PEOPLE v. GONZALEZ (1980)

Appeal from a judgment of conviction in a criminal prosecution in which a jury found defendant guilty of two counts of armed robbery and one count of burglary.

On Thanksgiving Day of 1977, Paul and Patricia Moritz were alone in their home in Downey, California. At about noon, in response to the doorbell, Paul opened the front door where he was confronted by three men who displayed pistols and forcibly entered the house.

Two of the men were defendant Gonzalez and one Torres, who was tried jointly with defendant. These individuals forced the Moritz' to sit in a chair. The victims' heads were covered with a shawl, they were threatened with death and their hands were tried with a telephone cord.

The intruders then ransacked the house and stole money and various items of personal property. Jewelry was forcibly removed from the persons of the victims.

Two neighbors observed four men arrive in the neighborhood in a van. Three of the men exited from the van and walked toward the Moritz home. One of these neighbors and Mrs. Moritz identified defendant as one of the bandits. Mrs. Moritz also identified Torres. Torres' fingerprints were found inside the Moritz home.

The jury found defendant Gonzalez and Torres guilty. As to Gonzalez, the jury found, as to each of the charges, that he was armed with and used a firearm.

Sentence was as follows:

Count I—robbery—base term four years plus two years enhancement for use of a firearm—total six years.

Count II—robbery—base term three years plus two years enhancement for use of a firearm—total five years to be served concurrently with the sentence on Count I.

Count III—burglary—base term two years plus two years enhancement for use of a firearm—total four years.

Execution of this sentence was stayed pending appeal and completion of sentences on Counts I and II, thereafter the stay to become permanent.

Defendant's contention on appeal centers on two areas (1) the identification of defendant by the witnesses, and (2) the sentences.

The two neighbors referred to above were a Mr. and Mrs. Boggs. Mr. Boggs identified the defendant at trial.

Just prior to the commencement of trial, the Boggs were asked to come to the district attorney's office for the purpose of making an identification. The deputy district attorney handling the case informed them that he had to appear in court and that they were free to come along or wait for him in his office. The Boggs chose to go to the courtroom. Unbeknownst to them, the defendant was in the courtroom. The Boggs remained in the courtroom for a few moments before the court asked them to leave. After they left the courtroom and returned to the district attorney's office, they were separately shown two files of photographs. Each file contained six photographs, one file contained a picture of defendant Torres, and the other contained a picture of defendant Gonzalez.

Neither of the Boggs selected defendant Torres' picture, but both selected defendant Gonzalez as one of the occupants of the van. After making the identification, Mrs. Boggs recalled seeing defendant Gonzalez in the courtroom. When Mrs. Boggs saw the defendant in court, she did not immediately make the connection, and therefore did not call this fact to her husband's attention.

Because she was unable to tell whether or not her identification was based upon her viewing the defendant outside her home on the date of the crime, or was based upon her having just seen the defendant in court, the prosecution decided not to call her as a witness at trial.

Defendant moved to exclude the testimony of Mr. Boggs. The trial court held a hearing pursuant to Evidence Code section 402. At the hearing the above-described events were testified to by the Boggs and one of the investigating officers. Mr. Boggs additionally testified that he did not see the defendant in the courtroom. The trial court also viewed the photographs that were used and coupling that view with the testimony of the witnesses, concluded that the method used was not impermissibly suggestive.

Convictions based upon eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification. (Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.)

The trial court must determine, as a “preliminary fact” within the meaning of Evidence Code section 402, whether the prosecution has shown, by a preponderance of the evidence that the identification procedure employed was not in fact overly suggestive. The trial court here properly held a hearing out of the presence of the jury.

Our function is to determine whether the trial court's decision is supported by substantial evidence. (People v. Citrino, 11 Cal.App.3d 778, 90 Cal.Rptr. 80.) We are satisfied that it is.

Of course once that preliminary determination has been made, the ultimate effect of the testimony is a matter for the jury to decide. The most effective method of exposing any weaknesses in the identification is cross-examination of the witnesses in the jury's presence as to the manner in which the identification developed. (Simmons v. United States, supra.)

Both Mr. Boggs and the prosecution's main witness, Mrs. Moritz, underwent vigorous cross-examination on their identification of the defendant and the conduct of the police in dealing with them. Their in-court identifications of the defendant were unshaken.

Defendant contends that he was denied effective assistance of counsel when his trial attorney failed to move to exclude the testimony of Mrs. Moritz. The pretrial identification procedure employed with her involved the same photographs shown to Mr. Boggs. This contention then has no merit.

While a defendant is constitutionally entitled to a representation which meets the standard of performance of a reasonably competent attorney (People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859), the burden is on the defendant, who would urge the lack of such representation as a grounds for reversing a judgment of conviction, to prove that his counsel's failure resulted in the withdrawal of a potentially meritorious defense.

The psychology and dynamics of skillful trial performance by a lawyer are not susceptible of being tested by a standardized matrix or a specific list of “do's” and “don'ts.” This is especially true of the manner in which a lawyer approaches the task of attempting to discredit an identification witness.

Here trial counsel could certainly not be faulted for eschewing a preliminary determination concerning Mrs. Moritz' pretrial identification of the defendant. The method that was used had been explored with the witness Boggs and was approved by the trial court. A second challenge to the same group of photographs would obviously have been futile and could have resulted in a “hardening” of the witnesses' position. Certainly it cannot be said that no “reasonably competent attorney” would have followed the course taken by defense counsel here.

Furthermore no defense was withheld from consideration. The issue of identification was fully and vigorously pressed by defense counsel. The fact that he precipitated one hearing under Evidence Code section 402, demonstrates that he was not ignorant of the law.

During the trial, defendant's counsel called Mrs. Boggs to the stand as a witness. He was precluded by the trial court from questioning her concerning the effect that seeing the defendant in the courtroom had upon her ability to identify the defendant. Defendant's counsel was not precluded from asking any other relevant questions about her observations on the day of the crime, or for that matter on any other day germane to the case. The questions which defendant's counsel proposed were totally irrelevant to any issue in the case. Mrs. Boggs did not identify defendant and was not called as a witness for the prosecution. None of the proffered testimony would have had any impeaching effect on the witnesses who did in fact identify the defendant.

Finally defendant was properly sentenced. Penal Code section 654 did not bar separate punishment for the two robbery counts because there were two victims. (People v. Beamon, 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905.) Thus it was as if defendant had committed two separate robberies at different times. By that same reasoning then the sentence for each robbery could be enhanced by the finding that defendant used a firearm in the commission of each offense. (Pen.Code, §§ 12022.5, 1170.1.)

In In re Culbreth, 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23, and People v. Chavez, 26 Cal.3d 334, 161 Cal.Rptr. 762, 605 P.2d 401, the Supreme Court held that Penal Code section 12022.5 could be used to enhance the sentence for only one of several crimes committed in the course of one indivisible transaction. These holdings were based on perceived legislative intent in the enactment of Penal Code section 12022.5.

In each of the two above referenced cases the crimes were committed prior to the enactment of Penal Code sections 1170 and 1170.1. In our opinion, the enactment of Penal Code section 1170.1 indicates a legislative intent contrary to the holdings in Culbreth and Chavez, supra, which were decided under the now superseded indeterminate sentence law.

The trial court did not base imposition of the upper term on Count I on the use of the firearm. The factors enumerated as calling for the upper term were threats of great bodily harm, multiple victims, premeditation and planning particularly vulnerable victims and a large amount of property stolen.

The judgment is affirmed.

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.