PEOPLE v. NELSON (1979)

Dennis Lewis Nelson appeals from the judgment entered after a jury convicted him of two counts of robbery (Pen.Code, § 211), and found that he was armed with and personally used a firearm in the commission of each offense (Pen.Code, §§ 12022, subd. (a); 12022.5). Although the robberies involved separate victims, they constituted “an indivisible transaction” as that phrase is used in In re Culbreth (1976) 17 Cal.3d 330, 333, 130 Cal.Rptr. 719, 551 P.2d 23. Nonetheless, in imposing consecutive prison sentences, the trial court enhanced both the principal and subordinate terms two years for use of a firearm. In addition to imposing the two-year enhancements the trial court also expressly cited firearm use as one of several justifications for imposing consecutive sentences.

On appeal, defendant seeks reversal of the judgment on several grounds, claiming error in his representation at the suppression hearing by a law student certified as qualified to appear in court under rules promulgated by the State Bar of California, in the denial of his motion to suppress, and in the admission of certain evidence and denial of a mistrial. As will appear, there is no basis for reversal. Therefore, we regard as the most significant issue raised on this appeal defendant's effort to modify the judgment through a challenge to the trial court's utilization of the findings of firearm use to enhance both terms and to justify consecutive sentences. Accordingly, following a brief summary of the facts, we shall first address the contentions relating to sentencing.

On October 28, 1977, defendant and a companion entered the Radio Shack in North Highlands. While discussing a stereo system with an employee, Ronald Craddock, defendant suddenly moved behind Craddock, forcefully thrust a pistol into his back and ordered him into the back room. Defendant's companion ordered George Jarrell, another employee, into the back room. Both men were forced to lie on the floor. Defendant cocked his pistol and threatened “to shoot one of you white honky, mother fuckers for all the shit you gave me in my life.”

At that point, a customer, Kenneth Wilkinson, entered the store and was ordered into the back room and forced to lie on top of the other two men. The three victims were relieved of wallets, money, keys and a watch. A shopping cart was thrown on top of them so they would not move.

After the robbers left, Craddock and Jarrell discovered that stereo equipment had been stolen. The stolen stereo equipment was found in the trunk of defendant's car in Hayward on November 29, 1977.

Defendant was convicted of the robberies of Craddock and Jarrell.

I.

As we have indicated, the trial court imposed consecutive sentences of imprisonment in the state prison for the two convictions of robbery. Defendant contends that the trial court improperly imposed a two-year enhancement for use of a firearm (Pen.Code, § 12022.5) in computing the subordinate prison term which was ordered to run consecutively to the principal term. We disagree.

Penal Code section 1170.1 provides that “[T]he principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.5, 12022.6, or 12022.7. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5, but shall include one-third of any enhancement imposed pursuant to Section 12022, 12022.5, 12022.6 or 12022.7 when the consecutive offense is listed in subdivision (c) of Section 667.5.” (Emphasis added.)

It was proper to enhance the principal term with an additional two years for use of a firearm. Moreover, since robbery with use of a firearm charged and proved is one of the offenses listed in subdivision (c) of section 667.5, it was proper to enhance the subordinate robbery term for use of a firearm unless otherwise prohibited by law.

Penal Code section 654 operates to “limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time, in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.” (Fn. omitted; emphasis added; People v. Beamon (1973) 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 690, 504 P.2d 905, 914.) A finding of firearm use under Penal Code section 12022.5 does not constitute a conviction. “[S]ection 12022.5 does not prescribe a new offense but merely additional punishment for an offense in which a firearm is used.” (In re Culbreth, supra, 17 Cal.3d at p. 333, 130 Cal.Rptr. at p. 721, 551 P.2d at p. 25.) Section 654 applies to convictions and therefore has no application to the imposition of additional punishment for a crime in which it is charged and proved that a firearm was used. If it were otherwise, the literal language of Penal Code section 654 would prevent the imposition of the additional punishment prescribed by Penal Code section 12022.5 in every case.¹

