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

PEOPLE of the State of California, Plaintiff and Respondent, v. Fernando A. JACKSON, Defendant and Appellant.

Cr. 21694.

Decided: May 24, 1982

William Flenniken, Jr., A Professional Corp., William Flenniken, Jr., San Francisco (Court-appointed), for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Robert R. Granucci, Blair W. Hoffman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

An information filed December 19, 1978, charged appellant, Fernando A. Jackson, with attempted robbery (Pen.Code, §§ 211/664) 1 , Count I;  possession of a concealable firearm by a felon (§ 12021, subd. (a)), Count II;  robbery (§ 211), Count III;  and false imprisonment (§§ 236–237), Count IV.   Counts I and III charged appellant with use of a gun (§§ 1203.06, 12022.5).   He was also charged with one prior felony conviction.   Appellant pleaded not guilty and denied the allegations.   After delays due to appellant's absence from the jurisdiction, jury trial began on July 10, 1980.   Appellant admitted the prior conviction.   Count I was dismissed.   On July 17, the jury found appellant guilty of the remaining charges and also found the use allegation to be true.   Including an earlier Los Angeles matter, he was sentenced on July 29, 1980, to state prison for a total of 111/313 years.   This sentence was merged into a life term imposed in another Los Angeles matter.


On November 24, 1978, an armed robbery occurred at the Winery restaurant in Palo Alto.   At approximately 6 p. m., two black men entered the Winery and sat at a table in the bar area.   They ordered drinks.   Both men were wearing light colored suits and hats, which was unusual for the time and place, and they were therefore noticed by the restaurant employees.   Around 6:20 p. m., the two men got up, displayed revolvers and ordered everyone to “get down.”   One of the suspects then removed the contents of a cash register, and both men fled.

The descriptions of the two men were detailed.   Both were black.   One appeared to be in his early 20's, 5 feet 8 inches, 145 pounds, slender build, black moustache, and wearing a powder blue suit with a matching hat.   The other was described as in his late 20's, 5 feet 11 inches to 6 feet 2 inches, 169 pounds, thin build, neatly trimmed facial hair and wearing a three-piece beige suit and matching hat.   Both men were armed.

The next day, an article appeared in the local newspaper describing the robbery and the culprits.   A court clerk for the Palo Alto Municipal Court contacted the police.   She stated that she had seen two men in her courtroom the morning before.   Their dress matched the description given in the newspaper.   One of the men, Fernando Jackson, had appeared to pay a $70 fine.

Officer Roger Goodyear of the Palo Alto Police Department, a qualified latent fingerprint examiner, found prints on the drinking glasses used by the robbers.   One of the prints matched Jackson's;  another matched one Lindsey Regor's.   Regor was also known as “Zeek.”

A search warrant was executed for defendant's apartment in Los Angeles.   Seized from the apartment was a man's suit, apparently light blue.   Also seized were .38 caliber bullets.   Appellant was arrested and given his constitutional rights.   Thereafter, he denied the robbery, stated that the last time he was in the Winery was five or six months ago, and denied knowing anyone named “Zeek.”

At trial, two employees testified that appellant “resembled” the robber;  both remembered the three-piece suit.   Another witness recalled the suit but testified that he could no longer identify the robber since the act had occurred some time ago.   At the preliminary hearing, however, he did make a positive identification.

Appellant represented himself at trial and testified in his own behalf.   He said he was at the Winery the evening of the robbery and left about 6:00–6:30 p. m.   He knew nothing of the robbery.   That night, he did wear the suit seized from his apartment and did drink from glasses at the restaurant.

Appellant denied owning a revolver.   He denied that he said anything about someone named “Zeek.”   He admitted he did know Lindsey Regor but claimed not to know his nickname was “Zeek.”   On cross-examination, appellant admitted a yellow sheet of paper was found in his home with the name “Zeek” written in front of Lindsey Regor.   He also claimed that he told officers he was at the Winery on November 24, 1978.

Max Adkisson, a jail cellmate of appellant's, had been subpoenaed by appellant.   Appellant allegedly had asked Adkisson to lie for him at trial.   Adkisson tore up the subpoena but appeared anyway.   When he told appellant he would tell the truth, appellant excused him.   Appellant denied that he asked Adkisson to lie for him.

