The PEOPLE, Plaintiff and Respondent, v. Jerry Paul BARR, Defendant and Appellant.
A jury found defendant Jerry Paul Barr guilty of all crimes charged in an 18-count information: 14 counts of robbery (Pen.Code, § 211), 1 count of attempted robbery (Pen.Code, § 664/211) and 3 counts of felony false imprisonment (Pen.Code, §§ 236, 237). The jury also found Barr used a firearm during the commission of each offense. Upon a court trial Barr was found to have suffered the seven prior felony convictions charged. Barr was sentenced to prison for 31 years and 8 months. He appeals, charging multiple trial court errors.
THE PALOMINO LOUNGE ROBBERY MAY 21, 1981(Count One)
Barr, wearing a red and white baseball cap, entered and sat in the Palomino Lounge on Mission Gorge Road, San Diego. At about 2 a.m. he pulled a .38 caliber revolver and told bartender Michael Treacy to go into the men's room; he and his friend were going to rob the bar. Barr took $30 from Treacy and $600 from the cash register and left.
THE STADIUM CLUB ROBBERY JULY 22, 23, 1981
Barr, this time wearing a blue and white baseball cap and sunglasses, entered the Stadium Club on Fairmount Avenue, San Diego. He sat at the bar then pulled a .38 caliber revolver and ordered bartender Bruce Siperly to empty the cash register. He took $160 from Siperly's wallet. He directed Siperly to go into the restroom. Barr then took $350 from the bar and left.
THE KING LUIS INN ROBBERY JULY 23, 1981
(Counts Three to Six)
In the early morning hours of July 23 Barr was sitting at the bar at the King Luis Inn on Linda Vista Road, San Diego, wearing a blue and white baseball cap. Present were the owner Louis Sothis, bartender John Avery, Pat Avery and David Chacon. Just before closing time Barr pulled out a .38 caliber revolver and herded them into the restroom. He took some $900 from the cash register, $200 from Chacon and $30 from John Avery's wallet. Pat Avery did not give Barr any money.
THE PALOMINO LOUNGE ROBBERY AUGUST 11, 1981
(Counts Seven and Eight)
During the early morning hours of August 11 Barr was again at the Palomino Lounge, wearing a two-tone baseball cap. Shortly before closing time he drew a .38 caliber revolver, threatened bartender Joseph McGrievy and customer Cynthia Schubert. He ordered them into a restroom, took $300 from the register and Cynthia's purse.
THE STRA–VAN ROBBERY AUGUST 20, 1981
(Counts Nine and Eleven)
In the late evening hours of August 20 and the early morning hours of August 21 Barr and a female companion entered the Stra-Van in El Cajon. He was wearing a blue and white baseball cap and dark glasses. He drew a .38 revolver on bartender Casey and two patrons, Agnes Hayes and Dorothy DeGregorio, and ordered them into the restroom. When they came out a few minutes later, $350 was gone from the cash register and the two women's purses were missing.
When entering the Stra-Van, Barr had accosted witnesses, Sweeney and McFadden. They saw a late model Dodge Magnum, silver with a red pinstripe on it, in the parking lot. The van was identified as belonging to Deborah Tingvall and her brother Michael. Deborah was having an affair with Barr. Deborah had a cowboy hat similar to the one worn by the woman who was with Barr at the bar that evening. She also threatened her brother at a later time if he testified against Barr. The van was later seen that evening at Pete's Place, where the next robberies took place.
PETE'S PLACE BAR ROBBERY
(Counts Twelve through Fourteen)
Barr robbed Pete's Place in La Mesa that same evening at about 1:30 a.m. There were five people in Pete's Place, bartender Tigner, Richard Juhl and Richard Hobbs, Barr, who wore a blue and white baseball cap, and his woman friend wore a cowboy hat. Just before closing time Barr pulled out a .38 caliber revolver, forced Tigner to turn over his wallet containing $105. He took the wallets of the other patrons as well. They contained about $15. He ordered them into the restroom. A few minutes later Tigner discovered $250 to $300 was missing from bar funds.
THE KING LUIS INN ROBBERY AUGUST 25, 1981
(Counts Fifteen through Eighteen)
Three nights later (Aug 24) Eugene Luviere was a bartender at the King Luis Inn and patrons Hildebrand and Middlebrooks were seated at the bar. Barr had been seated for awhile. Shortly before closing again he pulled out a .38 caliber revolver and said he was taking their money. The bartender gave him $17 or $18, Hildebrand surrendered $90. Barr herded them into the restroom. Barr took about $525 from the cash register.
Barr was arrested during the early morning hours of August 27, two days after the last King Luis Inn robbery. He was arrested while driving a blue van. After issuance of a search warrant the van was searched. Some baseball caps, a .38 caliber revolver, sunglasses and other items were found. The weapon, the caps and the sunglasses were similar to those used in the various robberies. During the investigation of the May 21, 1981, Palomino robbery (count one), a bottle, some cigarette butts and a dime had been taken by the police to obtain fingerprints. The prints were unidentifiable, of no value and the evidence was ordered destroyed. In the pretrial period, Barr fled to Arizona. When arrested there he had a .38 caliber revolver in his vehicle.
PRETRIAL COURT PROCEEDINGS
At the preliminary hearing (Oct. 14, 1981) Barr elected to proceed in propria persona. At a hearing before the municipal magistrate, Barr successfully moved (Pen.Code, § 1538.5) to suppress certain evidence found in his van. He was, however, bound over for trial on 18 charges arising out of the 7 separate robberies. On October 22, 1981, eight days after the magistrate's ruling on the section 1538.5 motion, the People filed and mailed a notice of motion (§ 1538.5, subd. (j)) to reconsider the magistrate's decision. Barr claims the notice by mail seeking further hearing was not served—not received. The day following this notice of motion (Oct. 22, 1981) the formal information charging Barr with 18 counts was filed. This information charged Barr had served two prior prison terms for various felonies. By amendment this was later—pretrial—increased to a total of seven such terms of imprisonment for felony convictions.
On November 3, 1981, Barr moved to dismiss the case on the grounds his due process rights and right to counsel had been violated. The motion was heard by Judge Smith of the superior court who treated it as one to permit Barr to act as his co-counsel in defense with appointed counsel. Judge Smith agreed to the request with the condition the attorney file all of the motions and otherwise handle all courtroom proceedings. Barr agreed. Judge Smith further decided a Class V attorney be appointed on his behalf. However, Robert Archibald, a Class III attorney, was in fact appointed.
On November 24 and December 18, evidence was taken on the People's 1538.5, subdivision (j), motion to overturn the magistrate's decision granting Barr's motion to suppress the evidence seized in the van. On December 22, the superior court, by written memorandum, granted the People's motion. The court concluded the warrant authorizing the search contained negligent misrepresentation of fact as well as negligent omissions of material facts. However, the court deleted these misstatements and concluded there remained sufficient evidence giving rise to probable cause to justify the search of the van.
