PEOPLE v. HALL

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Waymond Darnell HALL et al., Defendants and Appellants.

No. F017771.

Decided: May 27, 1993

Howard J. Specter, San Francisco, and Jim Fahey, Davis, under appointments by the Court of Appeal, for defendants and appellants. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Michael J. Weinberger and Suzanne M. Ambrose, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

STATEMENT OF THE CASE

Timothy Taray Daniels (Daniels) and Waymond Darnell Hall (Hall) were tried by jury on an amended information filed November 26, 1991.   That information charged Daniels with 12 counts of robbery (counts I, II, VI, VII, VIII, IX, XI, XII, XIII, XIV, XV, XVI).  (Pen.Code, § 212.5, subd. (b).) 1  Daniels was charged in counts III and X with attempted robbery.   (§§ 664, 212.5, subd. (b)).  He was charged in counts IV and XVII with felony false imprisonment.  (§ 236.)   The information further alleged as to all counts that Daniels used a firearm (§ 12022.5).

The information charged Hall with three counts of robbery (counts I, II, XV).  (§ 212.5.)   Hall was also charged in count III with attempted robbery (§§ 664, 212.5), in counts IV and XVI with false imprisonment (§ 236) and in counts V and XVII with being an ex-felon in possession of a firearm (§ 12021, subd. (a)).  As to counts I, II, and III, Hall was charged with having suffered four prior serious felony convictions (§ 667, subd. (a)) and having served three prior prison terms (§ 667.5, subd. (b)).  Hall was also charged in counts IV, V, VII and VIII with having served three prior prison terms.

Jury trial began on January 21, 1992.   Trial on Hall's prior convictions was bifurcated.   At the close of the prosecution's case, the defense for Daniels moved for a partial judgment of acquittal which was granted as to counts II and XII.

The jury found defendants guilty on all remaining counts and allegations.   A separate trial was held that day and the jury found the allegations of Hall's priors to be true.   Daniels pleaded guilty to count VI and admitted the section 12022.5 enhancement.

Hall was sentenced to the upper term of five years on count I (robbery) along with five years for the section 12022.5 enhancement;  a consecutive term of eight months (one third the midterm) on count III (attempted robbery);  eight months consecutive on count IV (false imprisonment);  eight months consecutive on count XVII (false imprisonment);  one year consecutive on count XV (robbery) along with sixteen months consecutive for use of a firearm;  five years consecutive for each of four priors for a total of thirty-four years and four months.   Also, another five years and four months consecutive was imposed on an unrelated conviction in Los Angeles County.   Sentence was stayed on counts V and VII (ex-felon in possession of a firearm), on three section 12022.5 firearm enhancements and three section 667.5 priors.

Daniels was sentenced to the upper term of five years on count I (robbery) along with the upper term of five years for the section 12022.5 enhancement;  eight months consecutive on count III (attempted robbery) with the section 12022.5 enhancement stayed pursuant to section 654;  one year consecutive for counts VII, VIII, IX, XI, XIII, XIV, XV, and XVI along with a consecutive sixteen months for section 12022.5 enhancements on counts VII and XVI;  punishment stayed as to counts IV and XVII for a total sentence of twenty-two years.

Both defendants filed timely appeals.

FACTS

The first robbery occurred on the afternoon of November 11, 1990, at approximately 3 p.m. at Payless Shoe Source.   An employee, Wendy Uhler, and the manager, Richard Pritzkau, were working.   Two black men entered the store bundled up and, according to Pritzkau, one was about six feet three inches tall (Hall) and the other was close to six feet tall (Daniels).   According to Uhler, the taller man was about six feet three inches tall and the shorter man was about six feet tall.

Uhler waited on Daniels.   Daniels brought some shoes to the counter and asked Uhler to show him some size 6 shoes for his granddaughter.2  Daniels then tightly grabbed the back of Uhler's neck and held a gun in her side.   Daniels directed Uhler to the back of the store.   Hall directed Pritzkau to the back of the store at gunpoint.   Daniels told them to lie face down on the floor.

Three customers were in the store.   Hall told them that the manager wanted to see them at the back of the store.   They went to the back and were told to lie face down on the floor.   Emma Arambula was told to put her purse in front of her head which she did.   Neither Daniels nor Hall touched the purse.   Daniels bound the women's hands and feet with duct tape.   Daniels ordered Pritzkau to accompany Hall to the front of the store and empty the cash register and the safe.   Pritzkau complied and then was ordered to lie down in the back of the store again.   He was then bound with duct tape.   The victims were told not to move for twenty seconds and Hall and Daniels fled.   Some customers came in and rescued the victims in the back of the store.

