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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Orlando Angel SANDOVAL, Defendant and Appellant.

Cr. 38592.

Decided: December 23, 1981

Mary J. Madsen, Pasadena, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Robert F. Katz and Richard D. Marino, Deputy Attys. Gen., for plaintiff and respondent.

Appellant appeals from his conviction of murder with special circumstances (Pen.Code, ss 187, 189 et seq.),1 robbery (s 211), attempted robbery (ss 211 and 664) and being armed, and using a firearm in the commission of the above crimes (ss 12022 and 12022.5). We affirm.


On August 6, 1979, the Stop ‘N Go market in Oxnard was robbed at gunpoint. On August 10, 1979, the King's Village Liquor store nearby was entered by a suspect and the counter clerk, Mr. Aloyszus Wieczorek, was shot through the chest. The wound penetrated both lungs and Mr. Wieczorek died shortly after the shooting. In both instances, the stores appeared to be deserted; the assailant approached the cash register with small items in his hand; the stores, both small convenience shops, were located within a block of each other, and the assailant escaped in an automobile with at least one other occupant.

On August 16, 1979, a witness contacted the police and informed them that appellant Sandoval had told her that he had shot the clerk in the King's Village Liquor store. Appellant was apprehended at about 11:55 p.m. on August 16, 1979. At the preliminary hearing, the Stop ‘N Go clerk identified Sandoval as the man who robbed him on August 6, 1979. An employee of King's Village Liquor who was in the back room described the murder of Mr. Wieczorek and gave a description of the assailant not inconsistent with appellant's appearance. Finally, the witness who contacted the police on August 16, 1979 testified that appellant had admitted the shooting to her on the night of the murder. Appellant was bound over for trial and his motion to set aside the information pursuant to section 995 was denied.

At his trial in mid-1980 further evidence was presented. Three small items were found on the counter of the King's Village Liquor store. Appellant's fingerprints were positively identified on one of these items. A jailmate testified that appellant had confessed to him. Finally, a witness in the parking lot outside of King's Village Liquor store testified that he saw two persons approach the store in a partially yellow 1964 Chevrolet Impala with distinctive chrome wheels. One person exited the car and proceeded toward the liquor store. The Chevrolet pulled into an alley. Moments later a person ran from the direction of the store and was picked up by the Chevrolet, which sped away. On August 16, 1979, when Sandoval was arrested, he was in a 1964 Chevrolet Impala. The car contained a loaded .38 caliber two-inch barrel pistol consistent with all witnesses' descriptions of the gun used in both incidents. The police later examined the car and determined that it had recently been covered by spray paint primer. The paint can was found in the car. The color of the car under the primer was partially yellow.

On June 3, 1980, the jury found appellant guilty of all counts. On July 2, 1980, the trial court denied appellant's motion for proceedings on the question of penalty pursuant to section 190.3 on the ground that he was a minor at the time of the offense and therefore could not be sentenced to death under section 190.5. The court sentenced appellant to life imprisonment without possibility of parole for first degree murder with special circumstances. Appellant was sentenced to two years plus two years for the attempted robbery of King's Village Liquor store and use of a weapon. Finally, appellant was sentenced to three years for the robbery of the Stop ‘N Go.


Appellant contends on appeal that (1) his motion to set aside the information pursuant to section 995 was improperly denied; (2) the trial court abused its discretion in denying his motion to sever the Stop ‘N Go robbery charge from the murder and robbery charges relating to the King's Village Liquor store incident; (3) as a minor he could not be sentenced to life imprisonment without possibility of parole.


Sandoval's section 995 motion was properly denied. As a reviewing court, our role in evaluating the trial court's determination of section 995 motions is limited. “ ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate's order.’ ” (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664; Perry v. Superior Court (1962) 57 Cal.2d 276, 283-284, 19 Cal.Rptr. 1, 368 P.2d 529; People v. Cirilli (1968) 265 Cal.App.2d 607, 612-613, 71 Cal.Rptr. 604; People v. Harmon (1973) 33 Cal.App.3d 308, 310-311, 108 Cal.Rptr. 43; Accord, Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464, 93 Cal.Rptr. 587, 482 P.2d 211.) Yet, appellant apparently is urging us to weigh the evidence by characterizing the testimony of the witness who related Sandoval's admission of the King's Village Liquor shooting as “inherently improbable.” “On appeal it is to be assumed that the magistrate impliedly found every fact necessary to support its ruling to be true.” (People v. McCoy (1974) 40 Cal.App.3d 854, 861, 115 Cal.Rptr. 559.)

