People v. Candelaria

• Citation: 153 Cal.App.2d 879,315 P.2d 386
• Decision Date: 18 September 1957
• Docket Number: Cr. N
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel D. CANDELARIA, Defendant and Appellant. o. 5953.

Page 386

315 P.2d 386

153 Cal.App.2d 879

The PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel D. CANDELARIA, Defendant and Appellant.

Cr. No. 5953.

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

Sept. 18, 1957.

Hearing Denied Nov. 13, 1957.

J. B. Mandel, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Lynn Henry Johnson, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment wherein the defendant was convicted of burglary in the first degree.

In an information filed in Los Angeles County, on December 11, 1956, the defendant was charged with the crime of burglary in that he did on December 10, 1954, enter the Citizens National Trust and Savings Bank of Los Angeles, Lincoln Heights Branch, with the intent to commit a theft, and that he was armed with a deadly weapon (a revolver) at the time. At the arraignment the defendant made a motion to dismiss the action under section 995 of the Penal Code. The motion was denied. A writ of prohibition was sought in the District Court of Appeal, and that was denied. The defendant pled not guilty. Counsel and the defendant personally waived a jury trial, and by stipulation, the cause was submitted on the transcript of the testimony taken at the preliminary examination held on November 29, 1956. At a later date, namely on February 11, 1957, the defendant moved the court for a judgment of not guilty on various grounds, but primarily upon the ground that the defendant had been once in jeopardy. The pleas of former jeopardy were ordered nunc pro tunc as of the time of the original plea. The court found that the defendant had not been once in jeopardy for the offense charged, and he was found guilty of burglary in the first degree. The defendant has appealed from the judgment and from the order denying him a new trial.

A resume of the background and evidence of this case is as follows:

The defendant was, on March 17, 1954, convicted of a morals offense (pimping) in Los Angeles county, and was placed on probation for five years. During the probationary period, and shortly before December 10, 1954, the defendant borrowed a revolver from a friend, as he, the defendant, had in mind to hold up a bank. On December 10, 1954, the defendant took the revolver, got into his automobile and started to drive around the streets looking for a suitable bank to hold up. Apparently the branch of the bank heretofore mentioned was selected by the defendant as being the one to proceed with. He parked his car, put the gun in his waistband under a leather jacket he was wearing, walked into the bank and to the window of a teller named Mrs. Holland. The defendant laid a canvas bag on the counter at her window, unzipped his jacket, pulled forth the gun and demanded of Mrs. Holland that she 'hand over the cash'. She reached into a cash drawer and took out some money, and he then, as she testified, 'pushed the gun further up to me and told me not to fool around'. She then secured some more money from the cash drawer for the obvious purpose of satisfying the defendant's requests and desires, and for the more important reason of obeying his instructions to the end that she would not get shot. The total amount of cash the teller put out on the counter, and taken by the defendant, was about $950. On the same day, at about 6:00 o'clock p. m., Officer L. M. Rafferty of the Los Angeles Police Department arrested the defendant at his home, where the defendant made a free and voluntary statement wherein he said, among other things, that he was the one who had held up the bank; that he had some of the money in his pocket at that very time; that he had spent some of the money during the day and that some of the money was hidden in the house in a boot of his, with the gun which he had used. The officer and the defendant went into the house and located and recovered the gun, some ammunition for the gun, and a substantial part of the money from where the defendant said it would be.

The defendant was then indicted by the federal grand jury, charging him with a robbery of a national bank with use of a deadly weapon. The defendant, in the federal court, pled guilty to the charge and although the judge of the court knew that the past life of the defendant was far from exemplary and that the defendant was then on probation for a morals offense (a felony) in the state court, the judge thought that the defendant did 'show a record of industry and ambition mixed with bad conduct indicative of immaturity', United States v. Candelaria, D.C., 131 F.Supp. 797, 798, and on February 7, 1955, sentenced the defendant to the federal prison for a term which the judge had calculated would, with good behavior credits, amount to about thirty-six months in prison followed by a conditional release. The defendant was twenty-eight years of age at the time of the offense.

The chief of police of Los Angeles or the district attorney of Los Angeles county, or both of them, placed a detainer hold on the defendant with the warden of the federal prison (McNeil Island Penitentiary) where the defendant was incarcerated. The warden in turn advised the judge of the federal court, who had sentenced the defendant, of the hold. The federal judge then wrote letters to the chief of police of Los Angeles and to the district attorney of Los Angeles county, wherein he strongly intimated that it would be well to 're-canvass the situation' to the end that the detainer hold be released. In the letter to the district attorney the judge stated, 'that in the light of all the circumstances of this man's past life and the incidents of his offense, that he is not likely to be a repeater'--this in the face of the fact that the defendant was already an admitted repeater. There was no forthcoming indication that the detainer hold would be released by the California authorities, pursuant to the letters, and the federal judge thereupon, on his own motion, directed that the defendant be returned to his court for further proceedings. At a hearing on April 4, 1955, (United States v. Candelaria, supra, at page 807), the federal judge held that '(b)ecause the action of officials of Los Angeles and California has effectively nullified so many of the beneficial aspects of this Court's judgment * * * this Court will terminate its efforts to rehabilitate this prisoner and will terminate further Federal supervision. Since local officials have obstructed Federal efforts to properly punish and correct, they may pursue the prosecution they have commenced by their Detainer. The Clerk will present a modified judgment, fixing the term of imprisonment at sixty days'. This was in the face of an earlier determination in the same opinion by the federal judge that the California prosecution would probably not be successful, and the defendant be thereby released into society after serving sixty days in jail for an armed robbery of a national bank, the judge saying in that connection (at page 803), '* * * it appears to this Court that it is very doubtful whether the State of California can successfully prosecute this defendant in view of its own constitutional provisions, statutes, and decisions'.

The defendant was then charged with the robbery in an information filed in Los Angeles county, and was convicted. The defendant was sentenced to the state prison, and at the same time his probation on the prior state conviction of pimping was revoked and he was committed to prison the terms or sentences of the two offenses to run concurrently. That judgment was reversed in People v. Candelaria, 139 Cal.App.2d 432, at page 441, 294 P.2d 120, 125, because of the provisions of section 656 of the Penal Code, and not upon any constitutional ground, the court holding: 'The judgment is reversed, and the superior court is directed to determine, as a matter of law, that the previous federal conviction is a sufficient defense.'

The appellant contends that his conviction presently constitutes double jeopardy in violation of the federal and state Constitutions and the statutory laws, and that appellant has been subjected to cruel and unusual punishment in violation of the federal Constitution.

The due...