People v. Najera

• Citation: 105 Cal.Rptr. 345,8 Cal.3d 504,503 P.2d 1353
• Decision Date: 19 December 1972
• Docket Number: Cr. 16216
• Parties: , 503 P.2d 1353 The PEOPLE, Plaintiff and Respondent, v. Pablo Borja NAJERA, Defendant and Appellant. In Bank
• Court: United States State Supreme Court (California)

Page 345

105 Cal.Rptr. 345

8 Cal.3d 504, 503 P.2d 1353

The PEOPLE, Plaintiff and Respondent, v. Pablo Borja NAJERA, Defendant and Appellant.

Cr. 16216.

Supreme Court of California,

In Bank.

Dec. 19, 1972.

John M. Beede, Davis, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, and Edward A. Bergholdt, Deputy Attys. Gen., for plaintiff and respondent.

BURKE, Justice.

Defendant was charged with robbery (Pen.Code, § 211); the information alleged that he was 'armed with a deadly weapon, to-wit, a gun' during the offense. The jury returned a verdict of guilty on the robbery charge and found that defendant was armed with a gun at the time the robbery occurred. The judgment recites that defendant was convicted of robbery in the first degree and states that 'Defendant was armed with a .22 caliber Revolver.' Defendant appeals, asserting various errors. He also contends that the judgment of conviction should be modified to provide that Penal Code sections 3024, ¹ 12022, ² and 12022.5 ³ are not applicable in this case. Although we agree with defendant's contention that the judgment should be so modified, we reject all of his other contentions.

The facts which led to defendant's arrest are as follows: The Hudson Oil Company in Stockton was entered and an armed robbery was committed by two men. A radio call was made to all police cars, reporting the incident and describing both robbers. Two police officers who heard the radio report, and were within seven blocks of the robbery scene, saw and followed a vehicle whose occupants answered the broadcast description. They stopped the vehicle, searched the three occupants and the car, found coins, currency, and a loaded revolver, placed the suspects under arrest and advised them of their constitutional rights.

The suspects were transported to the police station and placed in three separate cells. Mike Kersey, the service station operator and robbery victim, arrived at the police station to view the three suspects. The police made no suggestion to Kersey that the suspects to be viewed were the robbers. Defendant agreed to a confrontation with the victim.

Kersey had to step inside each cell to see the subject therein. He first looked at defendant's alleged accomplice whom he recognized immediately. Defendant was the second person he viewed, and Kersey thought he recognized him but had some initial reservations. Subsequently, Kersey walked back into the cell for a second look and positively identified defendant as the man who held the gun on him during the robbery. Defendant was never interrogated.

It was stipulated that if Sergeant Faselli were called as a witness he would testify that he obtained exemplars of defendant's signature after having obtained the consent of defendant and his counsel. John Jorgensen, a handwriting expert, testified that the signature on a conditional sales contract for a 1954 Chevrolet was written by the same person who wrote the exemplars. The vehicle being operated by the suspects at the time of arrest was a 1954 Chevrolet. Jorgensen further testified that the booking slips signed by defendant on October 7, and November 13, 1970, were both written by the same person who wrote the exemplars.

1. Application of Penal Code Sections 3024, 12022, and 12022.5

1] The People concede that the judgment in this case should be modified to provide that Penal Code sections 3024 and 12022 are not applicable, but that defendant was armed with a .22 caliber revolver for purposes of Penal Code section 1203, pertaining to probation. This result is compelled by recent cases of this court holding that the provisions of sections 3024 and 12022 (which provide for a minimum term of sentence and for additional punishment in certain cases where defendant was armed in a specified manner; see fn. 1, Ante), are inapplicable where the defendant was found guilty of first degree robbery on the basis of the fact that he was armed (People v. Williams, 2 Cal.3d 894, 910--911, 88 Cal.Rptr. 208, 471 P.2d 1008; People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862.)

On appeal, the People originally contended that the judgment should not be modified to exclude the minimum additional punishment provided by Penal Code section 12022.5 for robbery and certain other crimes if the defendant 'used a firearm in the commission or attempted commission' of the offense.

At oral argument, however, the People stipulated that section 12022.5 was inapplicable and that the judgment herein should be so modified. In view of the fact that the lower courts have had some difficulty determining under what circumstances section 12022.5 properly may be applied, we choose to reach the issue in this case in spite of the People's stipulation.