“The court is only to determine whether the magistrate, acting as a person of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated ....” (People v. Park (1978) 87 Cal.App.3d 550, 561, 151 Cal.Rptr. 146.) In this case, a King's Village Liquor store employee testified to the murder of Wieczorek. The clerk at the Stop ‘N Go testified to the robbery of his store. This testimony was sufficient to create a reasonable suspicion that public offenses had been committed. The clerk at the Stop ‘N Go positively identified appellant and a witness testified that appellant had admitted the shooting of Wieczorek to her and further admitted that he was attempting to rob the King's Village Liquor store at the time of the shooting. “An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (People v. Hall, supra, 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664.) Assuming, as we must, that all of the evidence presented at the preliminary hearing was accurate, the trial judge had ample cause to formulate a reasonable suspicion that appellant had committed the crimes charged.

Appellant's second contention is that the trial judge abused his discretion by refusing to sever the charges arising from the King's Village Liquor store murder from the Stop ‘N Go robbery. Section 954 provides, in pertinent part:

“An accusatory pleading may charge two or more ... offenses connected ... in their commission, ... or two or more different offenses of the same class of crimes or offenses.... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses ... be tried separately ....”

The denial of a severance motion will not be disturbed on appeal unless an abuse of discretion is shown. (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.) Robbery charges may be consolidated because they are of the same class. (People v. Blalock (1965) 238 Cal.App.2d 209, 222, 47 Cal.Rptr. 604.)

Furthermore, the robbery charged in count III was properly joined with the robbery and felony murder charged in counts I and II because they contained a “common element of substantial importance.” (People v. Matson, supra, 13 Cal.3d at p. 39, 117 Cal.Rptr. 664, 528 P.2d 752.)

Since the three counts were properly joined pursuant to section 954, did the trial court prejudice the appellant in denying the motion to sever? A claim of prejudice is not enough. (People v. Pike (1962) 58 Cal.2d 70, 85, 22 Cal.Rptr. 664, 372 P.2d 656.) The similarity of the modus operandi of the crimes justifies a denial of the motion. Both incidents occurred at night. Both involved the same type of gun. In each instance, the assailant committed his crime when it appeared that he was alone in the store with the clerk. Both assailants carried small items to the cash register area before drawing a gun. A similarly described automobile with at least one other occupant was used in both escapes. Both crimes were committed within a block of each other. Admittedly, the modus operandi was not bizarre. However, bizarre behavior is not an essential element to the conclusion that a common thread or significant similarity connects various crimes.

Evidence of the Stop ‘N Go robbery would have been admissible in a separate trial in the King's Village Liquor store robbery under Evidence Code section 1101(b). (People v. Rance (1980) 106 Cal.App.3d 245, 250, 164 Cal.Rptr. 822; People v. Cramer (1967) 67 Cal.2d 126, 129-130, 60 Cal.Rptr. 230, 429 P.2d 582.) Therefore, considering all of the circumstances, we find no abuse of discretion by the trial court or prejudice to the appellant in the denial of the motion to sever.

Appellant's third contention is that as a minor he cannot be sentenced to life imprisonment without the possibility of parole since under section 190.5 he cannot be sentenced to death. He cites People v. Davis (1981) 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186 as controlling on this issue.

In People v. Davis, supra, 29 Cal.3d 814, 176 Cal.Rptr. 521, 633 P.2d 186, the Supreme Court reversed a sentence imposing life imprisonment without possibility of parole on a 16-year-old male convicted of the rape and first degree murder of a 13-year-old girl, and ordered that the sentence be reduced to life imprisonment, as the “only alternative sentence authorized by the applicable statute. (Former s 190.)” (29 Cal.3d at p. 832, 176 Cal.Rptr. 521, 633 P.2d 186.)

