PEOPLE v. HALL (1979)

A jury found appellants Robert Hall and Stanley Nichols guilty of armed robbery committed on August 10, 1977 (Pen.Code, ss 211, 12022.5, 1203.06). The jury also found appellant Hall guilty of separate armed robberies committed on August 8 and August 10, 1977, and guilty of possession of a concealable firearm by a convicted felon (s 12021). Appellants were sentenced to state prison and appeal from the judgments of conviction.

During the trial, Hall offered to stipulate to a prior felony conviction for purposes of Penal Code section 12021; the offer was refused. He now contends that the court erred in refusing this stipulation because the stipulation would have minimized evidence of the prior conviction before the jury. However, a stipulation concerning a prior conviction need not be accepted when the prior conviction is an element of the offense charged, as it is under section 12021 of the code; the prosecutor is not required to stipulate to the existence of any elements of a crime he is attempting to prove (People v. Morrison (1977) 67 Cal.App.3d 425, 427-428, 136 Cal.Rptr. 650; People v. Faulkner (1972) 28 Cal.App.3d 384, 392-393, 104 Cal.Rptr. 625;¹ cf. People v. Guzman (1975) 47 Cal.App.3d 380, 389, 121 Cal.Rptr. 69 (where the prior conviction was not an element of the crime charged)).

Appellant Nichols contends that the court erred in refusing his instructions on identification and reasonable doubt which were noted with approval in People v. Guzman, supra, at pages 386-387, 121 Cal.Rptr. 69. But a court may refuse these instructions if the jury is otherwise instructed pursuant to CALJIC Nos. 2.20 and 2.91, as in the present case (People v. Kelley (1977) 75 Cal.App.3d 672, 679, 142 Cal.Rptr. 457; People v. Boothe (1977) 65 Cal.App.3d 685, 690-691, 135 Cal.Rptr. 570).

Finally, appellant Nichols contends that he was denied effective assistance of counsel because his attorney did not present a motion for severance before trial began. The attorney commented during a hearing on a motion for a new trial that he “felt there was no legal ground on which a Court could grant a motion to sever” and he did not make the motion “simply because of the fact the law permitted the District Attorney to join these actions”. These comments indicate a misunderstanding of the law. A court has discretion under Penal Code section 1098 to order separate trials if there is a prejudicial association with a codefendant or a likelihood of confusion from evidence on multiple counts (People v. Isenor (1971) 17 Cal.App.3d 324, 330-331, 94 Cal.Rptr. 746; People v. Massie (1967) 66 Cal.2d 899, 916-917, 59 Cal.Rptr. 733, 428 P.2d 869). This rule would have provided reasonable grounds for a severance in the present case since Hall was charged with three robberies and three counts of illegally possessing a weapon and Nichols was charged with only one armed robbery. And, contrary to counsel's statement to the court, the fact that counts are properly joined does not preclude their severance upon a proper showing of potential prejudice. However, in spite of counsel's mistaken view of the law, the record does not support a conclusion that Nichols was denied a fair trial. The court had discretionary power to deny the motion for severance, as well as to grant it, and denial of the motion would have been reasonable in view of the common elements of substantial importance in the various charges. This is true even though Nichols was charged with fewer crimes than Hall (People v. Stathos (1971) 17 Cal.App.3d 33, 41, 94 Cal.Rptr. 482; People v. Spates (1959) 53 Cal.2d 33, 36, 346 P.2d 5). Even if the motion had been granted, the prosecution's evidence against Nichols was sufficient to support a conviction in a separate trial since two eye-witnesses to the robbery identified Nichols as the robber. And finally, this was not an instance where counsel's ignorance withdrew a “crucial defense” (People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487) or a “potentially meritorious defense” (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859) from the case. Effective assistance of counsel does not demand errorless counsel but rather a fair trial (In re Saunders (1970) 2 Cal.3d 1033, 1041, 88 Cal.Rptr. 633, 472 P.2d 921); appellant Nichols was accorded this right in the present case.

Judgments affirmed.

FOOTNOTES

FOOTNOTE.  

1.  We are, of course, aware of the recent contrary view expressed in People v. Sherren (1979) 89 Cal.App.3d 752, 152 Cal.Rptr. 828. With all due respect to the author and the concurring justice in the lead opinion, we cannot accept the rationale expressed by that court in deviating from firmly settled and salutary principles of criminal procedural law (People v. Morrison, supra; People v. Faulkner, supra ).

THE COURT: * FN* Before TAYLOR, P. J., KANE, J., and ROUSE, J.