People v. Blagg

• Decision Date: 22 November 1968
• Docket Number: Cr. 14307
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Lloyd BLAGG, Jimmy David Sells, Bernard Carmel Ville, and Louis Jack Burt, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 93

73 Cal.Rptr. 93

267 Cal.App.2d 598

The PEOPLE, Plaintiff and Respondent, v. William Lloyd BLAGG, Jimmy David Sells, Bernard Carmel Ville, and Louis Jack Burt, Defendants and Appellants.

Cr. 14307.

Court of Appeal, Second District, Division 4, California.

Nov. 22, 1968.

Rehearing Denied Dec. 13, 1968.

Albert D. Silverman, Canoga Park, under appointment by the Court of Appeal, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard Tanzer, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendants Sells, Blagg, Lewis, Burt and Ville were charged in a four count information as follows: with the crimes of sodomy in violation of section 286 of the Penal Code (count I); assault with a deadly weapon in violation of section 245 of the Penal Code (count II); and conspiracy to commit violations of sections 245 and 286, in violation of section 182 of the Penal Code (count IV); in addition, Sells only was charged, in count III, with a violation of section 288a of the Penal Code (oral copulation). All defendants pled not guilty and Lewis and Ville also pled not guilty by reason of insanity. After a trial by jury, Sells was found guilty on all four counts, Blagg, Lewis and Burt were found not guilty on count II and guilty on counts I and IV, Ville was found guilty of simple assault as a lesser and included offense on count I, guilty of a violation of section 240 of the Penal Code as a lesser and included offense on count II, and guilty on count IV. ¹ The not guilty by reason of insanity pleas by Lewis and Ville were tried by the court, a jury trial on that issue having been waived; the court found that Lewis was insane at the time of the offenses but that Ville was sane. Motions for new trial were made and denied; probation was denied; Sells was sentenced to state prison on count I; Blagg, Burt and Ville were each sentenced to state prison on count IV; Lewis was committed to the state hospital pursuant to section 1026 of the Penal Code. Based on a finding that all of the offenses charged were 'committed in pursuit of a common objective,' the trial court entered no sentences on counts II, III or IV as to Sells, nor on count I as to Blagg, Burt and Ville. Sells, Blagg, Burt and Ville have appealed from the judgments pronounced against them. ²

I

As will be noted, the trial court's action in imposing no sentence at all on various counts did not conform to the procedure approved in People v. Niles (1964) 227 Cal.App.2d 749, 39 Cal.Rptr. 11 and in In re Wright (1967) 65 Cal.2d 650, 655--657, 56 Cal.Rptr. 110, 422 P.2d 998. As a result, there technically is no 'judgment' on those counts. A similar situation faced us in People v. Jenkins (1965) 231 Cal.App.2d 928, where we said (p. 934), 42 Cal.Rptr. 373, p. 377:

'The logic of this argument must be conceded, but it is premised upon the assumption that the proceeding on count I was halted short of judgment. Without doubt, the trial court refused to pronounce a separate sentence on count I because of the prohibition against double punishment in Penal Code, section 654. People v. McFarland, (citation), points out that section 654 prohibits double punishment, but not double conviction. The sentence which the court pronounced was the single judgment resulting from the two convictions, and both convictions should be reviewable on this appeal. If the conviction was arrived at through legal error, it should not be allowed to stand. The only opportunity this defendant has for a review of alleged errors of law relating to that conviction is by appeal at this time. There is no reason to believe that the Supreme Court intended that the prohibition against multiple sentencing should deprive the convicted man of appellate review of all the convictions which stand against him. Since it seems clear that the court's failure to sentence on count I was merely a means of avoiding a violation of Penal Code, section 654, our conclusion is that the conviction, as such, stands and defendant is entitled to have it reviewed on this appeal.'

That procedure has been approved in People v. Allison (1966) 245 Cal.App.2d 568, 575, 54 Cal.Rptr. 148. Accordingly, we proceed to review all of the counts in which guilty verdicts were returned, whether or not sentences were imposed thereon.

II

Before considering the merits of the appeals, we consider another procedural matter relating to defendant Ville.