In a series of cases of which People v. Johnson (1974) 38 Cal.App.3d 1, 112 Cal.Rptr. 834, is the progenitor, it has been held that where “all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then section 12022.5 may be invoked only once and not in accordance with the number of victims.” (In re Culbreth, supra, at pp. 333-334, 130 Cal.Rptr. at p. 721, 551 P.2d at p. 25; People v. Miller (1977) 18 Cal.3d 873, 887, 135 Cal.Rptr. 654, 558 P.2d 552; People v. Johnson, supra, at p. 12, 112 Cal.Rptr. 834.) Fidelity to the legislative purpose of section 12022.5 provides the rationale for the rule. That purpose was seen as deterrence of firearm use. (In re Culbreth, supra, at p. 333, 130 Cal.Rptr. 719, 551 P.2d 23; People v. Johnson, supra, at p. 12, 112 Cal.Rptr. 834.) “A special deterrence against firearm use is its objective. The legislative theory is deterrence, whose power augments with each successive occasion. If the threat of a minimum five-year extension has failed to deter the first occasion of gun use, a second occasion may be deterred by doubling the threat, a third by tripling it. Thus the statute envisions a single application of deterrent force for each occasion, hopefully to deter gun use on a future occasion.” (Emphasis added; People v. Johnson, supra, 38 Cal.App.3d at p. 12, 112 Cal.Rptr. at p. 840, quoted with approval in In re Culbreth, supra, 17 Cal.3d at p. 334, 130 Cal.Rptr. 719, 551 P.2d 23.)

The statute under consideration in the Johnson-Culbreth line of cases was substantially different from the present day version of Penal Code section 12022.5. Before its recent amendment to conform to the objectives of determinate sentencing (Stats.1976, ch. 1139, § 305; Stats.1977, ch. 165, § 92, operative July 1, 1977), section 12022.5 provided for sharply escalating penalties for separate successive convictions where firearm use was charged and proved. Thus on a first conviction the additional penalty was not less than five years; on a second such conviction not less than ten years; on a third such conviction, not less than 15 years, all of which were to run consecutively; and on a fourth such conviction, the additional penalty was life or not less than 25 years in the discretion of the court. Thus the legislative scheme envisioned a more or less gradual tightening of the screws, as it were, to discourage firearm use in the commission of the six named offenses to which section 12022.5 then expressly applied.

As it reads now (and read at the time of the instant offense), section 12022.5 applies to all felonies and attempted felonies where firearm use is not an element of the offense. Gone are the sharply escalating penalties for successive convictions with firearm use which spoke so eloquently of a deterrent purpose. The present section 12022.5 uniformly punishes all firearm use with “an additional term of two years” to be served consecutively. The adoption of a uniform penalty structure is consistent with the legislative objective underlying determinate sentencing, i.e., “that the purposes [sic] of imprisonment for crime is punishment” proportionate to the seriousness of the offense. (Pen.Code, § 1170.)

Whereas under former section 12022.5 a single finding of firearm use as part of an indivisible course of conduct involving multiple victims was sufficient to evoke the full deterrent force of section 12022.5, a single finding under the present statute where there are multiple punishable offenses in which a firearm was used does not accurately reflect the proportionate gravity of the offenses and thus does not serve the policy underlying determinate sentencing. Accordingly, the Legislature has provided in clear and unambiguous language that enhancements shall be applied in certain cases of consecutive sentencing (Pen.Code, § 1170.1, subd. (a)); moreover, there is nothing therein to suggest that enhancements are not to be applied to each conviction arising out of a single course of conduct in which a firearm is used. Absent a clear expression of legislative intent to the contrary, we are constrained to apply this statute so as to implement the objective of the overall scheme of determinate sentencing of which it is a part. It follows that the trial court did not err in enhancing the subordinate robbery term.

