PEOPLE v. PEDROZA (1981)

Appellant was sentenced to state prison following his conviction by a jury of multiple offenses and his plea of guilty to an additional charge.   He appeals, raising several contentions which we shall discuss.   We modify and affirm.

The jury found appellant guilty of counts 1 and 2 (robbery), 3 and 4 (kidnapping) and 5 (rape), and found true as to each of those counts an allegation as to the personal use of a firearm (Pen.Code, § 12022.5);  as to counts 1, 3, 4 and 5, an allegation as to personal use of a knife (Pen.Code, § 12022(b)), and also, as to count 5, an allegation as to intentional infliction of great bodily injury (Pen.Code, § 12022.7).   These counts charged crimes against Jose Manuel Castillo and Patricia Chacon committed on January 20, 1979.

The jury also found appellant guilty of counts 9 (robbery), and 10 and 11 (assault with a deadly weapon), and found true, as to count 9, an allegation as to personal use of a knife (Pen.Code, § 12022(b)), and as to count 10 an allegation as to intentional infliction of great bodily injury (Pen.Code § 12022.7).   These counts charged crimes against Adam Dunkin and Arlene Ramirez committed on September 3, 1979.

Prior to the presentation of evidence appellant pleaded guilty to count 6 (grand theft), committed against Eileen Doris Price on July 31, 1979.

In addition, the jury found appellant guilty of counts 7 and 8 (robbery), and found true as to each of those counts allegations as to personal use of a firearm (Pen.Code, § 12022.5).   These counts charged crimes against Johnny Bravo and Sharon M. DiMacali.   The trial judge granted a new trial on those counts, apparently on the basis of the insufficiency of identification of the perpetrator, and they were dismissed on the prosecutor's motion.

Insufficiency of the evidence is only raised as to certain counts, and to the extent necessary we shall discuss the relevant evidence introduced on those counts.

I.

Appellant contends initially that he was deprived of a fair trial because of the destruction of physical evidence obtained during investigation of the crimes committed against victims Castillo and Chacon (counts 1 through 5, inclusive).

It appears that on two occasions prior to commencement of the trial appellant moved to dismiss the Castillo-Chacon charges or, in the alternative, to suppress certain items of evidence:  sweater, panties, belt, wallet, shoes, gloves, handgun, wooden club, socks, jeans and “other physical evidence.”

No evidence presented in support of appellant's motions prior to trial has been brought to our attention.   During the trial a police officer testified on direct examination that the Los Angeles Police Department recovered certain evidence relevant to these charges but that, pursuant to a three-month review policy, when it appeared that the perpetrator might not be apprehended, “all items [were] destroyed” for “expediency” in May of 1979.

 We agree with appellant that People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051, and People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, prescribe the standard that law enforcement agencies must follow:  “․ the obligation to disclose the existence of material evidence places on the state a correlative duty to preserve such evidence even without a request therefor.”  (People v. Nation, supra, at p. 175, 161 Cal.Rptr. 299, 604 P.2d 1051.)

 However, the mere contention that evidence is “material” does not make it so.   And there is a preliminary question which must be addressed:  Was the evidence claimed to be material actually in the possession of the law enforcement agency?

Eleven months prior to trial, while appellant was still representing himself in propria persona, the prosecutor reported to the court that an item of “other physical evidence”—a knife—“was disposed of on the 21st of May, 1979 ․ due to the inadvertence of the LAPD.  [¶] There was no wooden club that was ever recovered.   There were gloves that were recovered and those were also disposed of at the same time as the knife.   And, of course, no prints were matched.   So we have nothing that we would be offering into evidence.”

At a subsequent pretrial hearing held on October 7, 1980, when appellant was represented by his trial counsel, the prosecutor represented that three items of evidence were still in existence:  two slides, a swab and a pair of “women's blue Levi's.”   The prosecutor further represented, “There were no finger prints that were taken from any of these items.   There were prints that were attempted to have been lifted from the victim's automobile, and there were never any prints that were matched or made.”   No wooden club or handgun was recovered by the police;  the victim's wallet was returned to her but her shoes and socks were apparently destroyed as were a pair of black knit gloves allegedly worn by appellant.

 We are satisfied that destruction by the police of certain items of the victim's clothing, and of a knife and gloves allegedly used by appellant, did not violate appellant's due process rights.   The gun and wooden club were never in police possession;  the knife and knit gloves did not (and could not reasonably have been expected to) yield fingerprints.   Whether the panties might have been of assistance to appellant is wholly speculative;  we note that appellant made no use during the trial of the disclosure of the continued existence of the two slides, swab and Levi's.