In Davis, the trial court had sentenced the minor to life imprisonment without possibility of parole because under section 190.5 he was exempt from the death penalty. The Supreme Court commenced its analysis of the propriety of the sentencing with the proposition that the imposition of a sentence for which there is no statutory authority is jurisdictional error. (29 Cal.3d at p. 827, fn. 5, 176 Cal.Rptr. 521, 633 P.2d 186.) The law in effect at the time of the sentencing was the amended death penalty statute enacted in 1977 following the decisions in Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 and Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101. As noted by the court in Davis, supra, 29 Cal.3d at page 830, 176 Cal.Rptr. 521, 633 P.2d 186:

“The urgency clause of that statute (Stats. 1977, ch. 317, s 26) reveals the Legislature's purpose: ‘The California Supreme Court has declared the existing death penalty law unconstitutional. This act remedies the constitutional infirmities found to be in existing law, and must take effect immediately in order to guarantee the public the protection inherent in an operative death penalty law.’ Significantly, the Legislature retained unchanged the language exempting minors from the death penalty (former s 190.5), and made not the slightest suggestion that it intended the new penalty to be imposed on minors as an alternative to an ordinary life sentence. Clearly, the Legislature enacted this statute not as a means of increasing the penalty applicable to minors convicted of murder, but solely as a method to ameliorate the unconstitutionally harsh effect of the former death penalty procedures applicable exclusively to adults.”

The court viewed the history of the statute as disclosing a specific and limited legislative intent, unrelated to any desire to impose harsher sanctions on minors. After considering various ambiguities concerning the legislation, the court concluded as follows: “Finally, if the Legislature had intentionally and substantially increased the maximum penalty that could lawfully be inflicted on minors, we would have expected it to express its purpose clearly and set out the appropriate procedures in detail. Instead, we review a statute unclear in its effect on the penalty applicable to minors, silent regarding appropriate procedures by which the new penalty would be imposed on them, and devoid of evidence of any legislative intent to depart from the status quo. Consequently, the ambiguity must be resolved in defendant's favor by finding no authority for charging minors with special circumstances.” (Davis, supra, at pp. 831-832, 176 Cal.Rptr. 521, 633 P.2d 186.) (Footnote omitted.) (Emphasis added.)

Appellant in this case was sentenced under a different law, to wit, Penal Code sections 190 et seq., as added by section 2 of the Initiative Measure officially titled “Murder.Penalty.Initiative Statute” adopted November 7, 1978.

In determining the intent of laws enacted by the initiative process, the ballot summary and arguments and analysis presented to the electorate in connection with the measure may be helpful. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246, 149 Cal.Rptr. 239, 583 P.2d 1281.) And as the Davis court summarized applicable rules of construction:

“In resolving the ambiguity, we are guided by well-settled principles of statutory interpretation. ‘(W)hen language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. (P) The defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ (In re Tartar (1959) 52 Cal.2d 250, 256-257 (339 P.2d 553) ...; see also People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 435 (155 Cal.Rptr. 704, 595 P.2d 139) ...; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 (87 Cal.Rptr. 481, 470 P.2d 617) ....) Furthermore, when interpreting a statute, if its provisions are unclear, its purpose is paramount: we ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’ (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 (335 P.2d 672) ...; see also Tripp v. Swoap (1976) 17 Cal.3d 671, 679 (131 Cal.Rptr. 789, 552 P.2d 749) ....) The statute should not be read literally if to do so would bring about a result inconsistent with the intent of the Legislature. (County of San Diego v. Muniz (1978) 22 Cal.3d 29, 36 (148 Cal.Rptr. 584, 583 P.2d 109) ...; Bruce v. Gregory (1967) 65 Cal.2d 666, 673-674 (56 Cal.Rptr. 265, 423 P.2d 193) ..., and cases cited.) Moreover, the statute should be construed as a whole to harmonize any arguably conflicting parts. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659 (147 Cal.Rptr. 359, 580 P.2d 1155) ...; Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558 (11 Cal.Rptr. 758, 360 P.2d 334) ....) Finally, ‘(W)e must, in applying the provision, adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubts as to the provision's constitutionality.’ (In re Kay (1970) 1 Cal.3d 930, 942 (83 Cal.Rptr. 686, 464 P.2d 142) ...; see also Department of Corrections v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 197, 207 (152 Cal.Rptr. 345, 589 P.2d 853) ..., and cases cited.)” (Davis, supra, 29 Cal.3d at pp. 828-829, 176 Cal.Rptr. 521, 633 P.2d 186.)

