PEOPLE v. GOUCHER

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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. William Merlin GOUCHER, Defendant and Appellant.

36719.

Decided: July 21, 1981

Quin Denvir, State Public Defender, J. Courtney Shevelson, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Gary R. Hahn, Carol Slater Frederick, Deputy Attys. Gen., for plaintiff and respondent.

After a jury trial, appellant was found guilty of murder (Pen.Code, § 187) (count I) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)) (count II).   The jury also found that he had used a knife during the commission of the murder (Pen.Code, § 22022(b)).   Appellant admitted two prior felony convictions.

On November 21, 1979, the court denied appellant's motion for a new trial and sentenced him to state prison for a term of 25 years to life on count 1 and one year consecutive for the use allegation.   On count 2, appellant was sentenced to 1 year consecutive to count 1 and an additional 6 years for two prior felonies—a total of 33 years to life.   On November 30, appellant was resentenced to 4 years in state prison on count 2 plus 3 years for a prior murder conviction and 1 year for a prior robbery conviction.   On count 1 appellant was sentenced to 25 years to life, to be served consecutively with the sentence on count 2.   The total sentence was again 33 years to life.

FACTS

The facts relevant to this appeal are as follows:  On December 31, 1978, Lillian Torres and appellant's sister, Yolanda Holden, were involved in a traffic accident.   After the accident, the ladies engaged in an argument and exchanged telephone numbers and addresses.   Mrs. Torres' car would not start and her boyfriend, Raymond Hanley, had to be summoned.   He drove Mrs. Torres to his mother's house and eventually she went home.

Meanwhile, Miss Holden related the circumstances of the accident to Russell Swann (her common law husband), appellant (Miss Holden's brother), Nina Goucher (appellant's wife) and others.   She stated that Mrs. Torres said she was not going to pay for the accident because she did not have insurance.   Later appellant and Swann decided to go talk to Mrs. Torres.

That evening appellant and Swann went to Mrs. Torres' home.   Miss Torres, her daughter Lydia and Raymond Hanley were present.   In the doorway, appellant and Swann demanded payment from Miss Torres for damages to the car.   Hanley came to the door and the argument became more heated.   The two men then pushed their way in, pushed Hanley back on the couch, beat him with their fists, and held him on the couch.   According to Miss Torres, at one point appellant pulled out a knife and threatened her with it, holding it under her throat.   When she tried to call the police, appellant cut the telephone cord with a knife.   While Swann was holding Hanley on the couch, appellant went over and stabbed him.   Torres ran to a neighbor's house to call the police.   Hanley subsequently died from the stab wounds.

Nina Goucher, called as a witness by the People, testified that, when appellant and Swann returned home that evening, appellant said that he had to get out of there, “Because he just killed a nigger.”   He stated, in front of Mrs. Goucher and others, that he had “stabbed him up with his knife.   And then he said he slashed his throat, or cut his throat, or somewhere like that.”

Appellant testified that it was Swann, not he, who had stabbed the victim.   According to appellant it was Swann who was arguing with Hanley.   The argument became extremely heated and threats were exchanged.   Hanley opened the door and Swann produced a folding knife and stabbed the victim several times.   After Hanley knocked the knife to the ground, appellant picked it up and cut the phone cord to prevent Mrs. Torres from calling the police.   Appellant claimed he did not intend to harm anyone and did not believe Hanley was badly injured at the time.

APPELLANT'S CONTENTIONS

Appellant makes the following contentions on appeal:

I.  The trial court committed prejudicial error in refusing appellant's request for a continuance to investigate a surprise rebuttal witness.   II. Appellant was denied his right to confront and cross-examine prosecution witnesses because the court restricted his questioning relating to bias and motive to fabricate.   III.  The court erred when it failed to modify the standard CALJIC instructions on aiding and abetting to properly present the defense theory of the case.   IV.  Appellant was denied a fair trial because the jury learned he had been in San Quentin and was on parole.   V.  The court erred in denying appellant's motion for a mistrial based on the prosecution's use of appellant's legal runner as a witness against him.   VI.  The trial court erred in sentencing appellant to 25 years to life for the first degree murder, in adding 4 years to that term by reason of prior prison terms, in its computation of the consecutive term imposed for the assault with a deadly weapon, and in failing to state its reasons for imposing the upper term and consecutive sentences.

