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

The PEOPLE, Plaintiff and Respondent, v. Gary Wayne SMITH, Defendant and Appellant.

Crim. 13214.

Decided: July 23, 1982

Quin A. Denvir, State Public Defender, under appointment by the Court of Appeal, Handy Horiye, Deputy State Public Defender, and Palma Hooper, Panel Atty., San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Bernard A. Delaney, Jr., and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

Gary Wayne Smith appeals a judgment entered on jury verdicts convicting him of two counts of robbery (Pen.Code, § 211) 1 and one count of attempted robbery (§ 664).   The jury also found Smith personally used a dangerous or deadly weapon in commission of one robbery (§ 12022, subd. (b)) and personally inflicted great bodily injury (§§ 12022.7 and 1203.075, subd. (a)(3)).   He claims juror misconduct, inadequate assistance of counsel and sentencing error require reversal of the judgment.   Because we have concluded his contentions are without merit, we affirm the judgment.


 The October 23 Robbery and Attempted Robbery

Shortly before midnight on October 23, 1980 Benedict Woitas and Susan Kibbey left a saloon and were walking to Woitas' car in the parking lot when they were approached by Smith and asked if they would like to buy drugs.   They refused and proceeded to Woitas' car.   Clyde Allen asked Woitas if he wanted to buy some marijuana.   Woitas again refused.   Allen put his hand in his jacket, telling Woitas he had a gun.   He told Smith, who was approaching the passenger side of the car where Kibbey was seated, to “get the lady's money.”   Allen took a five dollar bill and four one dollar bills from Woitas and tried to take his wrist watch and a gold chain around his neck.

When a police car pulled into the parking lot, Allen ran away.   Smith walked past the police car.   Officer Foster told him to stop but he continued walking, saying “I'm not a part of that.”   Smith disappeared around the corner of the building.   Foster caught Allen and arrested him.   A five dollar bill and four one dollar bills were found in Allen's shoes.

Four days later, Woitas picked out Smith's picture in a photographic lineup, stating “This could be him.”   Kibbey could not identify either Smith or Allen from the photographic lineup.   Both she and Woitas recognized Smith while he was walking with two other black males in the hallway before Allen's preliminary hearing.   Woitas, Kibbey and Foster identified Smith at trial.

 The November 6, 1980 Robbery

Yellow Cab number 814 was stolen at about 9:15 p. m. on November 6, 1980, while parked in front of the Oasis Bar at 32nd and Market Streets in San Diego.   About 45 minutes later, the cab approached Marcel Celis, who was waiting for a cab in front of the Hanalei Hotel.   One of the two black males in the front seat asked Celis if he needed a taxi.   Celis got into the cab and asked to be taken to the airport.

The driver, Smith, stopped the cab on Kettner Boulevard, saying, “This is it.   Get out.”   As Celis tried to get out of the cab, a heavy object hit his forehead.   He fell to the ground.   Both men hit and kicked him 30 to 40 times.   He suffered a broken clavicle, cracked ribs, bruises on his body, and cuts on his face.   Celis handed Smith his money clip containing $340.   The men also took his notebook, a watch and three $100 traveler's checks.

Early the next morning police saw Yellow Cab number 814.   There was one person in the cab.   When they stopped the cab and ordered the driver, Smith, to get out he asked why they stopped him.   He also stated the cab was his.   In the cab, police found Celis' credit card and notebook.   During a search at the jail, Celis' watch was found in Smith's right sock.

Celis identified Smith in a photographic lineup as the driver of the cab and as one of his assailants.   He also identified Smith at the preliminary hearing and at trial.


 Jury Misconduct

 On the third day of trial Raymond Dye, a juror, informed the court he had told the other jurors that when he walked down the hall to the restroom on the preceding day Smith was also walking down the hall almost next to him.   No one else was in that area of the hallway or in the restroom.   Five or six of the jurors indicated to Dye that walking with Smith would have bothered them if no other people were nearby.   The other jurors wanted Dye to mention the incident to the court.

The trial judge asked Dye whether this experience or the conversation he had with the other jurors would prevent him from giving Smith a fair trial.   Dye said it would not.   The court also asked Dye whether he heard anyone else say anything indicating “[T]hey could not be fair to him?”   Dye replied, “No, No, No.   That's no problem at all.   There was no discussion about that whatsoever.”   The court, after instructing Dye not to talk with the other jurors about the matter, asked whether either counsel saw a need for any further action.   When both the district attorney and defense counsel said they saw no such need, the court told defense counsel to call his first witness.

