PEOPLE v. THOMPSON

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Court of Appeal, First District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Philip Arthur THOMPSON, Defendant and Appellant.

A025390.

Decided: January 13, 1986

Frank O. Bell, Jr., State Public Defender, Peter R. Silten, Deputy State Public Defender, San Francisco, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Ronald E. Niver, Margo J. Chinn, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendant Philip Arthur Thompson (hereafter appellant or Thompson) appeals from two convictions for robbery and two convictions for kidnapping.

These convictions grew out of holdups of United Parcel Service (UPS) delivery trucks in Burlingame and abductions of their drivers on two separate occasions—December 24 and December 30, 1980.   The facts leading to the conviction derived primarily from the testimony of appellant's accomplice, James Dunagan, which was corroborated by both independent testimonial and demonstrative evidence.   The facts pertinent to the present appeal may be summarized as follows:

Dunagan arrived in San Francisco on or about December 1, 1980.   He was picked up by appellant and his girlfriend, Lynn Shastany, at the Greyhound station.   They went to a restaurant for dinner and then to the Tower Apartments which were managed by appellant.   That evening appellant and Dunagan began to discuss plans to hijack and rob commercial trucks in San Mateo County.   Appellant took Dunagan to the southern part of the city to a warehouse which he jointly rented with another person, and he permitted Dunagan to live there in December 1980.   At the warehouse appellant showed Dunagan two guns, a shotgun and a stolen automatic pistol.1  Appellant suggested that hijacking UPS trucks would be very lucrative because of the holiday season and because the investigation of crimes in the area of the warehouse would be difficult due to the joint jurisdiction of both the Burlingame and San Francisco police.   He also assured Dunagan that he had fences who could dispose of the stolen property.

After making a couple of days survey in the area, on the morning of December 24, 1980, appellant drove to the warehouse in a green Honda Civic to pick up Dunagan.   Appellant was wearing a grey flannel shirt, had grown a light beard and parted his hair differently.   Dunagan wore clothing which resembled UPS uniforms.   They took a gun and a roll of silver duct tape from the warehouse and in a stolen Dodge van, they left for San Mateo.   After driving through downtown, at around 10:20 a.m., they observed and followed a UPS truck.   The driver of the truck (who was later identified as James Matson) pulled over in front of a bank and the two men parked in an adjacent lot.   The driver left the truck to make a delivery in the bank building.   At that time appellant was sitting at the entrance of the bank.   Shortly after, appellant walked back to the van and Dunagan took over the watch in front of the building.   Once Matson stepped into the vehicle, Dunagan followed him and pointed a gun at Matson forcing him to lie down in the back of the truck.   Appellant also entered the truck and held Matson at gunpoint while Dunagan tied the victim's hands with a heavy-duty wrapping tape.   Later, they changed roles:  appellant took over the task of taping and Dunagan covered the driver with the gun.   Prior to placing a pillowcase over his head, the victim was able to observe appellant.   Thereafter, they left for the warehouse.   Since Dunagan could not operate the truck, appellant drove it back to the warehouse.   At the warehouse, the packages were unloaded.   Appellant found Matson's wallet, copied down his address and other personal data (driver's license number, numbers from his phone book, etc.) and threatened him that they would strike back if he did not cooperate by telling the police that the robbers were black.   As Dunagan completed the unloading, appellant left the warehouse for approximately 20 minutes.   During the unloading of the truck Dunagan took Matson's UPS uniform (a brown long-sleeved jacket) to use in another robbery.   Dunagan wiped off the truck with an oily rag to remove all fingerprints.   Then, upon appellant's return, Dunagan took the truck together with Matson to a location in San Mateo and abandoned it at the roadside.   Appellant, who followed the truck in his green Honda, drove Dunagan back to the warehouse.   Appellant took several of the stolen items (candies, wine, brandy, etc.) as Christmas presents, ordering Dunagan to destroy all evidence of their crimes.   Dunagan then cleaned up the warehouse by moving some packages to the second floor and dumping the remaining boxes, wrapping papers, labels, etc. in the garbage dump outside the warehouse.