Appellant makes five contentions on appeal which we will consider in the order set forth in the briefs.

I. Appellant's contention that he was denied access to the courts, effective pro. per. representation and a fair trial by reason of the failure of the Santa Clara County Sheriff's office to provide an adequate law library and its imposition of unreasonable limitations on the use of such facilities.

On May 20, 1980, appellant made an oral motion to discharge his appointed attorney and proceed in pro. per.   The court granted the motion after determining that appellant was competent to represent himself.   On June 23, 1980, appellant filed a motion for dismissal due to ineffective aid of counsel and denial of access to the court.   The motion recounted at some length appellant's claim that the jail law library was inadequate and that his access to legal materials was restricted.   He also protested the refusal of the sheriff to transfer him to a single inmate cell so he could prepare his defense uninterrupted by noise in the jail.

The motion was calendared along with three other motions by appellant on July 7, 1980.   As to the motion in question the court said that it was in the nature of a habeas corpus proceeding and should be served on the sheriff.   The matter was put off calendar, the court explaining to appellant that it was “without any prejudice to you whatsoever to file that document properly against the sheriff.”   Habeas corpus was never brought by appellant nor was the sheriff ever served with the moving papers.

 Appellant argues that he was not required to proceed by habeas corpus and that his motion properly raised the issues.   We agree that the matter could have proceeded either by a habeas corpus proceeding or by motion.   However, as explained to appellant, the sheriff had to be served.   The motion was a complaint against the sheriff asking him to supplement the jail law library (in a manner not actually specified by appellant) and to take other affirmative steps to change county jail procedures.   Any order by the court requiring the sheriff to do something would have been invalid without notice.   In re Brindle (1979) 91 Cal.App.3d 660, 674, 154 Cal.Rptr. 563.   The court acted properly in requiring appellant to serve the sheriff.   Since he chose not to do so the merits of the motion are not before us.

We will note, however, that court procedure and trials were not new to appellant.   He was articulate and well able to handle himself during the proceedings.   He used legal authorities extensively and made numerous motions, some successful, some unsuccessful.   The record shows nothing ineffective about his self-representation.

II. Disclosure of appellant's prior conviction.

Appellant next claims that the trial court committed reversible error by permitting the prosecution to prove a prior felony conviction.   Appellant admitted the prior conviction before the trial;  nonetheless, the court allowed the prosecution to introduce into evidence a certified copy of the prior judgment.   Appellant argues that such introduction prejudiced the jury, denying him a fair trial.

 Appellant states that at the time of trial, existing authorities split on the question of proof of a prior conviction after an admission by the defendant, citing People v. Sherren (1979) 89 Cal.App.3d 752, 152 Cal.Rptr. 828, and People v. Piper (1980) 103 Cal.App.3d 102, 162 Cal.Rptr. 833.   The California Supreme Court resolved the split in these cases in People v. Hall (1980) 28 Cal.3d 143, 167 Cal.Rptr. 844, 616 P.2d 826, holding that in a section 12021 trial, the prosecution must accept a defendant's admission of a prior and the jury must not hear of it.   The rationale behind the opinion was that the nature of the prior felony is irrelevant in a section 12021 trial.   “[O]nly if the nature and the fact of the prior conviction are barred will a defendant cease to be ‘unfairly deprived ․ of the protection which the court had properly accorded him ․ under People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 ․’ [citing People v. Morrison (1977) 67 Cal.App.3d 425, 428, 136 Cal.Rptr. 650].”  (People v. Hall, supra, 28 Cal.3d at p. 156, 167 Cal.Rptr. 844, 616 P.2d 826.)   On the basis of this holding appellant urges error.   We agree.

However, considering the evidence in the record, it cannot be said that the prejudicial impact of this error warrants a reversal.   Considering the contradictions in appellant's testimony, the evidence of appellant's effort to induce perjury, and the amount of positive identification of appellant as one of the robbers, it cannot be said with reasonable probability that the verdict would be different without the error (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Hall, supra, 28 Cal.3d at p. 158, 167 Cal.Rptr. 844, 616 P.2d 826).

