PEOPLE v. ADAMS

Reset A A Font size: Print

Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Mark ADAMS, Defendant and Appellant.

Cr. 6435.

Decided: September 05, 1984

Quin Denvir, Former State Public Defender, and Frank O. Bell, Jr., State Public Defender, under appointments by the Court of Appeal, Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., James T. McNally and Ruth M. Saavedra, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND.

This is an appeal from a conviction for one count of murder, two counts of attempted murder, three counts of attempted robbery and five counts of robbery.   Eleven gun use allegations were found true pursuant to Penal Code section 12022.5.1

During August of 1979, there were four robberies or attempted robberies in four different parks in the Modesto area.   Only three of these incidents resulted in offenses charged against the defendant.   In each case, there were two to three assailants, one of which was armed with a rifle.   During the last of these robberies, two victims were shot;  one, a 16-year-old boy, died of head injuries.

The primary factual dispute arises out of defendant's testimony and the testimony of defendant's two alleged accomplices.   One accomplice testified under a grant of immunity, the other as a result of a plea bargain.

The accomplices testified defendant was the gunman in all of the incidents.   They further testified defendant was the owner of the gun and that he admitted shooting it during the attempted robbery in which a victim was killed and another victim was wounded.   They testified that defendant told them he had only intended to fire the gun in a manner so the bullets would go over the victims' heads.

Defendant denied any participation in the crimes.   His defense was an alibi:  He claimed he was camping on the night of the shooting, was at a movie on the night of another robbery, and on the night of a third robbery, could not recall what he was doing but was certain that he was not involved.   While defendant admitted purchasing the gun allegedly used in the robberies and the shooting, he said he did so for his stepfather.   He said his stepfather took possession of the gun prior to any of the robberies and that he had not seen it between that time and trial.

Defendant introduced several witnesses to corroborate his version of the story.   There was testimony that he was at a movie on one of the nights in question, and that he was camping when the shooting occurred.   Several witnesses testified that the gun, or a similar one, was in the possession of other people at the time in question.

The murder weapon was discovered fourteen months later by sheriff's officers and police officers searching the homes of motorcycle gang members.   The search warrant was issued for the purpose of finding evidence relating to the theft of a motorcycle.

DISCUSSION

As a result of recent Supreme Court cases and concessions on the part of the People, a number of issues in this case have been resolved.

Whether the truth-in-evidence portion of Proposition 8 is applicable to the search of the home where the murder weapon was found is no longer in question.   Nor is the question of the application of federal standards, rather than California standards, in testing defendant's standing to challenge the legality of the search, a question also raised by the applicability of Proposition 8.   Proposition 8 applies only to cases involving crimes which occurred after the proposition's effective date, June 9, 1982.  (People v. Smith (1983) 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149.)   In the present case, all crimes occurred prior to that date.

The felony murder doctrine has been found to be constitutional.  (People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.)

The People have conceded two issues.   First, whether the court erred by making the single act of using a firearm the basis for multiple and consecutive weapon use enhancements.  (In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23;  People v. Cardenas (1982) 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569.)   Second, if the imposition of three consecutive sentences for an attempted armed robbery charged as three crimes in three separate counts (because there were three victims robbed simultaneously), resulted in multiple punishment for the same act.   These attempted armed robberies also occurred simultaneous to the murder and attempted murders.   (Pen.Code, § 654.)

The remaining issues deal with the legality of the seizure of the murder weapon, and testimony of one of the accomplices.

