PEOPLE v. MINK (1985)

In an amended information filed on December 15, 1983, following the consolidation for trial of charges in two separate cases, Douglas Ray Mink (defendant) was charged in counts 1 and 4 with robbery (Pen.Code, § 211), in count 2 with burglary (Pen.Code, § 459), in counts 3 and 5 with auto theft (Veh.Code, § 10851) and in count 6 with destruction of telephone equipment (Pen.Code, § 591).   It was alleged that defendant used a firearm in the commission of the crimes charged in counts 1–4 (Pen.Code, § 12022.5).   A prior conviction of robbery was also alleged.

Following an in camera hearing, defendant's pretrial motion to disclose the identity of a confidential informant was denied.   On November 3, 1983, defendant entered a plea of not guilty on all counts and denied all allegations.   Following a trial by jury, defendant was found guilty on all counts and the use allegations in counts 1–4 were found to be true.   A separate court trial was held on the alleged prior conviction and it was found not to be true.   On January 20, 1984, defendant was sentenced to the state prison for a total of 10 years.

Defendant appeals, contending:  (1) the trial court erred in failing to prohibit the use of his prior robbery conviction for impeachment purposes;  (2) the trial court erred in granting the People's motion to consolidate the separate cases against him;  (3) the trial court erred in refusing to order disclosure of the identity of the confidential informant;  (4) defendant was erroneously convicted of two counts of vehicle taking because those offenses were necessarily included in the robbery counts;  (5) the trial court erred in denying his motion to suppress the in-court identification made at the preliminary hearing;  and (6) sentencing errors.

Facts

In the early evening on July 28, 1983, victim Dumouchelle was alone in his home when he heard a knock on the door.   Dumouchelle opened the door and was confronted by defendant and another man.   Defendant asked Dumouchelle if Chuck was home, and Dumouchelle responded that no one named Chuck lived in the house.   Dumouchelle asked defendant and his companion to identify themselves, and defendant responded by displaying a firearm and pointing it at Dumouchelle's head.   Dumouchelle was then bound and gagged while defendant and his cohort took various items from the house, including crystal, guns, antiques, clocks and jewelry.

Before he was bound and gagged, Dumouchelle looked at defendant for approximately 30 seconds and was blindfolded only during the latter part of the incident.   After defendant and his companion departed, Dumouchelle discovered that his automobile, which he had previously parked in front of his home, was missing.   Dumouchelle later found his car in a storage yard with the entire interior of the car gutted.   Dumouchelle was unable to make a positive photo identification and was unhappy with the composite drawing of defendant.   He did, however, make a positive in-court identification of defendant.

On July 29, 1983, at approximately 8 a.m., Charles Scott was at his home in Riverside County when he heard a knock on his door.   He opened the door and was confronted by defendant and his companion.   Defendant told Scott that he was having car trouble and asked Scott for assistance.   Once Scott declined, defendant pulled a gun and held it to Scott's stomach.   Scott viewed defendant for approximately 30 seconds before having his hands tied, being blindfolded, and being led into a bedroom where he was forced to lie down.   Defendant and his companion stole from Scott an album of Swedish stamps worth approximately $4,000, some loose stamps, jars of Lincoln pennies, and three rifles.   They removed Scott's car keys from his pocket, went outside, and drove away in Scott's car.   After Scott heard them drive away, he got up, untied himself, and attempted to call the police.   His phone was not working, however, because his telephone wires had been cut.   Scott ultimately used a neighbor's phone to notify the police.

Scott later picked defendant out of a photographic lineup and identified him in court.   Scott testified that he felt 90 percent or more positive of his identification in the photo lineup and in court.

The defense was primarily one of misidentification.   Defendant did not testify on his own behalf.   Defendant called three witnesses.   Fred Lincoln, a field evidence technician from the Riverside Sheriff's Department, testified that he met with victim Dumouchelle and from the information provided by him, he completed a composite picture of the described individual.   Deputy David Madden of the Riverside County Deputy Sheriff's Office testified that he responded to the Dumouchelle robbery and talked to Dumouchelle.   Madden stated that Dumouchelle described the individual who pulled a gun on him as being between 23 to 27 years old with a beard.   Gene Cornelison, an investigator for the public defender's office, interviewed victim Scott.   Cornelison testified that he showed Scott a photograph of someone other than defendant and Scott stated that the person in the photograph looked very similar to the person who robbed him.

