PEOPLE v. MUCKEY (1989)

In this consolidated appeal we uphold judgments of conviction against defendant Ted Muckey (appellant) in a multiple robbery/kidnap case and an attempted escape case, concluding that the trial court did not err in (1) permitting a deputy district attorney to try the robbery/kidnap case after previously ordering his recusal and (2) refusing to strike a prior conviction based on an allegedly defective plea.

I. PROCEDURAL BACKGROUND

On November 25, 1987, the District Attorney of the City and County of San Francisco filed an information charging appellant with (1) nine counts of second degree robbery;  (2) two counts of first degree robbery;  (3) two counts of kidnapping for purposes of robbery, and (4) three counts of possession of a firearm by a felon.   An allegation of personal use of a firearm accompanied each robbery and kidnap charge.   Additionally, the information alleged three prior convictions as enhancements under Penal Code 1 section 667 as well as section 667.5.

That same day the district attorney filed a second information charging appellant with attempted escape and alleged the same three prior convictions as enhancements pursuant to section 667.5 only.   Over objection the court allowed the prosecutor to amend the information in the robbery/kidnap case to include a habitual offender enhancement under section 667.7.

Then on May 19, 1988, in response to appellant's recusal motion, the trial court disqualified Assistant District Attorney Stewart Jankowitz from prosecuting the robbery/kidnap case but denied appellant's motion to recuse the entire district attorney's office.   Jankowitz had assisted in restraining appellant in his attempted escape from the courtroom on August 14, 1987.   The People appealed from the recusal order, thereby staying the order by operation of law.  (§ 1424.)

The robbery/kidnap case went to trial first, with Jankowitz prosecuting over defense objections.   The trial court denied appellant's motion to dismiss for violation of his section 1382 speedy trial rights.   At the close of trial the court dismissed one of the first degree robbery counts as duplicative of another.

The jury returned guilty verdicts on the felon in possession of firearm counts and the robbery charges, and found true the allegations of firearm use.   The jury acquitted appellant of kidnapping for purposes of robbery and of kidnapping, but convicted him of two counts of the lesser included offense of false imprisonment.   The court then granted appellant's motion to dismiss the section 667.7 habitual offender allegations.

Jury trial on the attempted escape charge, which was prosecuted by a different deputy, began two weeks later;  the jury found appellant guilty as charged.   The court found true the allegations of prior convictions in both cases.

The court imposed an aggregate prison sentence of 40 years in the robbery case with a concurrent 2–year sentence in the escape case.   The department of corrections advised the court of a sentencing error with respect to the attempted escape, and the court resentenced appellant, imposing a consecutive, eight-month term for that count.   Appellant filed a timely notice of appeal.

II. FACTUAL SUMMARY

On appeal appellant asserts error with respect to Jankowitz's continued prosecution of the robbery case after recusal, as well as the court's refusal to strike one of his prior convictions.   Since he does not contest the sufficiency of the evidence, instructions or evidentiary rulings, the following is a bare synopsis of the evidence on each charge.

A. Robbery/False Imprisonment Case

Shaw's ice cream and gift store, August 4, 1987:  Appellant robbed salesperson Christopher Wong of $170 to $180, pointing a gun at Wong's chest from a distance of three to four feet.   A week later Wong identified appellant in a photo lineup.

Buddie's Market, August 5, 1987:  Appellant robbed owner Chang Soo Chun at gunpoint of about $100, leaving a dogfood bag on the counter.   Several days later the police presented Chun with a photo spread.   Chun told the police he could not be certain of an identification, but thought appellant's picture looked like the robber.   Sergeant Inspector Carlson testified he lifted latent fingerprints from the dogfood bag, compared them with appellant's prints, and concluded one of the prints “was that of the left ring finger” of appellant.

Ocean Avenue 7–11 Store, August 5, 1987:  Appellant robbed clerk Thong Chau at gunpoint of approximately $60.   The incident was recorded by videotape.   Chau identified appellant in a photo spread a few days later.   Sergeant Inspector Carlson identified a latent fingerprint from a coffee cup which appellant left on the store counter as being appellant's left index finger.

Clement Street 7–11 Store, August 5, 1987:  Appellant robbed cashier David Nhaue at gunpoint of the bills in the cash register.   Nhaue later selected appellant's picture from a photo lineup, stating he was 70 to 80 percent certain of his identification.

New Hampshire Market, August 5:  While exhibiting a gun, appellant robbed 12–year–old Christopher Atwan of money from the cash register and lottery drawer (about $900).   Later, Atwan identified appellant's photograph in a photo spread.

Anthony Enterprises, August 5, 1987:  Displaying a revolver, appellant robbed owner Anthony Cialeo at gunpoint of $130.   Two days later Cialeo selected appellant's photo from a photo spread.

Mrs. Field's Cookies, August 5, 1987:  Exhibiting a gun, appellant robbed store manager Robert McCleod of $60 to $70.   Several days later he identified appellant's photograph from among a series of six pictures.