The December 30, 1980, robbery-kidnapping was almost a carbon copy of the December 24 crime.   On that day Dunagan left the warehouse with appellant who this time drove his green Honda because he did not have a stolen car.   They went to a residential section of Burlingame and at about 11:20 a.m., they noticed a UPS truck parked on Oak Grove Street in front of an apartment complex.   While appellant was watching the truck from his car, Dunagan was hiding in an open garage nearby.   Upon the return of the driver (later identified as Daniel Smith), Dunagan approached him through the rear part of the truck, pointed a gun at him and ordered him to lie down.   Appellant joined Dunagan in the van holding the driver at gunpoint while he was blindfolded and bound with duct tape by Dunagan.   Dunagan drove the truck to the warehouse followed by appellant in his Honda Civic.   In the warehouse, Dunagan retied Smith with a nylon rope, a pillowcase was put over the victim's head and Dunagan began to unload the truck.   In the meanwhile, appellant told Smith that they had his wallet, copied all his personal data (including his driver's license), warned him to mislead the police by reporting that the perpetrators were black, and he threatened to toss Smith into the Bay if he did not cooperate.   Appellant and Dunagan then unloaded and ripped open the packages and took the delivery record as well as Smith's UPS uniform.2  Dunagan testified that the seized parcels contained Christmas presents, bank deposit checks, clothes, etc.   After the fingerprints were wiped off the vehicle, Dunagan drove the UPS truck to the Bank of America parking lot in San Bruno and abandoned it together with its kidnapped driver.   Similar to the first instance, Dunagan and appellant then returned to the warehouse and disposed of the packing materials in the garbage area outside the warehouse.

The version advanced by Dunagan was corroborated not only by the testimony of the victims, but by a host of other evidence.   Officer Osborn, who first arrived at the abandoned truck following the December 24 robbery, testified that he learned about the armed robbery through a radio dispatch by the police.   Osborn asserted that he saw the UPS truck parked off the side of the road;  its rear door was open and its driver, James Matson, was sitting on the floor in the back of the truck.   He looked frightened and was crying.   Matson told him that the truck had been involved in a robbery in Burlingame and that the location of the crime was in front of 350 Primrose Lane, Burlingame.   During cross-examination by appellant's trial counsel, Osborn stated that Matson had given a fairly accurate description of the robbers.   Accordingly, the first suspect was a white male, 25 to 30 years old, 5′10″ to 5′11″ tall, weighing about 190 pounds, having brown hair, brown eyes and possibly a beard.   The second suspect was a Latin or Mexican male, age 25 to 30, 5′10″ tall, weighing 170 pounds, medium build with brown hair and brown eyes.

Police Officer Hennessey, to whom Matson had made a statement after the December 24 robbery, reaffirmed that appellant had been described by Matson as a white male, 28 to 29 years old, 74″ tall, weighing 190 to 200 pounds, with brown hair, beard and sideburns, light complexion, wearing a dark blue jacket, blue jeans and a knit cap.   The second suspect had been depicted as a Mexican male in his 30's, 69″ tall, weighing 180 to 190 pounds, clean shaven, medium complexion, speaking with Spanish accent.

Phillip Shastany testified that he saw appellant on December 30, 1980, some time before noon in a green Honda parked outside Chuck's Steak House in San Mateo which was only two miles away from the scene of the hijacking.   This testimony was confirmed by Daniel Shastany, Phillip's brother, who stated that on December 30, 1980, at about 11 a.m., he met appellant who was in a green Honda parked across the street from the restaurant.

David Boring testified that appellant allowed him to reside at the warehouse at 1370 Wallace Street in San Francisco.   During his stay there he met Dunagan who lived there too.   Boring said that appellant had shown him an automatic pistol and other guns stored at the warehouse.   At trial Boring identified the pistol as the one which appellant kept in the warehouse.

Mark Stanley, a friend of appellant's girlfriend, was visiting at appellant's home in Kensington on or about January 10, 1981.   During his visit appellant took him to his San Francisco warehouse to help move a desk to appellant's mother's home in Santa Rosa.   On their way to the warehouse appellant told Stanley, “Now, remember, you've never been here.”

Shella Swick also visited appellant's house in Kensington in early January 1981.   Appellant gave Ms. Swick a box of cosmetics containing 50 Elizabeth Arden lipsticks, Max Factor eye makeup, eye makeup remover and a box of toys.   Appellant told her that he “had a warehouse that had a lot of things in it, and that was part of it.”

Around the middle of January 1981 the police received a report that discarded boxes with UPS markings were scattered around the warehouse at 1370 Wallace Street.   Based upon this report police inspectors, Anatole Balmy and Ron Kern, conducted a surveillance of the warehouse from an undercover vehicle.   On January 14, 1981, at around 4 p.m., Inspector Balmy observed appellant enter the warehouse.   Approximately 15 to 20 minutes later, appellant came out of the warehouse to retrieve a blanket from a van parked outside.   As appellant shut the door of the vehicle, a bundle fell open exposing an automatic pistol.   Based upon these facts the police immediately sought a warrant to search the warehouse.   But before that warrant was obtained appellant and Dunagan left the warehouse in a pickup truck, were detained, and when the vehicle check disclosed that the truck was stolen, appellant and Dunagan were arrested.