 Smith claims juror misconduct denied him a trial by unbiased jurors because the jurors here disregarded the court's admonition they must not discuss the case with each other or form or express any opinion about the case until it was finally submitted to them.  (See Pen.Code, § 1122.)   “[J]ury misconduct raises a presumption of prejudice;  and unless the prosecution rebuts that presumption by proof that no prejudice actually resulted, the defendant is entitled to a new trial.”  (People v. Pierce (1979) 24 Cal.3d 199, 207, 155 Cal.Rptr. 657, 595 P.2d 91.)

Defense counsel here, however, did not request substitution of jurors or move for a mistrial.   He also did not ask the court to question the other jurors.   When the court asked counsel whether he saw the need for further action, he said “No.”   Counsel in effect waived any right Smith had to challenge the makeup of the jury.  (Cf. People v. Federico (1982) 127 Cal.App.3d 20, 179 Cal.Rptr. 315;  People v. McIntyre (1981) 115 Cal.App.3d 899, 176 Cal.Rptr. 3.)

Substantial evidence supports the trial court's conclusion the jurors could give Smith a fair trial.   Dye said he would not let the incident influence him and had heard nothing indicating the other jurors would be unable to do the same.   In electing not to proceed on its own motion to interrogate the other jurors, the court apparently determined that further inquiry would exacerbate an otherwise innocuous incident.

Smith also points to another incident which may have prejudiced the jury.   During jury selection, police loudly questioned Larry Eirven, Smith's friend, whom the jury panel had seen with Smith during voir dire, about his parole status.   Members of the jury panel were in the hallway during this incident.   Trial counsel described the incident to the court but did not move for a mistrial or ask the court to take any other action.   Again the court did not err by proceeding with the trial.

 Incompetency of Trial Counsel

 Smith points to three instances he claims deprived him of adequate assistance of counsel:  failure to object to the photographic lineup from which Celis identified him, failure to argue against the People's motion to consolidate the two robbery charges, and an inadequate closing argument.   Smith has the burden of proving inadequate assistance of trial counsel.  (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   He “[m]ust show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.   In addition, appellant must establish that counsel's acts or omissions resulted in withdrawal of a potentially meritorious defense.”  (Ibid.)

 With respect to the photographic lineup, Smith says his photograph was impermissibly suggestive in that it was the only one of the five displayed to Celis in which the subject wore dark clothing and a leather jacket.   Celis testified one of the black males who robbed and beat him wore a leather jacket.

Trial counsel told the court before trial he did not plan to make a motion to suppress any of the identifications.   During argument to the jury, counsel repeatedly stressed Celis did not have a clear view of Smith's face at any time during the ride in the car or during the robbery.   Counsel argued Celis saw only the back of the driver's head and his profile during the cab ride and could not clearly see the face of his assailant, who bent over him with the light behind his head during the attack.   Counsel emphasized the lighting was poor and shadows obscured Celis' view.   In addition, after the assailant struck him, Celis was stunned and blood from the head wound blinded him.

Counsel may arguably have prevailed on a motion to suppress the identification Celis made from the photographic lineup in light of the fact police had Smith in custody when the photo was taken and could have arranged for a photo without the leather jacket.   We have examined Smith's clothing in People's exhibit 15, the photographic lineup at issue and have concluded his photograph is not noticeably different from that of the four other subjects.   Only upon closest inspection is it possible to see he is wearing a jacket as opposed to a dark open-collared shirt.   We conclude counsel's tactical decision to attack not only the identification based on the photographic lineup but also Celis' diminished ability to identify Smith based on circumstances discussed above does not denote incompetency under the standards set forth in Pope.

 Smith also contends trial counsel's failure to argue against or submit points and authorities in opposition to the People's motion to consolidate trial of all charges constituted inadequate assistance of counsel.

Section 954 specifies the People “may charge two or more different offenses ․ of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.”   Here, the People filed two informations on the same day;  the first charged Smith with the robbery of Woitas and attempted robbery of Kibbey;  the second charged him with robbing Celis.