II.

Appellant next argues that he was denied his Sixth Amendment right of confrontation by the trial court's ruling which permitted the prosecution to read into evidence the preliminary hearing testimony of Adam Dunkin as to the crimes committed against him and Ms. Ramirez.

Dunkin, the named victim in counts 9 and 11, who was present during the events alleged in count 10, testified at the preliminary hearing but at the trial appeared with attorney Kaplan, who was representing him in another matter.   Kaplan indicated that if Dunkin testified in the instant case, “he may incriminate himself regarding certain matters.”   Dunkin was called as a witness by the prosecution in the absence of the jury and asserted his privilege against self-incrimination under both the United States and California Constitutions.   The only questions asked involved whether he was “high or drinking” on September 3, 1979, or the prior day, and his acquaintance with PCP.   Attorney Kaplan represented that Dunkin would refuse to answer any questions regarding “those areas asked about” but “he would be able to give testimony in other areas.”   Appellant's counsel took the position that Dunkin's condition at the time of identification was of critical importance;  if he was precluded from cross-examination about that condition by virtue of a self-incrimination claim, “all of his testimony would have to be stricken.”

The trial court eventually resolved this problem by finding Dunkin “unavailable” as a witness (Evid.Code, § 240(a)(1)) and authorizing the prosecutor to read Dunkin's preliminary hearing testimony into the trial, with deletions as to Dunkin's state of sobriety ¹ and his identification of appellant as the robber and assailant.   The Dunkin testimony, as modified, was read into the record.

 We find no abuse of discretion in the trial court's resolution of this problem.   Appellant had “an interest and motive” at the preliminary hearing similar, if not indeed identical, to that which he had at the trial (Evid.Code, § 1291(a)(2));  he had the opportunity to, and did, cross-examine Dunkin fully at the preliminary hearing; ²  by virtue of the trial court's editing, Dunkin was not permitted to identify appellant or to make any self-serving statements about his own sobriety;  the testimony of his fellow victim, Ms. Ramirez, was essentially consistent with Dunkin's and identified appellant.

III.

Appellant contends that his in-court identifications by all the victims—including those as to whom the trial court set the jury's verdict aside—resulted from a constitutionally impermissible photographic lineup.

We have fully reviewed the record of appellant's motion to exclude his in-court identification by witnesses Chacon, Castillo, Price, DiMacali, Bravo, Dunkin and Ramirez.   We have also reviewed the trial testimony of the identifying witnesses.

 We find nothing to justify the contention that the photographic lineup was “impermissibly suggestive.”   The only support appellant offers for that proposition is the arrangement of a six-person photographic showup in two tiers of three photos each, in which appellant appears in the middle of the top row.   Realistically, there are only six positions in which a suspect's photograph can be placed in a two-tiered arrangement of six photographs;  reasonable persons might well disagree upon which position, if any, is most prominent.   We suspect appellant would contend with equal vigor that the photographic lineup had been “impermissibly suggestive” if he had been in the top left position, or the lower middle position.  “We know of no rule of law and defendant cites none which requires that he be given a choice of position in the lineup.”   (People v. O'Roy (1972) 29 Cal.App.3d 656, 662, 105 Cal.Rptr. 717.)

Appellant's attorney had the full opportunity at the trial in cross-examination of the identifying witnesses to explore the pretrial identification procedures, and, in fact, he examined those witnesses extensively upon that issue.   He further had the opportunity to point out in his closing argument the possibility of misidentification based upon his contention of “impermissibly suggestive” techniques.   The jury simply disagreed with him.   We find no error in the trial court's ruling.

IV.

Appellant argues further that the trial court's refusal to instruct the jury on the elements of attempted robbery as a lesser included offense of the robbery charged in count 9 constituted prejudicial error.

We summarize briefly the evidence on this count:  During the evening of September 3, 1979, Dunkin and Ms. Ramirez were near a radio tower in the Lincoln Heights area of Los Angeles.   An individual, identified by Ms. Ramirez as appellant, came “waving a knife” 12 to 14 inches long and said, “Let me have your wallet.”   Dunkin replied that he had no money because they had just come back from a show, so “he threw back my wallet inside the car, you know.”   He took nothing from the wallet;  there had been no money in it.   Then he demanded that Dunkin give him the keys to the car;  Dunkin complied.

Ms. Ramirez followed appellant's directions to leave the car but she did not wish to go with him and when appellant attempted to go and get her Dunkin took out his own knife and said, “Let's go for it.”   Ms. Ramirez grabbed the blade of appellant's knife (as well as the blade of Dunkin's knife), Dunkin stabbed appellant in the left side and appellant ran away.   Dunkin never recovered the keys to his car.

