it was seen in the trunk. After testimony at trial and the photograph not previously disclosed to the defense indicated that the tote bag was, in fact, zipped shut at the time of its discovery, a second suppression hearing was conducted by the trial court pursuant to a defense motion. The second defense suppression motion was denied without a specific finding by the trial court as to whether the tote bag was open or shut when the guns, clothing and roll of pennies were found and removed.

5.  In Chadwick, supra, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, decided June 21, 1977, the U.S. Supreme Court held unlawful the warrantless search of a locked footlocker lawfully seized by federal agents from the open trunk of a parked automobile during the arrest of the persons in possession of the footlocker on probable cause that the footlocker contained contraband. The defendants were arrested and the footlocker was removed to the Boston Federal Building under the exclusive control of the federal agents, and opened. The court (433 U.S. at pp. 12 and 15, 97 S.Ct. at pp. 2484 and 2485, 53 L.Ed.2d at pp. 549 and 551) emphasized that a person's expectations of privacy of personal luggage are substantially greater than in automobiles, and held, 433 U.S. at page 15, 97 S.Ct. at page 2485, 53 L.Ed.2d at page 551, that under the circumstances, the search was no longer incident to the arrest and, therefore, subject to the warrant requirement.

6.  The search of the trunk and tote bag were not a routine inventory of a suspect automobile. Such an inventory, not based on probable cause, involves entirely different considerations (South Dakota v. Opperman, 428 U.S. 364, 373, 96 S.Ct. 3092, 3098, 49 L.Ed.2d 1000, 1008). It is clear that in an inventory search, the People would have been free neither to unlock the trunk, nor to search the tote bag found therein (Mozzetti v. Superior Court, 4 Cal.3d 699, 707-712, 94 Cal.Rptr. 412, 484 P.2d 84; People v. Jochen, 46 Cal.App.3d 243, fn. 3, at p. 248, 119 Cal.Rptr. 914).

7.  A motion predicated on People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and People v. Rist, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, was timely made and renewed. Under the applicable rules, at least one of the prior robbery convictions could have been properly used to impeach him to avoid giving his testimony a false aura of veracity (People v. Boothe, 65 Cal.App.3d 685, 688-689, 135 Cal.Rptr. 570). Any one of the prior robberies reflected directly on defendant's honesty and integrity, and revealing its nature could have been more harmful here than the brief impeachment by two unidentified priors.

8.  The dates in the information were apparently incorrect and subsequently amended. A fifth admitted prior conviction for possession of marijuana while defendant was committed to the Youth Authority was subsequently stricken for purposes of penalty enhancement.

9.  This subdivision, so far as here pertinent, prohibited the granting of probation to a person twice previously convicted of a felony.

10.  These subdivisions, so far as here pertinent, prohibit the granting of probation or suspension of a sentence for a person convicted of robbery who is convicted of a subsequent felony and knowingly carried a firearm as a means of offense or defense at the time of the arrest for the subsequent felony.

11.  No evidence supports this admission. Rather, the evidence is to the contrary since three guns were found in the tote bag in the trunk.

12.  Our discussion of the new act is based on the excellent overview of M. Oppenheim, 51 State Bar Journal 604 (Nov.-Dec. 1976).

13.  Penal Code section 1203.11 was added by Statutes of 1976, chapter 1135, and became effective on January 1, 1977, before the Uniform Determinate Sentencing Act of 1976, but after the judgment in the instant case.

TAYLOR, Presiding Justice.

ROUSE, J., concurs.