Emma Arambula, as well as her daughter, Hilda, who had been with her, could not identify the defendants.   Wendy Uhler identified Hall but was not sure if she recognized Daniels.   Richard Pritzkau was able to positively identify the defendants in court.   He had previously identified them in a photo lineup, but he stated at trial that Hall looked different on the day of the robbery than he did in the photograph.

The next robbery involving Daniels and Hall occurred on November 19, 1990, at about 8:30 a.m.   Daniels, Hall, a black woman and an Hispanic man walked into the One–Hour Martinizing on Niles Street.   Sandra Blackhawk, Verna Glinton and Inez Glinton were working that morning.   Hall walked in and came behind the counter where Blackhawk was, told her he needed some change and then pulled a gun out of his pants.   Hall told Blackhawk to take him to the safe and told Daniels and the other two people with him to look in the employees' purses for money.

Inez Glinton exited the restroom and saw Daniels, who pointed his gun at her.   Daniels turned his face away from her.   The Hispanic man had Inez sit on the floor and tied her hands and feet with duct tape.   Verna Glinton had her hands tied in front of her.   After Blackhawk emptied the money from the safe into money bags and gave them to Hall, she was also taken to the back with the others and tied up with duct tape.   Hall and the woman exited out the front door and Daniels and the Hispanic man started toward the front door and then ran back and fled out the back door.

Inez Glinton recognized Daniels as a former schoolmate.   She and Verna Glinton were able to positively identify both Daniels and Hall.   Blackhawk was able to positively identify Hall but not the others.

The third robbery involved Daniels but not Hall.   On November 18, 1990, employee Carlos Garcia was walking into work at the Cask and Cleaver restaurant when Daniels and an Hispanic male appeared from behind some trash bins.   Daniels pointed a gun at him and demanded his money.   Garcia handed over his wallet.   Then, while Daniels was holding onto Garcia, they approached eight customers coming out of the restaurant and Daniels told them to hand over their wallets or he would blow Garcia's head off.   The Hispanic man collected some of the wallets.   Daniels collected other wallets by pointing his gun at some of the customers.   One of the customers managed to drop her purse on the ground and kick it under a car.   Daniels and his cohort then ran to a car driven by a third person and drove off.

Two of the customers were able to positively identify Daniels.   Four other customers were not sure if Daniels was one of the robbers.   Another customer thought Daniels looked very similar to the man who demanded the wallets and Carlos Garcia was 95 percent sure that Daniels was the man who held him at gunpoint.

 Defense

Hall testified on his own behalf and denied committing the offenses.   He also stated that he had only known Daniels for a few minutes until they were both arrested for the crimes at issue.   On November 11, 1991, Hall claimed to have been at the First Missionary Church in Little Rock, California, helping the pastor with a Thanksgiving basket project.   On November 19, 1991, he claimed to have been in Lancaster, California, at 9 a.m. to apply for general relief.

Hall admitted to being convicted of robbery in 1969 and sentenced to the California Youth Authority, and to being convicted of robbery in 1973 and for attempted robbery, aggravated assault and burglary in 1982.

DISCUSSION

I.V.***

VI. DID THE TRIAL COURT RELY ON AN IMPROPER FACTOR IN IMPOSING THE UPPER TERM FOR THE SECTION 12022.5 ENHANCEMENT OF HALL'S SENTENCE?†

Hall contends the trial court erred in imposing the five-year upper term on the section 12022.5 enhancement because the sole factor cited for imposing the upper term was that Hall was on parole when the crime was committed.   He points out that California Rules of Court, rule 428(b) provides, in relevant part, that the upper term may be imposed for an enhancement only when there are “circumstances in aggravation that relate directly to the fact giving rise to the enhancement.”

Hall argues that the fact that he was on parole when he committed the robbery is not a fact which relates directly to his use of a gun and therefore was improper under California Rules of Court, rule 428(b).   The Attorney General argues that California Rules of Court, rule 428(b) is inconsistent with legislative intent in enacting a determinate sentencing scheme and is thus invalid.

The Legislature amended section 12022.5 in 1989, changing the additional enhancement term from two years to three, four or five years.   If the Legislature had intended the decision on which terms were to be imposed on this enhancement to be accomplished in the same manner as the decision on the substantive offense, it could have said so.   The Legislature was silent and so the Judicial Council promulgated California Rules of Court, rule 428 in order to assist the implementation of the Legislature's directive.

The Judicial Council stated in certain terms that the upper term could be imposed only where the aggravating factor was directly related to the fact giving rise to the enhancement.   Accordingly, we do not perceive an inconsistency between California Rules of Court, rule 428(b) and the Legislature's sentencing scheme.6

Two recent opinions have addressed this question.   The court in People v. Montoya (1993) 13 Cal.App.4th 1808, 17 Cal.Rptr.2d 311 addressed the question in the context of parole.   The court held that the defendant's parole status was an aggravating circumstance directly relating to the offense.   The court stated:

“Because defendant was a parolee (having been convicted of a felony and sentenced to state prison) it was unlawful for him to possess a firearm (§ 12021), a crime he could have been punished for separately from the instant offense.  (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1412–1414 [273 Cal.Rptr. 253].)   We hold the aggravating circumstance of being on parole relates directly to committing an assault with a firearm.”  (Id. at p. 1815 [273 Cal.Rptr. 253], fn. omitted.)

