People v. Hopkins

• Decision Date: 14 May 1974
• Docket Number: Cr. 11108
• Citation: 113 Cal.Rptr. 880,39 Cal.App.3d 107
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald HOPKINS, Defendant and Appellant.

Page 880

113 Cal.Rptr. 880

39 Cal.App.3d 107

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald HOPKINS, Defendant and Appellant.

Cr. 11108.

Court of Appeal, First District, Division 1, California.

May 14, 1974.

Harkjoon Paik, Monterey County Public Defender, Robert O'Farrell, Deputy Public Defender, Monterey, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

THE COURT:

Defendant has appealed from a judgment of conviction entered following a court trial in which he was found guilty of four out of five offenses with which he was charged as a result of his participation in an armed robbery. ¹ He was sentenced to prison for the term provided by law for armed robbery of the first degree (Pen.Code, § 211, § 211a) ² aggravated under the provisions of section 231 ³ by a finding that he intentionally inflicted great bodily injury on the victim of the robbery and under the provisions of section 12022.5 ⁴ by a further finding that he used a firearm in the commission of the robbery. He was also charged with and found to have suffered and served a sentence for a prior conviction of robbery.

Defendant contends that the court erred in making a finding under section 12022.5 because the information contained no reference to the provisions of that section, nor was he otherwise given notice that if he was convicted he would be subjected to an additional consecutive sentence of five years (see fn. 4 above). He also asserts that he has been improperly subjected to a minimum term of 15 years because the trial court, after the defendant had waived a jury trial, erred in permitting the prosecutor to amend the information to allege in effect that defendant had intended to inflict great bodily injury in the course of the robbery, and in failing to rearraign the defendant on the charge as so augmented so as to obtain a waiver of his right to a jury trial on that charge. On review it is determined that the defendant's contentions must be sustained. The judgment must be modified to delete the aggravating circumstances under section 12022.5; and it must be reversed as to count I insofar as it embraces the finding under section 213 so that the defendant may be rearraigned on that count as amended, provided, however, that if the People withdraw the amendment to the complaint and the deletion of that finding the defendant's conviction and sentence for robbery in the first degree may stand affirmed.

The charges grow out of an incident in which the defendant and another held up the attendant of the Western Union office in Monterey, California, only to be apprehended by prompt police action as they attempted to make their escape by departing out a rear window. The evidence showed that the defendant covered the victim with a firearm and led her to a back room where he forced her to sit in a chair facing the wall, except for one interlude in which she saw his confederate rifling the safe. When it became apparent that the police were arriving on the scene, the victim felt her throat being slashed on the left and then on the right. A doctor testified that he treated the victim for stab wounds which were bleeding quite profusely. He opined that the wounds had been made by a razor or a sharp knife. He stated the wound on the left side of the neck was about four and three-quarters inches long, and had gone through the neck muscles and stopped a fraction of an inch away from the jugular vein and the carotid artery. He said the wound could have been lethal if either of those two had been hit. He observed a second three-quarter inch wound on the left side of the neck at the anterior end of the first wound, and a third wound, four inches long, located on the neck. The doctor said that if first aid had not been rendered to the victim immediately at the scene of the crime, she would have bled to death from the wounds.

A razor and an operable and loaded firearm were found in the vicinity of the scene of the men's capture. Testimony was introduced of admissions of the defendant in which he acknowledged that he had held a razor at the victim's throat, that she moved and the razor had cut her, and that he cut her two more times. At the trial defendant testified and he admitted robbing the store and carrying a revolver and razor. He claimed he concealed the gun and razor as he had promised his confederate he would not use a weapon. Thus, he held the razor in his left hand so it could not be seen and 'went and put it up to her neck so she could know I still had a weapon.' The infliction of the injuries was explained as follows: 'So, she flinched, and that cut the first cut. And the other two cuts on her, I--definitely put them there because I was the one had the razor, but I don't remember putting them cuts there on her. I remember the first one, she jerked around, but I don't remember putting the other two on her.'

The defendant denied that he intended to cut her and said he was just trying to keep her quiet until could get out of there. He claims he kind of panicked after noticing that he had given her the first cut because he could hear the police.

I

Count I of the information alleged 'That at the time of the commission of said offense, said defendant . . . was personally armed with a firearm, to-wit: .22 CAL REVOLVER.' The court further found 'that the defendant used a firearm in the commission of the robbery and that Section 12022.5 of the California Penal Code is to be applied.'

