People v. Douglas

• Decision Date: 27 June 1995
• Docket Number: No. B081386,B081386
• Citation: 36 Cal.App.4th 1681,43 Cal.Rptr.2d 129
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5824, 95 Daily Journal D.A.R. 9864 The PEOPLE, Plaintiff and Respondent, v. Terry L. DOUGLAS, Defendant and Appellant.

Page 129

43 Cal.Rptr.2d 129

36 Cal.App.4th 1681, 95 Cal. Daily Op. Serv. 5824,

95 Daily Journal D.A.R. 9864

The PEOPLE, Plaintiff and Respondent, v. Terry L. DOUGLAS, Defendant and Appellant.

No. B081386.

Court of Appeal, Second District, Division 3, California.

June 27, 1995.

[36 Cal.App.4th 1683] Gregory Marshall, under appointment by the Court of Appeal, Ramona, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Kenneth C. Byrne, Supervising Deputy Atty. Gen., and Emilio E. Varanini, IV, Deputy Atty. Gen., for plaintiff and respondent.

KLEIN, Presiding Justice.

Defendant and appellant Terry L. Douglas appeals from the judgment entered following his conviction by jury of six counts of second-degree robbery with the personal use of a firearm (counts 1, 4-8--Pen.Code §§ 211, 12022.5, subd. (a)) and two counts of attempted second-degree robbery with the personal use of a firearm (counts 3 & 9--Pen.Code, §§ 664/211, 12022.5, subd. (a)), and the finding by the trial court he had suffered a prior serious felony conviction (Pen.Code, § 667, subd. (a)) and had served a prison term with the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to the five-year upper term as to count 5 plus the five-year upper term for the use enhancement with one-year consecutive terms for each of the remaining robberies and eight-month consecutive terms for both of the attempted second-degree robberies plus a one-year, four-month term for each of the corresponding use enhancements together with five years for the prior serious felony conviction, for a total term of thirty years, eight months.

FACTUAL AND PROCEDURAL BACKGROUND

At about 11:30 p.m. on August 14, 1993, Gertrude Traver (count 1) and her daughter were sitting in the 'Til Two Club in Long Beach when a black man in dark clothes, later identified as Douglas, entered the bar, pointed a gun at the face of the bartender, Jeri Lujan (count 5), and said, "This is a holdup. Give me your money, bitch." He then waived the gun around and ordered the patrons to put their "hands up" and "heads down." After walking behind the bar, Douglas put the gun to the side of Lujan's head and demanded the money. She opened the register and as Douglas took the money out, he said, "Bitch, give me some money. I know you have some more money." She replied she did not have access to any more, and he replied, "I know you're lying, bitch. Give me some money." Lujan kicked the cupboard and said, "Down there." At the time, she had her face covered with her hands to protect herself from Douglas's gun which was at the side of her head so she did not see whether Douglas took the money from the cupboard. Douglas then grabbed Traver's purse and some money Traver's husband had left on the bar.

Traver's husband, George, (count 3, attempt), and William Lujan were at the pool table about 30 feet away from the bar when Douglas came in brandishing his gun. From where he was standing, George could see the bar and a man behind it, about five feet, six inches to five feet, seven inches tall, who was dressed in dark clothes and armed with a gun. William Lujan waved at him to get down and he complied. After the incident was over, he could not find the $11 that he had left on the bar. He said he had stayed at the pool table and did not go over to protect his property because the man had a gun.

Another patron, Richard Stamper (count 4), was sitting at the bar that night when he saw Douglas enter the club displaying a gun. Douglas ordered the people at the bar to "Get your wallets. Put them on the bar." Stamper put his wallet on the bar and laid his head down. He saw Douglas start grabbing money out of the cash register and the next thing he knew, someone took his wallet. Somebody else came by later and asked him for his wallet and he replied someone had grabbed it. Another man yelled, "Hurry up. we're been here too long" and Douglas left.

The police later returned his wallet to his friend, Richard Villescas, who in turn returned it to him the next day at work.

Pierre Gigure (count 6) was also sitting at the bar when Douglas entered with the gun. After complying with Douglas's order to put his face down, he saw Douglas go up to the bartender and force her to open up the cash register. The $7 he had on the bar was taken.

Richard Villescas (count 7) was sitting with Stamper at the bar. He also saw the gun, heard Douglas say it was a "holdup" and observed Douglas take money from the register, as well as money and various purses from the bar. Douglas took his wallet as well as two $20 bills he had left on the top of the bar. Later the police returned his wallet to him.

