People v. Chambers

• Decision Date: 24 July 1972
• Docket Number: Cr. 16276
• Citation: 498 P.2d 1024,102 Cal.Rptr. 776,7 Cal.3d 666
• Court: California Supreme Court
• Parties: , 498 P.2d 1024 The PEOPLE, Plaintiff and Respondent, v. Larry Gordon CHAMBERS, Defendant and Appellant. In Bank

Page 776

102 Cal.Rptr. 776

7 Cal.3d 666, 498 P.2d 1024

The PEOPLE, Plaintiff and Respondent, v. Larry Gordon CHAMBERS, Defendant and Appellant.

Cr. 16276.

Supreme Court of California,

In Bank.

July 24, 1972.

Richard J. Stall, Jr., Marina Del Rey, under appointment by Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Beverly K. Falk, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

In a court trial defendant was found guilty of a violation of Penal Code section 211 (armed robbery). The court further found that in the commission of the offense defendant used a firearm within the meaning of Penal Code section 12022.5. His application for probation was denied, and he was sentenced to imprisonment in the state prison for the term prescribed by law for youthful offenders. (Pen.Code, § 1202b.) ¹

Defendant makes three contentions on appeal: (1) the trial court committed prejudicial error in denying a motion to withdraw a jury trial waiver; (2) section 12022.5 is inapplicable when the robbery of which a defendant is convicted is elevated to the first degree by the fact that defendant was armed (§ 211a); and (3) the minimum sentence provision contained in section 1202b for youthful offenders supersedes the cumulative minimum sentences provided for violation of section 211 with a finding of use of a firearm as described in section 12022.5. We agree only with defendant's final contention.

The facts of the case are essentially undisputed. At 2 a.m. on November 30, 1970, defendant, a man dressed in women's clothing, was standing on a public street. The victim solicited defendant to engage in an act of prostitution. Defendant entered the victim's vehicle, produced a gun which later was found to have been loaded, demanded and received the victim's money and ordered the victim to 'drive around.'

After driving a short distance the victim attempted to gain possession of the gun. Following a brief struggle with defendant the victim stopped his vehicle near two police officers, alighted and ran to them shouting that he was being robbed. The officers took defendant from the vehicle and arrested him.

The trial court impliedly found that defendant was armed with a deadly weapon thus elevating the robbery to the first degree. The court further and expressly found that defendant used a firearm in the commission of the robbery within the meaning of section 12022.5.

In pretrial proceedings defendant freely and intelligently waived his right to a jury trial. ² (Cal.Const., art. I, § 7; People v. Holmes (1960), 54 Cal.2d 442, 443, 5 Cal.Rptr. 871, 353 P.2d 583.) When defendant appeared later that same day for trial defense counsel moved to withdraw the jury waiver stating only that defendant's brother opposed a court trial. The court denied the motion and proceeded to trial.

It is well established that a waiver of a jury trial, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. (People v. Osmon (1961), 195 Cal.App.2d 151, 153, 154, 15 Cal.Rptr. 263; People v. Melton (1954), 125 Cal.App.2d Supp. 901, 271 P.2d 962.) Absent special circumstances the court may deny a motion to withdraw such a waiver especially where adverse consequences will flow from the defendant's change of mind. In exercising its discretion the court may consider such matters as the timeliness of the motion to withdraw the waiver, the reason for the requested withdrawal and the possibility that undue delay of the trial or inconvenience to witnesses would result from granting the motion.

Here the motion to withdraw the waiver was not timely. Neither are there special circumstances which would compel the court to grant the motion notwithstanding delay of the trial, inconvenience to the witnesses and potential prejudice to the People. Little or no weight should be given to the unexplained wish of defendant's brother for a jury trial. The denial of the motion to withdraw the jury trial waiver under these circumstances was clearly not an abuse of discretion.

Relying upon People v. Floyd (1969), 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, defendant next contends that he cannot be punished both for armed robbery (§§ 211 and 213) ³ and for using a firearm in the commission of the robbery (§ 12022.5). ⁴ As will appear, defendant's reliance is misplaced.