DISCUSSION

I

Appellant contends that the trial court committed prejudicial error in refusing his request for a continuance to investigate a surprise witness.

The jury heard final argument and instructions Friday morning.   Rather than commence deliberations Friday afternoon, the court permitted the jury to break until the following Monday morning.   On Monday morning, before the jury commenced deliberations, the prosecutor moved to reopen the case based on newly discovered evidence that, on Friday, appellant had confessed to a cellmate (Barlow) that he had stabbed the victim.   When the court indicated it would grant the motion, defense counsel moved for a continuance to investigate the witness.   Barlow had been an informant and had previously testified against other defendants.   Counsel wished time to talk to the other defense attorneys to find out if he had been impeached on those occasions, if he had lied before, and why he was placed in the cell with defendant.   Counsel also requested time to interview a witness who was in the cell with Barlow and appellant at approximately the time of the confession.   The court gave counsel approximately 21/212 hours to interview the witnesses.   Counsel was then permitted to question Barlow under oath outside the presence of the jury.   That questioning revealed that Barlow had testified in three or four cases, that none involved information he had obtained while in jail, that basically they were narcotics cases, and that he had testified in one case in which he had been the victim of an assault.   After hearing further argument, the court permitted the People to reopen and denied appellant's request for a further continuance.

Barlow then related the confession to the jury.   Barlow also revealed that he had suffered a prior felony conviction, that he was in custody on a pending burglary case which was to be reduced to a misdemeanor, that he was hopeful of receiving more lenient treatment as a result of his testifying, that he had been a police informant for several years and that on those occasions he had been paid to purchase narcotics.   A jailer then testified that the reason appellant and the witness were put in a cell together was that both had a “keep away” status and this was the only place to put them.   The attorneys were permitted further argument, the jury was given further instructions and the case was submitted to the jury.

Appellant complains that the denial of a continuance to investigate the witness' background and to develop impeachment testimony denied him a fair trial, effective representation and his right to confront witnesses.

The basic principles with regard to continuances during trial are set forth in People v. Laursen (1972) 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 501 P.2d 1145.   There the Supreme Court stated:

“The granting or denial of a motion for a continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.   In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction.  (People v. Ketchel, supra, 59 Cal.2d 503, 546 [30 Cal.Rptr. 538, 381 P.2d 394];  People v. Dickerson (1969) 270 Cal.App.2d 352, 361 [75 Cal.Rptr. 828].)”

Here, as in most cases, the admission of the confession was devastating.   No doubt defense counsel was surprised by the turn of events.   However, the predicament was appellant's own fault.   Counsel was given an opportunity to interview the witness and a third party who was possibly percipient to the confession.   He was allowed to confront and cross-examine Barlow prior to his testifying before the jury.   The jury was made fully aware of Barlow's paid informant status, his prior felony and his pending case.   The jury knew that Barlow hoped for leniency in return for his testimony.

 Appellant urges that a continuance was necessary to develop Barlow's motive to fabricate.   However, the jury already knew that Barlow hoped for leniency in his pending case as a reward for his testimony.   Appellant also urges that the jury, which had already heard argument and been instructed, should have been kept waiting while counsel attempted to establish the witness' negative reputation for veracity.   However, the witness had already been shown to be a felon.   The advantage of a continuance for possible further impeachment under these circumstances was dubious to say the least.1  The denial of appellant's motion was not an abuse of discretion.

II

Appellant claims he was denied his right to confront and cross-examine witnesses Barlow and Nina Goucher when the court restricted his questions going to bias and motive to fabricate.

With regard to Barlow, on cross-examination defense counsel elicited from him the fact that he was told by his attorney that his pending burglary charge would be reduced to a misdemeanor, that the reduction had nothing to do with his testifying in this case and that he could receive up to a year in jail for the misdemeanor.   Counsel then asked if the jail time could run consecutively or concurrently with other time Barlow was serving.   The prosecutor's relevancy objection was sustained.

