People v. Campbell

• Decision Date: 04 June 1991
• Docket Number: No. D011347,D011347
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Scot Albert CAMPBELL, et al., Defendants and Appellants.

Page 870

281 Cal.Rptr. 870

230 Cal.App.3d 1432

The PEOPLE, Plaintiff and Respondent, v. Scot Albert CAMPBELL, et al., Defendants and Appellants.

No. D011347.

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

June 4, 1991.

Certified for Partial Publication ¹

Review Denied Aug. 21, 1991.

David M. McKinney and Gregory Marshall, San Diego, under appointment by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Assistant Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., Rudolf Corona, Jr., Tim Nader, Robert M. Foster, and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

HUFFMAN, Acting Presiding Justice.

Scot Albert Campbell and Paul George Werner separately appeal their jury convictions and sentences for various robberies (PEN.CODE, § 211)² and false imprisonments (§§ 236, 237) arising out of their "money-taking" spree of two fast food restaurants, one in San Diego County and one in Riverside County, on March 12, 1989. They also challenge their convictions and sentences for being in possession of a firearm within the meaning of section 12021, subdivision (a), and the jury findings of and punishment for numerous gun arming and gun use allegations in connection with each substantive crime (§§ 12022, subd. (a), 12022.5, subd. (a)).

Campbell and Werner ³ first contest the jurisdiction of the San Diego Superior Court to try them on the five Riverside County counts for the Temecula Taco Bell robbery. They specifically assert section 786 is unconstitutional. Even if section 786 is constitutional, they argue the San Diego Superior Court lacks jurisdiction to hear the three false imprisonment charges. They seek reversal of those counts.

Additionally, Campbell and Werner contend the trial court erroneously denied their section 1538.5 motions to suppress evidence. They claim there was not sufficient evidence for the robbery count concerning Anjelanita Walls to overcome a motion under section 1118.1. Appellants further claim the trial court erroneously allowed the prosecution to reopen its case to present further evidence concerning the Walls robbery and failed to instruct sua sponte on unanimity for the firearm possession counts. Campbell and Werner also claim the court erroneously sentenced them for both firearm use during the Taco Bell robbery and for unlawfully possessing firearms after completion of that robbery in violation of section 654.

Further, they assert there is insufficient evidence they personally used their firearms during the Taco Bell robbery. Finally, Campbell alone ⁴ claims the two counts charging him with being a convicted felon in possession of a firearm constituted only one crime and therefore one conviction must be reversed.

We shall reverse Campbell's count 11 possession of a firearm conviction, and affirm in all other respects as modified.

I

FACTUAL AND PROCEDURAL BACKGROUND

At about 2 a.m., March 13, 1989, in order to issue a traffic citation, Oceanside Harbor Police Officer Joseph Edward Spurgeon stopped Werner and Campbell in a white Chevrolet El Camino Werner was driving. During the stop, certain circumstances, which will be discussed in full later, caused Spurgeon to suspect he had stopped more than a traffic violator. After Spurgeon called for backup and asked the passenger Campbell out of the car for a patdown search for weapons, Campbell bolted with Spurgeon in foot pursuit. The backup officer, Victor Ray of the Oceanside Police Department, then apprehended Werner as he opened the driver's door.

A subsequent search of the car netted a jacket containing four 9-millimeter magazine clips, a .38 revolver, a handle grip pump shotgun, an AK-47 rifle, ammunition for the shotgun and AK-47 in a blue nylon bag, a white mesh bag containing some rolled coins and Padre baseball tickets, numerous bullets for the revolver, two pairs of gloves, two ski masks, several pairs of jeans, two black sweatshirts, various rolls of coins, paper money stuffed in socks, a police scanner and a Security Pacific Bank bag. Additionally, a search of the backseat of the patrol car in which Werner was placed after the stop turned up $1,200, largely in $20 bills.

A check of this evidence with ongoing investigations of two fast-food restaurant robberies the day before, March 12, 1989, tied Werner and Campbell to those crimes.

Campbell, who had eluded Spurgeon, was eventually picked up later on March 13, 1989, at the San Clemente border checkpoint after a secondary search of a truck in which he was a passenger turned up a 9-millimeter semiautomatic handgun and a shotgun wrapped in a jacket under the passenger's seat. His picture was then included in a photographic lineup which was shown to Officers Spurgeon and Ray. Each identified Campbell as the man who ran from the car during the stop.