In February 1982 Barr learned Archibald had the classification of Class III, rather than Class V, attorney.1
Barr successfully requested Archibald's removal. On February 25, 1982, Barton Sheela, a Class V attorney, was appointed to represent Barr. Thereafter the case was assigned (Apr. 19, 1982) to department 27 (Judge Low), for pretrial motions.
Barr there sought dismissal of the charges, claiming infringements of his Sixth Amendment rights to counsel and his Faretta (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562) rights. In the alternative Barr sought a new preliminary hearing. Evidence was taken on the motion and arguments commenced, then continued to the following day. Also involved was a People's motion to remand Barr to custody. The following day Barr failed to appear and a bench warrant was issued for his arrest. He was not apprehended until November 1982, seven months later. The proceedings were then resumed. In December Barr filed a motion to recuse the deputy district attorney, Josephine Kiernan, for actual bias. After hearing testimony the court denied the motion (Dec. 21, 1982). The motion to dismiss (brought in Apr. 1982) was resumed and was denied. The matter was then assigned to department 18 (J. Perry Langford, Judge) for additional pretrial motions and for trial.
Barr then moved for fees to hire an expert witness to testify as to the problems inherent in eyewitness identification testimony. The motion was denied.
The prosecution's pretrial motion to apply the provisions of Proposition 8, the “victim's bill of rights” initiative of June 1982 to apply to this case as it related to the Beagle (People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1) rule (use of the prior felonies to impeach a testifying defendant) was granted. However, the prosecution lost its motion to introduce evidence regarding prior uncharged similar acts. Defendant's next motion was to sever various incidents for trial; it was denied. Also denied was the motion for separate jury trial on the priors.
Barr also brought a Hitch (People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) motion to dismiss the counts involving the Palomino Lounge and the Pete's Place robberies because the police destroyed the evidence seized in connection with those robberies (bottle, cigarette butts and a dime). The court denied Barr's motions but agreed the jury should be told of the destruction and that it should not infer that the evidence would have been favorable to either side.
Barr also sought to suppress his identification as the robber in each of these seven robberies, claiming the identification was the result of impermissibly suggestive tactics. This motion was denied after taking extensive evidence of the circumstances surrounding the identifications.
Finally, there was a People's pretrial motion based upon the newly enacted Penal Code section 1102.5 which authorizes discovery by the prosecution of any statements made by a defense witness to defense investigators after the witness had testified on direct. Barr argued the statute was unconstitutional and violated the attorney-client privilege. However, the court held it would strictly adhere to the procedures outlined in the statute and ordered reports prepared by defense investigators be made available to the prosecution; but the reports prepared by defense attorneys would not be required.
Upon the trial (beginning January 18, 1983), Barr's defense was alibi. Diana Bainridge testified she saw Barr on the evening of August 20. He took her van out of town and did not return until the morning of August 25. Teresa Pendo testified she lived in San Ysidro and Barr was at her residence within a week of his arrest and he stayed until 11:30 p.m. Barr testified but did not recall where he was on May 21, July 23 or August 11. He also swore he had never been to the King Luis Inn; he denied committing any of the robberies.
After jury guilty verdicts on all counts and a court finding he had suffered all seven prior convictions, Barr moved for a new trial, citing the court's erroneous decision to apply Proposition 8 rules to this case. The motion was denied.
Each of the seven robberies in this case were committed before June 8, 1982, when the voters of California enacted Proposition 8 (Cal. Const., art. I, § 28, subd. (f)).2 The Attorney General contends (§ 28, subd. (f)) made admissible “any prior felony” regardless of its nature or remoteness in time to be used to impeach a testifying defendant. Such interpretation is erroneous in light of the nonretroactive application of Proposition 8 (People v. Smith, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149) as well as the rules announced in a series of Supreme Court decisions (People v. Beagle, supra; People v. Rist, 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Fries, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Spearman, 25 Cal.3d 107, 157 Cal.Rptr. 883, 599 P.2d 74).
The prosecutor here sought and successfully obtained a pretrial ruling authorizing the use of all of the defendant's prior convictions to impeach him should he choose to take the stand, notwithstanding the fact that all of the charged offenses had occurred before the effective date of Proposition 8. As a consequence when Barr took the stand he was impeached with a series of prior felony convictions, most, if not all, of which would have been inadmissible under the principles expressed in Beagle, Rist, Fries and Spearman. The priors so used included convictions for escape from prison, statutory rape and several counts of armed robbery.
In making its ruling that Proposition 8 abrogated Beagle retroactively, the trial court was fully cognizant the admissions of these felonies would be extremely prejudicial to Barr; once the jury learned he had committed other armed robberies, the jury would very likely conclude he had committed the ones for which he was presently on trial.
In so ruling, the trial court erred. The Supreme Court in People v. Smith, supra, 34 Cal.3d 251, 193 Cal.Rptr. 692, 667 P.2d 149, stated Proposition 8 applies only to prosecutions for crimes committed on or after its effective date. “[I]f construed to apply to crimes committed before its adoption, it may amount to an ex post facto law. Our state Constitution upon which we rely prohibits such laws.” (Id., at p. 259, 193 Cal.Rptr. 692, 667 P.2d 149.) Proposition 8 took effect the day after its passage, June 9, 1982 (Cal. Const., art. 1, § 28). While Smith did not involve a Beagle question, a more recent case, People v. Broder, 147 Cal.App.3d 572, 195 Cal.Rptr. 264, did. Broder specifically held the Beagle, Rist, Fries and Spearman rules still govern trials of offenses committed before June 9, 1982. (Broder, at p. 575, 195 Cal.Rptr. 264.) Broder also pointed to the trial court's failure to undertake the balancing test required by Beagle and progeny and reversed for that further reason. It was held reversible error to have denied the Beagle motion.
Here not only did the trial court not engage in the balancing test required by case law but also admitted without evaluation a series of prior felony convictions that were totally inadmissible under the pre-Proposition 8 rules. The escape and statutory rape convictions were clearly inadmissible because they do not involve the character trait of honesty. The several armed robbery convictions are inadmissible for the reason they involve the precise crimes for which the defendant was on trial. (People v. Fries, supra, 24 Cal.3d 222, 230, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Rist, supra, 16 Cal.3d 211, 219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Spearman, supra, 25 Cal.3d 107, 116, 157 Cal.Rptr. 883, 599 P.2d 74.)
Thus, of the remaining four prior convictions possibly available as impeachment of veracity, only the car theft prior and the forgery conviction was arguably admissible. These, however, were 12 years or older at the time of the trial, yet all came in.
These multiple Beagle errors are not per se reversible. Where it is not reasonably probable that another result more favorable to the defendant would result, then the conviction will be allowed to stand. (People v. Moultrie, 99 Cal.App.3d 77, 160 Cal.Rptr. 51; People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243.) It is the People's position that an erroneous admission of these priors for purposes of impeachment does not require reversal under the Watson rule. In light of the overwhelming evidence of Barr's guilt, they argue, it is harmless error.