II. SUPPRESSION OF THE GUN.

The weapon used in the crimes in question was discovered at the home of Jens Christopher Keyes, an alleged member of the “Barhoppers” motorcycle gang.2  The house was searched pursuant to a search warrant which was issued to allow the search of several different houses in which members of the Barhoppers resided.   The warrant provided for a search for the following:

“stolen or embezzled property

“property or things used as the means of committing a felony

“․

“property or things which consist of an item or constitutes evidence which tends to show that a felony has been committed, or tends to show that a particular person has committed a felony ․”

Attached to the warrant, and in support of its issuance, was a declaration by a deputy in the San Joaquin County Sheriff's Department.   The declaration described the robbery of Phillip Robert Ciralsky, a former member of the Barhoppers.   Ciralsky was robbed at knifepoint by members of the gang during a Barhoppers' party.   His motorcycle and knife were taken.   Keyes was one of the Barhoppers who took part in this robbery.   The sheriff's deputy, Deputy McGaughey, also alleged in his declaration that there was sufficient probable cause to believe the motorcycle and knife would be found at one of the five listed addresses.

In addition, the warrant provided for seizure of items establishing the identity of persons in control of the premises, as well as items relating to the gang and its members:

“4. Club insignia, by-laws, notes, address books, photo albums, and any and all other items of personal property which relate to the motorcycle club ‘Bar Hoppers' or motorcycle type organizations or which mention the names of the persons named on the face sheet of the affidavit incorporated by reference herein.”

In the course of his investigation, McGaughey contacted Detective Waterman of the Modesto Police Department to obtain photographs of gang members to show to the victim.   Waterman had been told by another member of the Modesto Police Department, Detective Vaughn, that the murder weapon used in the attempted robbery at the park might be in the hands of the Barhoppers.   He told Waterman to keep an eye out for any .223 caliber weapon, in the event he was ever in a Barhopper residence.   Vaughn based his description of the gun on crime lab reports and from the statement of the victim who survived the shooting.

Waterman accompanied the other officers during the search of Keyes' home.   The gun, a semiautomatic .223 caliber Colt AR 15 rifle, was found in the living room, wrapped in newspaper with another gun.   Waterman instructed one of the San Joaquin County sheriff's deputies present to seize the weapon.

Defendant challenges seizure of the weapon, but does not contest whether there were sufficient facts expressed in the declaration supporting issuance of the warrant to give the police probable cause to search Keyes' house for motorcycle parts.   Defendant instead launches a two-pronged attack on the seizure:  First, that police lacked independent probable cause to search for and seizure the weapon;  second, the search amounted to an unlawful exploratory search—the warrant creating nothing more than a pretext allowing Waterman to search for the gun.

At trial the prosecution attempted to establish a number of reasons why the officers immediately seized the weapon, rather than obtain a second warrant.   First, they believed it to be evidence of motorcycle gang paraphernalia and therefore coming within the scope of the warrant.   Second, since all adult occupants of the house had been arrested, no one was left at home where the weapon would be once the search was completed.   Third, Officer Waterman's belief that the gun was the type used in the murder and that the murder weapon was in the hands of the Barhoppers.   Fourth, the officers present believed the weapon was stolen because a computer check indicated two other guns on the premises were stolen;  a check on the gun in question was impossible because the computer broke down.3

Prior to trial, pursuant to a section 1538.5 motion, defendant challenged the admissibility of the gun allegedly used in the crimes.

The standard for reviewing a lower court's ruling on a section 1538.5 motion has been stated as follows:

“A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact.  [Citations.]  The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.   On appeal all presumptions favor proper exercise of that power, and the trial court's findings—whether express or implied—must be upheld if supported by substantial evidence.  [Citations.]”  (People v. Superior Court (Keithley) (1976) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)  4

The court in the present case made the following ruling:

“Now with reference to the AR15, procedure of the seizure of that weapon, the officer that was on the scene knew that a weapon of that type or one that of, maybe two or three other types was utilized in the Ridenour homicide.   I don't know how many there were, seven weapons;  two were discovered to be stolen and one was not;  then the computer broke down so that they weren't able to verify whether the others with serial numbers, including that AR15, had been stolen.   Of course, it is common knowledge stolen weapons are frequently used in criminal activity.

“Combine that with the information, I don't know what the source of the information was and you can either consider it or not, is that the weapon used in the homicide which was in the possession of the Barhoppers and this was a search of a residence occupied by a person that the officers believed were Barhoppers.

