PEOPLE v. TOLVER (1981)

Defendant, Anthony Tolver, convicted of robbery (Pen.Code, s 211) enhanced by use of a firearm (Pen.Code, s 12022.5), and assault with a deadly weapon (Pen.Code, s 245)¹ appeals, asserting (1) incompetence of his counsel; (2) his conviction of assault with a deadly weapon should be reversed as a lesser included offense to the charged robbery and the firearm use enhancement pursuant to section 12022.5; and (3) miscalculation of credits for presentence good time/work time (s 4019).

Robert DiPiero, owner of Ruhl's Bakery in Stockton, and an employee, Tim Costa, were at work baking during the early morning hours when the defendant and another individual entered the bakery through an unlocked rear door.

The defendant, described as having a high stepping springy walk, oval face, bulging eyes which appeared crooked or cockeyed, dark complexion, a distinctive jawline, and spoke out of the side of his mouth, went to the cash register and opened it by hitting it with the palm of his hand. DiPiero closed the cash register door and pushed the defendant away.

Tolver then went to the rear of the bakery and as he rummaged through shelves, saw DiPiero retrieve a .357 magnum pistol concealed in that area. The defendant asked what the bulge was in DiPiero's pockets; although caused by his keys, DiPiero replied it was a small derringer. The defendant and his companion then left.

Approximately three weeks later, on March 29, 1980, at about 4 a. m., DiPiero and Costa were again working in the bakery when three men entered through the back door. One remained in the rear of the bakery while the other two entered the work area. One wore a ski mask and carried a small caliber revolver; the other's face was partially covered with a bandana.

The gunman ordered DiPiero and Costa to the floor and asked for the fictitious derringer, the .357 magnum pistol, and then searched the front of the bakery for a receipt container. Unable to find the money box, the defendant struck DiPiero on the head with his revolver and eventually located the money box with the aid of the employee Costa.

The robbers left taking the money box and approximately $4,300.

Although the defendant's face was partially hidden by the ski mask, DiPiero and Costa both recognized his distinctive features and identified him as the individual who had entered the bakery three weeks earlier.

I

As a basis for defendant's charge of incompetence of counsel, he contends the photographic lineup was impermissibly suggestive and that his counsel should have sought its suppression. He argues the victims described the culprit as very dark skinned and in the photographic lineup he was the darkest skinned person shown. His assertion fails.

He was identified by a complete description rather than merely his skin color, i. e., crooked eyes, oval face, distinctive jawline, and the color of his skin.

Defendant's reliance on People v. Nation (1980) 26 Cal.3d 169, 161 Cal.Rptr. 299, 604 P.2d 1051, in support of his incompetency of counsel assertion is misplaced. Nation is factually inapposite.²

“ ‘In order to demonstrate that the alleged incompetency of his trial counsel in not objecting to the identification evidence denied him a potentially meritorious defense, the defendant must present a convincing argument that the pretrial identification procedure ”resulted in such unfairness that it infringed his right of due process of law.“ (Citation.)’ ” (People v. Flores (1981) 115 Cal.App.3d 67, 82, 171 Cal.Rptr. 365.) The defendant has not carried his burden of establishing deprivation of a potentially meritorious defense.

II

The defendant relies on People v. McGreen (1980) 107 Cal.App.3d 504, 512, 166 Cal.Rptr. 360, in support of his contention that the assault with a deadly weapon conviction must be reversed as a lesser included offense in the robbery, as enhanced by weapon use.

We believe the majority opinion in People v. McGreen, supra, 107 Cal.App.3d 504, 166 Cal.Rptr. 360, is wrong and should not be followed. Rather, we choose to reaffirm the well-reasoned decision in People v. Orr (1974) 43 Cal.App.3d 666, 117 Cal.Rptr. 738, which holds that an allegation of firearm use pursuant to Penal Code section 12022.5 is not a part of the charged offense itself; rather, that section merely provides for an added penalty in crimes in which a firearm is used and alleged. It is a legislatively mandated method of providing for an additional penalty. We believe the proper rule to be, as articulated in People v. Orr, supra, and the plethora of cases which have followed, that an allegation of firearm use for purposes of Penal Code section 12022.5 is not to be considered in determining whether the accusation encompasses a lesser included offense. (See People v. Benjamin (1975) 52 Cal.App.3d 63, 71-72, 124 Cal.Rptr. 799; People v. Wilson (1976) 62 Cal.App.3d 370, 374, 132 Cal.Rptr. 813; People v. Salas (1978) 77 Cal.App.3d 600, 607, 143 Cal.Rptr. 755; People v. Cole (1979) 94 Cal.App.3d 854, 861-862, 155 Cal.Rptr. 892; see also the dissent by Associate Justice Scott in People v. McGreen, supra, 107 Cal.App.3d at p. 527, 166 Cal.Rptr. 360.)

III

Finally, Tolver contends he was improperly denied work credit during his presentence confinement. The record fails to disclose whether he was denied work assignment for the reason set forth in Penal Code section 4019, subdivision (d),³ or if work simply was not available. The determination of that question is a decision which requires resolution by the trial court.

The judgment is reversed for the limited purpose of trial court determination of the question of presentence work credits, if any, to which the defendant is entitled, in light of the provisions of Penal Code section 4019, subdivision (d). In all other respects, the judgment is affirmed.

FOOTNOTES

1.  All further code references will be to the Penal Code.

2.  In Nation, three witnesses' identification appeared to be the product of mutual reinforcement of opinion. There was no in-court identification by any witness as here.

3.  Penal Code section 4019, subdivision (d), provides:“(d) Nothing in this section shall be construed to require the sheriff, chief of police, or superintendent of an industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp.”

EVANS, Associate Justice.

REGAN, Acting P. J., concurs. CARR, J., concurs in the result.