PEOPLE v. PECOT (1982)

Appellant was charged with robbery, a violation of Penal Code, section 211, with a special allegation that a firearm was used in the commission of the crime, within the meaning of Penal Code, § 12022(a).   Appellant initially pled guilty to the robbery charge and admitted the armed allegation, but was later permitted to withdraw his plea.   After a jury trial, appellant was found guilty of robbery and the firearm allegation was found to be true.   He was sentenced to the upper term of five years in state prison, with a one-year enhancement for the firearm use.   He now appeals, contending:

(1) The court erred in failing to give, sua sponte, CALJIC 3.18 instructing the jury that accomplice testimony is to be viewed with distrust;  and

(2) The court sentenced him to the upper term because he exercised his right to trial by jury.

FACTS

On January 12, 1982, Wilbur Leroy Daniel was employed as the manager of an Arco gas station at the corner of Atlantic and Firestone Boulevards in the City of South Gate.   At approximately 7:00 or 7:30 a.m., he was in the station office counting the weekend receipts when he heard a knock on the office door.   The door was solid and he could not see out, so he asked who it was and heard the reply, “It's Mike.”   Daniel thought it was the same Mike who worked the graveyard shift at the station so he opened the door.   Much to his surprise, he was confronted by a man with a gun, later identified as Burrel Lee, Jr.  Lee told Daniel to get down on the floor and stay there, after which he took the money Daniel had been counting ($1,022.00) and left.   Daniel waited about one minute, then went to the station phone booth and called police.

Detective Dale Buff of the South Gate Police Department was on duty at the police station when he heard a radio broadcast involving the police pursuit of two robbery suspects.   He listened to the radio broadcast for a few minutes, and when the pursuit was about to pass the station, he and his partner, Sgt. Carter, decided to join in the chase.   Walking outside the station, Buff observed a late model Lincoln Continental with two males inside, later identified as Burrel Lee, Jr., and appellant, who was driving.   Buff noted that the Continental failed to stop for a red traffic light and also failed to yield to the lights and siren of the police car.

During the chase, a .22 caliber revolver was thrown from the car and was recovered by Det. Buff.   It was established at trial that the revolver was owned by appellant's sister, Rosa Lee Bowen.

The Continental eventually stopped and the police arrested appellant and Lee.   Officer Brad Hamblin recovered the $1,022 from the glove compartment of the Continental.

Burrel Lee, Jr. was called as a witness by both the prosecution and the defense.   Testifying for the prosecution, Lee stated that he had pled guilty to the robbery in question and had admitted the firearm allegation.   His guilty plea stated that he had committed the robbery with the help of appellant.

Questioned on direct examination by defense counsel, Lee recounted the events of January 11 and 12, 1981.   He picked up appellant in a rented 1981 Lincoln Continental and they went to a roller skating rink in Hollywood where they skated until about 4:00 a.m.   They talked to some girls whom they later followed home to Pasadena.  (However, they did not go into the girls' home.)   After leaving Pasadena, they stopped at a 7–11 to get some sandwiches.   Lee did not know precisely what time they arrived at the 7–11 but remembered that the sun was up.   Lee then testified that he and appellant made “another stop,” and he was not examined further.   Lee did state that at the time they made the second stop (presumably the Arco station), appellant was still in the passenger seat.

Appellant's defense was that he was asleep in the Lincoln when the robbery occurred.   Appellant admitted taking his sister's .22 caliber revolver, stating he had done so for protection because he had had some “complications” in the community and had been “jumped on a couple of times.”

After he and Lee left Pasadena, appellant fell asleep in the car.   He recalled that the car stopped once and Lee asked if appellant wanted anything, to which appellant replied no.   The car stopped again and Lee got out, but neither man spoke.   Appellant was either asleep or half asleep the entire time.

Lee came back, shook appellant out of his sleep (or half-sleep) and asked appellant if he would drive home.   Appellant said he was too sleepy to drive but he eventually agreed to do so after they had gone several blocks.   Appellant did not know where he was going, but Lee directed him, instructing him to make several turns.   Appellant stopped for all lights and stop signs and did not see any flashing red and blue lights in his rear view mirror.   Eventually he did notice that there was a police car behind him with its red lights flashing, but did not think the police were after him so he pulled over to the right lane to get out of their way.   At that point, he confessed to Lee that he had a gun with him and did not want to be caught with a gun by the South Gate police.   He took the gun out of his jacket and gave it to Lee who threw it out the window.

Appellant denied that he gave the gun to Lee to use in the robbery and in fact did not even know that Lee had robbed a gas station.   He did not see any money in Lee's hand.

1. Appellant first contends that the court's failure to give CALJIC 3.18 sua sponte constitutes reversible error.   We disagree.

CALJIC 3.18 instructs the jury that the testimony of an accomplice ought to be viewed with distrust.  “The practice of instructing the jury to be skeptical of accomplice testimony developed in order to make the admission of such testimony against a criminal defendant fair․   For experience has shown that an accomplice will often attempt to earn clemency or leniency by giving testimony unfavorable to the defendant.”  (People v. Graham, 83 Cal.App.3d 736, 743, 149 Cal.Rptr. 6 [citations omitted].)