The ensuing search of the warehouse pursuant to the search warrant turned up an automatic pistol, the green jacket in which the gun was wrapped, hundreds of checkbooks and counter checks from a Burlingame bank, several boxes addressed to businesses in Burlingame, a UPS book and several checks payable to persons and institutions in Burlingame.   A second search of the warehouse conducted the next day and pursuant to a fresh search warrant, produced hundreds of calculator rolls, Revlon and Elizabeth Arden cosmetics, a roll of fabric, tubing connnectors, about 100 boxes with UPS labels addressed to businesses and homes in the downtown Burlingame area and two UPS jackets, one with Matson's name on it and the other with Acevedo's name on it.   Moreover, the search of appellant's Kensington residence (also pursuant to a search warrant) on January 16, 1981, yielded yet additional evidence such as men's shirts in cellophane bags with “Robert Gates, Burlingame” labels on them and a roll of silver duct tape which was found in a green Honda Civic parked in the driveway.   Later Frank Gallardo, an employee of UPS, traced the boxes of the Elizabeth Arden cosmetics and the Robert Gates' men's dress shirts as having been on the UPS truck which had been hijacked on December 24, 1980.

Finally, Dunagan's trial testimony was buttressed by evidence produced by Matson and Smith, the victims of the crimes.   Although certain portions of Smith's testimony were excluded due to pretrial hypnosis of the victims (see detailed discussion below) the admissible part of the evidence served as an additional link connecting appellant to the commission of the crimes.

Appellant advanced an alibi defense purporting to show that he had been somewhere else at the time of the commission of the offenses charged.   Based upon the above evidence the jury found appellant guilty of all four counts charged (i.e., two counts of robbery and two counts of kidnapping for the purpose of robbery [Pen.Code,3 §§ 211 and 209] ) and further found allegations that appellant personally used a firearm during the commission of two of the offenses (§§ 12022.5 and 1203.06, subd. (a)(1)) and that he had suffered two prior felony convictions within the meaning of section 667.5, subdivision (b).   Appellant was sentenced to life imprisonment with possibility of parole.

Appellant's sole contention on appeal is that the trial court committed reversible error by admitting the testimony of Matson and Smith, the victims of the crimes, because they had been hypnotized for investigative purposes prior to trial.  (People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775.)

In People v. Shirley, supra, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775, our Supreme Court held that “the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.”  (At pp. 66–67, 181 Cal.Rptr. 243, 641 P.2d 775.)   In People v. Guerra (1984) 37 Cal.3d 385, 413, 208 Cal.Rptr. 162, 690 P.2d 635, the Supreme Court has extended its ruling by holding that Shirley applies retroactively to all cases not then final.   While Shirley set up a broad, sweeping rule concerning the admissibility of hypnotic evidence, it did carve out very important exceptions.   One of these exceptions is that a previously hypnotized witness is thereby not rendered incompetent to testify, nor is he necessarily lacking the general capacity to both perceive and remember.   Accordingly, the court held that if the prosecution wishes to question such a witness on a topic wholly unrelated to the events that were the subject of the hypnosis session, the witness's testimony as to that topic is admissible.   Further, error in admitting the testimony of a previously hypnotized witness is not reversible per se, but rather subject to the harmless error test set out in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243. (People v. Shirley, supra, 31 Cal.3d at p. 67, 181 Cal.Rptr. 243, 641 P.2d 775.)   The case at bench is governed by both of these exceptions to Shirley's broad rule of reversal;  the judgment below must therefore be affirmed.

On December 24, 1980, shortly after his release, Matson made a statement to the police describing the robbery-kidnapping and giving a description of the suspects.   In the course of the investigation of the crimes the police hypnotized Matson on January 2, 1981, and Smith four days later, on January 6, 1981.   The avowed purpose of the hypnosis was to determine the route of the trucks and the location of the warehouse rather than the detection of the identity of the suspects.  (See discussion, infra.)   On January 14, 1981, appellant's warehouse was kept under surveillance based upon a citizen's report unrelated to the robbery-kidnapping and appellant and Dunagan were arrested for vehicle theft and receiving stolen property.

