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

PEOPLE of the State of California, Plaintiff and Respondent, v. Anthony ARMSTRONG, Defendant and Appellant.


Decided: April 25, 1986

John K. Van de Kamp, Atty. Gen., Ann K. Jensen, Frances Marie Dogan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent. Leslie R. Karlstrom, Livermore, for defendant and appellant.

Defendant Anthony Armstrong was charged with kidnapping a person for the purpose of robbery, and with two counts of robbery.   It was also alleged that he had personally used a deadly weapon in the perpetration of each of the charged offenses, and that he had suffered a prior conviction of robbery for which he had served a prison term.   A jury found him guilty of false imprisonment by violence or menace, a lesser offense included in the kidnapping charge, and of the two charged robberies.   The trial judge thereafter found that he had suffered the prior conviction of robbery and a prison term therefor.   He appeals from the judgment entered on the jury's verdicts and the trial judge's findings.

I. The first of Armstrong's appellate contentions is that:  “The identification procedure used against defendant was so inherently suggestive that it proved constitutionally defective.”

While waiting near his automobile to pick up his mother and sister who were in a theater, one Keith was accosted by two men.   One, who was apparently “Mexican,” wore a baseball cap with the visor pointed backward;  the other was a black man “wearing dark clothes like a sweater, short hair, short to his head ․ kind of tall and slender.”   After some conversation Keith at the point of a knife, and the two men, entered his car.   At the men's directions Keith drove around for a substantial period of time during which the two men robbed him of his money.   Keith had somehow told them of waiting for his mother and sister, and he was directed to drive back to the theater.   Following the directions Keith found his mother and sister waiting for him.   As the car drove up, his sister recognized the “Mexican” with the baseball cap as one Cusumano who had once been a high school classmate of hers.   One of the men grabbed her mother's purse and the car drove off.   The two women notified the police of the incident, the car and its occupants were described, and police officers were alerted.

Before and during his rides with the two men, Keith got a good look at them, particularly near the theater which was well lighted;  “it was easy to see.”

After observing a nearby police vehicle the two men left Keith's car and started running.  (Keith's mother's emptied purse was left behind by them.)   Keith drove to the officers, and said he had just been kidnapped and robbed.   He pointed to the direction in which the culprits had gone.   Keith was soon advised by an officer that radio had reported that another police car “had someone” who answered one of the robbers' descriptions.   Driving, or being driven, to the other police car, Keith saw a black man in police custody.   The man was defendant Armstrong.   Keith was “absolutely certain ” that he was one of the robbers.

The instant contention concerns the identification of defendant Armstrong by Keith.   He had thus, before testifying, made an “in-the-field identification” of that defendant.

“[T]he propriety of the prompt in-the-field identification by an eyewitness has been upheld repeatedly by both state and federal decisions․   The potential unfairness in such suggestiveness, however, is offset by the likelihood that a prompt identification within a short time after the commission of the crime will be more accurate than a belated identification days or weeks later.   Because the problem is inherent in such confrontations, the choice is between prohibiting all in-the-field identifications or permitting them notwithstanding the element of suggestiveness.   The choice involves a balancing of the interests of fairness to criminally accused persons and prompt, proper and efficient law enforcement, and the choice has properly been made to permit in-the-field identifications, because the immediate knowledge whether or not the correct person has been apprehended is of overriding importance and service to law enforcement, the public and the criminal suspect himself.”  (People v. Odom (1980) 108 Cal.App.3d 100, 110, 166 Cal.Rptr. 283, and see authority there collected.)

Armstrong, at the time of his arrest, was wearing “a black long sleeve sweater.”  (It will be remembered that the “black” robber had previously been described as wearing “dark clothes like a sweater.”)   Armstrong's fingerprints were found on Keith's mother's stolen purse.   And both Armstrong and his accomplice, Cusumano, who was thereafter arrested, confessed to police officers that they had perpetrated the crimes.

 We do not find, as is argued by Armstrong, that his identification by Keith was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”   The trial court did not err in ruling that as to Armstrong the identification proceedings were not constitutionally defective.

II. Armstrong also contends that:  “The alleged confession by defendant was induced by implied threats and thus was involuntary.”