We will examine (XIII infra ) the various crimes of which Barr was convicted in light of the evidence available to each of them and test the evidence in light of the possible impact of the disclosure to the jury of his various priors, robberies and other wrongs he committed. These errors must also be examined and weighed in conjunction with the other contentions of error made here.
Barr contends the court erred in granting the prosecution's Penal Code section 1538.5, subdivision (j), motion. At the preliminary hearing, Barr, acting in propria persona, challenged the warrant authorizing search of the van. (Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234.) He charged the affidavit in support of the warrant contained material misstatements as well as omissions of fact. He argues, with these erroneous matters excised, there was insufficient probable cause for the warrant to issue.
The magistrate who had issued the warrant also heard Barr's traverse. A number of negligent misstatements and omissions were found. The affidavits did not mention the fact that the various descriptions of the robber gave heights ranging from five feet, eleven inches, to six feet, five inches. There was omitted a weight range of 172 to 220 pounds and an age spread of 25 to 38. The judge (Curran) felt there was a negligent omission of material fact in this area.
The affidavit likewise recited Barr had been connected to an earlier robbery in La Mesa. A patrol officer had taken down the license number of some vehicles in front of a bar which was robbed shortly thereafter in a manner described above. A check of a van parked there revealed the owner to be Diana Bainridge, a girlfriend of Barr. The affidavit was in error; the van observed parked at the La Mesa robbery site was not Bainbridge's but the Dodge Magnum sedan owned by Barr's girlfriend Deborah Tingval. Barr also complains one of the victims stated he was only 75 percent sure Barr was the robber, whereas the affidavit stated the witness (Louvier) identified the picture of Jerry Barr as the man who robbed him on August 24. The magistrate concluded these were material omission, quashed the warrant and suppressed the items seized.
This motion was granted October 14, 1981. Eight days later (October 22) the prosecution filed a notice of motion to rehear the suppression pursuant to 1538.5, subdivision (j). A declaration of proof of service by mail was filed the same day and recited that copies of the notice had been mailed that day to Judge Curran and to the defendant. It was stipulated neither Curran nor his court clerk ever received a copy of the motion. Barr states he received notice of the motion on November 9, 1981, well outside the 15-day requirement of the code section.
At the hearing de novo the superior court first held the district attorney had met the jurisdictional (time) requirements of the code and then found: (1) there were no negligent omissions with respect to the varying descriptions of the robber, (2) there was a negligent misrepresentation with respect to what van was involved in the La Mesa robbery as well as the ownership mixup of the Tingvall/Bainbridge vans and negligent omission and failure to state Louvier was only 75 percent sure of his identification. The court, however, after the appropriate deletions from the affidavit, concluded there remained sufficient facts to support the issuance of the warrant. The court granted the prosecution motion, reinstated the evidence seized in the van.
Barr contends that the prosecution failed to meet the jurisdictional time deadline, i.e., failed to give notice to both the magistrate and the defendant within 15 days of the ruling by the magistrate. If these jurisdictional deadlines are not met, the prosecution is barred from relitigating the issue. (People v. Lankford, 55 Cal.App.3d 203, 127 Cal.Rptr. 408.) Here the record shows the service by mail was made October 22, 1981; the notice was filed in the superior court on October 22, 1981; it was mailed, properly addressed according to the affidavit of service to both the magistrate and Barr on the same day.
Service by mail is completed at the time of the deposit in the post office of the sender in a sealed envelope addressed to the person to whom it is to be served. (Civ.Code Proc., § 1013, subd. (a).) Where a service of document is made in conformance with the statute, risk of failure of the mail is on the addressee. The addressee may not be heard to say such notice was not received. (Meskell v. Culver Unified Sch. Dist., 12 Cal.App.3d 815, 96 Cal.Rptr. 773; cf., McKeon v. Sambrano, 200 Cal. 739, 255 P. 178; Gill v. Southern Pac. Co., 174 Cal. 84, 161 P. 1153; Call v. Los Angeles County Gen. Hosp., 77 Cal.App.3d 911, 143 Cal.Rptr. 845.) There is no merit in the claim of lack of jurisdiction.
Turning to the substance of Barr's complaint about the omissions and misstatements, it is conceded there were both omissions and misstatements. The superior court made factual findings on contested issues. Its ruling on these issues must be upheld if supported by substantial evidence. Furthermore, the evidence must be viewed in the light most favorable to prevailing party. (People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)
Several key facts are material to the issuance of the warrant to search the Dodge Magnum van. First, Barr was in the van at the time of his arrest. The arresting officers had probable cause to believe this was the van that had been present at the scene of the robberies on August 24 (two days earlier). While the descriptions of the robbery suspect in the various robberies varied in some detail, yet the descriptions taken as a whole were fairly similar; the person was described as tall, white, in the young 20 to 30 age group. An eyewitness had identified Barr as the robber, stating he was “75 percent” sure.
The facts known to the police at the time of the arrest (and detailed in the affidavit) gave the police probable cause to believe (1) Barr was the robber and (2) weapons used as well as the loot and other evidence relating to the robberies would be located in the van. With the improper matters excised there still remained a factual basis for probable cause to support the issuance of the warrant.
Secondly, an alternative legal basis supports the admissibility of the items found in the van. Barr was arrested in the van. He was an identified suspect in various robberies. The police knew from Bainbridge he had been using her van. There was present probable cause to arrest Barr for a felony plus probable cause to believe contraband or weapons were located in the van. Such facts gave the police probable cause to search the van without a warrant. (People v. Chavers, 33 Cal.3d 462, 467, 470, 189 Cal.Rptr. 169, 658 P.2d 96; People v. Superior Court (Valdez), 35 Cal.3d 11, 15–16, 196 Cal.Rptr. 359, 671 P.2d 863.) The evidence seized was admissible on either legal theory.
Barr contends his Sixth Amendment right to counsel was violated because he was promised a Class V attorney but was given only a Class III attorney. On November 3, 1981, Barr moved to have appointed counsel to represent him but he also sought to retain his pro per status with the understanding the attorney would have control of all courtroom proceedings. Judge Smith granted the motion, saying:
“Yes, I will let you keep your pro per status with the understanding the attorney is in control of the proceedings.
“THE DEFENDANT: Fine.
“THE COURT: Understanding that you have nothing to do with the actual trial matters. He will do all questioning, cross-examining, he will make the opening and closing statements.”
Barr questioned “Will that be a Class V attorney? THE COURT: Yes, it has to be.”
In fact a Class III attorney, Robert Archibald, was appointed. This classification system is employed by the Office of Defenders Services in San Diego County in selecting attorneys to handle defenses of indigent defendants. Attorneys, based on experience and other factors, are Class I through V, crimes are classified by degree of seriousness with Class I through VI. The classification provides:
“All Felonies are classified as Class III Crimes except those enumerated in Class IV, V, and VI. The Class III Crimes enumerated below are only listed to clarify their status as Class III Crimes.
