People v. Bush

• Decision Date: 28 July 1975
• Docket Number: Cr. 23822
• Citation: 50 Cal.App.3d 168,123 Cal.Rptr. 576
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Roderick Anthony BUSH, Defendant and Appellant.

Page 576

123 Cal.Rptr. 576

50 Cal.App.3d 168

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roderick Anthony BUSH, Defendant and Appellant.

Cr. 23822.

Court of Appeal, Second District, Division 5, California.

July 28, 1975.

John R. DaCorsi, Porterville, under appointment by the Court of Appeal for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Roger W. Boren, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Presiding Justice.

Defendant was charged in Count I of the information with murder (Pen.Code, § 187) and in Counts II, III and IV with robbery (Pen.Code, § 211). He pleaded not guilty. A jury found him guilty of one count of first degree murder and three counts of first degree robbery. The jury further found to be true, as to each count, an allegation that defendant had used a firearm in the commission of the offense. (Pen.Code, § 12022.5.) These findings are recited, with respect to each count, in the judgment. Probation was denied. Defendant was sentenced to state prison on each count. Sentence on Count II was ordered to run consecutively to that imposed on Count I. Sentences on the remaining counts were ordered to run concurrently with that on Count I. Defendant was credited with having already served 94 days. He appeals from the judgment.

FACTS

The evidence of defendant's guilt was overwhelming. Briefly: the robbery charged in Counts III and IV was committed at Electro TV in Long Beach on December 27, 1972. Defendant entered the premises in the company of one Blackman ¹ who displayed a gun and indicated that a holdup was taking place. Defendant and Blackman removed wallets from the men in the shop and purses from the women. Blackman removed the money from the cash register. He and defendant then fled. Defendant was identified at the trial by the named victims of Counts III (Peter Quintus) and IV (Judy Gallo) and by three other eyewitnesses in the shop at the time of the robbery. ² None of the witnesses saw defendant in possession of a gun on December 27, 1972.

The crimes charged in Counts I and II took place on December 30, 1972, also at Electro TV. This time defendant entered the premises with one Douglas Thompson. ³ Both defendant and Thompson had guns. John Nagle, a victim (Count II), testified that defendant confronted him at gunpoint inside the back of the Electro TV shop and ordered him to walk to the front of the shop. Thompson meanwhile had confronted Dave Arquette, the murder victim (Count I), in the front. As Nagle walked toward the front, Thompson shot and killed Arquette. Defendant evidenced no reaction to the shooting. Thompson ordered Nagle to open the cash register. When Nagle did so, defendant removed the cash drawer. Defendant took another drawer containing the petty cash supply from a desk; he also took Nagle's wallet. Defendant then demanded that Nagle remove Arquette's wallet and give it to him. Nagle complied. Defendant threatened Nagle with death if he did not open a safe. When Nagle protested that he could not open the safe, defendant did not pursue the matter. Defendant and Thompson fled.

The cash trays from Electro TV and credit cards belonging to Nagle and Arquette were found within an hour of the robbery-murder in a car registered to defendant's grandfather which defendant had been seen driving only a short time earlier. Defendant's fingerprint was found on one of the cash drawers. Credit cards belonging to Peter Quintus, Judy Gallo, and two other victims of the December 27th robbery were found in defendant's bedroom on December 30, 1972.

Defendant turned himself in to police on January 1, 1973. After being advised of his constitutional rights and agreeing to talk to officers, defendant first denied complicity in the December 27th robbery. Regarding the December 30 robbery-murder, he claimed that he stayed outside the premises and was unaware of Thompson's intentions. When confronted with the credit cards which had been found in his bedroom, defendant admitted that he had participated in the December 27th incident at Blackman's suggestion; Blackman was armed, but he was not. He further confessed that he had suggested the December 30th robbery to Thompson, and that they were both armed on that occasion. Thompson entered the front door of the store and he went to the rear. While still outside he heard a shot fired. He then entered through the rear door, took charge of Nagle by pointing a .32 caliber automatic at him and ordered him to the front.

Defense counsel urged the trial court to strike the firearm allegation (Pen.Code, § 12022.5) as to Counts III and IV on the ground that there was no evidence that defendant was personally armed on December 27. The court not only refused to do so, but instructed the jury if 'a robbery is committed by two or more persons, and only one person uses a firearm in the commission of that robbery, all persons are responsible under Penal Code section 12022.5 for using a firearm in the commission of the robbery.'