In People v. Najera (1972) 8 Cal.3d 504, 105 Cal.Rptr. 345, 503 P.2d 1353, the court stated: '. . . it is clearly the better practice, in terms of giving defendant fair notice of the charges against him, to set forth in the information whether or not application of section 12022 or 12022.5 will be sought.' (8 Cal.3d at p. 509, fn. 4, 105 Cal.Rptr. at p. 349, 503 P.2d at p. 1357. See also People v. Faulkner (1972) 28 Cal.App.3d 384, 394, 104 Cal.Rptr. 625; and People v. Henderson (1972) 26 Cal.App.3d 232, 235--238, 102 Cal.Rptr. 670. Cf. People v. Spencer (1972) 22 Cal.App.3d 786, 800, 99 Cal.Rptr. 681; and People v. Washington (1971) 17 Cal.App.3d 470, 474--475, 94 Cal.Rptr. 882, disapproved in People v. Najers, supra.)

The People concede that the allegation that the defendant was armed with a firearm during the commission of the robbery does not permit a finding that he used a firearm in the commission of a robbery. (See People v. Najera, supra, 8 Cal.3d at p. 509, fn. 4, 105 Cal.Rptr. 345, 503 P.2d 1353.) They assert, however, that the information construed as a whole notified the defendant that the prosecution would seek to prove that he used a firearm during the course of the robbery. It is true that count I alleged two elements of section 12022.5 in that it alleged the commission of a robbery, and possession of a firearm during that act. Count IV contains allegations that the defendant assaulted the robbery victim with a firearm, again referring to a .22 caliber revolver. Obviously the assault of a victim with a firearm during the course of robbery is a use of that firearm. (See People v. Chambers (1972) 7 Cal.3d 666, 672--673, 102 Cal.Rptr. 776, 498 P.2d 1024; and People v. Washington, supra, 17 Cal.App.3d 470, 477, 94 Cal.Rptr. 882.)

Under the terms of section 958 of the Penal Code it is not necessary to charge an offense in the specific language of the statute if 'other words conveying the same meaning (are) . . . used.' (See also Pen.Code § 952; People v. Randazzo (1957) 48 Cal.2d 484, 489, 310 P.2d 413 (cert. den. 355 U.S. 865, 78 S.Ct. 98, 2 L.Ed.2d 70); and People v. Atwood (1963) 223 Cal.App.2d 316, 323, 35 Cal.Rptr. 831.) Moreover, a defendant may be found guilty of a lesser included offense of a crime charged in the information, despite the difference in the language used to define the respective offenses. (See Pen.Code, § 1159; People v. Marshall (1957) 48 Cal.2d 394, 400--401 and 407, 309 P.2d 456; People v. Gonzalez (1972) 28 Cal.App.3d 1091, 1095--1096, 104 Cal.Rptr. 530 (overruled People v. Schueren (1973) 10 Cal.3d 553, 558, fn. 6, 111 Cal.Rptr. 129, 516 P.2d 883); and People v. Troyn (1964) 229 Cal.App.2d 181, 184--185, 39 Cal.Rptr. 924.)

The People's reliance upon the foregoing principles is not convincing. It may be true that the defendant knew that he would be confronted with an attempt to prove the fact that he used a firearm during the commission of the robbery. He could not therefore be surprised by such proof (see In re Hess (1955) 45 Cal.2d 171, 175, 288 P.2d 5; and People v. Spencer, supra, 22 Cal.App.3d 786, 800, 99 Cal.Rptr. 681), nor can he say that his preparation to meet the facts would have been different if the complaint had specifically alleged aggravation under the provisions of section 12022.5. Nevertheless, the People's argument overlooks the materiality of the charges made, and the effect of the possible punishment upon the defendant's tactical approach to the trial. In People v. Henderson, supra, the court noted: '. . . when defendant was first served with and read the information he had no more reason to believe that the People were attempting to subject him to any such additional punishment by proving that he was not only armed with the shotgun, but actually used it, than does a person who is charged with simple kidnaping (Pen.Code § 207) have to fear life imprisonment if later proof should show that he kidnaped for ransom. (Pen.Code § 209.) . . . In the case at bar the difference between using a firearm and being merely armed with one was the difference between a consecutive prison term of five years to life (Pen.Code §§ 671, 12022.5) and a bad report card.' (26 Cal.App.3d at p. 237, 102 Cal.Rptr. at p. 674. See also People v. Najera, supra, 8 Cal.3d 504, 509, fn. 4, 105 Cal.Rptr. 345, 503 P.2d 1353....