“1. Penal Code 261.5—Unlawful intercourse.
“2. Penal Code 288a (a), (b)(1), (e) & (f)—Oral copulation—no force or violence.
“3. Penal Code 207—Kidnap
“4. Penal Code 211—Robbery w/o use (12022.5) or GBI (12022.7) or (12022.8). Example: Purse snatch.
“5. Any attempts (664) of Class III Crimes.”
The Class V crimes on the other hand as set forth in the classification of felonies are:
“1. Penal Code 187—Murder 1st or 2nd degree.
“2. Penal Code 209(a)—Kidnap w/ransom or GBI or death.
“3. Penal Code 261.2—Rape w/violence and GBI.
“4. Penal Code 264.1—Rape in concert.
“5. Penal Code 262—Spousal Rape w/GBI.
“6. Penal Code 211—Robbery w/GBI.
“7. Penal Code 218—Train Wrecking.
“8. Penal Code 219.1—Throwing missiles at common carriers—intent to wreck & B.I.
“9. Penal Code 220—Assault w/intent to commit rape, mayhem, etc.
“10. Any felony with GBI (12022.7) allegations.”
These classifications do not carry the force of law. They had no rational relationship to Pope error (attorney incompetency) or lack of Pope error. The failure to appoint a Class V attorney to represent a defendant charged with a crime listed under Class V does not result in Pope (People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859) error. Pope error arises from counsel incompetence and its effect in denying a defendant a fair trial as explained in the judicial decisions of this state. Barr is not entitled to any specific appointed attorney. (Harris v. Superior Court, 19 Cal.3d 786, 795–796, 140 Cal.Rptr. 318, 567 P.2d 750.)
The difficulty with applying the foregoing rules of law to this case is that here there was an understanding with the magistrate that a Class V attorney would be appointed for Barr and a Class III attorney was mistakenly appointed.
This, however, is not a case (as analogized by Barr) of a failure to keep a plea bargain. (Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; People v. Villarreal, 65 Cal.App.3d 938, 135 Cal.Rptr. 636.) Where, however, as here, there has been a breach of a bargain, an appropriate and lawful sanction may be applied.
Barr has not shown either by allegation or by fact where any potentially meritorious defense has been lost or his case has been otherwise prejudiced or that a different result would obtain had this error not been made. (People v. Pope, supra, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859; People v. Shaw, 35 Cal.3d 535, 540, 198 Cal.Rptr. 788, 674 P.2d 759.) The error was discovered early in the proceedings, (Feb. 10, 1982) and a Class V attorney appointed. The trial did not begin until 1983. None of these facts suggest any specie of prejudice to Barr's case. The fact that the prosecuting attorney, Kiernan, did not disclose the fact and advise Archibald of the Class V attorney promise whether intentionally or negligently does not upgrade this mistake to reversible error. Absent a showing of some prejudice to Barr, there is no basis in reason or law why a sanction should be imposed. There is no merit in Barr's contention.
Barr contends the trial court erred in denying his motion to dismiss (People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361) those counts involved in the Palomino I and Pete's Place robberies. Certain items of evidence seized in connection with the investigation of those robberies had been inadvertently destroyed by the police. In addition, Barr charges the victim at the Palomino I robbery had been shown a lineup shortly after the robbery but was unable to identify anyone from that lineup. This photographic lineup had also been destroyed. Barr's motion to dismiss the counts was denied but the court admonished the jury not to presume that the evidence so destroyed was in any way favorable to either side. Barr accepted the court's ruling (but only with respect to the counts involved in the Pete's Place robbery).
Barr has confused two motions; first, his Hitch motion had to do with physical evidence destroyed. The trial court did not consider the destruction of photographic lineup pictures in ruling upon the Hitch motion. Its ruling related only to physical evidence found at the robbery site. There was no Hitch motion directed to the destruction of a photographic lineup. The trial court has never had the opportunity to rule upon that issue. It may not be raised for the first time on appeal. (People v. Seaton, 146 Cal.App.3d 67, 75, 194 Cal.Rptr. 33.) Barr, however, does not prevail on the merits of this argument even in the absence of such a waiver. Under Hitch a defendant must show the evidence destroyed was material to his case. Some case authorities have articulated yet a higher standard, requiring substantial materiality. (People v. Garnica, 121 Cal.App.3d 727, 733, 175 Cal.Rptr. 521.) The photographic lineup destroyed here involved other possible suspects in the first Palomino robbery who in fact turned out to be not suspects. Barr offers neither reason nor logic to explain how a photographic lineup involving other persons found not to be involved would be material to Barr's defense.
The police, when investigating the first Palomino robbery in May 1981, impounded a beer bottle, a cigarette butt and a dime. The police in June learned no prints could be obtained. The items were destroyed. The trial court concluded this was not a malicious but an accidental and inadvertent destruction and the items were not in any way material.
The Hitch motion was properly denied because the physical evidence destroyed was not material to Barr's defense. The evidence contains no fingerprints or other identifying marks implicating or exculpating Barr. Barr argues the prints might have shown someone else had touched these items. If this were the fact, it would neither inculpate or exculpate defendant. Concerning the availability of the cigarette butt for saliva tests, such test, if positive, would only inculpate Barr. Showing someone other than Barr smoked the cigarette would not be evidence which would exclude Barr as the robber. The court here did impose a specie of sanction. We do not suggest that any sanction other than that imposed was proper. (People v. Zamora, 28 Cal.3d 88, 99, 167 Cal.Rptr. 573, 615 P.2d 1361.)
Barr complains of his identification by witnesses Tracey and Flores, who did not make their identification of him until four or five months after the robbery. This testimony would not have been admitted or precluded by Proposition 8 because Proposition 8 does not impact upon the matter of suggestive identification processes. The admissibility or nonadmissibility of such identification evidence rests squarely upon federal (Wade-Gilbert) constitutional principles. (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 299, 87 S.Ct. 1967, 18 L.Ed.2d 1199.)
Barr contends it was Pope error for his trial counsel not to seek to exclude the testimony of Officer Bird, San Diego Police Department. Bird testified to his interview with Barr on August 27, 1981, when Barr denied knowing Debra Tingvall. He denied using her car. Bird made notes of this interview but did not save them.
To successfully establish inadequate representation, Barr must show the counsel failed to act in the manner to be expected of a reasonably competent attorney acting as a diligent advocate. Secondly, he must show the act or omission withdrew a potentially meritorious defense. (People v. Shaw, supra, 35 Cal.3d 535, 540, 198 Cal.Rptr. 788, 674 P.2d 759.) Barr took the stand but did not deny making the statements. He admitted he made the statements, lied to the officer. Contrast People v. Jones, 145 Cal.App.3d 751, 193 Cal.Rptr. 663, where a confession made to the officer was in issue and the defendant denied making the confession. The officer's notes would have resolved the dispute as to whether a confession had in fact been made. In Jones the notes were crucial to the defense. Whether Barr knew Tingvall or not is not vital to Barr's defense. This was a collateral matter. The officer's testimony showed Barr's willingness to lie to police. This he admitted. How the actual notes would aid his defense remains in ethereality.