William's Market, August 6, 1987:  Appellant robbed day manager William Butcher at gunpoint of all the bills in the cash register.   The next morning, Butcher identified appellant's picture in a photo spread.

Great Highway Market, August 6, 1987:  Just before 9 p.m. that evening, appellant entered the Great Highway Market on Taraval between 46th and 47th Streets, displayed a gun and asked cashier Tack Wing Chan for money.   Telling him to “hurry up,” appellant went behind the counter and tried to open the locked cash register, then took the “Lotto” machine cash drawer (containing $104), left the store and got into a yellow taxi.   Chan remembered appellant as a customer who frequented the bar next door, and identified his photo in a photo spread a few days later.

Sterling Jenkins' Yellow Cab Taxi, August 6, 1987:  At about 8:50 p.m. that evening, Sterling Jenkins picked up a passenger and drove him to the Oar Club at 46th and Taraval.   The man told him to wait, went into the club and then to the store next door, then reentered the cab with a cash register drawer, holding a gun.   He pointed the gun at Jenkins' head, and ordered him to keep driving.   The man got out at 14th and Guerrero without paying the $24 fare, leaving behind a cap and the cash register drawer.   Jenkins was not permitted to identify appellant at trial.

Phyllis Hall's Yellow Cab Taxi, August 6, 1987:  A man entered Phyllis Hall's cab and asked her to drive him to 17th and Potrero.   When they got to 17th Street, he told her she could stay then took her money (over $100) at gunpoint.   He then instructed Hall to continue driving, giving directions as they went.   At 15th and Harrison he told Hall to get out, and then drove off in her cab.   Shortly after the incident, Hall identified appellant's photo in a photo spread, but could not identify him at trial.

With respect to the felon in possession of firearm charges, appellant stipulated that he had a prior felony conviction.

B. Attempted Escape Case

On August 14, 1987, Deputy Sheriffs Scully and Payne brought appellant to Department 9 of the San Francisco Municipal Court for arraignment.   Appellant stood behind the podium facing the judge and turned back “about twice” to look over his shoulder.   After 30 seconds to one minute, appellant abruptly turned around, shoved Scully out of the way, and dashed toward the door.

Payne activated the door alarm, which locked the outer courtroom doors.   Scully lunged at appellant, grabbed him as he reached the inner door, and they both fell into the vestibule.   Jankowitz, assigned to appellant's case, rushed to the vestibule and grabbed appellant's feet while Scully handcuffed him.   On the way back to jail, appellant complimented Scully:  “You did a good job stopping me.   I was looking at life in prison.”.

On cross-examination Jankowitz acknowledged that the trial judge had recused him from the robbery case, but the order had been stayed by operation of law by virtue of the People's appeal.   Jankowitz also testified he did not have a personal bias against appellant.

Appellant denied any intent to escape.   He testified that on the day of arraignment, he thought he saw one John Frati in the back of the courtroom.   Not being able to see clearly without his glasses, he turned around several times to try to identify the man.   Believing Frati supplied information to the police about himself, appellant meant “to kick [Frati's] ass,” explaining he was not “even thinking about trying to run out of the courtroom.   There's nowhere to go from there.”

III. RECUSAL

A review of the facts underlying the recusal proceedings are in order here.   In his declaration opposing appellant's recusal motion, Jankowitz declared he viewed the attempted escape incident as “relatively insubstantial” when compared to the underlying case, and filed a complaint charging escape without force, believing the amount of force used to be minimal.   He then advised his supervisor of the situation;  “out of an abundance of caution,” she assigned the escape case to another attorney.

Appellant moved to recuse in May 1988.   Defense Attorney Schmidt appended his declaration to the motion, reciting that Jankowitz's witnessing of, and participation in, the aborted escape displayed “an apparent conflict of interest, such as would render it unlikely that defendant would receive a fair trial.”   Schmidt further declared that the habitual offender allegations which Jankowitz filed “on the eve of trial” were “not well grounded” and displayed “a vengeful attitude.”   Finally, Schmidt expressed the opinion that settlement negotiations had been “unproductive” in that Jankowitz “may be acting with malice against this particular defendant.”

The judge hearing the recusal motion determined “it was a mistake to assign either one of these cases to Mr. Jankowitz to start with.   I think the danger in doing so should have been apparent.”   Concluding that the motion to recuse Jankowitz was well taken, the judge commented that the two cases “are closely identified to such an extent that I'm satisfied that he should be recused.”   The court cited the possible conflict in introducing evidence of the flight to prove consciousness of guilt in the robbery case, and it also noted that the conflict embraced other factors and would not be solved by stipulating that the prosecution would not bring in this evidence.   Shortly thereafter the district attorney's office appealed the recusal ruling and, following the trial court's entry of a stay of the recusal order, the parties answered ready on June 13.   On June 17 appellant moved to dismiss the robbery case for denial of his speedy trial rights, and asked once again that the court excuse Jankowitz.   The day jury selection commenced, defense counsel filed a written continuing objection to Jankowitz's involvement.   Nevertheless, the case went to trial with Jankowitz as prosecutor.