Defendant also contends that the sentence imposed is unlawful because the trial court used the finding of firearm use to enhance his prison sentence in two different ways, i.e., as a basis for the 12022.5 enhancement of the principal term and as one of the reasons for imposing a consecutive sentence. Defendant asserts this violates the proscription against multiple punishment. (Pen.Code, § 654.)

The trial court ordered the terms to run consecutively because: (1) The crime involved threats of great bodily harm, indicating callousness on defendant's part; (2) defendant used a firearm; and (3) defendant's prior juvenile record indicated a trend of violent crimes of increasing seriousness.

Penal Code section 1170.1, subdivision (c), provides that in determining whether a consecutive sentence should be imposed “the court shall apply the sentencing rules of the Judicial Council.” California Rules of Court, rule 425, sets forth criteria for the imposition of consecutive sentences. These include facts relating to the crimes, such as whether the crimes involved threats of violence or multiple victims; circumstances in aggravation may also be considered including the fact defendant was armed with or used a weapon in the commission of the crime. (See rule 421(a)(2).)

As indicated, the record shows that defendant's use of a firearm was merely one of several factors taken into consideration by the trial court in determining that defendant's sentences should run consecutively. It was not the sole basis for this decision. Moreover, the same proscription against dual use of a single fact both to enhance and to aggravate a sentence (see Pen.Code, § 1170, subd. (b)) does not expressly or impliedly preclude use of the same fact both to enhance and to justify consecutive sentences. If the Legislature had intended the proscription against dual use of a single fact to apply in the latter situation, it would have been a simple matter to say so as was done in the situation involving enhancement and aggravation (Pen.Code, § 1170, subd. (b)).

II.

At a pretrial suppression hearing (Pen. Code, § 1538.5), defendant was represented by a deputy public defender assisted by a law student certified under the State Bar Rules Governing The Practical Training Of Law Students. Before the hearing, defendant executed a document denominated “CONSENT TO REPRESENTATION.” Therein he gave his permission that the certified law student “represent me at my Motion to Suppress” with the understanding that the student “will be supervised … by an attorney licensed to practice ․” At commencement of the hearing, in response to trial court inquiries, defendant acknowledged that he understood he was being attended by a student who was not a licensed attorney; defendant stated he “freely and voluntarily” consented to participation of the law student in the hearing. At the suppression hearing the student examined the witnesses under the direct supervision of a deputy public defender with whom he consulted from time to time. The student's cross-examination of the People's sole witness was vigorous and reflected a high degree of preparation; his examination of defendant's witnesses successfully brought out factual conflicts helpful to defendant's case.

Defendant contends participation by the law student in his suppression hearing abridged his constitutionally guaranteed right to counsel, a right which, defendant claims, he did not waive.

The public defender was appointed to represent defendant at his arraignment in superior court. That appointment remained in effect throughout all further proceedings in the trial court. Although at the suppression hearing the public defender's exertions in defendant's behalf were largely conducted through the certified law student such participation by a certified law student does not as a matter of law impair defendant's right to effective assistance of counsel. Defendant was in fact at all times represented by counsel, the public defender, and thus a waiver of his right to assistance of counsel was not required as a condition of the certified law student's participation in the suppression hearing (People v. Perez (1979) 24 Cal.3d 133, 144, 145, 155 Cal.Rptr. 176, 594 P.2d 1).

Furthermore, defendant makes no contention that the services rendered by the certified law student in fact resulted in inadequate or incompetent representation, nor does inadequacy or incompetence otherwise appear from the record. (See People v. Pope (1979) 23 Cal.3d 412, 423-424, 152 Cal.Rptr. 732, 590 P.2d 859; People v. Perez, supra, at p. 145, 155 Cal.Rptr. 176, 594 P.2d 1.)