The Fourth District's opinion in People v. Edwards (1993) 13 Cal.App.4th 75, 16 Cal.Rptr.2d 572, review denied April 28, 1993, is more extensively reasoned and, although it addresses the question in the context of probation, we find its reasoning persuasive in the context of parole, as presented in the instant case.   We therefore part company with Montoya.   In Edwards, the defendant pleaded guilty to assault with a firearm after having shot and wounded his girlfriend (Lindsey).   At the time of the incident, defendant was on probation after having been convicted of battering Lindsey.   The trial court in that case imposed the upper term of five years for the use of a firearm because the defendant was on probation at the time of the shooting incident and the offense was directly related to an offense against the victim.

The Edwards court analyzed the meaning of the language in California Rules of Court, rule 428(b), “circumstances in aggravation that relate directly to the fact giving rise to the enhancement,” by applying a distinction made in California Rules of Court, rule 421 (circumstances in aggravation) between facts relating to the crime and facts relating to the defendant.   Aggravating circumstances arising from facts relating to the crime are found in subdivision (a) and aggravating facts relating to the defendant are found in subdivision (b).   The court concluded:

“[S]ince aggravating circumstances under rule 428(b) are those that relate to the fact giving rise to the enhancement, they are analogous to circumstances relating to the crime because the fact giving rise to the particular enhancement logically must relate to the commission of the act constituting the alleged enhancement, not to the defendant personally.   Here the act is use of a gun.   The sentencing court, therefore, erred by finding as aggravating circumstances warranting the upper term for the firearm use enhancement those facts relating to defendant himself, i.e., the increasing seriousness of his prior conviction and his probation status.   It should have focused solely on facts regarding the use of the gun and the effect of its use.”

This reasoning is applicable here.   Parole, as well as probation, relates to the defendant himself.   Possession of a firearm relates to defendant as well because the section 12021 prohibition of possession is based on defendant's status.   The possession would not be unlawful for the defendant, but for his status as a parolee (ex-felon).   At issue here is the use of the gun, i.e., the conduct the defendant engaged in with the gun, not the status of the defendant.   The intent of the Legislature in enacting section 12022.5 was to discourage the use of firearms, a fact relating to the crime.  (People v. Fierro (1991) 1 Cal.4th 173, 226, 3 Cal.Rptr.2d 426, 821 P.2d 1302.)

Furthermore, at issue is an aggravating circumstance relating directly to the fact giving rise to the enhancement, not a circumstance relating to the substantive offense.   In our view, the court in Montoya evidently misinterpreted California Rules of Court, rule 428(b), having justified the upper term on the fact that the defendant was on parole, which related directly to the assault with a firearm, which was the underlying offense.7

Because we have determined that parole is a circumstance in aggravation relating to the defendant himself and not to his gun use, the trial court's sentence choice was in error.

The sentence should be modified to the midterm.

VII. DID THE TRIAL COURT ERR BY FAILING TO STATE ANY REASONS FOR RUNNING HALL'S PRESENT PRISON TERM CONSECUTIVE TO HIS PRIOR TERM? **

DISPOSITION

The convictions are affirmed with the following sentencing modifications:  The trial court is directed to modify the sentences by imposing the three-year lower term for Daniels's section 12022.5 enhancement and the four-year midterm for Hall's section 12022.5 enhancement.   The trial court is further directed to prepare amended abstracts of judgment accordingly and forward certified copies of same to the Department of Corrections.   In all other respects the judgments are affirmed.

** See footnote *, ante.

FOOTNOTES

FOOTNOTE.  

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

2.   Although Daniels was only 19, both Pritzkau and Uhler stated that it was he who asked for shoes for his granddaughter.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote on page 777, ante.

6.   Neither do we see an inconsistency within the rule itself.   The Attorney General points out that there is no limitation on the court's consideration of circumstances in mitigation.   The same limits set out for the court in imposing the upper term would not ordinarily apply when imposing the lower term, nor should they here.

7.   The court stated:  “We hold the aggravating circumstance of being on parole relates directly to committing an assault with a firearm.”  (People v. Montoya, supra, 13 Cal.App.4th at p. 1815, 17 Cal.Rptr.2d 311.)

FRANSON, Associate Justice (Assigned).** FN** Retired Presiding Justice of the Court of Appeal sitting under assignment by the Chairperson of the Judicial Council.

STONE, Acting P.J., and DIBIASO, J., concur.

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