The court properly consolidated trial of these charges because they are of the same class (People v. Blalock (1965) 238 Cal.App.2d 209, 222, 47 Cal.Rptr. 604), unless failure to try the charges separately constituted an abuse of discretion.  (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135, 172 Cal.Rptr. 86.)   If the People initially combined all charges in a single information and Smith made a motion to sever, the court's function would have been to weigh the probative value of joinder against the prejudicial effect of admitting evidence of the crimes against Woitas and Kibbey in the trial of the charge Smith robbed Celis and vice versa.  (Id., at p. 139, 172 Cal.Rptr. 86 (applying the rule established in People v. Matson (1974) 13 Cal.3d 35, 528 P.2d 752).)   One factor in the weighing process is the beneficial results of joinder.  (Coleman v. Superior Court, supra, 116 Cal.App.3d at p. 139, 172 Cal.Rptr. 86.)   Defendant must make a stronger showing of prejudice than he is required to make to exclude evidence of other crimes (Evid.Code, § 1101) in a severed trial.  (Coleman v. Superior Court, supra, at p. 139, 172 Cal.Rptr. 86.)

Perhaps argument against the motion to consolidate may have persuaded the trial court evidence pertaining to the Celis robbery was not admissible as to trial of the charge involving Woitas and Kibbey.   In light of the fact admissibility of evidence was not the only factor before the trial court, however, we conclude Smith has not established counsel's failure to more vigorously oppose consolidation deprived him of a potentially meritorious defense.

 Smith's final claim counsel inadequately represented him at trial focuses on the closing argument.   He says counsel in effect argued the case against him.   Whether counsel might have provided a stronger defense if he had not included references to the less probable elements of Smith's testimony and his prior conviction for perjury is certainly debatable.   But in any event, the evidence against Smith was strong.   Eyewitnesses—victims and a police officer—identified him.   Our function in assessing a claim of incompetency of counsel is not to determine from a post-trial vantage point whether counsel could have made a better argument on behalf of his client.   Here, Smith has not met his burden of showing counsel's argument resulted in withdrawal of a potentially meritorious defense.

 Sentencing Error

The court sentenced Smith to 12 years:  a five year upper term for robbery;  three years for the great bodily injury (GBI) enhancement (§ 12022.7);  one year for using a dangerous weapon (§ 12022, subd. (b)) and three years for the prior prison term (§ 667.5, subd. (a)).

 Smith contends, and the People agree, the court erred in using the same fact—great violence and bodily harm—to impose the upper term and the GBI enhancement.   A fact used to impose an upper term may not be used to enhance a sentence.  (§ 1170, subd. (b);  rule 441, subd. (b)).

In selecting the upper term for the robbery, the court stated it found these circumstances in aggravation:

“[T]he crime involved great violence and great bodily harm, a high degree of cruelty, viciousness and callousness.   In the manner in which Mr. Celis was picked up thinking that he was in a taxicab, two men in this taxicab, and then stopped alongside a dark street, while the victim was particularly vulnerable under Rule 421(A)(B).   The planning of the crime had to include premeditation;  Rule 421(A)(8) applies.   The crime involves the taking of some money.   Whether it is great monetary value may be questionable, but certainly some money was taken.   Certainly the defendant took advantage of a position of trust;  that is, Mr. Celis thought he was a taxi driver, thought he was in safe hands.   The defendant has engaged in a pattern of violent conduct which indicates a serious danger to society;  Rule 421(B)(1).   The defendant's prior record is extensive;  Rule 421(B)(2).”

The court also stated it found no mitigating factors.

We conclude the error in making dual use of a fact in selecting the upper term and enhancing Smith's sentence was harmless.   If the court had not considered great violence and bodily harm, it is not reasonably probable it would have selected a different base term.  (People v. Dozier (1979) 90 Cal.App.3d 174, 153 Cal.Rptr. 53.)

 Smith also asserts that under the facts of his case, the imposition of both the use enhancement (§ 12022, subd. (b)) and the GBI enhancement was improper.   He argues that although section 1170.1, subdivision (d) 2 allows both enhancements where the offense is robbery, the proper interpretation of that section does not permit it here.   He bases his argument upon the rule that where legislative intent is ambiguous, a statute must be interpreted most favorably to the defendant.  (See People v. Colver (1980) 107 Cal.App.3d 277, 285, 165 Cal.Rptr. 614.)   He explains that because the Legislature may have intended the definition of “weapons” under section 1170.1, subdivision (d) be restricted to objects which are “weapons” in the ordinary sense in order to punish those persons who use such objects regardless of the physical consequences of that use, an ambiguity arises in defining “weapon” when it is merely a shoe worn by the assailant.   He contends, therefore, we must strike the use enhancement.

Counsel's theoretical argument raises two difficult issues.