From the record we are satisfied that in conformance with the State Bar rules, defendant knowingly and intelligently consented to participation of the certified law student in his suppression hearing (People v. Perez, supra, at p. 144, 155 Cal.Rptr. 176, 594 P.2d 1). No error resulted from such participation.

III.

Defendant charges error in the trial court's denial of his motion to suppress certain evidence seized from his vehicle. In setting forth the facts supporting the court's ruling, we view the record in the light most favorable to the prevailing party following denial of a Penal Code section 1538.5 motion. (People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 546 P.2d 293.)

On November 29, 1977, Alameda County Deputy Sheriff Robert Jarrett observed a black Chevrolet Impala traveling on a main thoroughfare in Hayward. Observing that the registration tag on the rear license plate had expired, Deputy Jarrett effected a traffic stop. Three men were inside the vehicle; Matthews, the driver, Hansen, the front seat passenger, and defendant Nelson in the back seat.

When the driver, Matthews, could not produce a driver's license, Jarrett requested the vehicle's registration. Defendant told the officer that the car belonged to him, that his license was in the glove compartment, and that he had given Matthews permission to drive the vehicle. At that point Hansen, the front seat passenger, exited the vehicle, taking several papers from the glove compartment. Matthews also exited. The officer had not requested that they do so.

Upon Hansen's exit from the vehicle, Deputy Jarrett observed a pink capsule lying on the seat where Hansen had been sitting. Jarrett immediately asked whose it was. Hansen responded: “I don't know, that's not mine.” Jarrett was suspicious about the nature of the pill and thought it might be a barbiturate. Jarrett had special training in narcotics and drugs. In addition, he had made arrests in the past which involved barbiturates.

Jarrett then observed defendant in the back seat; he was bending down and appeared to be pushing something underneath his seat. Believing that defendant was possibly concealing other pills, Jarrett retrieved the capsule from the front seat and removed defendant from the car. He then looked underneath the rear seat and found a loaded .25 caliber pistol. Also on the floor of the vehicle the officer noticed a radio with scratch marks on the lower right hand corner, suggesting to him that the serial numbers had been removed.

With the discovery of the pistol, the pill, and the radio, Jarrett suspected there might be other similar items of contraband in the passenger compartment. A further search of the interior of the vehicle turned up a holster for a .25 caliber pistol, a 15-inch metal billy club, 12 rounds of .22 caliber ammunition and four recording tapes with names or initials thereon of persons other than the occupants of the car; the officer suspected the latter items had been stolen.

The discovery of the above items led Jarrett to suspect that more contraband of like kind might be in the trunk. After unsuccessfully attempting to open it, the officer asked defendant if he could look inside the trunk. Defendant consented, asking only that the vehicle not be towed away. Jarrett informed defendant that any illegal items found would be confiscated; defendant made no reply, but gave the keys to the officer and allowed Jarrett to search the trunk without objection. Found inside the trunk were numerous pieces of stereo equipment stolen in the robbery of the Radio Shack.

No contention is made that the initial detention of the vehicle was wrongful. Defendant merely submits that the warrantless search of the vehicle was not justified and therefore the evidence discovered therein should have been suppressed.

Warrantless searches are per se unreasonable, subject only to a few exceptions. Thus where there is probable cause to believe that an automobile stopped on a roadway contains contraband, evidence of a crime, or was itself an instrumentality of crime, law enforcement officers need not obtain a warrant before conducting a search. (Wimberly v. Superior Court (1976) 16 Cal.3d 557, 563, 128 Cal.Rptr. 641, 547 P.2d 417.)

Contraband within plain view of an officer is subject to seizure. (People v. Mack (1977), 66 Cal.App.3d 839, 859, 136 Cal.Rptr. 283.) In addition, contraband in plain view inside a vehicle may furnish probable cause to believe that similar items are secreted therein. (Wimberly v. Superior Court, supra, 16 Cal.3d at p. 564, 128 Cal.Rptr. 641, 547 P.2d 417.) However, an officer's observations can give rise to probable cause only if that officer had sufficient training and experience from which to draw conclusions necessary to create a reasonable belief that contraband is present. (Wimberly, supra, at p. 565, 128 Cal.Rptr. 641, 547 P.2d 417.)