“I'm trying to make the circumstances all inclusive as to what justifies the seizure of that AR15, but I think in essence that is it.   I think under Skelton the seizure of that weapon was appropriate.   There was a reasonable basis and reasonable and strong suspicion that the officer had that the weapon may have been utilized in the homicide involved or that it may have been stolen.   And, under those circumstances, the court finds that the seizure was proper and, accordingly, the Motion to Suppress is denied.”

In Skelton v. Superior Court of Orange County (1969) 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485, the court set forth the following rule:

“We would formulate what seems to us the rule that has been applied without express articulation, in many similar cases, thus:  When officers, in the course of a bona fide effort to execute a valid search warrant, discover articles which, although not included in the warrant, are reasonably identifiable as contraband, they may seize them whether they are initially in plain sight or come into plain sight subsequently, as a result of the officers' efforts.”  (Id., at p. 157, 81 Cal.Rptr. 613, 460 P.2d 485.)

The weapon was clearly within plain view of the officers.   It was found in the living room, wrapped in newspaper with another gun.   The officers were reasonable in believing the bundle of newspaper contained stolen motorcycle parts—items listed in the warrant.

 We agree with defendant that the weapon, once in plain sight, was not readily identifiable as contraband, at least to the extent it did not appear to have been stolen—the serial numbers were not obliterated.   Nor did it appear to have been used in the robbery which was the subject of the warrant.  (People v. Murray (1978) 77 Cal.App.3d 305, 309–312, 143 Cal.Rptr. 502.)   We also agree that the People's argument that the weapon was evidence of gang paraphernalia is meritless.   However, we disagree with defendant inasmuch as he argues that Waterman lacked independent probable cause to seize the weapon.

Unlike the facts in Nunes v. Superior Court (1980) 100 Cal.App.3d 915, 929, 932, 161 Cal.Rptr. 351, the officer executing the warrant and directing seizure of the weapon, Waterman, had in his possession, at one time, the reports of another officer which identified the weapon in question as being the type which may have been used in the murder.   He also had personal knowledge, based upon experience, that the weapon seized fired the same caliber bullet as the weapon used in the murder, and that it was capable of using a banana type clip.   Further, Waterman was aware that the surviving victim had described the gun as looking like a machine gun and having a banana clip.5  He also knew of Vaughn's information that the weapon might be in the hands of the motorcycle gang,6 and that the warrant authorized the search of the homes of certain members of that gang.7  Although no source was given for Vaughn's information that the gun was in the hands of Barhoppers, we are entitled to give as much weight to this information as we would to a tip from an unidentified informant.  (People v. Martin (1973) 9 Cal.3d 687, 692, fn. 5, 693, 108 Cal.Rptr. 809, 511 P.2d 1161, cert. den., Martin v. California (1973) 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740.)

Waterman therefore had more than a general suspicion that the weapon related to criminal activity.   However, the well settled rule is that

“[P]olice officers are foreclosed from seizing items indiscriminately;  they must demonstrate that a nexus exists between the item to be seized and criminal behavior.  [Citations.]

“․

“․  Since People v. Terry (1970) 2 Cal.3d 362, 393 [85 Cal.Rptr. 409, 466 P.2d 961], cert. dism. sub nom., Terry v. California (1972) 406 U.S. 912 [92 S.Ct. 1619, 32 L.Ed.2d 112], indicates that officers can justify seizure on ‘an honest and strong suspicion,’ it is important to clarify what constitutes grounds for adequate suspicion.   The court in Miller provided the following discussion of the concept:  ‘An honest and strong suspicion may have its origin in one or a combination of objects, events and circumstances.   As the “man of ordinary care and prudence” conducts his authorized search for the items designated in the warrant, one or several factors may arouse an honest and strong suspicion directed at previously unsuspected objects.   The object may have intrinsic suspicion-arousing qualities;  thus, as the Warden formulation suggests, contraband automatically provides a nexus.   Where the object is evidence and not contraband, it will seldom be the sole source of an honest and strong suspicion.   Rather, it will have that capacity only in combination with other circumstances.   The standard definition of probable cause (People v. Terry, supra ) necessarily implies that all the circumstances are to be considered.   It permits the officer to take cognizance of the entire situation confronting him at the time and place of the search, including not only the intrinsic qualities of the object but also the peripheral circumstances attending its discovery.   The probable cause concept serves to prevent arbitrary intrusions;  it does not blind the officer to suspicion-arousing activities at the time and place of the search.   The figurative person of ordinary care and prudence would be a fool if he were blinded to the ambient circumstances as a permissible source of probable cause.’  (People v. Miller, supra, 60 Cal.App.3d [849] at pp. 853–854 [131 Cal.Rptr. 863] italics added.)”  (Nunes v. Superior Court, supra, 100 Cal.App.3d at pp. 928, 929–930, 161 Cal.Rptr. 351.)