There was no showing that Barlow was in custody on any other charge or that any other charge was pending.   Furthermore, counsel had already shown that Barlow could receive a maximum benefit of 365 days as a result of his testimony by eliciting that the sentence could be anywhere from 0 to 365 days in jail.   That the sentence might run consecutively or concurrently would in no way increase Barlow's motive to fabricate.   He still had the same potential gain.

 After defense counsel elicited from Barlow that he was being held in jail in K–9 (protective custody) status, he attempted to ask him if he knew why.   The prosecutor's relevancy objection was sustained.   Appellant complains that the answer would have shown how much Barlow needed to please the authorities, that his personal safety depended on it.   However, the jury already knew that Barlow was in “protective custody,” that he needed custodial protection.   If the question was designed to elicit what he had done to require K–9 status, the jury already knew that he was an informer.   If the question was designed to elicit the answer that his life was in danger, the jury could readily infer that from the term “protective custody” and the fact that he was an informer.   The objection was properly sustained.

 With regard to the testimony of his wife Nina Goucher, appellant complains that cross-examination was improperly limited as to three subjects:  (1) her writing bad checks, (2) her having a relationship with someone else while married to appellant, and (3) her being involved in a child custody matter in which it was alleged that she was an unfit mother.   Appellant claims these questions properly probed the witness' credibility.

(1) Counsel was permitted to ask the witness whether she was motivated by trying to curry favor with the authorities with regard to a check case against her, whether she was aware of a check case against her in Wyoming, and whether she was aware of any check investigation in Wyoming.   She answered each question in the negative.   Only then did counsel ask:  “While you were in Wyoming, did you write checks in an account you had no money in or very little money in?”   The objection on relevancy grounds was properly sustained.   Writing checks to an account with little money in it is not a crime and would show no bias or motive to fabricate.   The relevant questions with regard to the subject had already been asked and answered.   Under the circumstances, the court was not required to permit further inquiry absent some showing it might lead somewhere.  (Evid.Code, § 352.)

(2) Mrs. Goucher admitted on cross-examination that she was trying to get an annulment or divorce from appellant.   Whether or not she had had a relationship with someone else during her marriage to appellant would not add anything to the state of her present relationship with appellant.

(3) Likewise, contrary to appellant's claim, questions as to the witness' custody suit were not shown to have anything to do with her relationship either to the prosecution or with any motive she might have to lie.

The objections were properly sustained.

III

Appellant claims that the court erred in failing to modify the aiding and abetting instructions to present the defense theory of the case.

The prosecution evidence—the testimony of Lillian Torres, Nina Goucher and Robert Barlow—indicated that appellant himself had stabbed the victim.   Appellant, however, testified that his brother-in-law, Swann, had done the stabbing, that he had merely picked up Swann's knife after the victim had knocked it from Swann's hand and that he had cut the telephone cord to prevent Swann from calling the police while Swann and the victim were still fighting.   Mrs. Torres' identification of appellant rather than Hanley as the person who stabbed the victim was much in dispute.   In addition to appellant's testimony, Mrs. Torres' daughter, Lydia Taylor, indicated it was Swann who cut the telephone cord.

The court gave standard instructions on aiding and abetting (CALJIC 3.00, 3.01).2

 Since the jury could well have accepted Mrs. Torres' version of the events that one person was holding the victim while the other was stabbing him, but accepted her daughter's identification of Swann as the person doing the stabbing instructing on aiding and abetting was proper.3

Appellant contends however that the court, on its own motion, should have tailored the aiding and abetting instructions to fit appellant's theory of the case.   Appellant suggests that the following instruction should have been given:  “To aid and abet the commission of a crime, a person must have knowledge of the unlawful purpose of the perpetrator of the crime prior to the commission of the crime.   Merely aiding in the escape of the perpetrator of the crime does not result in aiding and abetting.”