Officer Jarrett had experience in the area of narcotics and drugs, and testified that he was suspicious about the nature of the pink capsule. Upon observing the capsule, the officer asked whose it was. None of the car's occupants would claim it. At the same time Officer Jarrett noticed defendant bent down in the back seat, looking as if he were pushing something under the seat. Officer Jarrett had probable cause to seize the capsule and to search the passenger compartment for similar contraband. (See Wimberly v. Superior Court, supra, 16 Cal.3d at p. 564, 128 Cal.Rptr. 641, 547 P.2d 417.) Once Jarrett discovered the loaded .25 caliber pistol, the radio whose serial number appeared to have been purposely obliterated and the suspect tapes, he possessed probable cause to search the trunk compartment of the vehicle for possible stolen property. (See People v. Gregg (1974) 43 Cal.App.3d 137, 142, 117 Cal.Rptr. 496.)

Alternate justification for the trunk search resides in defendant's consent. Defendant gave Jarrett the keys to the trunk and allowed it to be searched without any objection. Defendant testified at the hearing and again urges in his brief on appeal, that he did not voluntarily consent to the search.

A search to which an individual consents does not violate the Fourth Amendment. (People v. Mason (1971) 5 Cal.3d 759, 765, 97 Cal.Rptr. 302, 488 P.2d 630.) The consent, however, must be the product of the individual's free will and not a mere submission to an express or implied assertion of authority. (People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.)

“A proceeding pursuant to section 1538.5 is one in which factual issues are resolved by the court sitting as a finder of fact. [Citation.] ‘In such a proceeding the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence. [[[[Citation.]”’ (People v. Rios, supra, 16 Cal.3d at p. 357, 128 Cal.Rptr. at p. 8, 546 P.2d at p. 296.)

It is plain that in the face of conflicting evidence, the trial court, as judge of credibility, elected to believe Officer Jarrett's version of the events in question, rather than defendant's. The record contains substantial evidence to support the court's implied finding that defendant, after being fully informed of the possible consequences, voluntarily gave Officer Jarrett his keys and consented to the search of his trunk. The motion to suppress the evidence uncovered as a result was properly denied.

IV.

Defendant contends that the trial court committed prejudicial error in allowing Timothy Pride to testify in rebuttal that he and the defendant had been incarcerated together.

At trial, the defense presented evidence designed to raise the inference that Pride, rather than defendant, had been one of the perpetrators of the Radio Shack robbery. Defendant's brother testified that Pride had said he had robbed a man at an unidentified Radio Shack store. Defendant himself testified that he purchased stereo equipment from Pride.

In rebuttal, the prosecution offered testimony by Pride to show “bad blood” between Pride and defendant, tending to prove a motive by defendant falsely to inculpate Pride. In advance of Pride's rebuttal appearance, defendant moved to exclude his testimony under Evidence Code section 352. The prosecutor thereupon offered to prove that Pride and defendant had been incarcerated together in the Youth Authority, and while there an incident involving Pride had occurred which resulted in the delay of defendant's release date; as a consequence, ill feeling developed between the two men.

The trial court refused to exclude the offered testimony, noting that Pride's involvement in the charged offense had been suggested by defendant's own evidence. Counsel then asked that the testimony of Pride be limited so as to exclude the fact of defendant's prior incarceration. This motion was also denied by the court although the prosecutor voluntarily offered so to limit Pride's testimony.

The trial court is vested with wide discretion in admitting or rejecting proffered evidence and, absent a manifest abuse of that discretion resulting in a miscarriage of justice, its decision will not be reversed on appeal. (People v. Wein (1977) 69 Cal.App.3d 79, 90, 137 Cal.Rptr. 814.)