An examination of the initiative ballot summary, arguments and analysis (Ballot Pamphlet, Proposed Amendments to California Constitution with Argument to Voters, Gen. Elec. (Nov. 7, 1978), hereinafter referred to as Ballot Pamphlet) sets the current law in stark contrast to the 1977 statute involved in Davis.

Advocates of the initiative described the 1977 statute in the following terms:

“In August of 1977, when the public outcry for a capital punishment law became too loud to ignore, the anti-death penalty politicians used their influence to make sure that the death penalty law passed by the State Legislature was as weak and ineffective as possible.” (Ballot Pamphlet 34.)

This description of the 1977 statute is in accord with the conclusions of the Supreme Court that the legislative purpose in enacting the 1977 law was “solely as a method to ameliorate the unconstitutionally harsh effect of the former death penalty procedures ....” (Davis, supra, at p. 830, 176 Cal.Rptr. 521, 633 P.2d 186.) The stated purpose of the initiative, far from ameliorating the harsh effects of the former death penalty procedures, was to “give every Californian the protection of the nation's toughest, most effective death penalty law.” (Ballot Pamphlet 34.)

It appears that the intent of the initiative was to increase greatly the permissible scope of the death penalty in California and also to increase the severity of punishment meted out to those not sentenced to death. The Legislative Analyst described the intiative in the following terms:

“This proposition would: (1) increase the penalties for first and second degree murder, (2) expand the list of special circumstances requiring a sentence of either death or life imprisonment without the possibility of parole, and (3) revise existing law relating to mitigating or aggravating circumstances.” (Ballot Pamphlet 32.)

First degree murder became punishable by death, life imprisonment without possibility of parole and twenty-five years to life, eliminating the simple life sentence. Second degree murder became punishable by fifteen years to life as compared to five, six or seven years in prison. The intent of this initiative was to increase the severity of sentences for all those convicted of murder.

Appellant was convicted of first degree murder in that he killed Aloyszus Wieczorek while in the commission of a robbery. This conviction rises to the level of first degree murder because it was “committed in the perpetration of ... robbery” (s 189). In this case, as in all cases where the defendant is charged with murder in the course of a felony enumerated in section 189, it was necessary to prove that the defendant had committed the murder in the course of the enumerated felony-here robbery. Yet, section 190.2(a)(17) defining one of the special circumstances calling for a sentence of death or life without the possibility of parole states that, “The murder was committed while the defendant was engaged in ... the following felonies: ... (i) Robbery in violation of Section 211.” We conclude that there is no difference between the language in section 189 declaring murders in the course of robberies first degree murder and section 190.2(a)(17) declaring all robbery-murders to be special circumstances. Thus, any person convicted of robbery-murder as was defendant is also guilty of first degree murder with special circumstances.

The Davis court, interpreting the 1977 law, concluded that the law provided “no authority for charging minors with special circumstances.” Davis, supra, at 832, 176 Cal.Rptr. 521, 633 P.2d 186. This conclusion was reached because robbery-murder was only a special circumstance if the murder was “wilful, deliberate and premeditated” (former Pen.Code s 190.2(c)(3)). Such a conclusion is not possible under the initiative since it would preclude charging minors with robbery-murder. However, section 26 provides that children 14 years of age or older are deemed “persons capable of committing crimes.” Justice Mosk in People v. Lara (1967) 67 Cal.2d 365, 381, 62 Cal.Rptr. 586, 432 P.2d 202, stated that, “with respect to ... criminal acts of minors, the law extends no blanket presumption of incapacity. Rather, while the minor's immaturity will often result in his undergoing different methods of adjudication and treatment, it is simply one element, although an important one, to be weighed with many others in determining the issue of his liability. It is clear the Legislature intends that determination to be made on the particular facts of each case.” In People v. Lara, supra, the Supreme Court upheld the conviction of a minor, albeit over 18 years old, of first degree murder while in the commission of a robbery (stealing his victim's automobile in the victim's presence through force and fear).