The first involves the apparent irrationality of a penal system which requires an additional one year prison sentence for robbery under circumstances where the victim is not injured, and the defendant is wearing customary clothing, where the facts of the robbery are sufficient to establish the item of clothing, e.g., a sweater or tie, is displayed in an intentionally menacing manner (see CALJIC 17.16) 3 and is theoretically capable of causing great bodily injury.   For example, a tie or sweater can be used to choke the victim.   In effect, by including all objects including ordinary items of clothing which are potentially capable of inflicting great bodily injury, the Legislature has created an all-inclusive class rather than a limited subset of felons who should be punished more severely because of weapon use.

The second problem relates to the principle underlying section 654 prohibiting double punishment for the same act.   That problem arises under circumstances such as those here where the defendant wearing a typical pair of canvas shoes actually inflicts great bodily injury upon his victim.   The specific conundrum is the degree to which the item of clothing must contribute to the injuries in order for a use of a dangerous weapon enhancement to be imposed.   Does capable of causing great bodily injury mean, for example, the shoes must have been the material cause of the injuries?   Or is it sufficient that but for the use of the shoes, the identical injuries would not have been sustained?

As provocative as these issues may be, we have concluded their general resolution is unnecessary in the factual context of this case.

 Smith concedes it is a factual question whether a shod foot may constitute a dangerous or deadly weapon by reason of its use.  (People v. Graham (1969) 71 Cal.2d 303, 327–328, 78 Cal.Rptr. 217, 455 P.2d 153.)   He admits the finding that “shod feet” was a weapon under section 12022, subdivision (b) was supported by the evidence.  (AOB, p. 41.)   Therefore, the question he poses on the cause and effect relationship between the object used and the injuries which the object is capable of inflicting need not be addressed.   Our conclusion on this issue, however, should not be construed as our total approval of CALJIC 17.16.  (Cf. People v. James (1978) 88 Cal.App.3d 150, 160, 151 Cal.Rptr. 354.)   We believe, in a case where the victim sustains great bodily injury through the combined use of force from the leg and foot in conjunction with shoes, the jury should be told that the object, the shoes, must be a material cause of the injuries sustained.

We are not in general disagreement with Smith's other argument that the Legislature intended increased punishment for weapon use.   It is also reasonable to assume the Legislature contemplated increased punishment would be imposed where the defendant used an object that customarily would be viewed as a “deadly” or “dangerous” weapon.   However, because it appears the Legislature was aware of the limiting effect of its definition of “weapon” it amended the statute in 1977 by adding subdivision (b) to section 12022 and by deleting the definition of the term “deadly weapon.”  (Stats.1977, ch. 165, § 91.)   Thus contrary to what Smith asserts, the Legislature broadened the class of objects which could fall within the provisions of section 12022.   Accordingly, here where Smith concedes the shoes were the cause of the great bodily injuries, the jury had sufficient empirical data to establish the shoes were capable of causing great bodily injury within the meaning of the statute.   Moreover, in light of the nature and extent of the injuries inflicted, this is clearly not a case where any criticism can possibly be levied against the district attorney for overcharging on the ground asserted by Smith that the definition of “weapon” is theoretically overinclusive.


Judgment affirmed.


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

2.   Section 1170.1, subdivision (d) provides:“When two or more enhancements under Sections 12022, 12022.5, and 12022.7 may be imposed for any single offense, only the greatest enhancement shall apply;  however, in cases of robbery, rape or burglary, or attempted robbery, rape or burglary the court may impose both (1) one enhancement for weapons as provided in either Section 12022 or 12022.5 and (2) an enhancement for great bodily injury as provided in Section 12022.7.”

3.   CALJIC 17.16 (1977 Revision):  “FINDING IF DEFENDANT PERSONALLY USEDA DEADLY WEAPON IN COMMISSIONOF OFFENSE“It is charged in [Count[s] _] that in the [attempted] commission of the crime therein described, the defendant[s] _ personally used a deadly or dangerous weapon.“A deadly or dangerous weapon means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death.“The term ‘used a deadly or dangerous weapon,’ as used in this instruction, means to display such a weapon in a[n intentionally] menacing manner or intentionally to strike or hit a human being with it.“If you find such defendant[s] guilty of the crime[s] thus charged, it then will be your duty to determine whether or not such defendant[s] personally used a deadly or dangerous weapon in the [attempted] commission of such crime[s].“Such defendant[s] may be found to have personally used a deadly or dangerous weapon at the time of the [attempted] commission of the crime[s] charged only if the proof shows beyond a reasonable doubt that such defendant[s] personally used such a weapon at such time.“You will include a finding on that question in your verdict, using a form that will be supplied for that purpose.”

WIENER, Associate Justice.

BROWN, P. J., and BORUNDA, J.**, concur.

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