Applying the above analysis to the facts in the present case, we find that the weapon, in combination with the other circumstances of which Waterman was aware at the time of the seizure, provided a sufficient nexus between the item seized and criminal behavior.  (Warden v. Hayden (1967) 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782;  People v. Hill (1974) 12 Cal.3d 731, 762, 117 Cal.Rptr. 393, 528 P.2d 1 [overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872].)

By reaching this conclusion, we find it unnecessary to decide if seizure of the weapon was justified as a matter of public safety:  No one was left in the home and children were present when the officers arrived.   A total cache of nine weapons was seized, at least one of which was a semiautomatic, high-powered, machine gun-type of rifle.  (Cady v. Dombrowski (1973) 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706;  People v. Johnson (1981) 30 Cal.3d 444, 179 Cal.Rptr. 209, 637 P.2d 676, dicta;  United States v. Alden (8th Cir.1978) 576 F.2d 772, 776, cert. den., Alden v. United States (1978) 439 U.S. 855, 99 S.Ct. 167, 58 L.Ed.2d 161;  Matter of F.D.P. (1976) 352 A.2d 378, 382–383.)   We also express no opinion on two of the other reasons used by police to justify the seizure.   First, that the seizure was justified because the gun, like two others, might have been stolen.  (People v. Eitzen (1974) 43 Cal.App.3d 253, 258, fn. 3, 117 Cal.Rptr. 772;  People v. Jackson (1978) 88 Cal.App.3d 490, 495–496, 151 Cal.Rptr. 688.)   And second, that the weapon, through its unobliterated serial numbers, was evidence of who was in control of the residence searched.8

As for defendant's argument that the search warrant was used as a mere pretext to allow Waterman into a Barhopper's home to search for the weapon, we find this position unsupported by the record.   First, the officer from another county who initially procured the warrant had contacted Waterman for assistance in the investigation of the Ciralsky motorcycle theft.

Waterman testified that he was the “department representative in the State for investigating motorcycle gangs in [his] area.”   Further, we also find significant the fact that the warrant authorized the search of several homes and one commercial building.   Waterman might just as easily have been at one of those other locations and not found the murder weapon.   Defendant has done nothing to show that Waterman's presence at the Keyes' home where the weapon was located was anything more than chance.   Defendant's reliance upon People v. Albritton (1982) 138 Cal.App.3d 79, 187 Cal.Rptr. 652, is therefore unpersuasive.   Rather than a situation analogous to that in Albritton, the present case is far more analogous to one the Albritton court described for purposes of contrast, and then approved, when comparing it to the facts before it:

“This case might be entirely different if, indeed, Officer Foy and his fellow vice squad officers while searching for narcotics and narcotics paraphernalia came into appellant's garage and discovered vehicles quite possibly stolen because serial numbers had been removed or otherwise tampered with or if, in fact, there were other indications that vehicles might very well be stolen.”   (Id., at p. 88 [187 Cal.Rptr. 652];  see also People v. Eitzen, supra, 43 Cal.App.3d 253, 258, fn. 3, 117 Cal.Rptr. 773;  People v. Jackson, supra, 88 Cal.App.3d 490, 495–496, 151 Cal.Rptr. 688.)