The proceedings regarding jury instructions were not reported and no “refused” instructions appear in the clerk's transcript.   Nevertheless, it appears from the proceedings prior to sentencing that appellant's counsel requested an instruction on attempted robbery as a lesser included offense of that charged in count 9.   The theory of that instruction, evidently, was that “nothing was taken except the car keys, the car was left there.  [¶] ․ [T]here was no intent to steal the car and the keys would be useless ․ for any other purpose.  [¶] The reasonable interpretation of the evidence would be the keys were taken so the car couldn't be driven away by the victims and therefore it wouldn't be a robbery but at best an attempted robbery.”

If the theory of robbery had to depend upon the taking of Dunkin's money or of his car, appellant might be on sounder ground.   Dunkin's wallet contained no money;  the wallet was returned.   The car itself was not taken;  only its key, which was not returned.

However, appellant neglects the significance of the taking of the wallet and the key.   The taking of either of these items, accompanied by the necessary intent, was robbery.  “Judicial notice may be taken ․ that an item of personal property has some value.   The amount is immaterial․”  (People v. Simmons (1946) 28 Cal.2d 699, 705, 172 P.2d 18 (package of cigarettes).)

As to the returned wallet, People v. Hall (1967) 253 Cal.App.2d 1051, 1054–1055, 61 Cal.Rptr. 676, is expressly in point.   There the court held that the return or abandonment of an empty wallet did not absolve the defendant “of any element essential to support his conviction of robbery.”   To the same effect, see People v. Carroll (1970) 1 Cal.3d 581, 584, 83 Cal.Rptr. 176, 463 P.2d 400:  “․ [T]he taking of Gulsvig's wallet constituted a robbery even though defendant discarded it as soon as he discovered it was empty.   It may reasonably be inferred that at the time defendant demanded and received the wallet it was his intention to deprive the owner of it permanently.”

 Since there was no substantial evidence which might tend to prove attempted robbery rather than robbery as charged, appellant was either the person identified by Ms. Ramirez and guilty of robbery, or was not the perpetrator and was guilty of no offense at all.   It was not error to refuse the instruction.  (See People v. Flannel (1979) 25 Cal.3d 668, 684–686, 160 Cal.Rptr. 84, 603 P.2d 1.)

V.

The last point raised by appellant is the troublesome Harvey enhancement issue:  In calculating the “subordinate terms” of imprisonment under Penal Code section 1170.1(a),³ was it proper for the trial court to utilize, in addition to one-third of the middle term of imprisonment, one-third of “enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7”?

People v. Harvey (1979) 25 Cal.3d 754, 759–761, 159 Cal.Rptr. 696, 602 P.2d 396, holds that an offense is not a “violent felony” (within the meaning of section 1170.1(a)) for the purpose of enhancements under Penal Code section 12022.5 unless the felony is one listed in section 667.5, subdivisions (c)(1) through (7), inclusive.⁴  But on May 29, 1980, Assembly Bill No. 2123 (Stats.1980, ch. 132) went into effect as an emergency statute, designed to “clarify and reemphasize what has been the legislative intent since July 1, 1977” by explicitly providing that section 667.5(c)(8) offenses may be enhanced pursuant to sections 12022, 12022.5 and 12022.7.

During sentencing proceedings appellant's counsel attempted to argue the inapplicability of Assembly Bill No. 2123 to offenses committed prior to its effective date, but did not persuade the trial judge.

The Attorney General is not persuaded either;  he concedes that appellant's sentence on count 9 was in error in including in the subordinate term an enhancement under section 12022(b),⁵ but contends that Assembly Bill No. 2123 controls over Harvey and renders the trial court's sentencing otherwise appropriate.

 We disagree, since “as an intermediate appellate court, we are bound by the doctrine of stare decisis and the rule of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 to follow People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, and to find the Act has prospective application only.”  (People v. Young (1981) 120 Cal.App.3d 683, 696, 175 Cal.Rptr. 1.)

VI.

Following our review of the record and briefs, we requested counsel for both sides to discuss three additional issues.   The first of these was the sufficiency of evidence to support defendant's conviction of assault with a deadly weapon and the enhancement for intentional infliction of great bodily harm upon Ms. Ramirez, as alleged in count 10.

Dunkin testified that after the robber “wanted Arlene [Ramirez], my girlfriend, to get out of the car and go with him ten feet in back of the car, something like that” and “[s]he didn't want to go ․ he attempted to go and get her, that's when I had my chance to pull out ․ my knife that I had ․ [¶] ․ And when we were struggling, about the time he was going to stab me or whatever he tried to do to me, Arlene grabbed the blade of his knife.”