Discussion

I

Defendant first contends the trial court erred in denying his pretrial motion to exclude evidence of his prior robbery conviction for impeachment purposes.   Defendant argues that article 1, section 28, subdivision (f), of the California Constitution (Proposition 8) did not legislatively overrule People v. Beagle (1972) 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1, and its progeny.   In the alternative, defendant argues that notwithstanding Proposition 8 or the current vitality of Beagle, the trial court still has the power and duty under Evidence Code section 352 to control the admission of marginally relevant but prejudicial evidence and its failure to exercise that discretion in this instance was a denial of due process.

Although the recent California Supreme Court decision in People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, spawned four separate opinions, the plurality clearly held that:  (1) Proposition 8 did not abolish the trial court's discretion under Evidence Code section 352 to exclude evidence of a prior felony conviction offered to impeach a witness, but it did free the exercise of that discretion from the constraints imposed by People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, People v. Rist (1976) 16 Cal.3d 211, 127 Cal.Rptr. 457, 545 P.2d 833, and later cases;  and (2) a prior felony conviction is relevant to credibility if it involves moral turpitude, even if the immoral trait is one other than dishonesty.   (People v. Castro, supra, 38 Cal.3d 301, 306, 211 Cal.Rptr. 719, 696 P.2d 111.)

 The trial court apparently based its ruling on the belief that under Proposition 8 it no longer had discretion to preclude the use of any prior felony conviction.   Thus, although the robbery conviction clearly involved moral turpitude, the trial court erred under Castro in failing to exercise discretion under section 352.   Here, because defendant chose not to testify the question is whether the error was prejudicial so as to require reversal.   We believe not.

 First, we hold defendant is foreclosed from asserting prejudice by his failure either to testify or make an offer of proof as to what his testimony would be, in camera if necessary.   Defendant made no commitment he would testify if his motion were granted, nor did he make an offer of proof to the court as to what his testimony would be.   Under similar circumstances in Luce v. United States (1984) 469 U.S. 38, 83 L.Ed.2d 443, 105 S.Ct. 460, 83 L.Ed.2d 443, the United States Supreme Court recently held a defendant who did not testify at trial was not entitled to review of the District Court's in limine ruling denying his motion to exclude use of his prior conviction for impeachment purposes.   The court stated:  “A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.   This is particularly true under Rule 609(a)(1), which [like Cal.Evid.Code, § 352] directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant.   To perform this balancing, the court must know the precise nature of the defendant's testimony, which is unknowable when, as here, the defendant does not testify.  [¶ ]  Any possible harm flowing from a district court's in limine ruling permitting impeachment by a prior conviction is wholly speculative.”  (Luce v. United States, supra, 469 U.S. ––––, ––––, 105 S.Ct. 460, 463, 83 L.Ed.2d 443, 447, fns. omitted.)   To hold otherwise would permit a defendant, simply by making a motion to exclude prior convictions, to “plant” reversible error in the record in the event of conviction.   It was precisely this sort of “built in” reversal the Castro court held Proposition 8 was designed to abrogate.

 Alternatively, we hold the error is subject to the Watson ¹ standard of prejudice and did not result in a miscarriage of justice.  (People v. Castro, supra, 38 Cal.3d 301, 318–319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Campos (1985) 167 Cal.App.3d 582, 586–587, 213 Cal.Rptr. 453;  People v. Bonilla (1985) 168 Cal.App.3d 201, 205–206, 214 Cal.Rptr. 191.)   Defendant's decision not to testify in his own defense does not alter the standard of review nor does it dictate an automatic reversal.²  (See People v. Fisher (1984) 153 Cal.App.3d 826, 834–837, 200 Cal.Rptr. 683.)   Were we to so hold “a defendant, burdened with a truly impressive string of prior convictions, who has no intention of testifying and whose offer of proof would, under the circumstances, only amuse, can smuggle an automatic reversal into the record just by goading the trial court into an erroneous ruling on his Beagle motion.”  (People v. Kyllingstad (1978) 85 Cal.App.3d 562, 571, 149 Cal.Rptr. 637.)