 Trial courts have a duty to instruct sua sponte on the general principles of law relevant to the issues raised by the evidence.  (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390.)   The court fulfilled this obligation by giving CALJIC 3.00 and 3.01 (see footnote 2).   The instructions given told the jury that “mere presence at the scene of a crime and failure to take steps to prevent a crime do not in themselves establish aiding and abetting” and that, in order to be guilty by aiding or abetting, the person must act “with knowledge of the unlawful purpose of the perpetrator of the crime.”   Contrary to appellant's contention, this clearly indicates that, to be guilty as an aider or abettor, appellant would have had to know of the principal's purpose contemporaneously with his aiding him.   With regard to the action required of the aider or abettor, the instruction requires that “he aids, promotes, encourages or instigates by act or advice the commission of such crime.”   None of these terms suggests that aiding in the escape of the perpetrator is equivalent to aiding in the commission of the crime.

Since the instructions given adequately define aiding and abetting and since there was no danger that they could mislead the jury into believing that aiding in the escape was equivalent to aiding in the commission of the crime, no further sua sponte instructions were required.

IV

Appellant next contends that he was denied a fair trial because the jury learned he had been in San Quentin and was on parole.

The testimony with regard to San Quentin occurred in the following manner:  The prosecutor was questioning Mrs. Goucher concerning appellant's appearance.   This line of questioning was relevant both to show that appellant had attempted to change his appearance to avoid identification, indicating a consciousness of guilt, and to explain discrepancies in the witness' identification of him.   The following colloquy took place:  “Q  And how long have you known Bill Goucher?   A  For about two years.   Q  Okay.   During that period of two years, had you ever seen Bill with his hair as short as it is now?   A  No.   Q  Had you ever seen him without his beard before?   A  What's—Q  When was that?   A  In San Quentin.”   Defense counsel made a motion to strike the answer and it was immediately stricken.

The reference to appellant's parole status occurred in the following manner.   Appellant claimed that he left Wyoming because Mrs. Goucher had written checks that he could not cover and that she had threatened him with regard to this case unless he took care of those checks.   The prosecutor attempted to refute the claim that appellant's wife was biased because she had written the checks and was fearful of prosecution because of her involvement.   Appellant admitted that he had written a note upon leaving Wyoming, stating “I got a few bad checks out too,” but explained that he was referring to a joint account and that six or eight of the bad checks were Mrs. Goucher's.   To refute this contention, the prosecutor successfully sought to introduce the entire note.   The note, in relevant part, reads:  “Sorry that things turned out like this.   That car this morning was the last.   No insurance, and they'll be wanting to sue.   I got a few bad checks out too, so that's a parole violation.   I got to get my family to where they'll have someone to look out for them.”  (Peo. ex. 18.)   During extensive argument over introduction of the letter, defense counsel objected to its admission, requested that reference to the parole violation be stricken, and even offered to recall appellant to testify that he left in part because he had “n. s. f.” checks.4

 There is no doubt that the two oblique references to a prior felony conviction could prejudice the appellant in the eyes of a jury.  (People v. Fiquieredo (1955) 130 Cal.App.2d 498, 505–506, 279 P.2d 200.)   However, appellant's statement that he had a few bad checks out and knew that was a parole violation was also extremely relevant.   It indicated that he was leaving Wyoming not because Mrs. Goucher had written bad checks, but because he had.   Obviously, her writing bad checks would not be his parole violation.   The note destroyed appellant's attempt to impeach Mrs. Goucher by claiming it was she who wrote the bad checks and thus had a motive to hurt appellant because he refused to cover them.   Counsel's offer to have appellant testify that he left in part because he had “n. s. f.” checks did not go far enough.   It still left open the question of whether or not Mrs. Goucher also had written bad checks.   The note went much further:  It indicated several areas of appellant's concern, none of which were Mrs. Goucher's having written bad checks.   The clear implication from the note is that she never did write bad checks.   The trial court acted within its discretion in admitting the evidence.  (Evid.Code, § 352.)

 With regard to the reference to San Quentin, as indicated above, the question was clearly relevant.   We have no reason to believe that the prosecutor intentionally solicited the damaging answer.   The answer was immediately stricken.   Since the jury properly heard of appellant's parole status anyway, reference to San Quentin was not prejudicial.5

V

 Appellant claims the trial court erred in denying his motion for a mistrial based on the prosecution's use of his legal runner as a witness against him.