For the above stated reason we conclude the seizure of the gun was legal.

III. IMMUNITY.

At trial, both of defendant's accomplices testified as prosecution witnesses.   On appeal, defendant challenges the testimony of only one of these individuals, Terry Hannah, who was granted immunity.9

Defendant's argument is that the structure of the immunity agreement offered Hannah precluded him from the opportunity to effectively cross-examine Hannah, which in turn deprived defendant of his right to a fair trial.   The structure of the agreement, defendant argues, forced Hannah to testify in a particular manner prejudicial to the defendant.

Hannah testified under a grant of complete transactional immunity.   The immunity was conditioned upon Hannah not being the triggerman or gunman in the robbery which resulted in the wounding of one victim and the death of another.10

 Defendant's argument fails.   First, as the People note, this issue cannot be raised for the first time on appeal.  (People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048;  Evid.Code, § 353.)   While it is true the issue came before the court as part of a section 1358.5 suppression motion, and it was agreed it would be better that the argument be made before the trial court, the issue was not thereafter raised at trial.11

Defendant's reliance upon People v. Underwood (1964) 61 Cal.2d 113, 37 Cal.Rptr. 313, 389 P.2d 937, People v. Green (1951) 102 Cal.App.2d 831, 228 P.2d 867, and People v. Medina (1974) 41 Cal.App.3d 438, 116 Cal.Rptr. 133, for the proposition that the argument may now be made before this court, is therefore unpersuasive.   Although it is true, as defendant asserts, that the Medina court found a grant of immunity coercing testimony in a certain manner impacted upon fundamental constitutional rights, the opinion does not state that the issue may be raised for the first time on appeal.  Green does not discuss the “no objection” or “waiver” problem.   Underwood involved an involuntary confession, an issue which may always be raised at any time.

 However, even assuming, to defendant's benefit that his right to object has not been waived, his argument still fails.   Defendant does not dispute that immunity may be granted an accomplice provided the condition is that the accomplice testify truthfully about facts to which he has knowledge.   (People v. Lyons (1958) 50 Cal.2d 245, 324 P.2d 556.)   Ordinarily, immunity for the testimony of an accomplice has been attacked on one of two bases where it is alleged the accomplice was forced to testify in a particular manner.   In the one case, an accomplice witness is coerced into testifying in a particular fashion in order to receive a grant of immunity.  (People v. Medina (1974) 41 Cal.App.3d 438, 455–456, 116 Cal.Rptr. 133.)   In the other, immunity after testifying is conditioned upon a favorable verdict for the prosecution.   (People v. Green (1951) 102 Cal.App.2d 831, 834–835, 228 P.2d 867;  People v. Meza (1981) 116 Cal.App.3d 988, 994, 172 Cal.Rptr. 531.)

In his circular argument, defendant asserts that the immunity offered Hannah comes under the first of these two types:  By conditioning immunity upon Hannah not being the triggerman, the police coerced Hannah into testifying in a particular fashion (i.e., that he was not the triggerman).

Reliance on Medina is unconvincing for a number of reasons.   First, Hannah was not forced to testify that defendant was the triggerman, rather, only that he, Hannah, personally was not.

Second, unlike the facts in Medina, the prosecution's case did not depend substantially upon the testimony of the accomplice receiving immunity.   (People v. Medina, supra, 41 Cal.App.3d at p. 455, 116 Cal.Rptr. 133;  see also People v. Manson, supra, 61 Cal.App.3d 102, 131, 132 Cal.Rptr. 265, ruling on a different immunity question but allowing accomplice testimony pursuant to an immunity agreement where it was the only direct evidence linking defendant to the crime.)   Hannah's most damaging testimony was corroborated fully by the third accomplice, Kramer.   Kramer, like Hannah, testified that only defendant used a gun in the robberies, that defendant admitted intending to fire over the victims' heads, that defendant planned to dispose of the weapon, and that defendant fired two bursts of shots.