Defendant's prior conviction for robbery plainly involved moral turpitude and was thus prima facie admissible under the standard enunciated in Castro.   Proposition 8, as Castro acknowledged, did away with the restrictions of the Rist-Antick line of cases which appeared to articulate a standard of per se error for use of an identical or similar prior felony conviction.   Thus, under Castro, the trial court could have properly exercised its discretion to admit defendant's prior felony convictions for purposes of impeachment and under the circumstances there is no reasonable probability it would not have done so.

Moreover, the proof of guilt was strong.   The defense was one of misidentification.   However, defendant presented no alibi or alibi witnesses.   He relied solely on an attack on the victims' photo and in-court identifications.

Both victims Dumouchelle and Scott testified that they were able to view defendant for 30 seconds during the robberies;  Scott made a positive photo identification;  both victims positively identified defendant in court;  and Dumouchelle's wallet and identification were found in defendant's possession when he was arrested.

After reviewing the entire record, we are of the opinion that it is not reasonably probable that a verdict more favorable to defendant would have resulted had the court exercised its discretion under Evidence Code section 352.  (People v. Watson, supra, 46 Cal.2d 818, 836, 299 P.2d 243;  see People v. Castro, supra, 38 Cal.3d 301, 318–319, 211 Cal.Rptr. 719, 696 P.2d 111;  People v. Campos (1985), supra, 167 Cal.App.3d 582, 585–586, 213 Cal.Rptr. 453.)

II

 Defendant contends the trial court prejudicially erred by granting the prosecution's motion to consolidate the informations involving the Scott robbery and the Dumouchelle robbery.   We do not agree.

Penal Code section 954 provides in pertinent part:  “An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.”

“For purposes of joinder, offenses are deemed to have been ‘connected together in their commission’ where there was a common element of substantial importance in their commission, even though the offenses charged did not relate to the same transaction and were committed at different times and places and against different victims (People v. Polk [1964] 61 Cal.2d 217, 230 [37 Cal.Rptr. 753, 390 P.2d 641];  People v. Spates [1959] 53 Cal.2d 33, 36 [346 P.2d 5] ).  Similarly, within the meaning of section 954, offenses are ‘of the same class' if they possess common characteristics or attributes (People v. Kemp [1961] 55 Cal.2d 458, 476 [11 Cal.Rptr. 361, 359 P.2d 913];  People v. Ross [1960] 178 Cal.App.2d 801, 805 [3 Cal.Rptr. 170];  Aydelott v. Superior Court [1970] 7 Cal.App.3d 718, 722 [86 Cal.Rptr. 713] ).”  (People v. Meneley (1972) 29 Cal.App.3d 41, 51, 105 Cal.Rptr. 432;  see People v. St. Germain (1982) 138 Cal.App.3d 507, 515, 187 Cal.Rptr. 915.)  “A trial court does not abuse its discretion in permitting joinder of offenses which contain, as a common element of substantial importance, the intent to feloniously obtain property.”  (People v. St. Germain, supra, 138 Cal.App.3d 507, 515, 187 Cal.Rptr. 915.)

Defendant does not maintain that the offenses lack a common element of substantial importance.   Rather, defendant argues he was prejudiced by the joinder because the positive identification of defendant made by Scott bolstered the weak identification made by Dumouchelle.   We do not agree.