III. Right to speedy trial.

The information in this case was filed in December of 1978.   After a number of continuances at the request of appellant, he failed to appear in court or maintain contact with his counsel.   A bench warrant was issued for his arrest on April 3, 1979.   In September 1979, bail was set on the bench warrant at $10,000.

Sometime in December 1979, appellant filed a document entitled “Notice of Motion and Motion for Change of Venue.”   This document informed the court that appellant was involved in criminal proceedings in Los Angeles and wished the Santa Clara County matter transferred to Los Angeles.   In response, the Santa Clara Superior Court issued an order to produce appellant.   Thereafter, that county was advised that appellant was under a state prison commitment and would not be released to Santa Clara County until after his transfer to Chino State Prison.

On or about January 18, 1980, the District Attorney's office of Santa Clara County notified the Chino authorities of appellant's request for a change of venue.   That request was being treated as a section 1381 request.   Santa Clara County requested immediate notification of appellant's arrival.   Shortly thereafter, a similar request was sent to the Los Angeles District Attorney's office, and to appellant.   It appears from the record that the delay in appellant's arrival at Chino was due to another felony trial involving appellant.   Finally, in late March, an order to produce defendant from Chino was issued by the Santa Clara County Superior Court.   Appellant first appeared in court on May 8, 1980.   Shortly thereafter, the motion to dismiss was filed and denied.

On appeal, appellant argues that the denial of his motion violated both his due process right to a speedy trial and his right under section 1381.   The prejudice appellant claims to have suffered is that he could not recall the events of the date in question, November 24, 1978.

 In determining whether there was a denial of the right to a speedy trial, we consider the reason for the delay, the length of the delay and appellant's assertion of his right in addition to any prejudice suffered by him.  (Tullis v. Superior Court (1974) 41 Cal.App.3d 387, 392–393, 115 Cal.Rptr. 177.)   The reason for the delay in this case was appellant's failure to appear, his flight from the jurisdiction and involvement in other felony trials.   He cannot now complain of the lack of a speedy trial when he himself prevented it.   There is no showing that respondent was dilatory.   Further, any prejudice was minimal and cannot justify dismissal.   Where evidence is strong enough to preclude dangers of misidentification, a defendant's bare statement “I can't recall” cannot be considered more than minimal prejudice when weighed against justification for delay.  (People v. Vanderburg (1973) 32 Cal.App.3d 526, 533, 108 Cal.Rptr. 104.)   The record in this case contains evidence strong enough to preclude the dangers of misidentification.   The discrepancies concerning appellant's acquaintance with “Zeek” and the testimony of appellant's cellmate are two examples.

 Section 1381 provides that whenever a defendant has been convicted of a felony “․ and has been sentenced to and has entered upon a term of imprisonment in a state prison or ․ a county jail for a period of more than 90 days ․”, the district attorney of the county in which charges are pending against that defendant must bring the matter to trial within 90 days.   This time limitation is conditioned upon the defendant sending proper written notice to the district attorney (§ 1381;  emphasis added).

Appellant did not enter Chino State Prison until late March of 1980.   It was at that time that notice of a desire to be brought to trial would be proper, not while prosecution was actively in progress in another county.   As the efforts of the Santa Clara County District Attorney's office demonstrate, compelling production of a defendant is impossible when engaged in trial elsewhere.   Section 1381 does not contemplate and does not apply to such a situation.  (People v. Brusell (1980) 108 Cal.App.3d 712, 717, 166 Cal.Rptr. 690;  People v. Mahan (1980) 111 Cal.App.3d 28, 33, 168 Cal.Rptr. 428.)   Appellant's motion for dismissal was properly denied.