On March 12, 1981, a preliminary hearing was held on the charge of receiving stolen property which rested on items found in the search of the Wallace Street warehouse.   During the course of this hearing Matson, who was summoned as a witness to identify the stolen property, spotted appellant in the corridor and spontaneously recognized him as one of the perpetrators of the December 24 robbery.  (See discussion, infra.)   Based upon Matson's identification appellant was charged with the December 24 robbery and kidnapping.   On April 8, 1981, a preliminary hearing was held on the latter charges.   At that hearing and also at the second preliminary hearing conducted on May 24 and 31, 1983, both Matson and Smith testified by basically repeating their prehypnotic statements made to the police shortly after the holdups.

On August 15, 1983, just before trial appellant, in reliance on People v. Shirley, supra, 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775, moved to exclude the trial testimony of Matson and Smith on the general basis that the testimony of a hypnotized witness is inherently unreliable.   After a very comprehensive hearing the trial court concluded that Matson and Smith were competent to testify on matters disclosed to the police prior to the hypnosis session.   But the court excluded testimony on subjects discussed during or after hypnosis which was inconsistent with prehypnosis statements.   Finding discrepancies in Smith's statements before, during and after posthypnosis the court declared, “This Court cannot find beyond a reasonable doubt that the earlier hypnosis with all of its possible ramifications will have no effect upon the testimony of this witness as to identification.”   Accordingly the court limited Smith's testimony to a recitation of the events of the robbery and kidnapping without any identification testimony.   The court did not so limit Matson's identification testimony having found “beyond a reasonable doubt that the actual hypnosis of the witness Matson had no effect upon his testimony as to the identification of the suspects.”   Finally, the trial court found that while Smith's posthypnosis identification testimony which was inconsistent with his prior statement was unreliable and therefore would be excluded from evidence, Matson's identification of appellant was beyond a reasonable doubt independent of, and not influenced or tainted by, the hypnosis and therefore could be introduced in evidence at trial.

Repeating his arguments made in the court below, appellant contends that by limiting the scope of the hypnotized witnesses' trial testimony, the superior court did not go far enough.   Appellant claims that the trial testimony of Matson and Smith should have been excluded in toto because once hypnotized, a witness under Shirley may not testify even as to facts and circumstances he or she remembered before the hypnosis.  (People v. Shirley, supra, 31 Cal.3d at p. 69, 181 Cal.Rptr. 243, 641 P.2d 775.)   Since the trial testimony of Matson and Smith helped connect appellant to the commission of the crimes charged, and since the identification evidence provided by Matson was crucial to the conviction at bench, appellant maintains that the error committed by the trial court was prejudicial and requires reversal.   We disagree with appellant for several reasons.

I

Not all Testimony of a Hypnotized Witness is Inadmissible

 First, while Shirley indicated by way of dicta that the posthypnotic testimony of a witness may be unreliable and prejudicial even if it is the same as his prehypnotic statement, the Supreme Court later made it clear that the admissibility of prehypnotic evidence still remained an open question.4  In his concurring opinion Justice Kaus pointed out, indeed, that the out-of-state decisions upon which Shirley was predicated do not support the conclusion that a hypnotized witness is barred per se from testifying to events which the witness recalled and related to others before undergoing hypnosis (i.e., State ex rel. Collins v. Superior Court, etc. (1982) 132 Ariz. 180, 644 P.2d 1266, 1295–1296;  Com. v. Kater (1983) 388 Mass. 519, 447 N.E.2d 1190, 1197–1200;  People v. Hughes (1983) 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484, 496;  State v. Patterson (1983) 213 Neb. 686, 331 N.W.2d 500, 504;  People v. Quintanar (Colo.1982) 659 P.2d 710, 713;  State v. Collins (1983) 296 Md. 670, 464 A.2d 1028, 1044–1045).   As Justice Kaus stated, “the numerous authorities relied on by the majority ․ do not support the proposition that a witness hypnotized before Shirley should be totally barred from testifying at trial.   Rather, the cases suggest that such a witness should generally be permitted to testify at trial as to prehypnosis memories so long as there is satisfactory evidence from which the trial court can determine that the witness did in fact recall and relate the statements before undergoing hypnosis.”  (People v. Guerra, supra, 37 Cal.3d at p. 432, 208 Cal.Rptr. 162, 690 P.2d 635.) 5  The instant case arose prior to the effective date of Shirley and the trial court arrived at its conclusion after a lengthy evidentiary hearing and after carefully evaluating the discrepancies in the prehypnotic and posthypnotic statements of the witnesses.

II

Was the Witness Hypnotized?