After deliberating slightly more than two hours, the jury returned to the courtroom and asked the following question, "Are we to determine if Roderick Bush actually had a firearm in his personal possession during the period of the robbery on December 27, 1972, in the special finding?" The jury was reinstructed ⁴ and returned to its deliberations.

DISCUSSION

Defendant's contentions relating to the convictions on the basic counts have no merit whatsoever.

Defendant asserts that there is no evidence that he shared his accomplice's intent as to the shooting, that the shooting occurred outside the scope of the robbery, and that his conviction on Count I therefore cannot be sustained. The record does not substantiate defendant's contentions. While the wanton shooting of Arquette was not necessary to effectuate the robbery it occurred on the premises and preceded the taking of any property. Defendant did not abandon the project after the shooting; he proceeded with the robbery and threatened to kill the second victim if he did not follow certain directions. 'Under the felony murder doctrine, the intent required for a conviction of murder is imported from the specific intent to commit the concomitant felony.' (People v. Sears, 62 Cal.2d 737, 745, 44 Cal.Rptr. 330, 335, 401 P.2d 938, 943.) Defendant's reliance on People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, is misplaced. There the killing was not perpetrated by an accomplice. Rather there was an attempt to hold defendant liable, under the felony-murder rule, for the death of his accomplice at the hands of the intended robbery victim. There is ample evidence to sustain defendant's conviction of Count I. Nor does it constitute cruel or unusual punishment to impose the penalty for first degree murder on defendant under the circumstances of this case. (People v. Wade, 53 Cal.2d 322, 336, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Johnson, 38 Cal.App.3d 1, 7--8, 112 Cal.Rptr. 834.)

The only viable issues on this appeal are these: First, did the trial court correctly instruct the jury that the use of a firearm in the commission of a robbery by one of several robbers, without more, subjects all principals to the additional punishment prescribed by section 12022.5 of the Penal Code? Second, if the instruction was erroneous, was the error prejudicial in this case?

To put the problem in perspective: Under the trial court's instruction, if one of several persons guilty of robbery uses a firearm, all others are subject to the additional penalty of section 12022.5, regardless of what their personal involvement--or lack thereof--with that use may be. In this connection we note that the court correctly instructed the jury that one can be a principal in the robbery merely by aiding and abetting the offense. (Pen.Code, § 31.)

The People claim the instruction was 100 percent correct: that 'a defendant could be found derivatively liable under Penal Code section 12022.5 . . . where his crime partner is the one who personally 'uses' the firearm in the commission of the robbery.'

Defendant, on the other hand, argues that the additional punishment prescribed by section 12022.5 can be imposed only on a defendant who personally had his hand on the trigger. ⁵ The defense argument is essentially based on reasoning that section 12022 of the Penal Code, which imposes additional punishment for being armed with a deadly weapon has consistently been interpreted to apply only to defendants who are personally armed. (People v. Hicks, 4 Cal.3d 757, 766, fn. 4, 94 Cal.Rptr. 393, 484 P.2d 65; People v. Stuart, 3 Cal.App.3d 817, 823, 83 Cal.Rptr. 841; People v. Snyder, 276 Cal.App.2d 520, 526--527, 80 Cal.Rptr. 822; People v. Eaton, 275 Cal.App.2d 584, 592, 80 Cal.Rptr. 192; People v. Tarpley, 267 Cal.App.2d 852, 858--859, 73 Cal.Rptr. 643; People v. Smith, 259 Cal.App.2d 814, 818, 66 Cal.Rptr. 551.) ⁶ The argument then proceeds: When, in 1969, section 12022.5 was passed, the last three cited cases were already in the books. Since section 12022.5 was a legislative response to the cases which culminated in People v. Floyd, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, ⁷ holding section 12022 inapplicable where being armed was an element of the offense (People v. Henry, 14 Cal.App.3d 89, 92, 91 Cal.Rptr. 841), it cannot be assumed that the 1969 Legislature--knowing that the word 'armed' in section 12022 had been interpreted to apply only to defendants personally armed--would have used virtually identical language in section 12022.5 with respect to the concept of 'use' unless it wanted to preserve the judicial interpretation of section 12022.

The People's argument in defense of their theory that section 12022.5 is vicariously applicable is more complex. Summarized, this is it: Before 1949, section 1203 of the Penal Code forbade the...