Actually, Kramer's testimony was even more damaging inasmuch as he further testified that defendant revealed to him in jail his plans for a phony alibi.   That alibi was exactly the one used by defendant.   Kramer also testified that defense witnesses corroborating defendant's alibi were liars.12

Third, Medina can be further distinguished by the fact that the accomplice witnesses in that case were required to testify in a way which was substantially the same as statements they made to police in an earlier recorded session.  (People v. Medina, supra, 41 Cal.App.3d at p. 450, 116 Cal.Rptr. 133.)

In a sense, Hannah, too, had to be consistent with his previous statements to police to the extent he must again say on the stand that he was not the triggerman, should he be asked, if he wanted to receive immunity.   However, at all times the terms of the agreement required, as a prerequisite, that Hannah tell the truth.   Viewed in this light, his immunity was merely conditioned upon him repeating the truth when called as a witness, not on testifying that he was not the triggerman.  (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 360, 197 Cal.Rptr. 803, 673 P.2d 680.)

Fourth, and perhaps most important, an agreement very nearly identical in pertinent part to the one in question has been held to not violate the Medina rule.  (People v. Knox (1979) 95 Cal.App.3d 420, 430–431, 157 Cal.Rptr. 238.)   However, in finding that the conditions in the agreement did not place the witness under a strong compulsion to testify in a certain fashion, the court found significant the fact that there was no evidence the witness was present at the time of the shooting.   While in the instant case the witness was present at the shooting, we do not read Knox so narrowly as to mean that testimony of a witness who is a party to such an agreement may never be used when the witness was present at the shooting.

Finally, although this may only be an exercise in semantics, Hannah was not told, “If you testify you were not the triggerman you will get immunity.”   Instead, we interpret the agreement to mean that he was told, in essence, “If you were not the triggerman, you may testify, and as a result of truthful testimony, you may receive immunity.”

IV. SENTENCING.

Both defendant and the People agree that two sentencing errors were made.   First, the sentencing court improperly imposed multiple and consecutive weapon enhancements for counts II through VI.

As previously set forth in the procedural and factual background of this case, defendant was charged in count II with the attempted murder of Steve Garcia.   In count III he was charged with the attempted murder of Kurt Davis.   Both of these counts stemmed from the shooting on August 17, 1979, in which a third victim, Michael Ridenour, was killed.   In counts IV, V, and VI, defendant was charged with attempting to rob Ridenour (count IV), Garcia (count V), and Davis (count VI).   Use of a firearm was also alleged in each of these counts.  (Pen.Code § 12022.5.)   Defendant was found guilty on all counts, and all weapon use allegations were found to be true.   The terms, including the enhancements for weapon use, ran consecutively as follows:  Count IV consecutive to counts II and III;  count V consecutive to counts II, III, and IV;  count VI consecutive to counts II, III, IV, and V.

In People v. Cardenas, supra, 31 Cal.3d 897, 184 Cal.Rptr. 165, 647 P.2d 569, the Supreme Court reiterated the rule it set forth in In re Culbreth, supra, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23:

“[Culbreth ] held that section 12022.5 may be invoked only once where ‘all the charged offenses are incident to one objective and effectively comprise an indivisible transaction ․’ ”  (Cardenas, supra, 31 Cal.3d at p. 913 [184 Cal.Rptr. 165, 647 P.2d 569] quoting Culbreth, supra, 17 Cal.3d at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23.)

 Apparently in conceding this issue on appeal through reliance upon Culbreth and Cardenas, the People are not contesting that the offenses in counts II through VI constituted an “indivisible transaction.”  (Cardenas, supra, 31 Cal.3d at p. 913, 184 Cal.Rptr. 165, 647 P.2d 569.)   Therefore, we too conclude that the sentencing court erred in its imposition of multiple and consecutive weapon use enhancements in these counts.

 In defendant's second challenge to the sentence imposed by the court, he argues, and the People agree, that the prohibition against multiple punishment as set forth in section 654 was violated when the court imposed consecutive sentences for the attempted robberies of Ridenour, Garcia, and Davis, as alleged in counts IV through VI.