The rules regarding the giving of such an instruction were summarized by the court in People v. Cortez, 115 Cal.App.3d 395, at page 406, 171 Cal.Rptr. 418:

“Where an accomplice is called as a witness by the prosecution, CALJIC 3.18 must be given sua sponte.   If an accomplice is called as a witness by the defendant, CALJIC 3.18 should not be given unless requested by defendant.   If both parties call an accomplice, this instruction must be restricted to prosecution witnesses only.”  (Citations omitted.)

 There seems to be no disagreement that Burrel Lee, Jr. qualified as an accomplice, and in fact the jury was so instructed.¹  Since Lee also testified for the defense, it would have been error to have given CALJIC 3.18 in an unmodified form.   In a situation such as the one presented in this case, the instruction would have to be restricted to that portion of Lee's testimony which incriminated appellant.  (People v. Flanders, 89 Cal.App.3d 634, 639, 152 Cal.Rptr. 696.)

 However, instructing the jury that a portion of a witness' testimony should be viewed with distrust, while another portion should not, may or may not be to the defendant's advantage, and therefore it is the defendant, and not the court, who should make the election as to whether such a modified instruction should be given.

In People v. Miller, 185 Cal.App.2d 59, 8 Cal.Rptr. 91, an accomplice was called first as a witness for the People and then as a defense witness.   Unlike this case, the trial court did instruct on accomplice testimony, but simply stated that the testimony of the accomplice should be viewed with distrust.   The defendant appealed, asserting that the instruction was improper since the accomplice had been called in part as a witness for the defense.   The reasoning which the court used in rejecting this contention is appropriate here:

“[T]o permit the defendant in this case to claim error in the giving of the instruction under consideration would pervert the purposes of justice.   Under the authorities heretofore noted and the circumstances of this case, a failure to give that instruction would have been error.   It was given for the benefit and protection of the defendant.   If this benefit was outweighed by a disadvantage attributable to the fact that the witness was called by him, as well as by the People, he should have informed the trial court of his wishes in the premises, i.e., whether to accept or reject the instruction.   If the allegedly objectionable instruction had not been given, it is more than likely that the defendant would now be complaining because of such failure.   He may not sit silently during the course of his trial;  create a situation which may be to his advantage or disadvantage and require the court to make an election on his behalf without being bound by that election.   He must make his own election and advise the court thereof by requesting an instruction acceptable to him, or in some other appropriate manner.   To proceed otherwise is to require the court to choose one of two alleged evils and reserve to the defendant the right to claim error irrespective of the choice made.   This does not comport with justice.”  (185 Cal.App.2d at pp. 83–84, 8 Cal.Rptr. 91).

The circumstances of this case require a special instruction which restricts the scope of CALJIC 3.18 to the testimony of Lee given on behalf of the prosecution.   It is incumbent upon the defendant to request an instruction which is acceptable to him, or to present such a proposed instruction to the court.   The court should then give the instruction at the defendant's request, but it is not required to do so on its own motion.   To do otherwise would invite a situation in which the defendant would be able “to claim error irrespective of the choice made.”

 2. Appellant further contends that the court sentenced him to the upper (as opposed to the middle) term because he chose to exercise his right to a jury trial.

As we noted previously, appellant initially pled guilty to the robbery and admitted the firearm allegation.   A probation report was prepared and the probation officer recommended that probation be denied and that appellant be sentenced to state prison for the mid base term.

Appellant was then permitted to withdraw his plea, a jury trial was held, appellant was found guilty, and another probation report was prepared.   The probation officer recommended that appellant be sentenced to state prison, but no specific term was recommended.

At the time of sentencing, the court recited several circumstances in aggravation (Cal. Rules of Court, Rule 421) which it considered in deciding to impose the upper term:

(1) The defendant was on probation at the time the offense was committed [Rule 421(b)(4) ];

(2) There was a substantial amount of money taken in the robbery [Rule 421(a)(10) ];  and

(3) The defendant's criminality has been continuing and apparently increasing in severity [Rule 421(b)(2) ].

All of the circumstances underlying these factors were set forth in the probation reports which the court obviously read and considered in detail.   The fact that the court used different aggravating factors than those set forth in the probation report does not mean that the upper term was imposed to “punish” appellant for having a jury trial.   In fact, appellant does not contend that any of these criteria were improperly applied, but merely takes offense at the court's “doing its own research to find its own factors in aggravation.”   All this indicates to us is that the court acted diligently in making its determination to impose the upper term, a term which was entirely appropriate here.

The judgment of conviction is affirmed.

FOOTNOTES

1.   The jury was also instructed on the need for corroboration of accomplice testimony (CALJIC 3.11) and that “to corroborate the testimony of an accomplice there must be evidence of some act or fact related to the offense which, if believed, by itself and without any aid, interpretation or direction from the testimony of the accomplice, tends to connect the defendant with the commission of the offense charged.”  (CALJIC 3.12.)

HASTINGS, Associate Justice.

STEPHENS, Acting P.J., and ASHBY, J., concur.