 Armstrong had been given the admonition required by Miranda;  he said he understood it and that he waived the rights which had been explained to him.   Following his initial denial of complicity in the crimes, an officer told him he was obviously lying, and truthfully related that Cusumano had confessed, and that Armstrong “was looking at serious offenses which carried the prospect of time in state prison.”   Armstrong describes the officer's statements as threats which coerced his confession.

“ ‘Confessions remain a proper element in law enforcement.’  ․ Once a suspect has been properly advised of his rights, he may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits.   Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect.  ․ [G]ood faith confrontation is an interrogation technique possessing no apparent constitutional vice.”  (People v. Andersen (1980) 101 Cal.App.3d 563, 576, 161 Cal.Rptr. 707.)

On a Miranda issue, “the trial court's ruling will not be disturbed on appeal unless it is palpably erroneous.”  (People v. Duren (1973) 9 Cal.3d 218, 238, 107 Cal.Rptr. 157, 507 P.2d 1365.)   We find the trial court's ruling not to be palpably erroneous.

III. The remaining appellate contention of Armstrong is stated as:  “The trial court was without jurisdiction to try defendant on the prior conviction after it improvidently dismissed the jury and consequently the five-year enhancement penalty must be stricken.”

As noted, the information alleged that Armstrong had suffered a prior robbery conviction for which he had served a prison term.   At his superior court arraignment when asked if he admitted the prior, Armstrong stood mute, thus in effect denying it.   And at his trial, court and counsel appear to have forgotten the prior conviction, for the jury were not asked to make a finding upon it.   When the jury had returned their verdicts on the charged offenses, they were thanked and dismissed by the court.

Following the trial jury's dismissal the following courtroom proceedings occurred:  “[The Prosecutor]:  Your Honor, was there a prior involved in this case?   The Court:  No.   The Clerk:  Oh—  The Court:  Neither one—  The Clerk:  Wait a second.   I think Mr. Armstrong or did he—  The Court:  Yes, our Mr. Armstrong has a prior, however, I'm going to follow the case that's just come out of Los Angeles and it's a legal issue and will be tried by the court on the prior.”

A hearing was thereafter held, following which the court found that the alleged prior robbery conviction and prison term therefor, had indeed been suffered by Armstrong.

Armstrong offers three arguments.

First, pointing to Penal Code section 1025 he argues that “the question whether or not he has suffered such a previous conviction must be tried by the jury which tries the issue on the plea of not guilty.”   Next he says, trial of the issue of the prior conviction by the court, without his personal waiver of a jury trial thereon was, he insists, constitutional error.   Then, he argues, trial of the issue of the prior conviction before another tribunal, after dismissal of the first trial jury, unconstitutionally exposed him to “double jeopardy.”

Armstrong's principal reliance is upon People v. Wojahn (1984) 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, which holds, as fairly condensed by its headnote 7 (pp. 1026–1027, 198 Cal.Rptr. 277):  “In a criminal prosecution in which defendant's motion for a bifurcated trial on the issue of an alleged prior conviction was granted (Pen.Code, § 1025), the trial court was without jurisdiction to try defendant on the prior conviction, where the jury was mistakenly discharged after it had returned its verdict on the substantive offenses, but before any evidence as to the truth of the prior conviction was offered.  Section 1025 does not contain any provision permitting the trial court to empanel a jury to try the issue of the prior conviction, for good cause or any cause, different from the jury empaneled to try the criminal offense alleged.   Thus, when the jury was sworn, it was sworn to try both the issue of guilt of the substantive criminal offense and the issue of the truth of the alleged prior conviction.   Consequently jeopardy attached to both issues.   When the trial court improvidently discharged the jury, double jeopardy considerations prohibited the empaneling of a new jury to try the issue of the prior conviction.”

 We find ourselves in respectful disagreement with Wojahn as to whether, under such circumstances, double jeopardy occurs.

We first observe that the state's Supreme Court has recently held it to be “the settled rule that the double jeopardy clause does not prohibit retrial after a reversal premised on error of law.”  (People v. Garcia (1984) 36 Cal.3d 539, 558, fn. 13, 205 Cal.Rptr. 265, 684 P.2d 826.)

And the high court long ago held that no constitutional double jeopardy impediment attended the bifurcation of issues for trial before different tribunals, in criminal trials.   In the case of People v. Troche (1928) 206 Cal. 35, 44, 273 P. 767, it was said:  “The requirement under the present system, that the two issues be separately tried, while a departure from the old method of procedure, is but a departure in procedure.   Each issue must still be tried by a jury of twelve impartial persons, and the verdict must be unanimous.   In substance, the old and the new systems are alike.   The guaranteed right of a trial by jury is as inviolate and just as much secured to all under the new system as it was under the old.”