We have no doubts that a minor can be convicted of first degree murder for a murder committed in the course of a robbery. The Legislature in 1975 altered Welfare and Institutions Code section 707 to facilitate the prosecution of minors 16 years of age and older by establishing that a “minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law” if he or she is charged with “(b)(1) Murder” or “(b)(3) Robbery while armed with a dangerous or deadly weapon” (Welf. & Inst. Code ss 707(c) and (b)(1) and (b)(3)). The legislative intent of Welfare and Institutions Code section 707 as revised seems clearly to promote “society's interest in self-preservation” (People v. Lara, supra, at 379, 62 Cal.Rptr. 586, 432 P.2d 202), in light of the disproportionate part of the national crime committed by youthful offenders. (People v. Lara, supra, at 379, fn. 6, 62 Cal.Rptr. 586, 432 P.2d 202.) We conclude that to hold a minor incapable of committing first degree murder while in the commission of a robbery would be directly contrary to Legislative intent and case authority.

Under the initiative, if the Davis rationale is applied, a minor could not be charged with a robbery murder since such a charge involves a special circumstance. At the most such a minor could be charged with second degree murder. In view of the clear intent of the initiative to give California “the nation's toughest ... death penalty law” (Ballot Pamphlet 34), and to “increase the penalties for first ... degree murder” (Ballot Pamphlet 32), such a result would be inconsistent with said intention.

It is true that there is no special reference in the initiative to the punishment of minors. However, there is no special exclusion of minors from the provisions of the initiative. Therefore, it is logical to interpret the initiative as intending that the general body of law applicable to minors continues to apply. Section 190.5 precludes the imposition of the death penalty on a minor. Section 26 provides that a minor over 14 is capable of committing a crime. It follows that a minor is subject to all of the provisions of the initiative except the specific death penalty exclusion in section 190.5.

By way of summary, we see as the significant distinction between this case and Davis, supra, the following:

In Davis, Justice Mosk, writing for the majority, found a statute with ambiguities, adopted by the Legislature as an urgency measure to remedy constitutional infirmities in the existing law and with no clearly indicated intent to increase the penalty for murder.

In the instant case we find an initiative measure adopted by the people of California intended to increase penalties for murder, expand the number of circumstances under which the death penalty and life imprisonment without the possibility of parole are to be imposed and to increase the severity of the law with respect to aggravating and mitigating circumstances.

Appellant's claim that he was wrongfully denied a penalty hearing is without merit. Sections 190.2(c), 190.3 and 190.4 do not apply to him since he is a minor. Under section 190.5, appellant cannot be sentenced to death. Under section 190.2(a)(17)(i), he must be sentenced to either death or imprisonment for life without possibility of parole. Under these circumstances appellant can only be sentenced to life imprisonment without possibility of parole. Thus, the trial court acted properly in sentencing appellant to “the only alternative sentence authorized by the applicable statute.” (Davis, supra, 29 Cal.3d at p. 832, 176 Cal.Rptr. 521, 633 P.2d 186.) A penalty hearing in such instance would “be unnecessary, inappropriate and a palpable waste of judicial resources.” (Id. at p. 831, 176 Cal.Rptr. 521, 633 P.2d 186.)

Although the court held in Davis that imposition of life imprisonment without parole was not allowed by the 1977 statute applicable in that case, it appears here, as it did to the minority in Davis, that “... the statutory scheme before us clearly authorized the imposition of life imprisonment without parole in the present case, subject to the Governor's power to grant a pardon or commutation (Cal.Const., art. V, s 8; Pen.Code, s 4800 et seq.) in an appropriate case.” (Id. at p. 835, 176 Cal.Rptr. 521, 633 P.2d 186.)

The judgment is affirmed.



1.  Unless otherwise indicated all sections referred to herein are from the Penal Code.

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

ROTH, P. J., and COMPTON, J., concur.