On the second day of trial, during Mrs. Goucher's testimony, appellant filed the written motion for a mistrial which was “based on the fact that witness Nina Goucher was defendant's legal runner, by appointment of the county and in such capacity was exposed to ‘work product’ information which irreparably prejudiced her testimony.”   Appended to the motion was a copy of the earlier motion for appointment of Mrs. Goucher as legal runner.   That motion was made and granted on September 19th, the court authorizing $200.00 expenses “upon such shown usage.”   When asked by the court if he had anything to add to the written mistrial motion, appellant's counsel merely stated:  “Yes, Your Honor.   Just that I don't know if it's stated in the motion, but I feel some of the testimony of Nina Goucher came from information she learned when acting as a legal runner for Mr. Goucher.”   The district attorney responded that Mrs. Goucher had not seen appellant nor even been in southern California since his arrest and that her only contract with him was via telephone calls made by him to her in Sacramento.   The court noted that the subpoena for Mrs. Goucher was to be served in northern California and denied the motion.

There was no showing that Mrs. Goucher either acted as a runner for appellant or received any information pursuant thereto.   The motion contains no affidavit or declaration to that effect.   When invited by the court to expand on the motion, defense counsel (who was otherwise most diligent, resourceful and even argumentative) made no offer of proof nor requested the taking of evidence on the issue.   The trial court was under no duty to investigate further.   The motion was properly denied.

VI

Appellant makes several sentencing contentions.   On November 21, 1979, he was initially sentenced to 25 years to life for first degree murder on count I, plus one year for use of a knife.  (Pen.Code, § 12022, subd. (b).)  On count II, felonious assault (Pen.Code, § 245, subd. (a)), one third of the middle three year term, one year, was imposed, such term purportedly to run consecutively to the indeterminate term imposed on count I.   Additionally, the court imposed three years for each of the two previously admitted prior prison terms.   The court purported to aggregate these various terms and arrived at a total term of 33 years to life.

When the court was apprised that its sentence was flawed, it vacated the previous sentence.   The court once again imposed a 25 year to life term on count I but selected the upper four year term on the felonious assault in count II.   It added three years because of a prior prison term which resulted from a conviction for a “violent felony,” murder (Pen.Code, § 667.5) and an additional year for a prison term which resulted from a conviction for a “non-violent felony,” robbery (Pen.Code, § 667.5, subd. (b)).  Thus, while changing some of its components, the court once again purported to impose a 33 year to life term.6

Appellant contends that his sentence of 25 years to life for first degree murder constitutes cruel and unusual punishment within the meaning of Article 1, section 17 of the California Constitution.   Appellant seizes upon an inconsistency in the sentence structure for first degree murder.   Section 190 provides for a term of 25 years to life for a person such as defendant who has been convicted of murder where special circumstances have not been charged.   Section 190.4 appears to provide for the possibility of a 25 year term where special circumstances are alleged but the jury is unable to reach a unanimous verdict on the special circumstances.   Thus, appellant argues that a less culpable first degree murderer who had not been charged with special circumstances could receive a greater punishment than an equally or more culpable murderer simply because the prosecutor had charged special circumstances which were not proved.   He relies upon People v. Schueren (1973) 10 Cal.3d 553, 111 Cal.Rptr. 129, 516, P.2d 833, for the proposition that such a discrepancy results in cruel and unusual punishment.7

Penal Code sections 190, 190.1, 190.2, 190.3, 190.4 and 190.5 provide a comprehensive sentencing scheme for murder.   The sections were adopted by initiative (Proposition 7) approved by the voters of this state November 7, 1978.

Section 190, in pertinent part, provides:  “Every person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life.   The penalty to be applied shall be determined as provided in section 190.1, 190.2, 190.3, 190.4, and 190.5.”

Thus, according to section 190, there are three possible penalties for first degree murder:  death, confinement in state prison for life without possibility of parole, and confinement in state prison for a term of 25 years to life.   The proper penalty in each case is to be determined as provided for in sections 190.1 through 190.5.

However, section 190.4(a) provides:

“In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach a unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by a unanimous verdict of the previous jury to be untrue.   If such new jury is unable to reach the unanimous verdict that one of more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.”