With regard to the trial testimony of Smith, the record raises serious doubts as to whether Smith was in fact hypnotized.   As repeatedly emphasized in Shirley, the very weakness of hypnotically induced evidence is that the witness under hypnosis loses his critical judgment and becomes susceptible to the hypnotist's suggestions who may be able to plant false memories in the witness' mind.  (People v. Shirley, supra, 31 Cal.3d at pp. 39–42, 181 Cal.Rptr. 243, 641 P.2d 775.)   However, in the case at bench the record is clear that Smith has retained his mental control throughout the hypnotic session, has been able to consciously withhold information during that period and was in fact lying concerning the identity of the suspects.6  Based upon these facts James Clark, the hypnotist, expressed his opinion that Smith was not in fact hypnotized.7  Clark's opinion was confirmed by Dr. Reiser, another expert, who testified that Smith has retained his critical judgment during the hypnotic session;  that he was in control of his mental processes during that period;  and that he did not change significantly his recount of the events from that set out in his prehypnotic statement.

III

Identification Could not be Product of Hypnosis

 The record is convincing that Matson's identification of appellant at the March 12, 1981, preliminary hearing was spontaneous, based upon an independent recollection by the witness and was not, and could not have been, influenced by, or the result of, the earlier hypnosis.

Thus, the record affirmatively shows that the main purpose of the January 2 hypnosis of Matson (and also the January 6 hypnosis of Smith) was to figure out the route of the truck and thereby help Detective Parkin determine the location of the warehouse.   The identity of the suspects was neither the purpose, nor the subject matter of the hypnosis session.   In line therewith, Officer Clark, the hypnotist, made conscious efforts to avoid questions on the identity of the suspects.   In fact, Clark explicitly stated at the hearing that “in talking to the investigating officers [he] advised them that the interview would not cover identification or descriptions of the suspects but would stick with just the ride in the van when they [Matson and Smith] had been blindfolded.”   But even were we to discount Clark's testimony concerning the scope of the hypnotic session, it simply would have been impossible for the police to suggest via hypnosis or otherwise to the victims who their assailants might be.   For at the time of hypnosis the police had no suspects and did not even have a clue to the identities of the robbers.   Appellant and Dunagan became suspects and were charged with the present crimes only after Matson identified appellant as the robber at a chance encounter at the March 12, 1981, preliminary hearing.

The circumstances attending Matson's identification of appellant as a robber lends additional weight to the proposition that the identification evidence provided by Matson was wholly independent of, and unrelated to, the preceding hypnosis.   Matson stated that on March 12, 1981, he went to the San Francisco Hall of Justice as a witness to attempt identification of some stolen UPS property.   As he was sitting in the corridor, together with Gallardo, he saw people coming out of the courtroom for the noon recess.   Among the people leaving the courtroom were attorneys, appellant and Dunagan.   Although appellant's appearance was considerably different than the day of the robbery (now clean shaven without beard and sideburns and wearing a three-piece business suit with a red tie), Matson promptly recognized him as the robber.   His identification was based on appellant's size, facial features and especially his eyes.   Significantly enough, although Dunagan, the second robber, was also in the crowd leaving the courtroom, Matson identified only appellant, but not Dunagan.

Matson's identification testimony was corroborated by Officer Hennessey who was also present at the March 12 preliminary hearing.   Hennessey testified that on March 12 the police did not suspect that appellant was the robber;  he was charged only with receiving stolen property.   Prior to the hearing he had told Matson merely that the police were investigating a stolen property case.   Hennessey confirmed that appellant and Dunagan left the courtroom together at the noon recess;  that both of them were clad in three-piece business suits;  and that Matson identified only appellant as the perpetrator of the Christmas eve robbery.

The cases, including Shirley, emphasize that a witness who has undergone hypnosis should be precluded from testifying at trial only when there is a question that the testimony may have been produced by that hypnosis.  (State v. La Mountain (1980) 125 Ariz. 547, 611 P.2d 551, 555;  State v. Mena (1980) 128 Ariz. 226, 624 P.2d 1274;  see also People v. Shirley, supra, 31 Cal.3d at pp. 41, 46, 181 Cal.Rptr. 243, 641 P.2d 775.)   However, where, as here, the record unequivocally shows that the identification testimony of the witness was based on his own recollection and was not, and indeed could not have been, tainted by the hypnosis, that identification testimony is admissible.   For this type of testimony constitutes “a topic wholly unrelated to the events that were the subject of the hypnotic session,” and hence, becomes admissible under the exception stated in Shirley.  (Id., at p. 67, original emphasis, 181 Cal.Rptr. 243, 641 P.2d 775.)

