People v. Chandler

• Citation: 17 Cal.App.3d 798,95 Cal.Rptr. 146
• Decision Date: 21 May 1971
• Docket Number: Cr. 18754
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Keith CHANDLER, Defendant and Appellant.

Page 146

95 Cal.Rptr. 146

17 Cal.App.3d 798

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence Keith CHANDLER, Defendant and Appellant.

Cr. 18754.

Court of Appeal, Second District, Division 2, California.

May 21, 1971.

Raymond A. Garcia, Thousand Oaks, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joel S. Moskowitz, Deputy Atty. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Defendant was convicted in a jury trial of conspiracy to commit robbery, robbery in the first degree and burglary in the second degree.

Sentence on all three charges was to state prison, however, execution of the sentences on the conspiracy and burglary charges was stayed in order to avoid the prohibition of section 654 of the Penal Code against multiple sentencing. Defendant appeals from the judgment and from an order denying his motion for a new trial. The latter order is not separately appealable and the appeal therefrom is dismissed.

All three charges stem from the activities of defendant and three confederates, which activities culminated in the armed robbery of a small general store in Ventura County on January 29, 1970.

Defendant's claims of error are three in number. First, defendant urges that the trial court erred in permitting the prosecution to call defendant's juvenile accomplice as a witness knowing that the witness would invoke the privilege against self-incrimination. Secondly, defendant accuses the prosecutor of prejudicial misconduct in his closing argument to the jury. Lastly, defendant contends that the trial court failed to properly instruct the jury concerning evidence of additional uncharged crimes committed by defendant.

FACTS

On or about January 29, 1970, defendant in company with one Del Mulkey, Mike Mulkey, a juvenile and the son of Del, and Donna Whitfield left Santa Ana, California, and headed for Oregon. The four were traveling in a stationwagon driven by the senior Mulkey. There were several guns in the car including two hand guns.

The party stopped for gas in North Hollywood. During this stop defendant and the younger Mulkey entered the office of the service station where Mike Mulkey stole a loaded pistol from a drawer.

Arriving in the Ventura area about 6:30 p.m., the group stopped at a restaurant and while there discussed the proposed robbery of a bank in Bishop, California. They then proceeded in the stationwagon to a small general store about a mile and a half from Lake Casitas in Ventura County, circled the store three times, 'talked it over' and then defendant and Mike Mulkey, each armed with a hand gun, got out of the car.

The two entered the store and at gunpoint robbed the female proprietor of $265.00 in cash.

Subsequently, the stationwagon was demolished and abandoned near Ojai, and the party proceeded north in a Datsun camper which they had borrowed from friends in Ventura.

On arrival in Grant's Pass, Oregon, Donna Whitfield reported these incidents to the police and she subsequently testified for the prosecution at the defendant's trial. Her testimony was corroborated by the victim of the robbery who positively identified defendant and Mike Mulkey as the bandits.

Del Mulkey was arrested on February 15, 1970, in Santa Ana while driving the Datsun camper. A search of the camper produced five guns including the one which had been stolen in North Hollywood and which had been used in the robbery.

Del Mulkey was identified by the victim of the robbery as a former customer of another store which she had operated several years before.

Defendant offered no evidence to controvert these facts. Thus in seeking to establish error sufficient to warrant a reversal of the judgment, defendant has a difficult task in deed. (Cal.Const., art. VI, § 13.)

Defendant's first assignment of error is based upon the following sequence of events.

Mike Mulkey was processed through the juvenile court on the basis of a petition alleging his commission of the robbery. After admitting the allegations in the petition he was made a ward of the court and committed to the California Youth Authority. This occurred prior to defendant's trial.

In the juvenile proceedings Mike was represented by court-appointed counsel. That counsel had advised the district attorney that he would not permit any questioning of Mike by law enforcement agents.

However, after the commitment to the California Youth Authority and after time for appeal had expired and after counsel had filed his claim for compensation, an investigator from the district attorney's office questioned Mike about the robbery. At the time the juvenile was still in the county jail awaiting transportation to a state facility.

During this questioning the investigator specifically told Mike that he would not advise him of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694, in order to insure that any statement he made would Not be used against him. Mike fully confessed his part in the robbery and implicated the defendant.

Subsequently, during the trial of the defendant, Mike was brought into the court-room and identified by the victim. When the prosecution indicated its intention to call Mike as a witness, counsel for defendant objected, contending that Mike's constitutional rights had been violated and that the prosecution was guilty of unethical conduct in violating Mike's counsel's request not to question him.

The proceedings involving Mike were concluded and court-appointed counsel no longer represented him. Thus, the matter of his questioning was well outside the ambit of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

In any event defendant had no standing to complain of any possible violation of Mike's Fifth and Sixth Amendment rights. (People v. Varnum, 66 Cal.2d 808, 59 Cal.Rptr. 108, 427 P.2d 772; Clifton v. Superior Court, 7 Cal.App.3d 245, 86 Cal.Rptr. 612; People v. McFadden, 4 Cal.App.3d 672, 84 Cal.Rptr. 675.)

No litigant has the right to insist that a witness will, by asserting the privilege against self-incrimination, refuse to give relevant testimony. That privilege is purely personal to the witness. (People v. Barker, 232 Cal.App.2d 178, 42 Cal.Rptr. 651.)

Defense counsel also advised the court that he believed that Mike would refuse to testify if called.

The trial court quite properly refused to enjoin the prosecution from calling Mike to the witness stand. Neither the court nor the prosecution were obliged to accept counsel's prediction of Mike's behavior.

A witness who is not the defendant has no right to refuse to be sworn. (Evid. Code, §§ 911, 940.) ¹

In view of the fact that Mike had confessed his crime in both the juvenile proceedings and to the investigator, the prosecution was justified in expecting that he would repeat his story on the witness stand.

After Mike was sworn as a witness, he was asked if he recognized the victim of the crime when she identified him in court. He refused to answer. The judge then excused the jury and conducted a hearing to determine whether the privilege was properly claimed. Whether or not Mike could, at that juncture, assert the privilege against self-incrimination is debatable. However, the question is moot. He was granted immunity under section 1324 of the Penal Code and when he still refused to testify he was held in contempt of court.

Mike was a competent witness for the prosecution and it was not error, therefore, to call him to the stand whatever may have been the resulting consequences to the defendant. (People v. Plyler, 121 Cal. 160, 53 P. 553; People v. Leavitt, 127 Cal.App. 394, 15 P.2d 894; People v. Wheeler, 243 Cal.App.2d 340, 52 Cal.Rptr. 508.)

We find no error in the procedure which was followed.

Defendant's position is that the prosecution should not be permitted to force a witness to assert the privilege against self-incrimination in the presence of the jury. Inherent in this argument is that some form of pre-testimonial hearing must be conducted for the purpose of determining the witness' intention.

No such requirement is to be found in the Evidence Code. To the contrary Evidence Code section 913 clearly envisions that the privilege will be claimed in the presence of...