Ms. Ramirez testified as follows:

“Q. When you got out of the car and went around to the front of the car, do you know what Adam and the defendant were doing?

“A. They started to fight.

“Q. Were they fighting with their fists?

“A. No.

“They had their hands up in the air.   They were fighting with their knives.

“Q. Where was the defendant holding his knife?

“A. He had it up.

“When they were fighting, he put his hands up and went like that (indicating) you know towards him, and then I ran over and Adam had his knife, and I don't know how he got his.

“And I tried to split them apart.

“Q. Okay.   Let's back up just a little.

“Now, you said that the defendant was holding his knife up in the air?

“A. Yes.

“Q. And was he holding the knife in any particular direction, pointed toward anybody?

“A. He had it towards his—like up in the air going towards his head.

“Q. Towards whose head?

“A. Adam's.

“․

“Q. Did you see Adam having a knife in his hand?

“A. Yes.

“Q. And how was Adam holding the knife?

“A. He had it—the blade was going towards—he had it like, like if he was going to stab him.

“Q. Adam had the knife in his right hand?

“A. I don't know what hand.

“Q. Was the knife pointed at the defendant?

“A. Yes.

“Q. When you went around to the front of the car, the defendant and Adam were holding the knife as you've just described for us?

“A. Yes.

“Q. And what did you do?

“A. When I ran towards them, they started to—they were fighting.

“And after that, I tried to move their hands away, the knives away from each other.

“Q. Why did you do that?

“A. I don't know.

“Q. Were you afraid for Adam?

“A. Yes.

“Q. And were you able to separate them and move the knives apart?

“A. No.

“Q. What happened when you attempted to separate them?

“A. I grabbed the knives.

“Q. Both knives?

“A. Yes.

“Q. And what happened?

“A. My fingers got cut.”

Since the sufficiency of the evidence on count 11 is not challenged on appeal, we accept the jury's finding that appellant committed an assault with a deadly weapon upon Dunkin.   But in reasoning that appellant's intent to inflict harm on Dunkin may be transferred to Ms. Ramirez, the Attorney General fails to consider that Ms. Ramirez' wounds were not sustained as the result of an assault committed against her or against Dunkin;  she herself initiated the physical contact by seizing the two knives and trying to separate the antagonists.

The Attorney General has cited no case (and we have found none) where the “transferred intent” doctrine was utilized to affirm a conviction under such circumstances.  People v. Wells (1904) 145 Cal. 138, 140, 78 P. 470, which he cites, was a classic mistaken identity case;  People v. Ramirez (1923) 64 Cal.App. 358, 360, 221 P. 960, is an example of a missed target case.   The Supreme Court has expressly rejected the applicability of the felony-murder doctrine to multiple-victim homicides, but has fixed criminal responsibility under the transferred intent doctrine “if a person purposely and of his deliberate and premeditated malice attempts to kill one person but by mistake and inadvertence kills another instead ․”  (People v. Sears (1970) 2 Cal.3d 180, 189, 84 Cal.Rptr. 711, 465 P.2d 847.)

 We think the same analysis should apply where a person “attempts to [wound] one person but by mistake and inadvertence [wounds] another instead ․”  But since such a showing was not made before the jury the transferred intent doctrine cannot be used to bootstrap appellant's conduct into an assault with a deadly weapon upon Ms. Ramirez;  a fortiori, there is no showing he intentionally inflicted great bodily injury upon her.  (See People v. Williams (1980) 102 Cal.App.3d 1018, 1026–1028, 162 Cal.Rptr. 748.)   The conviction on count 10 (including, of course, the finding on the great bodily injury enhancement) must be set aside.

VII.

We also requested counsel's views on the propriety of the imposition of separate unstayed sentences for crimes involving the same victim.  (See Pen.Code, § 654.) ⁶

 It is the trial court's responsibility in determining the application of section 654 “to ascertain the defendant's objective and intent.   If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise an indivisible course of conduct.”   (People v. Beamon (1973) 8 Cal.3d 625, 639, 105 Cal.Rptr. 681, 504 P.2d 905.)

“This analysis is for the trial court” and “ ‘[a] reviewing court is not the place to try facts.’ ”  (People v. Panky (1978) 82 Cal.App.3d 772, 782, 147 Cal.Rptr. 341.)   The trial court's implied finding was that the crimes committed in counts 1 and 4 against Castillo;  2, 3 and 5 against Chacon;  and 9 and 11 against Dunkin “were to some extent divisible and reflective of multiple criminal objectives.”  (Id., at p. 782, 147 Cal.Rptr. 341.)   That finding is not supported by substantial evidence.