IV

Any Error was Harmless

 Even if we assume arguendo that the evidentiary ruling of the trial court was erroneous, that error must be held harmless (People v. Watson, supra, 46 Cal.2d at pp. 818, 836, 299 P.2d 243;  People v. Shirley, supra, 31 Cal.3d at p. 67, 181 Cal.Rptr. 243, 641 P.2d 775) in view of the fact that appellant's conviction did not rest solely upon the trial testimony of the victims, but was independently supported by the well corroborated testimony of Dunagan, appellant's accomplice.

Section 1111 provides in pertinent part that a conviction cannot be based upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense.   In order to corroborate the testimony of an accomplice the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged;  the corroborative evidence must relate to some act or fact which is an element of the crime.  (People v. Perry (1972) 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d 129;  People v. Lyons (1958) 50 Cal.2d 245, 257, 324 P.2d 556.)   It is not necessary, however, that the testimony of an accomplice be corroborated as to every fact to which he testified.   Rather, it is sufficient if the corroborative evidence tends to connect the defendant with the commission of the crime in a way that reasonably satisfies the jury that the accomplice is telling the truth.  (People v. Luker (1965) 63 Cal.2d 464, 469, 47 Cal.Rptr. 209, 407 P.2d 9;  People v. Knight (1980) 111 Cal.App.3d 201, 205, 168 Cal.Rptr. 421.)   Moreover, it is well settled that the corroborative evidence need not be sufficient in and of itself to establish every element of the offense charged;  that it may be slight and entitled to little consideration when standing alone;  and that it may consist not only of direct but also circumstantial evidence.  (People v. Perry, supra, 7 Cal.3d at p. 769, 103 Cal.Rptr. 161, 499 P.2d 129;  People v. Medina (1974) 41 Cal.App.3d 438, 466, 116 Cal.Rptr. 133;  People v. Ruscoe (1976) 54 Cal.App.3d 1005, 1012, 127 Cal.Rptr. 6.)   For instance, it has been held that the defendant's presence at the scene of the crime in combination with evidence showing that the defendant possessed a gun used in the commission of the crimes was sufficient corroboration.  (People v. Medina, supra, 41 Cal.App.3d 438, 116 Cal.Rptr. 133.)   Also, the possession of stolen property by the defendant, or possession of the gun used in the robbery was considered sufficient corroborative evidence in a robbery conviction based upon the testimony of the accomplice.  (People v. Jenkins (1973) 34 Cal.App.3d 893, 900, 110 Cal.Rptr. 465;  People v. Thurman (1972) 28 Cal.App.3d 725, 104 Cal.Rptr. 804.)

Hence, appellant's accomplice, provided a very detailed (almost a minute) recount of the planning, preparation and implementation of the December 24 and December 30, 1981, holdups;  he described the cars, the gun and the tape used in the commission of the crimes;  the respective role of himself and appellant in tying up the drivers and taking them to the warehouse;  the properties taken during the robberies, including the two UPS uniforms;  the contents of the parcels;  the warehouse where the drivers were abducted;  the disposal of the boxes and wrappings;  and the abandoning of the trucks at deserted places following the completion of the crimes.   His detailed narrative was corroborated by both testimonial and demonstrative evidence.   Officer Osborn testified that he had found the abandoned truck involved in the December 24 holdup at about 1:50 p.m. on the roadside at 1107 Airport Boulevard.   Its driver, Matson, was still sitting in the back of the truck very frightened and crying.   By way of a spontaneous declaration Matson related the full story of the preceding hours describing the crime scene, the warehouse and the perpetrators.   Officer Hennessey and Sergeant Parkin likewise confirmed that Matson and Smith had given a full statement to the police following the December 24 and December 30 robberies which also included a description of the robbers.   David Boring, a friend of appellant, verified that appellant rented the Wallace Street warehouse;  that Boring himself lived there together with Dunagan with appellant's permission;  and that he saw the automatic pistol in the warehouse which, according to Dunagan, was used in the holdups in dispute.   Mark Stanley, an acquaintance of appellant, remembered that appellant had intended to keep secret the fact that he rented the Wallace Street warehouse.   Shella Swick, appellant's girlfriend who had received cosmetics and other stolen items from appellant, verified Dunagan's statement that following the robberies appellant picked up some of the stolen merchandise in order to use them as Christmas gifts.   Phillip and Daniel Shastany placed appellant close to the scene of the December 30, 1980, crimes.   And finally, the search of appellant's warehouse and Kensington residence turned up numerous properties which had been appropriated during the robberies, including the UPS jackets taken from Matson and Smith, and also the gun and tape used in the commission of the holdups.   The green Honda Civic which, according to Dunagan, had been used to go to the crime scene on December 30 was also found at appellant's residence.   In fact, the heavy duct tape employed to tie up the victims was retrieved from appellant's Honda automobile.   It also bears emphasis that certain stolen items found in appellant's warehouse or his residence were traced by Frank Gallardo, a UPS employee, as having been on the UPS delivery truck on December 24.