Orie DeLoch (count 8), who was sitting at the bar on the night of the incident, also followed Douglas's orders, including giving him his wallet. It was returned to him about a month later.

Randy Krininger (count 9, attempt) was about five feet from the door when Douglas entered. He had no wallet and no money and Douglas passed by him.

John Leonard was in the bar when Douglas entered but was able to exit out the rear during the robberies. He called 911 and stayed at the telephone booth until the police arrived. Leonard gave the police a description of the car he saw leave the bar and later, they drove him to a place a few blocks away where he identified Douglas in an in-field showup.

Sometime after 11:30 p.m. on the night of the incident, Long Beach police officers Jeffrey Cooper and William McDonald were advised to be on the lookout for a brown Cadillac Seville. Shortly thereafter, they saw such a vehicle with either three or four occupants inside. The officers activated their lights in an attempt to pull the vehicle over and the car sped up. The officers pursued the vehicle through numerous stop signs and at speeds up to 60 miles per hour. During the chase, some items were tossed out of the car. As the car approached 25th Street, the doors opened and three occupants, including Douglas ran away.

Both Cooper and McDonald followed Douglas, who was carrying a gun. They lost him after he jumped a fence and went into someone's backyard. The officers contained the area around the backyard, and Long Beach police officer James Jones from the K-9 Division took his police dog into the contained area. The dog alerted the officer to Douglas, who was hiding under a tarp on the roof of the garage. Three of the victims' wallets and two of the victims' purses were found in the Cadillac. During the booking search, $469 were retrieved from Douglas's pockets and pants leg as well as two .9-millimeter rounds from his sock.

Mark Galloway saw the car chase as it went by his house and also saw the objects being thrown from the Cadillac. Later, he retrieved a gun and some .9-millimeter bullets which he gave to the police.

CONTENTIONS

Douglas contends (1) the trial court erred by denying his motion for a continuance which was made in conjunction with a motion for self-representation; (2) the trial court erred by denying defense counsel's objections to the prosecutor's use of preemptory challenges to discharge two prospective Black jurors; (3) the evidence was insufficient to prove the attempted robbery that was charged and found in count 3; and (4) the "aggravated" firearm use enhancement term must be reduced to a "middle" term.

DISCUSSION

1. The trial court did not improperly deny Douglas's motion for continuance.

Douglas's contention the court erred by denying his motion for a continuance which was made in conjunction with his motion for self-representation is without merit. The record shows that at his arraignment on September 14, 1993, a hearing was held pursuant to [People v. ] Marsden [2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44] during which Douglas complained his attorney was misrepresenting him because "she got in an argument with [his] mother," she should have On the day his trial was to begin, defense counsel stated her client felt he "personally" was not ready to go to trial at this time and wished to address the court. Douglas stated he had not prepared himself to go to trial because he didn't know he was going to trial that day and had believed he was going to a "pretrial." When advised he had been informed of his trial date at his arraignment and that this was the last week to try his case, Douglas stated he would like to "waive time" to "prepare" himself for trial. When asked what he needed to do, he replied he "would like to go pro per" but was not ready to try his case that afternoon. The following colloquy then occurred:

given him transcripts of his case, and he wanted a photo lineup. After defense counsel replied the present case did not involve an identification issue but was an intoxication issue, the trial court denied Douglas's request to dismiss his attorney, and at his arraignment, he was advised his trial date would be November 2, 1993. His case was continued several times thereafter until November 8, and at no time did Douglas present a Faretta v. California (1975) 422 U.S. 806, 832-836, 95 S.Ct. 2525, 2539-2542 [45 L.Ed.2d 562] (Faretta) request to proceed in propria persona.

"The Court: If I grant you pro per status, I won't give you a continuance. You will have to try the case yourself without the assistance of an attorney, because you've waited to this stage, and it's too late to go for a continuance to represent yourself, if you want to ..., and I find that you're competent ..., and you do have that right, ... but I won't give you time to get ready.

"The Defendant: What if I go pro per? [A]in't no use going pro per if you ain't got no access to the law library.

"The Court: The Sheriff's Department has provisions for the law library....

"I have a feeling, though, that you're asking to go pro per to get a continuance in the case rather than really wanting to represent yourself.

"[A]gain, if you are...