IV. Dual use of prior conviction under Penal Code Section 667.5.

 Appellant complains that his prior conviction was used for the finding of guilt under section 12021 and for the enhancement for prior conviction provided by section 667.5.   He alleges this to be a prohibited dual use of facts, citing People v. Edwards (1976) 18 Cal.3d 796, 800, 135 Cal.Rptr. 411, 557 P.2d 995;  People v. Wilks (1978) 21 Cal.3d 460, 469–470, 146 Cal.Rptr. 364, 578 P.2d 1369;  People v. Sherren, supra, 89 Cal.App.3d at p. 764, 152 Cal.Rptr. 828;  People v. Perry (1974) 42 Cal.App.3d 451, 457–460, 116 Cal.Rptr. 853;  and People v. Davis (1980) 103 Cal.App.3d 270, 277, 163 Cal.Rptr. 22.

Although nothing in the statute expressly excludes the dual use of facts in this area, no such dual use occurred in this case.   In People v. Gaines (1980) 112 Cal.App.3d 508, 515–516, 169 Cal.Rptr. 381, we dealt with the same issue.   There we analyzed the statutory language and concluded that section 12021 involves the conduct of those persons who have been convicted of any felony while section 667.5 addresses itself to that class of prior felonies which have warranted imprisonment.   Different facts underlie the section 12021 conviction and the section 667.5 enhancement.   The enhancement was therefore proper.

People v. Edwards, supra, 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, and People v. Wilks, supra, 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, are distinguishable in that they were both decided under former section 3024 and the Indeterminate Sentencing Law.   Neither People v. Davis, supra, 103 Cal.App.3d 270, 163 Cal.Rptr. 22, People v. Sherren, supra, 89 Cal.App.3d 752, 152 Cal.Rptr. 828, nor People v. Perry, supra, 42 Cal.App.3d 451, 116 Cal.Rptr. 853, deal with the issue at hand.

V. Consecutive term for prior gun use enhancement.

Appellant was sentenced to state prison for a term of 111/313 years.   This sentence included an earlier robbery conviction in Los Angeles.   Following section 1170.1, the trial court imposed a principal term of five years, the upper term for robbery.   That term was enhanced under section 12022.5 for the firearm use violation.   The subordinate term for additional offenses was one-third of the middle term.   The court also enhanced the sentence for this violation since the prior Los Angeles robbery was treated as a “violent felony” (§ 1170.1, subd. (a)).  Appellant claims error as to the second enhancement.

 Section 1170.1 refers to section 667.5, subdivision (c) for a definition of “violent felony.”  Section 667.5, subdivision (c), enumerates seven specific types of felonies considered violent, as well as a broader eighth section.2  Controversy existed over the Legislature's intention to include the eighth section for section 1170.1 purposes.   The Supreme Court in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, said this was not the intention of the Legislature and set aside an enhancement sentence in circumstances identical to this case.   Appellant relies on this authority.

The Legislature disagreed with the Supreme Court and immediately changed the part of section 1170.1, which defines “violent felony.”   Such a felony is now defined by section 667.5, subdivision (c), and includes “those offenses described in paragraph (8) of subdivision (c) of Section 667.5” (Stats.1980, ch. 132, § 2, p. 463, May 29, 1980).   The People claim this statute must control.

Recent appellate cases have found Harvey controlling, despite the legislative mandate, under the doctrines of stare decisis, ex post facto and prospective application (People v. Young (1981) 120 Cal.App.3d 683, 175 Cal.Rptr. 1;  People v. Savala (1981) 116 Cal.App.3d 41, 171 Cal.Rptr. 882;  People v. Flores (1981) 115 Cal.App.3d 67, 171 Cal.Rptr. 365).   We agree and although sentencing occurred in the present case on July 29, 1980, after the amendment to section 1170.1 was effective, the offenses were committed at a time when the Harvey decision interpreted the statute.   As we found in People v. Childs (1980) 112 Cal.App.3d 374, 390, 169 Cal.Rptr. 183, the Harvey decision must apply to offenses committed prior to May 29, 1980.   We therefore order appellant's eight-month enhancement for the prior section 12022.5 finding stricken from the judgment and sentence.

In all other respects the judgment is affirmed.



1.   Unless otherwise indicated, all further statutory references are to the Penal Code.

2.   Section 667.5, subdivision (c)(8):  “Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.”

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

ROUSE, Acting P. J., and MILLER, J., concur.

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