Thus, the section provides that, if two juries are unable to reach a verdict as to special circumstances, the trial judge may impanel another jury to try the issue or “impose a punishment of confinement in state prison for a term of 25 years.”   The 25 year term is inconsistent with section 190 and its three specified penalties.

However, the overall intent of Proposition 7 (Pen.Code, §§ 190 through 190.5) is clear.   It provides three and only three alternative sentences for first degree murder.   That is the unambiguous statement of section 190.   The only reasonable explanation for the 25 year term in section 190.4 is that it was an error—an oversight.8

“If the intent of the Legislature is clearly ascertainable, words inadvertently omitted from a statute may be supplied in the process of construction in order to effectuate the legislative intent.”  (People v. Medina (1971) 15 Cal.App.3d 845, 848, 93 Cal.Rptr. 560.)   We see no reason not to apply the same principle to an initiative.

In Isaac v. Superior Court (1978) 79 Cal.App.3d 260, 263–264, 146 Cal.Rptr. 396, the court confronted a similar problem.   There, in order to effectuate the extortion penal statute (Pen.Code, § 524) the court read into that statute a definition of extortion not contained therein.  (Pen.Code, § 518).   The court stated:  “The definition of extortion is clearly controlling and must modify sections 520, 523, and 524, otherwise the amendment would be meaningless.   Where the legislative intent is clear, penal statutes must be construed reasonably to effectuate such intent.   They should not be read literally where to do so would lead to absurd consequences.”  (Ibid. at 264, 146 Cal.Rptr. 396.)

 The same is true here.   We can conceive of no reason why one charged with special circumstances should receive a lesser punishment than one not so charged simply because two juries were unable to reach a verdict.9  Therefore, we construe section 190.4, taken together with section 190, to provide for a punishment of 25 years to life where a defendant is found guilty of first degree murder and either special circumstances have not been alleged, have been found not to exist, or where a second jury has been unable to agree on the issue and the trial court decides not to impanel another jury.

 Although the matter must be remanded for resentencing, we note that the sentencing court correctly vacated the initial sentence.   The court was without power to order that the felonious assault was to be a consecutive subordinate term at the now familiar two-thirds off rate.  (People v. Benton (1979) 100 Cal.App.3d 92, 102, 161 Cal.Rptr. 12.)   A consecutive subordinate term may only be subordinate to a determinate principal term.  (Pen.Code, § 1170.1, subd.(a).)  California Rules of Court, Rule 451, subdivision (a) provides for the manner in which the board of prison terms combines determinate and indeterminate terms:  “When a defendant is sentenced under section 1170 and the sentence is to run consecutively to a sentence imposed under section 1168 in the same or another proceeding, the judgment shall specify the determinate term imposed under section 1170 computed without reference to the indeterminate sentence, shall order that the determinate term shall be served consecutive to the sentence under section 1168, and shall identify the proceedings in which the indeterminate sentence was imposed.   The term under section 1168, and the date of its completion or parole date, and the sequence in which the sentences are deemed served, will be determined by correctional authorities as provided by law.”

 Contrary to appellant's argument, this rule is not inconsistent with the provisions of Penal Code, section 1170.1, subdivision (a), which expressly refers to the tripartite determinate sentencing choices of Penal Code section 1170.  Rule 451, subdivision(a), on the other hand, deals with combining determinate (Pen.Code, § 1170) and indeterminate (Pen.Code, § 1168) sentences.   Consequently, the Judicial Council did not exceed its authority in promulgating Rule 451, subdivision (a).  (People v. Cheatham (1979) 23 Cal.3d 829, 153 Cal.Rptr. 585, 591 P.2d 1237.)

