People v. Diaz

• Citation: 276 Cal.App.2d 547,81 Cal.Rptr. 16
• Decision Date: 29 September 1969
• Docket Number: Cr. 548
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. John DIAZ etc., Defendant and Appellant.

Page 16

81 Cal.Rptr. 16

276 Cal.App.2d 547

PEOPLE of the State of California, Plaintiff and Respondent, v. John DIAZ etc., Defendant and Appellant.

Cr. 548.

Court of Appeal, Fifth District, California.

Sept. 29, 1969.

As Modified on Denial of Rehearing Oct. 27, 1969.

Hearing Denied Nov. 28, 1969.

[276 Cal.App.2d 548] Rudy L. Savala, Fresno, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Edward A. Hinz, Jr. and A. Wells Petersen, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

DAVID, ^* Associate Justice pro tem.

John Diaz and Daniel Arenas appealed from their judgments of conviction, each having been found guilty after a jury trial on two counts of armed robbery, and on six counts of kidnapping for the purpose of robbery. (Pen.Code §§ 211a, 969c, 3024 and 209.) The appeal of Arenas has been dismissed.

The trial court in its abstract of judgment found that Diaz was armed with a deadly weapon at the time of commission of each of the robberies within the meaning of Penal Code sections 969c and 3024. The jury found, 'We find the charge of being armed with a deadly weapon, to wit, a gun, in Count Seven of the information, to be true,' after finding him guilty of armed robbery under section 211a of the Penal Code on March 3, 1967, and made similar findings in regard to the robbery on April 22, 1967.

Throughout these proceedings the defendant, John Diaz, has been known as Sam Paul Redbear.

The two robberies occurred at the J. C. Penney Company stores, one in Selma on March 3, 1967, and the other in Sanger on April 22, 1967. In each instance, the appellant purported to make a purchase after which he and Arenas at gunpoint forced store attache § to deliver money to them from the cash register and safe, and at gunpoint herded them to a restroom or lounge where they were bound with string and scarves, some being forced to lie on the floor.

Diaz first contends that he was denied due process of law by being tried jointly with his codefendant Arenas. This contention cannot be sustained. Diaz and Arenas were joint actors in the robberies and kidnappings, and were jointly charged therewith. Pursuant to Penal Code section 1098, such codefendants are compelled to stand trial together, in the absence of an order of the court otherwise. Thus, the order of the trial court consolidating the cases for trial was superfluous. There was no motion to sever the trials. Even if the opposition to granting the order for consolidation were to be considered to be a motion for severance of the causes, no abuse of discretion was shown. (People v. Lopez, 60 Cal.2d 223, 253, 32 Cal.Rptr. 424, 384 P.2d 16.) Joint trials are eminently proper where, as here, the underlying charges depend upon mutual action, common facts or common evidence. (People v. Alvarado, 255 Cal.App.2d 285, 288--289, 62 Cal.Rptr. 891.)

This is not a situation where the consolidated trial related to separate and unrelated offenses (cf. People v. Chambers, 231 Cal.App.2d 23, 41 Cal.Rptr. 551) nor a situation embracing such problems of constitutional dimension as were involved in People v. Aranda, 63 Cal.2d 518, 530--531, 47 Cal.Rptr. 353, 407 P.2d 265.

The testimony Diaz alluded to did not concern their joint participation in the holdups, but consisted of the admissions by Arenas of his prior felony convictions before the jury. Allegedly, when Arenas admitted what a bad man he was, this influenced the jury against Diaz, on the principle that 'birds of a feather flock together.' But certified copies of the records of Arenas' convictions were displayed to the jury, without any objection on the part of counsel for Diaz. The direct evidence of the individual commission by Diaz of each of the felonies charged against him renders fantastic any claim that his guilt arose only because the blackness of Arenas rubbed off on him. If they were 'birds of a feather,' it was indeed because they 'flocked together' in the holdups in question.

When evidence was presented that, after arrest, Arenas 'flew the coop,' the court carefully admonished the jury that this escape had nothing to do with the guilt or innocence of defendant Diaz, and was only to be considered in relation to the charges against Arenas, that any evidence admitted against one defendant but denied admission against the other could not be considered against that other (CALJIC No. 39 Rev.). Under the circumstances here, it is manifest that such instructions cured any error claimed to exist by failure to separate the trials. (People v. Smith, 185 Cal.App.2d 638, 644, 8 Cal.Rptr. 581.)