There is dispute in the California authorities as to whether the officer is required to preserve rough notes of an interview with a witness or suspect. (See People v. Seaton, supra, 146 Cal.App.3d 67, 75, 194 Cal.Rptr. 33; People v. Murtishaw, 29 Cal.3d 733, 755, fn. 17, 175 Cal.Rptr. 738, 631 P.2d 446; People v. Jones, supra, 145 Cal.App.3d 751, 193 Cal.Rptr. 663.) Because of Barr's failure to surmount the threshold requirement of relevancy, we do not enter this “rough notes” thicket. Neither Hitch error nor inadequate representation by counsel are present in these facts.
Barr contends the trial court erred in denying his request to appoint an expert on the validity of eyewitness identification. By pretrial motion Barr sought to have an expert appointed to testify regarding the problems inherent in eyewitness identification. Barr made no offer of proof to reach the threshhold requirement of establishing its validity. The motion was summarily denied. The motion was renewed at the end of the prosecution's case and again denied. In determining whether to admit the opinion of an “expert,” several prerequisites are to be first considered: (1) the relevancy of the proposed testimony to some issue in the case; (2) whether the subject of the expert testimony has obtained acceptable reliability within the scientific community and (3) whether its presentation will be unduly confusing and/or time consuming. (Witherspoon v. Superior Court, 133 Cal.App.3d 24, 183 Cal.Rptr. 615.) Whether evidence has obtained a reputation for sufficient reliability so as to be admissible at trial is a matter to be addressed in the first instance. (See Frye v. United States (D.C.Cir.1923) 293 F. 1013.) That threshold requirement has not been met here.
Appellate courts of this state have long upheld the exclusion of an expert witness offered to prove the inaccuracy of eyewitnesses. This court most recently in People v. Bradley, 115 Cal.App.3d 744, 751, 171 Cal.Rptr. 487, upheld the trial court's rejection of the testimony of such an expert. The view that eyewitness identification is not a proper subject for expert testimony has been adopted by the federal court. (United States v. Amaral (9th Cir.1973) 488 F.2d 1148; United States v. Watson (7th Cir.1978) 587 F.2d 365; United States v. Brown (10th Cir.1976) 540 F.2d 1048, 1053–1054.) Lack of witness qualifications, lack of need because of prompt and positive identification by this witness, invasion of province of the jury, undue consumption of time are reasons assigned for refusal to admit such testimony. A great majority of the cases over the United States have followed the United States v. Amaral exclusion rule. (See cases cited in State v. Chapple (1983) 135 Ariz. 281, 660 P.2d 1208, 1220.)
This position has been upheld in face of the fact the law has long recognized the inherent dangers in eyewitness identification testimony. (See United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149.) “The vagaries of eyewitness identification are well known.”
The California Supreme Court in People v. Bledsoe, 36 Cal.3d 236, 247–248 & fn. 9, 203 Cal.Rptr. 450, 681 P.2d 291 has hinted at a breach in the wall of inadmissibility, saying
“As a number of decisions have recognized, in such a context expert testimony on rape trauma syndrome may play a particularly useful role by disabusing the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths.”
In footnote 9 is found this forecasting of shadows:
“In somewhat similar vein, courts in a number of states have recently held that, in appropriate circumstances, expert testimony on the reliability of eyewitness identification should be admitted to counter some of the common misconceptions on the subject. (See, e.g., State v. Chapple (1983) 135 Ariz. 281 [660 P.2d 1208] ․; State v. Sellars (1981) 52 N.C.App. 380 [278 S.E.2d 907, 921–922].)” (Ibid.)
An examination of the cases authorizing such expert testimony in “appropriate circumstances” demonstrates: In State v. Chapple, supra, 660 P.2d at pages 1220–1222, several factors favoring admissibility (not present here) are found. First the key factual dispute to be resolved involved eyewitness identification. Here eyewitness identification is buttressed by physical evidence seized in possession of Barr—multiple colored baseball caps, .38 revolver, the same van, an almost fingerprint, M.O., etc.
Some identifications in Chapple were four months post crime. One identification was 13 months late. Here the positive identifications tying Barr irrevocably to the latest series of robberies were but two days post crime. In Chapple there was a “feedback factor”—inaccurate information received by the witnesses after the event. In Chapple there was witness reinforcement through interwitness discussions and “pouring over” large groups of police photographs. In Chapple there were two suspects bearing a close resemblance. None of these facts are shown here.
The Arizona court concluded in these circumstances, an expert shown to have specialized understanding of the subject was qualified to inform the jury concerning “variables” concerning identification and memory of what the average juror would not be aware (p. 1221) and concluded “the unusual facts in this case” made the experts offered evidence a proper subject for expert testimony. In the second case cited (State v. Sellars, supra, 278 S.E.2d 907, 921–922) a conceded expert, without objection, testified concerning the (standard) elements necessary for putting together a proper, nonprejudicial photographic lineup. He also gave his opinion as to the particular photo lineup used as to whether it met the standard.
The decision to appoint such an expert (admit evidence of this character) rests ultimately in the sound discretion of the trial court. Was there an abuse of discretion here? (People v. Barrow, 60 Cal.App.3d 984, 995, 131 Cal.Rptr. 913.) The offer of proof was that the witness would testify generally as to the pitfalls in eyewitness identification. The witness would not testify as to the abilities of a particular witness in this case to testify with accuracy. No appropriate circumstance has surfaced to warrant admitting the proffered testimony.3
The jury heard testimony and arguments on the eyewitness identification. The jury was specifically instructed on eyewitness identification. The lack of expert testimony did not deprive the defense in this case of the presentation of any material evidence. We find no abuse of discretion.
Barr contends the trial court erred in ruling that the prosecution could seek—compel—discovery of any statements made by the prospective defense witnesses to defense counsel and/or his investigators after that witness had testified on direct for the defense. The trial court granted this motion upon the authority of the recently enacted Penal Code section 1102.5, which reads:
“Upon motion, the prosecution shall be entitled to obtain from the defendant or his or her counsel all statements, oral or however preserved, by any defense witness other than the defendant, after that witness has testified on direct examination at trial. At the request of the defendant or his or her counsel, the court shall review the statement in camera and limit discovery to those matters within the scope of the direct testimony of the witness. As used in this section, the statement of a witness includes factual summaries, but does not include the impressions, conclusions, opinions, or legal research or theories of the defendant, his or her counsel or agent.” (Italics added.)