Our review of the record convinces us that as a matter of law the crime of kidnapping alleged in counts 3 and 4 was committed pursuant to an indivisible intent and objective as to each of the two victims, i. e., to rob Castillo and to rob and rape Ms. Chacon.⁷  (See People v. Beamon, supra, 8 Cal.3d at p. 639, 105 Cal.Rptr. 681, 504 P.2d 905;  People v. Panky, supra, 82 Cal.App.3d at pp. 782–783, 147 Cal.Rptr. 341;  People v. Rocco (1971) 21 Cal.App.3d 96, 109–110, 98 Cal.Rptr. 365.)

 The same analysis applies to the convictions of counts 9 and 11, robbery and assault with a deadly weapon, committed against Dunkin.   Those crimes were committed during the same course of conduct and against the same victim;  defendant cannot be punished for both.

VIII.

The last issue discussed at our request is the propriety of the trial judge's imposition, on each of counts 1, 3, 4 and 5, of multiple enhancements under both Penal Code sections 12022.5 and 12022(b).   Inexplicably, this issue was not raised in the trial court.  Penal Code section 1170.1(d) provides, “When two or more enhancements under Sections 12022, 12022.5, and 12022.7 may be imposed for any single offense, only the greatest enhancement shall apply;  however, in cases of robbery, rape or burglary, or attempted robbery, rape or burglary, the court may impose both (1) one enhancement for weapons ․ and (2) an enhancement for great bodily injury ․”  (Emphasis supplied.)

 However, there is no statutory authorization for the imposition of two weapons enhancements as to the same count, and the lesser (that under section 12022(b)) must be stricken.

Inasmuch as appellant is not eligible for probation (Pen.Code, § 1203.06(a)(1)(iii), (iv) and (vii),⁸ we see no useful purpose in returning this matter to the trial court, which made clear its views in imposing upon appellant the longest possible sentence permitted under the law, but will modify the judgment to correct sentencing error with those views in mind.⁹  (Pen.Code, § 1260.)

We modify the judgment by (1) striking the finding of personal use of a knife (Pen.Code, § 12022(b)) from counts 1, 3, 4 and 5;  (2) setting aside the conviction on count 10;  (3) directing that all enhancements pursuant to Penal Code sections 12022.5, 12022.7 and 12022(b) be disregarded in computing subordinate terms;  and (4) directing that sentences on counts 3, 4 and 11 be stayed pending service of the sentences on the remaining counts.

As modified, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   At the preliminary hearing Dunkin had testified that he was not drinking and not getting high.

2.   Appellant was then representing himself in propria persona (see Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.)

3.   Penal Code section 1170.1, subdivision (a), provides as follows:“(a) Except as provided in subdivision (b) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5 or 667.6.   The 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, 12022.3, 12022.5, 12022.6, 12022.7 or 12022.8.   The subordinate term for each consecutive offense which is not a ‘violent felony’ as defined in subdivision (c) of Section 667.5 shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements.   In no case shall the total of subordinate terms for such consecutive offense which are not ‘violent felonies' as defined in subdivision (c) of Section 667.5 exceed five years.   The subordinate term for each consecutive offense which is a ‘violent felony’ as defined in subdivision (c) of Section 667.5, including those offenses described in paragraph (8) of subdivision (c) of Section 667.5, shall consist of one-third of the middle term of imprisonment prescribed for each other such felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of any enhancements imposed pursuant to Section 12022, 12022.5 or 12022.7.”  (Emphasis supplied to indicate language added by Assembly Bill No. 2123, effective May 29, 1980.)

4.   Harvey applies the same analysis to section 12022.7 enhancements.  (Harvey, supra, at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)

5.   He correctly states that “robbery is not intrinsically a violent felony listed in section 667.5(c) and only is ․ [a violent felony within the meaning of section 1170.1(a) where] a firearm ․ is used․”

6.   Penal Code section 654 provides as follows:“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 can it be punished under more than one;  an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”

7.   We do not suggest (and neither does appellant) that section 654 precludes punishment for both the robbery and rape of Ms. Chacon.

8.   Sections 1203.065 and 1203.075, which would have established additional reasons for ineligibility for probation, did not become effective until the year following the commission of the charged crimes.

9.   The sentence imposed by the trial court, erroneous for the reasons noted in this opinion, was 28 years.   The maximum permissible sentence is 16 years and 8 months.

DELL,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

FILES, P. J., and McCLOSKY, J., concur.