,3] Section 12022.5 by its express terms applies 'even in those cases where the use of a weapon is an element of the offense.' Thus, in a proper case, a defendant convicted of robbery in the first degree (by reason of being armed with a deadly weapon, Pen.Code, § 211a) may also be subject to the additional punishment provided in section 12022.5 for using a firearm, despite the holding of such cases as People v. Floyd, Supra, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862. (People v. Chambers, 7 Cal.3d 666, 671--672, 102 Cal.Rptr. 776; People v. McDaniels, 25 Cal.App.3d 708, 713--716, 102 Cal.Rptr. 444; People v. Henry, 14 Cal.App.3d 89, 92--93, 91 Cal.Rptr. 841.) The question before us in the instant case is whether or not, by reason of the People's failure to request jury instructions covering that section, the People should be deemed to have waived the application of that section. ⁴

The People took no steps whatever at trial to secure a verdict or judgment stating the applicability of section 12022.5. The People did request and receive an instruction directing the jury to determine whether or not defendant was armed with a deadly weapon (as defined in another instruction) at the time of the offense. However, the People failed to request an instruction under section 12022.5 directing the jury to find whether or not defendant 'used' a firearm during the offense, as that term is defined in cases cited above. Before we determine, however, whether the People have waived their right to have the question tried, we first must decide whether the question should have been tried by the jury, rather than by the trial judge.

4] It could be argued that the finding required to make section 12022.5 applicable is to be made by the trial judge rather than the jury, since there is no statute (such as Pen.Code, §§ 969c and 1158a, with respect to the applicability of §§ 3024 and 12022) which commits these determinations to the jury. (See People v. Harrison, 5 Cal.App.3d 602, 609, 85 Cal.Rptr. 302.) We think, however, that the better rule is set forth in People v. Spencer, 22 Cal.App.3d 786, 801, 99 Cal.Rptr. 681, 691, quoting with approval the following language taken from the People's brief in that case: 'Section 969c of the Penal Code provides for the right to a jury trial of allegations that a defendant was armed with a deadly weapon so as to bring him within the operation of Penal Code sections 3024 and 12022. The addition of Penal Code section 12022.5 in 1969 was not accompanied by an amendment of section 969c to include section 12022.5. However, in view of the California Constitution's guarantee of the right of jury trial (art. I, § 7), it would seem that this omission does not manifest a legislative intent to exclude allegations under section 12022.5 from the class of cases in which there is a right to a jury trial.' The court in Spencer concluded that the People's 'concession is legally compelled.' We agree.

',6] Issues of fact shall be tried in the manner provided in Article I, section 7 of the Constitution of this State (i.e., by a jury).' (Pen.Code, § 1042; see People v. Loomis, 27 Cal.App.2d 236, 239, 80 P.2d 1012.) Section 12022.5 therefore requires a jury determination of the factual question whether or not defendant used ⁵ a firearm in the commission of the underlying offense, unless defendant has waived a jury trial or has pleaded guilty. As defendant in the instant case did not waive a jury trial nor plead guilty, he was entitled to a jury determination of the matter, preceded by proper jury instructions regarding the meaning of section 12022.5. As explained above, the jury's finding that defendant was armed with a deadly weapon at the time of the offense was insufficient to establish his use of a firearm.

7] An identical situation occurred in People v. Spencer, Supra, 22 Cal.App.3d 786, 99 Cal.Rptr. 681, wherein the information charged defendant with robbery and with being armed with a deadly weapon, both at the time of the offense and at the time of his arrest for that offense. The People failed to request jury instructions on the question of Use of a firearm under section 12022.5, and the jury returned a verdict of guilty of robbery in the first degree, and a finding that defendant was armed when the offense occurred (though not when arrested). On appeal, the court rejected defendant's various claims of error, but also denied the People's request that the cause 'be remanded to permit the People the opportunity to try to a jury the allegation that appellant 'used' a firearm within the meaning of Penal Code section 12022.5.' The court reasoned that such a procedure would constitute a 'piecemeal trial' requiring 'the impanelment of a new and different jury and a trial in which the admissible evidence bearing upon the limited issue would be practically coextensive with that received at the plenary trial. . . . (Par.) It is our conclusion that the practical realities of the situation, combined with the valid arguments of appellant in opposition to an unprecedented bifurcation of a jury trial for the purpose of determining the limited issue of penalty, dictate the rejection of...