Defense counsel objected, arguing 1102.5 was unconstitutional on its face, violative of Barr's Fifth and Sixth Amendments against self-incrimination and the right to counsel. As a consequence of the court ruling defense counsel Sheela was required to provide the prosecution with his notes of interviews with four key defense witnesses, Diana Bainbridge, Jennifer Bainbridge, Olgo Pendo and Debra Baynard.
Our Supreme Court has struck down any attempt of the prosecution by pretrial order to compel a criminal defendant to provide the prosecution with names or addresses of potential defense witnesses or a synopsis of their expected testimony. This rejection has been, was first based on federal constitutional principles (Prudhomme v. Superior Court, 2 Cal.3d 320, 323–326, 85 Cal.Rptr. 129, 466 P.2d 673, and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653) as well as the parallel provisions of the California Constitution (art. I, § 15). (Allen v. Superior Court, 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65; People v. Collie, 30 Cal.3d 43, 55 and fn. 6, 177 Cal.Rptr. 458, 634 P.2d 534; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.)
Prudhomme held that a prosecution discovery order in a murder case was in excess of the trial court's jurisdiction where it compelled the defendant's attorneys to disclose to the prosecution the names and addresses and expected testimony of the witness defendant intended to call at trial; it did not clearly appear from either the order or the record that such disclosure could not possibly intend to incriminate the defendant and where the order was not limited to any particular defense or category of witness from which a court could attempt to determine its communicative effect. Finally the order could require the defendant to disclose information that might serve as a link in the chain of evidence tending to establish guilt in the criminal offense. The Prudhomme analysis was followed and expanded in Allen v. Superior Court, supra, 18 Cal.3d 520, 526–527, 134 Cal.Rptr. 774, 557 P.2d 65. Allen pointed out that Prudhomme was upon the “principle element in determining whether a compelled disclosure should be allowed is ‘whether disclosure thereof conceivably might lighten the prosecution's burden of proving its case in chief.’ ” (Id., at p. 524, 134 Cal.Rptr. 774, 557 P.2d 65.) Allen not only sustained the petitioner's claim on the basis of the Fifth and Fourteenth Amendments but on state constitutional grounds as well. (Cal. Const., art. I, § 15.) The court said:
“In Reynolds [Reynolds v. Superior Court, 12 Cal.3d 834, 117 Cal.Rptr. 437, 528 P.2d 45], we noted that ‘Prudhomme put this court on record as being considerably more solicitous against the privilege of self-incrimination than federal laws currently requires.’ (Id., at p. 843 [117 Cal.Rptr. 437, 528 P.2d 45].) We maintain that solicitude and affirm the continued vitality of the stringent standards as set forth in Prudhomme for the protection of the privilege against self-incrimination as embodied in article I, section 15.” (Allen v. Superior Court, supra, 18 Cal.3d 520, 525, 134 Cal.Rptr. 774, 557 P.2d 65.)
And Allen made it clear:
“It is of no significance that while Prudhomme involved a trial court discovery order requiring disclosure to the prosecution of names, addresses and expected testimony of defense witnesses, the instant order arose sua sponte and was not initiated by a motion for prosecutorial discovery. ‘[T]he privilege forbids compelled disclosures ․’ [citation] regardless of the form which the compulsion takes. Thus the propriety of the court's order must be determined under the test articulated in Prudhomme.” (Id., at p. 526, 134 Cal.Rptr. 774, 557 P.2d 65; fn. omitted.)
The court in footnote 3 said:
“It is also irrelevant that Prudhomme dealt with pretrial discovery while the instant case involves disclosure at trial. In a companion case to Prudhomme, Bradshaw v. Superior Court (1970) 2 Cal.3d 332 [85 Cal.Rptr. 136, 466 P.2d 680] ․ we rejected that portion of a discovery order which required defense disclosure of witnesses within 24 hours of expected use. We observed that ‘If the evidence might possibly incriminate petitioners, they cannot be compelled to disclose at any time prior to its actual use at trial.’ [Citation.]” (Allen, supra, 18 Cal.3d at p. 526, 134 Cal.Rptr. 774, 557 P.2d 65; italics added.)
Allen concluded in order that the defense merely give the names of its potential witnesses for the sole purpose of obtaining an unbiased jury violated the constitutional proscription against self-incrimination as even that limited order used to discover evidence to impeach the defense and thereby assist the prosecution in its case-in-chief.
In People v. Collie, supra, 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534, the Supreme Court reviewed a trial court order requiring disclosure of the defense witness' statements made to a defense investigator. The court reversed the order, saying such discovery had not been authorized by the Legislature. Collie specifically declined to rule whether such discovery could ever be constitutional. Collie also noted the prosecution discovery of the defense witness' statement after the witnesses had testified under direct question that had not been resolved. A tangle “of conflicting Courts of Appeal have attempted to resolve this particular issue. People v. Thornton, 88 Cal.App.3d 795, 152 Cal.Rptr. 77, held disclosure clearly violated a defendant's rights against self-incrimination People v. Ayers, 51 Cal.App.3d 370, 124 Cal.Rptr. 283, People v. Chavez, 33 Cal.App.3d 454, 109 Cal.Rptr. 157, and People v. Bais, 31 Cal.App.3d 663, 107 Cal.Rptr. 519, held to the contrary based on a screening procedure by the trial court. After review of these cases, Collie concluded: “[W]e have grave doubts that a valid discovery rule affecting criminal defendants can be devised.” (30 Cal.3d at p. 56, 177 Cal.Rptr. 458, 634 P.2d 534.) In response to Collie's Scottish invitation, the Legislature responded with section 1102.5.
The legislative requirement is that “defendant” or the “defense attorney” provide the prosecution “All statements oral or however preserved from any defense witness other than defendant after that witness has testified ․” This command to the defendant to speak patently, grossly violates both the Fifth Amendment in the federal Constitution as well as article I, section 15 of the state Constitution.
In Allen the order did not require the defendant himself to give the names of the witnesses. However, the Supreme Court concluded such order violated the constitutional proscription against self-incrimination. The statute here patently suffers from the same defect. The Allen case suggests among the reasons against such disclosure that it may lead to “other evidence useful to the prosecution including impeachment witnesses, inconsistent statements ․” (Allen v. Superior Court, supra, 18 Cal.3d 520, 526, fn. 4, 134 Cal.Rptr. 774, 557 P.2d 65.) The broad language of the statute in question creates the means to this prohibited objective. The statute in its broad wording clearly authorized the prosecution to discover evidence to impeach the defense witnesses and thereby assist the prosecution in its case-in-chief, i.e., lighten the burden of the prosecution. (Allen, supra, at pp. 526–527, 134 Cal.Rptr. 774, 557 P.2d 65.)
The statute directs the attorney to turn over oral or written statements of defense witnesses. This triggers a further constitutional impediment, not found in either Prudhomme or Allen, i.e., a violation of defendant's right to effective assistance of counsel. This right is guaranteed by both the federal (VI amend.) and state Constitutions. If this statute passes constitutional muster, any defense counsel if he is required by the realities of criminal defense to act as his own investigator in interviewing potential witnesses may be compelled to turn over damaging information to the prosecution. This could include inconsistent statements, impeachment matters, etc., thus helping the prosecution to meet its burden of proof. Within rational contemplation is a requirement that the attorney could be compelled to take the stand against his client to reveal to the jury the contradictory statements of one of his witnesses.