At the time of the prosecution of the case at bench, Ville was under a commitment to Atascadero State Hospital resulting from a finding of not guilty by reason of insanity in an unrelated case. In the instant case, he pled not guilty and not guilty by reason of insanity. The trial court appointed psychiatrists to examine him both as to his sanity at the time of the offenses herein involved and as to his capacity to stand trial. The reports were that he had been insane at the time of the offenses but that he was capable of standing trial. A long discussion took place in chambers between his counsel, the prosecuting attorney and the judge, wherein Ville's counsel sought a stipulation under which Ville's not guilty by reason of insanity plea would be heard first and be submitted on the psychiatrists' reports. The tactic failed because the prosecuting attorney would not so stipulate. However, in the course of that discussion, Ville's counsel expressly stated that he did not contest the psychiatric report that his client was capable of standing trial. After the fruitless discussion as to the procedure on the insanity plea, the case resumed in open court. The trial court made the following announcement:

'THE COURT: All right, Mr. Ville. The Court has considered, read and considered the reports of Tenenbaum and Wagner and will find that you are sufficiently sane to continue with counsel in the matter of your defense, and that you are capable of understanding the charges against you on Indictment No. 5418, and will order you to stand trial on August 8th, 1967. Mr. Weaver, your attorney, has moved the Court for a continuance on the basis of his inability to prepare within that time. The court has denied that motion.'

We think that the record shows a substantial compliance with the hearing requirement of section 1368. It is true that the trial court did not formally 'suspend' the criminal case and announce that he was holding a section 1368 hearing. But the matter was raised and decided before trial; there was a separate consideration of the 1368 issue and a separate ruling thereon. Neither Ville nor his counsel demanded any greater formality. Since the issue is one which the trial court may determine without a jury (unless one is expressly demanded), and since counsel had already told the court that he had no independent psychiatric testimony to present, we think that Ville had all of the protection that section 1368 contemplates.

III

All of the offenses charged were alleged to have taken place on the same occasion and against the same victim--George William Hotchkiss, Jr. The five defendants and Hotchkiss were all incarcerated in the felony tank of the San Luis Obispo County Jail. It was the theory of the prosecution that the defendants had learned, by means of a television set available in the cell, that Hotchkiss was under arrest for child molestation; that they had decided to inflict their own punishment on him; and that, in that endeavor, they had beaten him, partially shaved his head into a 'Mohawk' cut, and forced him to submit to acts of sodomy and to perform oral copulation on Sells. There was substantial evidence, based on Hotchkiss' physical condition and observations of the jail personnel, to support the findings that Hotchkiss had been mistreated as alleged--except that the allegation of the use of a deadly weapon was not thus supported as the verdicts indicate. However, the identity of the perpetrators of the sexual offenses--as distinguished from other physical harm--rests primarily on Hotchkiss' testimony, with some support from the testimony of a trusty prisoner.

On this appeal, defendants urge a series of alleged procedural errors--contentions which we find to be without merit--and two objections to exclusion of evidence, one of which we find to be meritorious. In addition, we find one error as to defendant Ville which requires a reversal as to him on count I.

IV

Defendants' first contention is that the court erred in failing to grant defendants' motion for a change of venue, on the grounds that wide notoriety and publicity had been given to the incident. A motion for a change of venue is addressed to the sound discretion of the trial court. (People v. Burwell (1955) 44 Cal.2d 16, 29--30, 279 P.2d 744.) In People v. Duncan (1960) 53 Cal.2d 803, 3 Cal.Rptr. 351, 350 P.2d 103, defendant moved for a change of venue because of wide publicity adverse to defendant. The court said that, even if it be assumed that many persons formed opinions unfavorable to defendant as a result of publicity, it does not follow that persons without such views cannot be found to act as jurors, or that those who had adverse opinions would be unable to set them aside and try the case fairly on the basis of the evidence formed in court.

A review of the voir dire proceedings in the case at bench showed that about one-half of the jurors had not heard of the incident, and of those that had heard of the incident most had not formed an opinion. There was no juror who said he formed an opinion adverse to defendants because of what he had read or heard. In view of the totality of circumstances, we find no abuse of discretion.

V

Defendants contend that the trial court erred in denying their motions for separate trials. Of the appellants, only Sells and Burt moved for a separate trial.

The defendants who made no motion for a separate trial cannot raise this error on appeal. As to defendants who raised the point, a defendant is not...