In the first place, a court ruling on a motion for consolidation must rule on what is before it at that time.   Here, at the time of ruling the court did not know what the testimony might be at trial.   In any event, although Dumouchelle was unable to make a positive photo identification of defendant, he did positively identify defendant at trial.   Dumouchelle did admit during cross-examination that he had only one eye, but he also testified that he had no vision problems as a result.   Moreover, Dumouchelle's identification of defendant was corroborated by the fact Dumouchelle's wallet and identification were found in defendant's possession.   Scott's identification of defendant did not unduly prejudice defendant in the Dumouchelle matter.

We find no abuse of the trial court's discretion or error in the joinder of the two cases for trial.

III

 Defendant next requests that we make an independent review of the trial court's in camera hearing denying release of one of the informants' identity.   He argues that the informant was a material witness on the issue of guilt and the trial court's denial of disclosure deprived him of a fair trial.   We have reviewed the transcript of the in camera hearing but we do not agree with defendant.

“When a defendant seeks information which might lead to the disclosure of the identity of a confidential informant, the public entity is entitled to invoke the privilege of nondisclosure of the identity of an informer under Evidence Code section 1041.   Once that privilege has been invoked, a hearing is held with defendant and his counsel present to determine whether the informer might be a material witness on the issue of guilt.  (See People v. Coleman (1977) 72 Cal.App.3d 287, 295 [139 Cal.Rptr. 908].)  In 1969, the Legislature added subdivision (d) to Evidence Code section 1042, providing that the prosecution may request an in camera hearing on the issue of disclosure of identity.

“․

“However, when an in camera hearing has been held and the trial court has reasonably concluded, as in the instant case, that the informant does not have knowledge of facts that would tend to exculpate the defendant, disclosure of the identity of the informer is prohibited by Evidence Code section 1042, subdivision (d), since the public entity has invoked the privilege pursuant to section 1041.”  (People v. McCarthy (1978) 79 Cal.App.3d 547, 553–555, 144 Cal.Rptr. 822.)

After carefully reviewing the transcript of the in camera hearing, we are of the opinion the trial court correctly concluded the informant had no knowledge of facts that would tend to exculpate defendant in the offenses charged.  (See People v. Wagner (1982) 138 Cal.App.3d 473, 482, 188 Cal.Rptr. 185.)

IV

 Defendant next contends he was erroneously convicted of vehicle theft because the thefts of each victim's vehicle were, in each instance, a part of the robbery of each victim.   We disagree.

 Theft of a vehicle is not a necessarily lesser included offense in the crime of robbery.  (See People v. Aho (1984) 152 Cal.App.3d 658, 664, 199 Cal.Rptr. 671.)  “ ‘We decline to accept the defendant's argument that commission of any crime implies a successful getaway and that hence only one punishment can be imposed for anything that occurs, coming and going, in the course of a criminal caper.’ ”  (People v. McGahuey (1981) 121 Cal.App.3d 524, 529, 175 Cal.Rptr. 479, quoting People v. Hooker (1967) 254 Cal.App.2d 878, 880–881, 62 Cal.Rptr. 675, disapproved on other grounds in People v. Corey (1978) 21 Cal.3d 738, 746, 147 Cal.Rtpr. 639, 581 P.2d 644.)

 Although vehicle theft and robbery are separate crimes, where both are part of an indivisible course of conduct with a single objective, imposition of punishment for both would violate Penal Code section 654.³  (People v. Ridley (1965) 63 Cal.2d 671, 678, 47 Cal.Rptr. 796, 408 P.2d 124.)   In this instance the trial court stayed punishment for the vehicle thefts pursuant to Penal Code section 654 and we discern no error.

V

 Defendant contends Dumouchelle's in-court identification of him was tainted by Dumouchelle's seeing him in court in prison garb at an appearance for the preliminary hearing which was postponed.   Before the scheduled preliminary hearing was thereafter postponed, Dumouchelle sat in the courtroom to which he was originally summoned and observed approximately seven individuals including defendant dressed in orange jumpsuits seated in the jury box.   Defendant was seated between a black male and a Chicano male and was possibly one of only two white males in the group.   When he saw defendant in the jury box, Dumouchelle recognized him as the person who robbed him.   His identification at the preliminary hearing was based in part on this observation.   Defendant asserts the confrontation was so impermissibly suggestive as to taint the subsequent in-court identification at the preliminary hearing.   The trial court did not agree.   Neither do we.