And in People v. Davis (1928) 94 Cal.App. 192, 270 P. 715, the court held that such a statute bifurcating issues, one to be tried before “a new jury in the discretion of the court was not constitutionally improper.”   Such “a statute would simply regulate the pleadings and mode of procedure, and not go to the substance of a trial by jury.   All the issues would still be tried by a jury, in the same way they are now tried.”  (Pp. 195–196, 270 P. 715.)

And since Troche and Davis, it has been consistently held that it is constitutionally permissible to allow different issues of a criminal case to be determined by separate juries.  (See People v. Rupp (1953) 41 Cal.2d 371, 383, 260 P.2d 1;  People v. Wells (1949) 33 Cal.2d 330, 355, 202 P.2d 53, overruled on other grounds, People v. Wetmore (1978) 22 Cal.3d 318, 324, 149 Cal.Rptr. 265, 583 P.2d 1308;  People v. Corona (1978) 80 Cal.App.3d 684, 717, 145 Cal.Rptr. 894;  People v. Winkelspecht (1965) 237 Cal.App.2d 227, 231, 46 Cal.Rptr. 697;  People v. Woods (1937) 19 Cal.App.2d 556, 558, 65 P.2d 940;  People v. Foster (1934) 3 Cal.App.2d 35, 39, 39 P.2d 271;  People v. Pettinger (1928) 94 Cal.App. 297, 301, 271 P. 132.)

 We advert now to Armstrong's claim that the statute, Penal Code section 1025, does not permit trials of its bifurcated issues before different tribunals.

As noted, section 1025 expressly provides:  “[I]f he [the defendant] answers that he has not [been convicted as alleged], the question whether or not he has suffered such previous conviction must [our emphasis] be tried by the jury which tries the issue upon the plea of not guilty.”

Thus the statute (Pen.Code, § 1025), California's Constitution (art. I, § 16) and the United States Constitution assured Armstrong of his right to a trial by jury of the factual issues of his guilt and of his prior convictions.

Penal Code section 1078 mandates the trial court to allow “reasonable [voir dire] examination of prospective jurors” by defense counsel, in order that “a fair and impartial jury” be finally selected.   Experience has taught trial judges and lawyers that many prospective jurors in criminal cases will improperly conclude that if the defendant “did it before he probably did so this time.”  (See People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal.Rptr. 313, 492 P.2d 1.)   Such a prospective juror would patently not be fair and impartial.

The rights of one criminally accused who has suffered a prior felony conviction were long ago considered by the state's high court:

“ ‘Whether or not a prospective juror will be influenced by knowledge of any such previous offense, whether he will be governed by the rule of law which rigidly excludes such a consideration, and whether or not if chosen as a juror, he will obey an instruction by the court to dismiss from his mind all consideration of any separate and different offense of which he may have obtained knowledge in any way, except for purposes of impeachment, is a question of vital importance to an accused person in the circumstances of the defendant here.   He is entitled to be tried by a fair and impartial jury, wholly free from bias or prejudice․   There was no fact more fundamental to his defense than that he should select a jury which would not be biased by this fact, and regard it as evidence in the case from which they might find or presume his guilt of the charges upon which he was being tried.   He had a right to inquire of the panel fully as to the existence of any such bias to enable him to secure his constitutional right of trial before a legally qualified jury.’ ”  (Our emphasis;  People v. Ranney (1931) 213 Cal. 70, 75–76, 1 P.2d 423.)

So also does a criminally charged defendant have a constitutional right to inquire of prospective jurors as to the existence of bias or prejudice on the issue of a prior felony conviction.   That is also, as noted, a factual question.   Such a conviction often is proved by the defendant's earlier admissions which are denied at the trial, or depends on whether or not he had been represented by counsel, or whether it was in fact a felony conviction.   And juries are customarily instructed not to consider allegations of such convictions as proof, and that such proof must be established “beyond a reasonable doubt.”  (See CALJIC 17.25.)

 An accused situated as was defendant Armstrong thus has a “constitutional right of trial” before a legally qualified and unprejudiced jury on the issue of his guilt, and on the issue of his prior conviction.