 For the guidance of the trial court on remand, we summarily deal with appellant's remaining contentions.   First, justification for imposing the upper four year term on the felonious assault by incorporating the remarks and observations of the probation officer by reference is improper.  (E.g. People v. Hernandez (1980) 100 Cal.App.3d 637, 643, 160 Cal.Rptr. 607.)   Second, the court must state its reason or reasons for a consecutive sentence.  (People v. Rosalez (1979) 89 Cal.App.3d 789, 792, 153 Cal.Rptr. 65.)   Finally, while the trial court corrected its initial error in imposing a three year term by virtue of appellant's prior prison term resulting from a robbery, which in fact, was a “non-violent prior felony” (People v. Davis (1980) 103 Cal.App.3d 270, 276–279, 163 Cal.Rptr. 22), it is apparent not only from the face of the information but from the probation report, that no separate prison term was served therefor.   The murder conviction was on June 13, 1973, and the robbery conviction was on February 23, 1973.   The two prison terms which resulted therefrom were not “separate” within the meaning of Penal Code, section 667.5, subdivision (g).  (People v. James (1980) 102 Cal.App.3d 728, 732–733, 162 Cal.Rptr. 548.)

The sentence imposed is vacated and the matter remanded for resentencing consistent with the views here expressed.   In all other respects, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   Evidence of specific instances of lying would not be admissible to show a mendacious character.  (Evid.Code, § 787.)

2.   The instructions read as follows:“The persons concerned in the commission or attempted commission of a crime who are regarded by law as principals in the crime thus committed or attempted and equally guilty thereof include:“1. Those who directly and actively commit or attempt to commit the act constituting the crime, or“2. Those who, with knowledge of the unlawful purpose of the one who does directly and actively commit or attempt to commit the crime, aid and abet in its commission or attempted commission, or“3. Those who, whether present or not at the commission or attempted commission of the crime, advise and encourage its commission or attempted commission.“One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.”“A person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.   Mere presence at the scene of a crime and failure to take steps to prevent a crime do not in themselves establish aiding and abetting.”

3.   Appellant does not contend otherwise.

4.   Checks not covered by sufficient funds in the account.

5.   At the close of the case the jury was instructed:  “You must not consider for any purpose any offer of evidence that was rejected, or any evidence that was stricken out by the court;  such matter is to be treated as though you had never heard of it.”   It is presumed that the jury followed this instruction.  (People v. Shaw (1965) 237 Cal.App.2d 606, 623, 47 Cal.Rptr. 96.)Appellant contends that the impact of references to his prior felony was exacerbated by the court's instructing the jury that a felony conviction could be considered for the purpose of impeaching a witness' credibility.  (CALJIC 2.23) Appellant suggests that the jury should have been told that this instruction did not apply to him.   However, understandably, no such request was made at trial.   It seems obvious from the positioning of that instruction at the end of the clerk's transcript and from the fact that the witness Barlow was impeached by a prior felony conviction, that this instruction was given only after the case had been reopened and Barlow had testified.   Given in that context, apart from the other instructions, the jury must have known to whom the instruction applied.

6.   When the prosecutor inquired about the Penal Code, section 12022, subdivision (b) enhancement as to count I, the court said, “[T]hat's it.   If the district attorney doesn't care.”   The prosecutor made no objection.   Having expressly elected not to impose any punishment for this enhancement, the court is deemed to have stricken it.

7.   In Schueren our Supreme Court determined that a defendant who was convicted of a lesser included offense could not constitutionally suffer more onerous punishment than that prescribed for the originally charged greater offense.

8.   As stated in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 149 Cal.Rptr. 239, 583 P.2d 1281, when an “enactment follows voter approval, the ballot summary ․ presented to the electorate ․ may be helpful in determining the probable meaning of uncertain language.”  (Ibid. at 245–246, 149 Cal.Rptr. 239, 583 P.2d 1281.)   Here, the Attorney General's seven line summary to this voluminous and complicated initiative stated in part, “Changes minimum sentence for first degree murder from life to 25 years to life.”

9.   We reject the argument that the 25 year term might have been intentionally placed in section 190.4 to lessen the punishment for one who had already been punished by having to suffer through two special circumstances trials.   If this were the case, then a fortiori, the section would have provided for the same lesser punishment for a person who had suffered through two special circumstances trials where the jury found the special circumstances not to be true.

SCHOENBERG, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

POTTER, Acting P. J., and COBEY, J., concur. Hearing denied; BIRD, C.J., MOSH, and KAUS, J.J.