The application of statutes providing additional penalty for a defendant convicted of committing a crime under aggravated circumstances has long been a question of statutory interpretation. (See People v. Floyd, supra, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862; In re Shull (1944), 23 Cal.2d 745, 146 P.2d 417.) Prior to the enactment of section 12022.5 the law provided increased penalties for defendants who were 'armed' during the commission of felonies. This was accomplished by legislative provisions establishing higher degrees of crimes such as robbery or burglary committed while armed with a deadly weapon, by creating new crimes where deadly weapons were involved (i.e., assault with a deadly weapon), and by increasing the penalty for all felonies where the defendant was armed with a deadly weapon (§ 12022). By statutory interpretation, however, we were unable to discern a legislative intent that an increased penalty be imposed upon those who were armed with a deadly weapon during the commission of a crime where being armed was a necessary element to a finding of the crime or of its degree. (People v. Floyd, supra, 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862; In re Shull, supra, 23 Cal.2d 745, 146 P.2d 417.)

In 1969 the Legislature, obviously to impose a greater deterrent upon those who resort to the use of a firearm in the commission of specified crimes, including robbery, and to overcome in part the problem upon which Floyd focused, enacted section 12022.5 to be applied 'even in those cases where the use of a weapon is an element of the offense.' (§ 12022.5.) The rationale of our decision in Floyd is that in those cases where a specific statute (§ 213) already provides an increased punishment for being armed with a deadly weapon in the commission of the crime, it was "not to be supposed that for the same offense without any additional factor existing the added punishment (provided in section 12022) should be imposed." (People v. Floyd, supra, at p. 883, 80 Cal.Rptr. at p. 24, 457 P.2d at p. 864.) By its enactment of section 12022.5 the Legislature provided an additional punishment for a wrongdoer who 'uses a firearm' in the commission or attempted commission of certain felonies and it left no doubt as to the applicability of such punishment even in those cases where 'the use of a weapon' is also an element of the offense.

We next direct our attention to that conduct which constitutes use of a firearm within the meaning of the statute. ⁵ By employing the term 'uses' instead of 'while armed' the Legislature requires something more than merely being armed. (People v. Washington (1971), 17 Cal.App.3d 470, 474, 94 Cal.Rptr. 882.) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest. (See People v. Pheaster (1963), 215 Cal.App.2d 754, 30 Cal.Rptr. 363.) Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which actually produces harm but only conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. 'Use' means, among other things, 'to carry out a purpose or action by means of,' to 'make instrumental to an end or process,' and to 'apply to advantage.' (Webster's New Internat.Dict. (3d ed. 1961).) The obvious legislative intent to deter the use of firearms in the commission of the specified felonies requires that 'uses' be broadly construed.

In the instant case defendant pointed a gun at the victim and demanded money. Defendant thus utilized the gun at least as an aid in completing an essential element of the crime of robbery--the taking of personal property 'accomplished by means of force or fear.' (§ 211.) The facts are more than sufficient to support a finding that defendant used a firearm within the meaning of section 12022.5 in the commission of the offense. (See United States v. Wilson (C.C.E.D.Pa.1830) 28 F.Cas. 699, 708 (No. 16,730).)

We have previously construe the meaning of the term 'use' appearing in other penal legislation. Section 1203 requires that probation be denied 'to a defendant who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted.' Two decisions require reconciliation. In People v. Southack (1952), 39 Cal.2d 578, 248 P.2d 12, the victim was killed by the discharge of a firearm. Under the factual circumstances of that particular case it could have been found that the defendant "did not use the gun,' but merely held it without due caution' immediately prior to its discharge. (39 Cal.2d 578, 591, 248 P.2d 12, 20.) The judgment of conviction was reversed and the cause remanded for a determination of whether the defendant 'did use the gun upon' the victim. There is nothing in Southack which supports a conclusion that pointing a gun at an intended victim or even displaying the gun in the commission or attempted commission of a crime may not constitute a proscribed use of the weapon. The court recognized that such acts were proscribed and merely remanded the cause for a determination of fact. Although the gun was on display, there was evidence from which it could have been found that the defendant's only intent was to protect himself should the victim attempt an unlawful entry of the defendant's home and that the display itself did not necessarily constitute a use upon the victim. ⁶

In ...