Courts of this state have uniformly upheld the constitutional right of a defendant to not have his attorney compelled to testify against the client. It constitutes a denial of effective assistance of counsel. (People v. Rodriquez, 115 Cal.App.3d 1018, 1021, 171 Cal.Rptr. 798; People v. Collie, supra, 30 Cal.3d at p. 60, fn. 13, 177 Cal.Rptr. 458, 634 P.2d 534.) This statute puts the defense attorney to a constitutionally intolerable Hobson's choice. Either he or she will thoroughly prepare and investigate the case and run the risk of being called as a witness against the client; or the attorney can eliminate the risk by undertaking only a minimal preparation. If the attorney must contemplate taking the stand the defendant can be convicted because of his own attorney's credibility with the jury has been destroyed (Rodriquez, supra, 115 Cal.App.3d at p. 1021, 171 Cal.Rptr. 798) or because his attorney out of caution has not properly prepared the case (People v. Pope, supra, 23 Cal.3d 412, 424–425, 152 Cal.Rptr. 732, 590 P.2d 859.)
Assuming that counsel's refusal to disclose or testify, the failure or refusal of the attorney to disclose information can result in his being subjected to a contempt proceedings. The lawyer is faced with this double-Hobson's choice of going to jail or compromising his client's case.4
Neither of these scenarios are acceptable alternatives under the Sixth Amendment of the federal Constitution or article I, section 15 of the California Constitution.
In Olson v. Superior Court, supra, 157 Cal.App.3d 780, 204 Cal.Rptr. 217 (hrg. granted Sept. 13, 1984), the attorney was held in contempt for failure to answer questions concerning statements made to her by defense witness. The trial court ordered an in camera hearing outside the presence of the deputy district attorney so that it might determine if Olson could answer the questions concerning her conversation with defense witness Gumfory after which the court ordered Olson to disclose the contents of any conversation that she had had. Olson refused and was found guilty of contempt. Olson stated: “We are unable to conceive of any set of circumstances in which discovery under section 1102.5 would, in a real and practical sense, lighten the People's burden of proving its case-in-chief.” (Olson, supra, at p. 790, 204 Cal.Rptr. 217.)
The constitutional and procedural nightmare brought on by this statute is highlighted by the following questions and answers: 5 What happens if the statements are neither written nor recorded? A mechanical application of section 1102.5 requires that defense counsel take the stand. This drastic measure, however, is not necessary if defendant's attorney discloses to the court, in camera, any conflicting statements made by the witness. The court should request that defense counsel stipulate to the introduction of any unrecorded statements. (United States v. Freeman (9th Cir.1975) 519 F.2d 67, 68–69.) The statement sought to be discovered would be, of course, limited to ‘those matters within the scope of the direct testimony of the witness,’ and to matters which do not contain the attorney's ‘impressions, conclusions, opinions, or legal research or theories.’ (§ 1102.5, subd. (a).) Moreover, the court is required to limit disclosure of evidence which is prejudicial under Evidence Code section 352 or which violates a defendant's right against self-incrimination. (People v. Chavez, supra, 33 Cal.App.3d pp. 459–460, 109 Cal.Rptr. 157.)
In the event that counsel refuses to stipulate, the court should advise the prosecutor of the content of any inconsistent statements made by the defense witness which have been disclosed to the court in the in camera hearing. The court's disclosure is, of course, limited by those evidentiary objections mentioned in the previous paragraph. Moreover, the prosecution would be prohibited from mentioning that the statements were obtained from any member of the defense team.
Armed with the court's disclosure, the prosecutor would presumably confront the witness with the inconsistent statement. Should the witness deny making such a statement, the court should promptly point out to the jury the existence of the inconsistent statement omitting any reference to the judge's source of information. In this manner the court preserves the accused's Fifth and Sixth Amendment rights; avoids the specter of having defense counsel testify seemingly against the interest of his client, and the prosecution is thus provided with limited access to prior inconsistent statements made by a defense witness.
In People v. Rodriquez, supra, 115 Cal.App.3d 1018, 171 Cal.Rptr. 798, the defense attorney was called over objection to testify he previously told the authorities he considered a lineup to be fair. This court held the defendant was deprived of effective assistance of counsel on this process:
“To require a criminal defendant's attorney to testify against his client on a material issue so diminishes the attorney's effectiveness on behalf of his client that it infringes on the right to counsel. Once the attorney has been placed in a position adverse to his client, all his efforts on the defendant's behalf will be suspect. The jury can hardly avoid inferring the defendant's attorney does not believe in the defense he himself is presenting. It is fundamentally unfair to a criminal defendant to use his own attorney's testimony to convict him and such a substantial infringement on the right to counsel requires reversal.” (Rodriquez, supra, at p. 1021, 171 Cal.Rptr. 798.)
The prosecution would weigh this fundamental constitutional right against the need for the right of the prosecution to cross-examine witnesses who may have presented misleading, incomplete or prejudicial testimony. Misleading, prejudiced testimony is commonplace in both prosecution and defense evidence, but this is no occasion to destroy the constitutional right to effective assistance of counsel. Such reasoning ignores the observations of Justice Jackson in Hickman v. Taylor, 329 U.S. 495, 517, 67 S.Ct. 385, 396, 91 L.Ed. 451, where he explained:
“Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. Butness but he steps out of professional character to do it. He regrets it; the profession discourages it.”
The ultimate goal of a trial is the ascertainment of truth and where the furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal. (In re Ferguson, 5 Cal.3d 525, 531, 96 Cal.Rptr. 594, 487 P.2d 1234.) However, nowhere in the panoply of duties that can be imposed on defense counsel is that of surrendering a client's case by the process of testifying as to what his witnesses have told him in the process of his investigation.
A trial court by the process of compelling the defense lawyer to disclose the nature of evidence he has obtained—even in an in camera session where the district attorney's representative is not present—operates as a deterrent to the utmost fundamental objective, the able assistance of counsel. Section 1102.5 is an unconstitutional attempt to undermine a defendant's constitutional right to effective assistance of counsel.
If more reason is needed for disapproval of the trial court's action, it can be found in the spectacle of an invasion of the attorney-client's privilege in violation of section 954 of the Evidence Code. The attorney-client privilege is applicable where the information is gleaned from third parties as a result of confidential communication between the attorney and the client. (People v. Meredith, 29 Cal.3d 682, 693, 175 Cal.Rptr. 612, 631 P.2d 46.) It may be urged this provision merely grants the prosecution the right to seek discovery of statements made by a non-party witness. Such a procedure, however, would require disclosure not only from the defendant's investigator or the defendant's lawyer who has talked to the witnesses but from the defendant himself who conducts an investigation and then reports to the lawyer. Again, this is an impermissible invasion of the accused's constitutional rights to confide fully in his counsel as to fact known or source of fact without fear such communication may be forcibly disclosed by a court order to counsel.