Section 654 provides as follows:

“An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․”

Undoubtedly, the People are again conceding that each attempted robbery constituted an indivisible transaction with the murder or attempted murder of the individual victim defendant was attempting to rob.  (Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839, cert. den., Neal v. California (1961) 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700.)

 We therefore agree with defendant's assertion that the sentences were incorrect.   We further agree with defendant's argument, as expressed in his opening brief, that “[a]lthough [defendant] could be sentenced for the murder and the attempted murders, he can not [sic.] be sentenced for the attempted robberies.”  (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.)

CONCLUSION

For the reasons stated we affirm the conviction but remand the case for resentencing in light of the opinion expressed herein.   Upon resentencing the court will have full discretion as to all counts.

FOOTNOTES

FOOTNOTE.  

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

2.   Keyes was an associate of defendant's sister and brother-in-law.   Both were present at the residence shortly before the search.

3.   Waterman testified as follows:“MR. RINGHOFF:  Q.   Officer, did you run the computer checks on these two weapons, or did somebody else do it?“A. I called in on the pistol—I take that back.   Officer Clontz called in by using the telephone and he came back and told me that he had two hits;  one on the pistol, one on the rifle;  and after that the computer had gone down and they were unable to run any more serial numbers.”A third weapon checked prior to the computer breaking down had not been reported stolen.   The rifle referred to in the above testimony was not the weapon defendant sought to suppress.

4.   Initially we note that the entire preliminary transcript was entered into evidence at the section 1538.5 motion hearing:“MR. RINGHOFF:  We offer in evidence in support of our 1538.5 Motion those exerts [sic.] from the Preliminary Hearing transcript which we delineated.   Mr. Krausnick can respond by offering the entire transcript, if he wants.“MR. KRAUSNICK:  We would offer the entire transcript.“THE COURT:  Of the preliminary.   You don't have an objection to that?“MR. RINGHOFF:  No.“MR. PEARSON:  No, I have no objection.“THE COURT:  Do you?“MR. RINGHOFF:  Only that it is not relevant in great part.   But I think it probably would serve the court to go piece by piece.”

5.   Waterman testified as follows:“A. Well, I seized several guns.“Q. How many guns did you seize?“A. Well, there were probably—“Q. Do you have a picture of them?“A. Yes, I do.“․“Q. The photograph shows the AR15 with and without a banana clip.   Is that correct?“A. That's correct.“Q. When you first saw it did it have a clip in it or not?“A. It did not.”

6.   Vaughn testified as follows:“MR. KRAUSNICK:  Q.   Now when you talked with Detective Waterman, this was approximately when in relation to October 4, 1980?“A. I believe it was in early August of 1980.“Q. And did you describe the weapon that you were looking for?“A. Yes.“Q. Could you tell us what that description was that you gave to Detective Waterman?“A. I had some reports from the, from our criminal justice crime lab and I gave him a list of four such items that I was looking for, type of weapons;  one was a Colt AR15.“Q. And the victims, one of the victims gave you a description of the weapon that was used in the Downey Park Homicide.   Is that correct?“A. Yes.“Q. Was there any mention of a clip or anything in the gun?“A. I believe there was some mention of a banana-type clip.“Q. This information was also passed on to Detective Waterman?“A. I believe it was.”Waterman testified as follows:“A. In August of 1980 I was advised by Detective Vaughn that he had received information that the weapon used in the Ridenour killing had gone to the Barhoppers.“Q. This was specific information given to you by Detective Vaughn?“A. Yes, sir.“Q. And in seeing any of the weapons that you seized, did that information come back to mind?“A. Yes, it did.“Q. What weapon did that relate to?“A. The AR15.“Detective Vaughn told me that the ammunition used was .223 caliber and my own personal knowledge I was aware that the AR15 and the M16 and the AR14 all used that type of ammunition.”