Appellant contends his judgment of conviction must be automatically reversed because the trial court erred in failing to exercise its own inherent authority to effect the recusal order.   The People counter that appellant had waived his right to complain about Jankowitz's continued involvement in the robbery trial by (1) waiting nine months to bring the recusal motion so that it had a chance to preview Jankowitz's negotiating posture and then (2) asserting his speedy trial rights despite the stay of the recusal order.   These contentions frame the more fundamental issue which this case presents, namely, where does the responsibility lie for preserving the effect and purpose of recusal when the trial court's recusal order has been stayed by virtue of the People's appeal.   We think it is appellant's responsibility, and hold that he did not carry his burden merely by lodging a continuing objection to Jankowitz's prosecution.

Section 1424, enacted in 1980, provides that a motion to disqualify a district attorney “shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.”   And when a defendant seeks to recuse the entire prosecutorial office, the showing must be particularly persuasive.  (People v. Hamilton (1988) 46 Cal.3d 123, 139, 249 Cal.Rptr. 320, 756 P.2d 1348.)   In the event either the district attorney or the Attorney General appeals from the recusal order, section 1424 mandates that the order “shall be stayed pending any appeal authorized by this section.”

 Our Supreme Court has held that a “conflict” exists within the meaning of section 1424 “whenever the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.   Thus, there is no need to determine whether a conflict is ‘actual,’ or only gives an ‘appearance’ of conflict.”  (People v. Conner (1983) 34 Cal.3d 141, 148, 193 Cal.Rptr. 148, 666 P.2d 5;  see also People v. Hamilton, supra, 46 Cal.3d at pp. 139–140, 249 Cal.Rptr. 320, 756 P.2d 1348.)   The trial court has the advantage of evaluating the evidence and personalities involved in the case.  (People v. McPartland (1988) 198 Cal.App.3d 569, 574, 243 Cal.Rptr. 752.)   Thus, on review we uphold the trial court's decision if it is supported by substantial evidence.  (People v. Conner, supra, 34 Cal.3d at p. 149, 193 Cal.Rptr. 148, 666 P.2d 5.)   Moreover, where the trial court resolves factual issues on recusal on the basis of competing declarations, those factual resolutions bind us on appeal.   (Chadwick v. Superior Court (1980) 106 Cal.App.3d 108, 114, 164 Cal.Rptr. 864 [decided under common law].)

The parties spend considerable time arguing the merits of the People's appeal, that is, whether the trial court's recusal order was proper.   That issue becomes moot if appellant waived his right to protest Jankowitz's involvement.

Appellant explains that he tried to implement the court's recusal order by interposing a continuing objection to proceeding with the robbery trial with Jankowitz as prosecutor.   The trial court realistically refrained from issuing another recusal order, noting that such an order would simply compound the paperwork because the People would respond with the same procedure, i.e., another appeal.   Nevertheless, appellant faults the court for not then offering the defense the option of continuing the robbery trial until after we decided the propriety of the recusal order on the People's appeal.

 Appellant cites several civil cases for the proposition that courts have inherent power to control and conduct their order of business in a manner that protects the rights of the parties before them.  (See, e.g., Lorraine v. McComb (1934) 220 Cal. 753, 756, 32 P.2d 960;  Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675, 679, 140 Cal.Rptr. 361.)   We have no quarrel with this general proposition, but it does not resolve the specific issue before us, namely, whether the trial court has a duty, in the face of a defendant's competing constitutional and statutory right to a speedy trial, to offer defendant the opportunity to continue the trial motion when the People have appealed its recusal order.  (Cal.Const., art. I, § 15;  § 1382.)

 We do not agree with the People that appellant has waived his right to complain about the trial court's handling of the recusal matter because he “delayed” in filing the section 1424 motion or invoked an alleged preexisting speedy trial violation which might have resulted in dismissal.   Nevertheless, in our view it was appellant's responsibility, not the trial court's, to seek a continuance.   Because of his speedy trial rights, appellant had the choice of either continuing with Jankowitz or moving for a continuance pursuant to section 1050.   Instead, after the court stayed its recusal order, both parties answered “ready”;  appellant's continuing objection to Jankowitz's involvement was absolutely ineffectual to continue the trial.   This would be a very different case if we were reviewing the trial court's denial of a defendant's motion for continuance, where defendant argued good cause for continuance because of the statutory stay.  (§ 1050, subd. (e).)  Appellant, with the advice of counsel, in effect elected to go forward with Jankowitz and cannot now complain that the trial court, on its own, should have advised him that he could move for a continuance.   Since we determine there was no error below, we need not reach the merits of the People's appeal.

IV. PRIOR CONVICTION ***

We affirm the judgment in its entirety.

FOOTNOTES

FN1. All statutory references are to the Penal Code..  FN1. All statutory references are to the Penal Code.

FOOTNOTE.   See footnote **, ante.

ANDERSON, Presiding Justice.

CHANNELL and PERLEY, JJ., concur.