Needless to say that the above evidence together with the obvious common modus operandi practiced on both occasions and Matson's identification of appellant on March 12 constituted not only sufficient corroboration of Dunagan's testimony, but also such overwhelming proof of guilt that render any claimed evidentiary error harmless within Watson and Shirley.   This extremely strong showing of guilt distinguishes the present case from Shirley and Guerra where reversible error was found due to the fact that the prosecutor's case rested solely upon the testimony of the hypnotized witness.

Since appellant's guilt in the present instance is fully supported by evidence independent of the allegedly inadmissible testimony of the hypnotized witnesses, appellant's further contention that he was denied his constitutional right to confront and cross-examine witnesses needs no discussion.

The judgment is affirmed.

I concur in the holding of part IV of the opinion affirming the judgment of conviction.   I do so because even without the testimony of either victim there was ample evidence to corroborate Dunagan's account of the crime and to link defendant to the warehouse and to the physical fruits of the robbery.   Because that properly admitted evidence tended to connect defendant with the commission of the crime we need not disturb the jury's implicit finding that it corroborated Dunagan's testimony.  (People v. Szeto (1981) 29 Cal.3d 20, 25–26, 171 Cal.Rptr. 652, 623 P.2d 213.)

I cannot concur, however, in the majority's reading of the law regarding the admissibility of the testimony of a previously hypnotized witness.   In People v. Shirley (1982) 31 Cal.3d 18, 181 Cal.Rptr. 243, 641 P.2d 775, the Supreme Court of California ruled that “the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.”  (Id., at pp. 66–67, 181 Cal.Rptr. 243, 641 P.2d 775.)

Nor does the subsequent decision of People v. Guerra (1984) 37 Cal.3d 385, 208 Cal.Rptr. 162, 690 P.2d 635, create an exception to the Shirley rule for testimony of a previously hypnotized witness which is in accord with his prehypnosis memory of the events at issue.   The majority finds support for this purported exception in the concurring opinion of Justice Kaus, in which Justice Grodin joined.   Strangely, the majority opinion fails to mention the extended discussion contained in the Guerra majority opinion.   There the majority of the high court considered, but declined to create, such an exception to Shirley.   The majority pointed out, “[t]he rub, however, is that the testimony by which that evidence is put before the jury is given after the witness has been hypnotized.”  (People v. Guerra, supra, at p. 427, 208 Cal.Rptr. 162, 690 P.2d 635, emphasis in original.)   The Guerra majority opinion then quoted Shirley to the effect that admission of “trial testimony by the witness as to facts he claims to have remembered before hypnosis ․ has been judicially criticized ‘for a number of scientific and practical reasons that we find persuasive.’ ”  (People v. Guerra, supra, at p. 428, 208 Cal.Rptr. 162, 690 P.2d 635, emphasis in original.)   By emphasizing this language from Shirley the court in Guerra strongly reiterated its Shirley reasoning that testimony about events which the witness remembered prehypnosis was also rendered infirm by the hypnotic session.

All this is now academic because of the recent decision authored by Justice Grodin in People v. Brown (1985) 40 Cal.3d 512, 527, 220 Cal.Rptr. 637, 709 P.2d 440, in which the high court held that the exception my majority colleagues find does not exist.

In applying Shirley-Guerra-Brown to the testimony by victims Smith and Matson, I conclude that neither was competent to testify, post hypnosis, to the events of the robberies or to the identity of the robbers.

At trial Smith was permitted to testify only to the events of the robbery, but not to the identity of its perpetrators.   Regardless of the stated purpose of the hypnotic session to which Smith was subjected (cf. majority opn., ante, p. 16) the “events” discussed in the course of that session to refresh his memory began with Smith's departure on his route on the day of the robbery and included discussion of the robbery from the time the perpetrators entered his van through his eventual escape from the abandoned van.   The events covered in the hypnotic session, were thus, the very events to which he was erroneously permitted to testify.

Nor can I conceive of why this court should question whether or not Smith was successfully hypnotized.   The resolution of that question of fact was implicitly made by the trial court when it issued its ruling limiting the scope of Smith's trial testimony.