The next hurdle this statute faces is the attorney work product rule. A factual written or a summary compelled by the statute to be disclosed may contain the defense theories or opinions or observations concerning the witnesses remarks. The lawyer's interpretation of the witness statements could invariably tend to reveal the attorney's mental processes. (Hickman v. Taylor, supra, 329 U.S. 495, 516–517, 67 S.Ct. 385, 396–397, 91 L.Ed. 451.)
Finally, a prosecutor here, Kiernan, made effective use of the information she acquired under section 1102.5 in her cross-examination of the defendant's alibi witness. The prosecution has the burden of showing the errors here were harmless beyond a reasonable doubt before these convictions may be affirmed. (Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) We examine this issue infra (XIII).
Barr next contends the prosecution was guilty of a series of acts of misconduct requiring reversal. First, the prosecutor, Kiernan, remained silent with respect to the defendant's rights to have a Class V attorney represent him, allowing him to have a Class III lawyer appointed. Kiernan was cited twice further for misconduct. During her redirect examination of Officer St. John, Kiernan asked him if certain evidence had been available to the defense. Attorney Sheela objected and the objection was sustained; but Kiernan continued “Now have you been made aware of any attempts by the defense to obtain any of this evidence for further testing?” The defendant's motion for a mistrial was denied. Kiernan's second gaffe occurred when questioning defense witness Diana Bainbridge about a gun seized in the search of her van. Questioned Kiernan:
“The subject of that motion was to try to suppress the evidence which had been found in the van, isn't that right?
“[Answer by Bainbridge:] Yes.
“SHEELA: Object to that as being irrelevant misconduct on the part of the district attorney, your Honor.
“THE COURT: We will be in recess for about 15 minutes Ladies and gentlemen.”
Kiernan attempted to justify the question. The court rejected her arguments, saying “I think it was misconduct.”
Such (mis)conduct upon the part of the district attorney in the species of questions asked or in the either negligent or careless concealment of the fact Barr bargained for a Class V attorney are not in and of themselves sufficient to warrant reversal. They must be added to the congery of errors recited above.
Finally, Barr claims the adding of further prior felony convictions pretrial constituted vindictive prosecution, a violation of the rule in Twiggs v. Superior Court, 34 Cal.3d 360, 194 Cal.Rptr. 152, 667 P.2d 1165. We find no fact basis for either actual vindictive prosecution or a presumption of vindictive prosecution in the pretrial charging of these additional priors. While it may be true the timing of the various amendments coincide with the exercise of a procedural right by defendant or a setback to the prosecution and there appears to have been a high degree of zealous prosecution here involved; however, the vindictive prosecution rules have not been violated.
The trial court ruled Barr could be impeached by all of his prior felony convictions. He charges the first prior felony conviction must be stricken because it was the result of Boykin/Tahl error. This was a 1964 plea of guilty to forgery in Wisconsin, five years before the Boykin v. Alabama rule (395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) was announced. Barr's argument is flawed. The California Supreme Court has concluded convictions obtained before Boykin need not reflect defendant was advised of his constitutional rights in order to be valid. (In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)
Finally, we reach the most difficult problem, in the light of the multiple errors committed in this case, some judged by the Watson, 46 Cal.2d 818, 836, 299 P.2d 243 standard, some by the Chapman (supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705) standard, is reversal required. Requiring defense counsel surrender information he had concerning his investigation of his own witnesses results in a violation of Barr's constitutional rights which must be measured according to Chapman standards. The Beagle errors recited resulted in the introduction of evidence of a highly prejudicial nature yet they are to be measured by the Watson standard.
The charge that Barr had committed multiple armed robberies is proved by overwhelming evidence. Unchallenged facts, multiple percipient witnesses, unmovable hard nontestimonial evidence invited the jury to convict him.
With respect to the last series of robberies (counts 12 through 18 inclusive), the identification evidence, the multiple bits of corroborative evidence add up to a very strong case. In fact the evidence of Barr's guilt is overwhelming. There were multiple eyewitnesses to each separate crime. The witness had lengthy opportunities to view Barr and his companion. The viewing occurred in well-lighted conditions, nonemotional (at least before the gun was pulled) circumstances. The presence of the van (in which Barr was arrested) at the scene of the last two robberies, the baseball cap, the gun, the presence of Barr's cowboy-hatted girlfriend made convictions inevitable, the errors harmless beyond any reasonable doubt. These convictions survive both Watson and Chapman standards of review. With respect to the earlier robberies (counts 1 through 8) the eyewitness evidence of identity of the robber was obtained under the same favorable condition. The lapse of some time (May 21 to Aug. 27) from the earliest crime to arrest detracts somewhat from the strength of the identifications. However, a whole host of corroborating facts support the conviction of Barr as the robber in these earlier crimes. He is caught with the two colored baseball hats. An identical modus operandi was followed meticulously in each crime. The accurate general appearance of Barr as the robber was reported by each witness. He was readily identified when seen in the flesh at trial. To the foregoing must be added the 360 degree encirclement of Barr by the evidence of overwhelming nature deriving from the August 20 robberies of Sta-Van and Pete's Place and the August 25 robbery of King Luis Inn. Barr's modus operandi in these latter robberies reinforces the finding of guilt beyond any reasonable doubt. Whether the errors be of Beagle nature or of Chapman constitutional dimension, they do not compel reversal.
The judgment is in all respects affirmed.
1. The classification system here referred is one used in San Diego County by judges in providing attorneys to represent indigent defendants. A Class V attorney by definition handles those felonies involving the most serious consequences to the accused. A Class III attorney on the otherhand is eligible to handle felonies of a comparatively lesser nature. Under this system a Class V attorney would normally be appointed to represent Barr.
2. Article I, section 28, subdivision (f), of the California Constitution provides: “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court.”
3. In People v. Plasencia, 140 Cal.App.3d 853, 189 Cal.Rptr. 804 (hg. granted July 14, 1984, Crim. 23194), the appeal court held proffered expert testimony on the inaccuracy of eyewitness identification was properly rejected as too conjectural, too speculative.
4. This is not legal hallucination. In two cases (Olson v. Superior Court, 157 Cal.App.3d 780, 204 Cal.Rptr. 217 (hg. granted Sept. 13, 1984), and In re Polos, 154 Cal.App.3d 448, 200 Cal.Rptr. 749 (hg. granted July 19, 1984) the trial court held criminal defense attorneys in contempt for refusal to surrender evidence described in the statute.
5. This court disclaims authorship of these projections. They are offered as concrete proof of the tangled morass precipitated by this statute.
STANIFORTH, Associate Justice.
BROWN, P.J., and WORK, J., concur.