7.   In the affidavit for the search warrant, McGaughey stated that Waterman had knowledge, based on previous investigations of the motorcycle gang, that Keyes was a member.

8.   The warrant authorized seizure of the following:“3. Articles of personal property tending to establish the identity of persons in control of premises and areas being searched consisting in part of and including, but not limited to, utility company receipts, rent receipts, addressed envelopes, and keys.”

9.   Defendant's other accomplice, Jacob Jay Kramer, testified pursuant to a plea bargain.   No objection is made, on appeal, to the admission of Kramer's testimony.

10.   Hannah read into evidence the following letter he signed which outlined the terms under which he would be granted immunity:“A. ‘I, Terry Hannah, also known as Terry Lee Brown, state that the following agreement was made and the following events occurred, between myself, Detective Fred Vaughn of the Modesto Police Department, and Deputy District Attorney Michael Krausnick of the Stanislaus County District Attorney's Office on January 26, 1981.“ ‘Detective Fred Vaughn advised me that the District Attorney's Office would consider granting immunity from prosecution to me for the death of Michael Ridenour or [sic.] August 17, 1979, if:  (A) I was not the ‘shooter,’ that is, the person who carried the gun and pull [sic.] the trigger, and (B) I told the truth concerning the identity of the persons (including myself) involved as well as the truth about the events resulting in the death of Michael Ridenour.“ ‘I indicated that I wanted to talk to a representative of the District Attorney's Office.   Detective Vaughn then arranged for me to talk to Deputy District Attorney Krausnick by telephone.   Deputy Krausnick then explained that the considerations of granting of immunity were on the basis that I was not the ‘shooter,’ that I would tell the truth about all the persons and the events concerning the death of Michael Ridenour, and that I testify in all court proceedings and answer all questions truthfully.   I told Mr. Krausnick that I understood.   After I finished my telephone conversation with Mr. Krausnick, I gave a statement to Detective Vaughn.“ ‘As of this date, I still understand that the consideration of the granting of immunity to me by the District Attorney's Office is on the same basis as discussed with Detective Fred Vaughn and Deputy District Attorney Michael Krausnick on January 26, 1981, in substance as follows:“ ‘1. That I was not the person who fired the gun on August 17, 1979, resulting in the death of Michael Ridenour.“ ‘2. That I am to tell the truth concerning all persons and events involved with the death of Michael Ridenour.“ ‘3. That I am to make myself available for all court proceedings in connection with the case and that I will answer truthfully all questions asked in those proceedings.“ ‘I understand that any grant of immunity does not include or cover the offense of perjury.“ ‘Executed this day of February, 1981, at Modesto, California.’ ”

11.   After a long line of questioning in which defense counsel attempted to show Hannah's testimony was conditional and therefore coerced, and the prosecution attempted to show it was voluntary, the following exchange took place on recross-examination, which undoubtedly explains why defense counsel did not continue to pursue his objection to Hannah's testifying:“Q. So then in January you knew all you had to do was not be the killer and tell the truth.   Right?“A. That is right.“Q. And you'd go scott free on the murder charge.   Right?“A. That is right.“Q. You didn't understand my questions to you earlier about not being the shooter?“A. Not really, no.“Q. Why did you answer them?“A. I don't know.“․“Q. Now you were of the opinion that if the cops found out some how that you really were the killer you were going to lose immunity.   Right?“A. That is right.“Q. But you knew at the time you talked to the police there was no way they could find out that, didn't you?“A. I wasn't the shooter so what's the difference to be afraid of.”

12.   “Q. Now, Mr. Kramer, what if I told you that certain witnesses have testified before you and have accounted for the presence of the defendant, Mark Adams, on each of the dates that you've described;  that would be the dates of the robberies and the homicide.   What would you say if I told you that?“A. It's a lie.”Because we find no error in the admission of Hannah's testimony, we need not decide whether its admission was harmless error, in light of Kramer's testimony.  (Chapman v. California (1907) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705;  People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.)

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

ANDREEN, Acting P.J., and MARTIN, J., concur.

Copied to clipboard