Yet were we to accept defendant Armstrong's proposed interpretation of Penal Code section 1025, a criminally charged defendant would thereunder be effectively denied one or the other of such rights.   For where the same jury will determine the issue of his guilt or innocence and whether he had suffered the prior conviction, he will be put to a hard choice in his voir dire examination.   He might choose to inquire whether they would be prejudiced on the issue of his guilt because of his alleged or established prior conviction, thus himself bringing that fact to their attention, or he might desist from such inquiry and chance an unfair and partial jury on the issue of his prior felony conviction.   Hence, to insure his constitutional right to a fair and impartial jury on the guilt issue of his trial, he must forfeit his constitutional right to inquire as to the prospective jurors' fairness and impartiality on the issue of his prior conviction.

Our further inquiry is into the Legislature's intended meaning by its use of the word “must” in Penal Code section 1025.

The word “must,” like “the word shall is primarily of mandatory import.”  (Black's Law Dict. (4th ed.) p. 1171.)

But it is nevertheless a “well-known rule that words otherwise generally mandatory or permissive will be given a different meaning when the provisions of the statute, properly construed, require it.”  (Garrison v. Rourke (1948) 32 Cal.2d 430, 437, 196 P.2d 884, overruled on other grounds, Keane v. Smith (1971) 4 Cal.3d 932, 939, 95 Cal.Rptr. 197, 485 P.2d 261.)   The word does not ipso facto mean “mandatory.”  (Skelly Estate Co. v. San Francisco (1937) 9 Cal.2d 28, 33, 69 P.2d 171;  Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 204 Cal.App.2d 805, 810, 23 Cal.Rptr. 1.)  “[I]n many cases it is held that shall and must are directory merely.”  (In re Shafter-Wasco Irr. Dist. (1942) 55 Cal.App.2d 484, 488, 130 P.2d 755.)   And if no special reason for a mandatory construction appears, it will be construed as conferring merely a “discretionary power.”  (Ostrander v. City of Richmond (1909) 155 Cal. 468, 470, 101 P. 452.)

And it will be noted that in its enactment of Penal Code section 1025, the Legislature took care that a jury trying the issue of a defendant's guilt should not unnecessarily and prejudicially be advised of his prior felony conviction.   For the statute states:  “․ In case the defendant pleads not guilty, and answers that he has suffered the previous conviction, the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.”   And the prosecutor's conveyance of such information to the jury would most certainly be misconduct.  (See People v. Moore (1955) 137 Cal.App.2d 197, 205, 290 P.2d 40.)

We think it apparent that in the enactment of Penal Code section 1025, and its use of the word “must” therein, the Legislature intended that it mean directory, placing discretion in a proper case with the trial court.   It would be most unreasonable to permit a defendant to exercise one constitutional right, only at the cost of surrendering another such right.

“It is the duty of the courts, wherever possible, to interpret statutes so as to make them ․ reasonable.”  (City of Santa Clara v. Von Raesfeld (1970) 3 Cal.3d 239, 248, 90 Cal.Rptr. 8, 474 P.2d 976.)   And “we must ․ adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubts as to the provision's constitutionality.”  (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.)

We now advert to the case of People v. Wojahn, supra, 150 Cal.App.3d 1024, 198 Cal.Rptr. 277, upon which defendant Armstrong has principally relied.   We find Wojahn to be transcended by the higher authority we have pointed out.   And as the rationale and holdings of such higher authority appears not to have been considered, Wojahn may not reasonably be deemed contrary authority.   Cases “are not authority for propositions not there considered.”  (People v. Ceballos (1974) 12 Cal.3d 470, 481, 116 Cal.Rptr. 233, 526 P.2d 241.)

Nevertheless, as argued by Armstrong, it appears that he was assured by Penal Code section 1025, the state's Constitution, article I, section 16, and the federal Constitution, of the right of trial by jury on the issue of his prior conviction, a right which he did not waive.  (See People v. Scofield (1971) 17 Cal.App.3d 1018, 1028, 95 Cal.Rptr. 405.)

The judgment of conviction is affirmed.   The cause, however, is remanded to the superior court for a trial, by jury if defendant Armstrong be so inclined, on the issue of the prior felony conviction, and for such other proceedings as are in accordance with law.

ELKINGTON, Acting Presiding Justice.

NEWSOM and HOLMDAHL, JJ., concur.

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