Thereafter, Campbell and Werner were charged with having committed the early morning robbery of the Cardiff Jack-in- the-Box and the Temecula Taco Bell robbery committed later that same day. In connection with these, each defendant was charged with three counts of robbery, four counts of false imprisonment, and with being a convicted felon in possession of a concealed firearm. It was alleged Campbell personally used a firearm while committing each robbery and false imprisonment and that Werner used a firearm during the Temecula crimes, but was only armed for the Cardiff criminal activity.

The complaint also charged Werner alone with a robbery and false imprisonment stemming from a January robbery of the Cardiff Jack-in-the-Box. Further, it alleged each defendant had previously suffered a serious felony, Campbell for an earlier robbery and Werner for attempted robbery.

At the beginning of the preliminary hearing, both defendants demurred to the complaint on grounds the court did not have jurisdiction over the Temecula, Riverside County, robbery counts. The court overruled the demurrer, finding, pursuant to section 786, jurisdiction did lie. At the end of the preliminary hearing, Campbell's and Werner's renewed demurrer on grounds of jurisdiction was also overruled.

Both Campbell and Werner then brought motions for discovery and to suppress evidence. After appropriate hearings, the court denied their respective motions.

In limine, Campbell and Werner again raised the matter of jurisdiction on the Riverside County robberies being tried in San Diego County and moved the trial court to sever their counts for trial. The court overruled the renewed demurrer and denied the motion to sever. It then granted Campbell's and Werner's motions to bifurcate the issue of their prior convictions for trial, and each stipulated to being ex-felons for purposes of the possession of a firearm counts so that fact would not be before the jury.

Trial then commenced. The victims of the two Jack-in-the-Box robberies testified first. Both described incidents where the robber(s), after taking the money, forced them by gunpoint into the refrigerator room of each respective restaurant before locking them in and escaping. The employee-victim of the March 12, 1989 robbery testified the robber had black or dark brown eyes and noted Werner's eyes appeared lighter than those of the robber. She also identified the black ski mask and brown gloves, which had been found in Werner and Campbell's car and entered into evidence as exhibits at trial, as the ones worn by the robber who grabbed her during the robbery.

The manager of the Jack-in-the-Box restaurant during this second crime stated the robbers left with approximately $300 and he identified rolls of coins and the Padre tickets found in Werner and Campbell's car as items taken from the restaurant's safe.

Christopher Lee Craddock, the manager of the Taco Bell in Temecula next testified. He said that after the restaurant had closed at about 11 o'clock that night, he heard an employee named Reina Caballero scream. When he turned to investigate he saw two men come into his restaurant, grab Caballero and put her into the walk-in refrigerator. He then saw one man grab another employee, Anjelanita Walls, and physically bring her over next to him. The man then demanded money. At that time, Craddock had just finished counting the receipts and money for the day and had the safe open to put the drawers of money from the cash registers in it for the next day.

Craddock stated that after he put the money from the drawers in the safe into the bag as demanded, the robber sent Walls to the refrigerator room in the back of the restaurant which was being guarded by the other man, who had his gun in his hand in front of him. Craddock said the robber with him next told him to open a little strongbox located on the safe. After about 20 minutes, because of a 10-minute delay which had to be triggered twice, Craddock opened the strongbox and gave the contents to the robbers. Afterwards, Craddock said the robbers forced him into the walk-in refrigerator, placed a freezer in front of its door and left the restaurant. He also said the 9-millimeter gun in evidence was similar to the one used by the robber who demanded money from him and identified the .38 revolver as being used by the other man. He testified he was very aware of the guns, and was frightened because of the drawn weapons and the threat someone would be hurt if the strongbox wasn't opened the second time.

Barry Milledge and Kim Steven Holliday, other managers of the Taco Bell, but not present at the time of the robbery, testified about the amount of money taken in the restaurant robbery and identified various rolls of coins which were found in the car driven by Werner at the time of the stop by Officer Spurgeon. Holliday additionally stated it was the managers who had the authority to exchange receipts for money in the safe.

Officers Spurgeon and Ray then testified about the stop and search of the car driven by Werner in...