 An in-court identification will be suppressed only if under the totality of the circumstances the pretrial identification employed to secure it deprived the defendant of due process.  (Neil v. Biggers (1972) 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411, 93 S.Ct. 375.)  “A violation of due process occurs only when the pretrial procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.  (Neil v. Biggers, supra, at pp. 199–200 [93 S.Ct. at pp. 382–383, 34 L.Ed.2d at pp. 411–412];  Simmons v. United States [1968] 390 U.S. 377, 384 [88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253];  Stovall v. Denno [1967] 388 U.S. 293, 302 [87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199];  People v. Lawrence [1971] 4 Cal.3d 273, 280 [93 Cal.Rptr. 204, 481 P.2d 212] [cert. den., 407 U.S. 909 (32 L.Ed.2d 682, 92 S.Ct. 2431) ].)”  (People v. Blum (1973) 35 Cal.App.3d 515, 519, 110 Cal.Rptr. 833.)

In this instance, although Dumouchelle could not make a positive photo identification of defendant, he was trained as a private investigator with expertise in making observations;  he had an adequate opportunity to observe defendant at the scene;  and he helped the police prepare a composite drawing of defendant soon after the incident.   Dumouchelle's presence in the courtroom during defendant's arraignment was not prearranged by the prosecutor nor the police.   He was summoned to the court for the preliminary hearing which he was later informed had been postponed.   Moreover, no one in the courtroom at that time pointed out defendant to Dumouchelle.   When questioned about this encounter at the actual preliminary hearing, Dumouchelle stated that he was only in the courtroom for five minutes and as soon as he saw defendant he immediately recognized him as the man who robbed him.

Based on the foregoing, we agree with the trial court that the inadvertent viewing of defendant by Dumouchelle was not so impermissible or suggestive as to give rise to a very substantial likelihood of irreparable misidentification at trial.

VI

 At defendant's sentencing hearing the trial court neglected to impose sentence on count 5 (vehicle theft) and on the firearm use enhancements in counts 2 (burglary) and 3 (vehicle theft).   Later that afternoon, the trial court realized its error and without defendant, defense counsel or the prosecutor present committed defendant to the state prison for an additional two-year period for each of the enhancements.   The court also pronounced judgment on count 5 committing defendant to the midterm sentence of two years.   All of these additional sentences were stayed by the trial court pursuant to Penal Code section 654.

 Defendant argues, respondent concedes and we agree that sentence must be pronounced in defendant's presence.  (See Pen.Code, § 1193;  People v. Prater (1977) 71 Cal.App.3d 695, 701, 139 Cal.Rptr. 566;  People v. Hartsell (1973) 34 Cal.App.3d 8, 14, 109 Cal.Rptr. 627.)   The attempted modification of sentence in the absence of defendant was therefore void.   However, the jury convicted defendant of all charges and found the enhancement allegations true, so we shall remand the matter for resentencing in the presence of defendant and counsel.

 Defendant also argues that the cause must be remanded for resentencing because the trial court failed to state on the record reasons for its decision to sentence consecutively.  (See Cal.Rules of Court, rule 425.)   We agree.  (See People v. Fleming (1983) 140 Cal.App.3d 540, 545–546, 189 Cal.Rptr. 619;  People v. Peters (1982) 128 Cal.App.3d 75, 87, 180 Cal.Rptr. 76.)   This error too may be corrected at resentencing.

Disposition

The cause is remanded to the trial court for resentencing with directions to pronounce sentence in the presence of defendant and counsel and to exercise its discretion with respect to imposition of consecutive terms and state its reasons for its sentencing choice.   In all other respects the judgment is affirmed.

FOOTNOTES

1.   People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.

2.   To the extent that People v. Almarez (1985) 168 Cal.App.3d 262, 214 Cal.Rptr. 105 concludes otherwise, we respectively disagree with its reasoning.

3.   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 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.”

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.