The majority find Matson's identification of defendant to be untainted by the hypnosis, despite the fact that Matson initially identified defendant several months after he was hypnotized.  (Cf. majority opn., ante, part III)  The tape recording of Matson's hypnosis makes it clear that he, like Smith, was taken during the hypnosis session through the entire sequence of his workday on December 24.   Thus all the “events” of the robbery were the subject of the session.   Matson was even specifically asked to describe the appearance of defendant, and in response to the query “Tell me about his face?,” told Officer Clark that defendant was average looking and had a short beard.   Without question the description of defendant was a subject covered in the hypnotic session which was an attempt to refresh everything Matson could recall about the robbery.   Because Matson was hypnotized before he had an opportunity to make an in person identification of defendant, evidence of that identification, either from Matson or from the officer who was present at the identification, was impermissibly admitted.1

Even without the inadmissible testimony of Smith and Matson, however, there was ample evidence to corroborate the account of defendant's accomplice and to establish defendant's guilt.   Accordingly, there is no reasonable probability that without the error a result more favorable to defendant would have occurred.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)   Of course, if the Shirley error were to be evaluated under the reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, this judgment would be reversed.   But we are precluded from making such an evaluation since Shirley expressly held that the Watson standard of prejudice applies to erroneous admission of testimony by a previously hypnotized witness.  (Accord, People v. Brown, supra, 40 Cal.3d at p. 528, fn. 2, 220 Cal.Rptr. 637, 709 P.2d 440.)

I join in affirming the judgment of conviction.

FOOTNOTES

1.   At trial Dunagan identified appellant's automatic pistol as a handgun used in the commission of both the December 24 and 30, 1980, holdups.

2.   Since Smith was a relief driver, he had a borrowed UPS uniform jacket with George Acevedo's name on it.

FN3. Unless otherwise indicated, all statutory references are to the Penal Code..  FN3. Unless otherwise indicated, all statutory references are to the Penal Code.

4.   “We agree with the Michigan Supreme Court that the admissibility of prehypnotic evidence is a question that should be ‘reserved until raised on an adequate record in an appropriate case.’  [Citation.]”  People v. Guerra (1984) 37 Cal.3d 385, 429, 208 Cal.Rptr. 162, 690 P.2d 635.)

5.   Consistent with Justice Kaus' opinion, newly enacted section 795 of Evidence Code (effective Jan. 1, 1985) makes the trial testimony of a hypnotized witness admissible with respect to matters which the witness recalled and related prior to the hypnosis if the conditions set out in the statute are met.

6.   The pertinent part of the record reads as follows:  “Q. During that hypnosis did you consciously continue to withhold information from the police department?  [¶] A. Yes.  [¶] Q. Now, why did you do that?  [¶] A. Again, for fear for my family.  [¶] Q. What kinds of things were you withholding or not telling the police?  [¶] A. That there was a gun involved that I had seen my—the person who accosted me.  [¶] Q. Why were you reluctant to tell the police anything about the description of the man that you were able to identify?  [¶] A. Because they told me not to, and they said, ‘If you do,’ you know, ‘Fifteen years down the road, twenty years down the road, we may come and get you.’  [¶] Q. Now, Mr. Smith, during the time that you were in this relaxed state, were you nevertheless able to make that conscious decision that you were not going to tell the police about identification matters because you were afraid of the repercussions?  [¶] A. Yes.”  (Emphasis added.)“Q. So you feel that even if you were under hypnosis you were able to lie?  [¶] A. Yes.”  (Emphasis added.)

7.   Officer Clark testified as follows:  “Q. Do you have an opinion as to whether or not Mr. Smith ever was under hypnotic spell?  [¶] A. Yes, I do.  [¶] Q. What is that opinion?  [¶] A. I think Mr. Smith was quite relaxed, and I don't mean to sound facetious, I think enjoying himself.   It is a relaxing experience, but I don't think that he was hypnotized․  [¶] Q. ․—Concerning Mr. Smith, have you learned that Mr. Smith at least in his own mind says that he was not hypnotized and he was withholding information from you?   Have you been made aware of that fact?  [¶] A. Yes.  [¶] Q. And would that fact aid you in rendering your opinion that he was not under hypnosis?  [¶] A. It would confirm my suspicions.”  (Emphasis added.)

1.   Matson's prehypnosis description of defendant, as recounted by the officer who discovered the driver at the scene of the abandoned van, was properly admitted.   It was untainted by the hypnosis and qualifies under the spontaneous declaration exception to the hearsay rule.   (Evid.Code, § 1240.)

ANDERSON, Presiding Justice.

SABRAW, J., concurs.

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