The trial court should give serious consideration to the severance of portions of testimony, wherever possible, so as to protect the rights of a defendant without destroying the value of the witness' testimony. (People v. Washington (1969) 71 Cal.2d 1061, 1082, 80 Cal.Rptr. 567, 458 P.2d 479.) However, where such severance would destroy the value of the testimony, it is inappropriate. (Ibid.)

Here the prosecution was attempting to show ill will between Pride and defendant. The proffered evidence had probative value determined by the trial court to outweigh any prejudicial effect because it tended to show motive on defendant's part falsely to inculpate Pride as one of the perpetrators of the Radio Shack robbery. A severance of the testimony would have sharply diminished its value, since the basis for the alleged acrimony was that the incident had occurred during defendant's incarceration with Pride and had extended defendant's release date. There was no error in the trial court's rulings on defendant's objections to the prosecution's offer of proof.

As it turned out, in his rebuttal testimony, although Pride was not asked he nevertheless volunteered that he had been incarcerated with defendant; the prosecutor, however, omitted to elicit testimony to connect that fact with the ill feeling between defendant and Pride which the latter explained developed as a result of an “incident in the past.” This failure to associate the two facts appears to have been due to the prosecutor's good-faith effort to limit the testimony consistent with his earlier representation to the trial court. While the lack of connection rendered the testimony concerning incarceration largely irrelevant, no motion to strike was thereafter made and no prejudicial error appears.

V.

At trial, the district attorney called Donald Steed, a detective with the Sacramento Police Department. When asked where he was assigned, Detective Steed responded that he was currently assigned to the career criminal program in the district attorney's office.

Defense counsel, out of the presence of the jury, promptly moved for a mistrial. The motion was denied. Defendant cites the ruling as prejudicial error. He speculates that the detective's statement in effect conveyed to the jury that defendant was considered a career criminal.

““‘[A] motion for a mistrial is addressed to the sound discretion of the trial court. It may properly be refused where the court is satisfied that no injustice has resulted or will result from the occurrences of which complaint is made.””’ (People v. Romero (1977) 68 Cal.App.3d 543, 548, 137 Cal.Rptr. 675, 676-677; People v. Ray (1967) 252 Cal.App.2d 932, 962-963, 61 Cal.Rptr. 1.)

The motion for mistrial was based on Detective Steed's mention of his assignment. The trial court determined that this alone was not prejudicial. We find no abuse of discretion. The mere mention by Detective Steed that he was assigned to the career criminal program did not necessarily suggest to the jury that defendant was a “career criminal.” There is nothing in the record to suggest Steed's participation in the case was even part of his assignment in the career criminal program.

I concur in the result. However, I disagree with that portion of the opinion which states that the same act (firearm use) may form the basis for (1) enhancing the principal term pursuant to section 12022.5 and (2) imposing a consecutive sentence. The terms were ordered to run consecutively on a proper basis independent of the firearm use. The majority deal with the sentencing issue, I assume, to give guidance to the trial courts.

Several factors cannot be analyzed away. First, there was only one use in one transaction. Second, common sense dictates that an act punishable in different ways by different provisions of law should only be punished under one provision. (Pen.Code, § 654.) Third, the essence of recent legislative efforts in enacting the Uniform Determinate Sentencing Act is to add some predictability and uniformity. (I regret the relative bankruptcy of California Rules of Court in providing guidance toward that end.) To the extent that Rule 421(a)(2) can be read, as does the majority, to permit imposition of a consecutive sentence for firearm use, per se, despite an enhancement, it contradicts the Penal Code section 654 proscription against multiple punishment.

FOOTNOTES

1.  As pertinent to this case, Penal Code section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case may it be punished under more than one; …”

PUGLIA, Presiding Justice.

REGAN, J., concurs. REYNOSO, Associate Justice, concurring in result.Rehearing denied; REYNOSO, J., dissenting.