Finally, Diaz contends that a new trial must be ordered on the ground that he was subjected to scrutiny and identification at two lineups at which he concededly was not represented by counsel, relying upon United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. In that decision, the United States Supreme Court held that a defendant's right to presence of counsel in a criminal case extended to all critical proceedings leading to trial, of which a police lineup is one. The object of this judicial extension of the constitutional right to counsel to the police lineup is to guard against improper 'suggestive' influences that might materially affect the reliability of the identification made by the witnesses at this critical stage of the criminal proceedings. A defendant's lawyer is needed, not necessarily to give legal advice but to observe; to be able to reconstruct at the time of trial any unfairness that occurred at the lineup, so that the accused may not be deprived of his 'only opportunity meaningfully to attack the credibility of the witness' courtroom identification' (United States v. Wade, Supra, p. 232, 87 S.Ct. p. 1935.).

Thus, both Diaz and his counsel should have been notified of any impending lineup. Counsel's presence was a requisite to valid conduct of any such lineup, unless defendant made an intelligent waiver of counsel. (United States v. Wade, Supra, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149). Otherwise, in-court identification of the witnesses who identified the accused at the lineup, unrepresented by his counsel, is subject to exclusion. However, such incourt evidence is not to be excluded without giving the People 'the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.' (United States v. Wade, Supra, p. 240, 87 S.Ct. p. 1939.) Or, instead, an identification must be made by means sufficiently distinguishable to be purged of the primary 'taint.'

Near the end of this trial, outside of the presence of the jury, the court was presented a transcript of certain statements made by Diaz or Sam Paul Redbear on July 17, 1967, at the county jail. It was stipulated that if a qualified reporter, Earl Christiansen, were present he would testify that the questions and answers given in the transcript were the questions and answers given at the time they were taken down by him. The transcribed statements are as follows:

'MR. BAXTER: Q. Sam, this is--you know Sergeant Conway from the Sheriff's Office?

'A. Yes.

'Q. This is Mr. Christiansen. He is a court reporter and he is taking down everything that is said. And my name is Mr. Baxter, with the District Attorney's Office.

'A. Yes.

'Q. You have already been advised of your rights, is that correct?

'A. Yes.

'Q. Just to review them again, you have a right to remain silent and make no statement or answer any questions. Anything you say may be used against you in a court of law. You also have a right to have an attorney present now and during any questioning, interrogation or other proceedings. If you cannot afford to hire an attorney, one will be appointed to represent you before you are questioned, if you wish. Do you understand the rights I have just read?

'A. Yes.

'Q. Understanding these rights, do you consent to talk to us now?

'A. Yes, I would like to have an attorney.

'Q. You would like to have an attorney?

'A. Yes.

'Q. O.K. That is as far as any questioning or anything like that is concerned, is that correct?

'(Witness nods head.)

'Q. Sam, what we would like to do is have a lineup. You have a right to have an attorney present during that lineup. If you don't have the funds to hire an attorney to be at the lineup, one will be appointed for you by the Court. Do you waive the right to have an attorney present at the lineup?

'A. Yes.

'Q. In other words, you're willing to go ahead and have a lineup without having an attorney there, is that correct?

'A. Don't make much difference. I would like--or either in court.

'Q. I don't think I understand your answer. But do you consent to participate in the lineup without an attorney there?

'A. Well, you was going to pick me out awhile ago, wasn't you? I mean that's--that's the way I understand it, that you would pick me one out for the lineup--or I mean--well, O.K. Tomorrow to court.

'Q. Well, let's put it this way, Sam. As far as your case is concerned, if a criminal complaint is filed against you, when you appear in court the Judge will appoint an attorney for you, if you don't have the funds to hire one. Now this takes place later, but what we want to do now is hold a lineup and I want to again tell you that at this lineup you have a right to have an attorney, and if you don't have the funds to hire an attorney, one will be appointed for you right now. Do you understand your right? Do you waive those rights?

'A. Yes.

'Q. In other words, you do consent to participate in the lineup now and you waive your right to have an attorney?

'A. Yes.

'Q. Is that correct?

'A. Yes.

'Q. Now as to the lineup, that was already held, do you also waive your attorney as far as that lineup is concerned?

'A. Yes.

'Q. Do you understand that you could have one free of charge, one would be appointed for you, is that right?

'A. Yes.

'MR. CONWAY: Q. Sam, you know what the lineup is, that is...