People v. Green

• Decision Date: 17 July 1979
• Docket Number: 17209,Cr. 17021
• Citation: 157 Cal.Rptr. 520,95 Cal.App.3d 991
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Victor GREEN and Terrell Dean, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 520

157 Cal.Rptr. 520

95 Cal.App.3d 991

PEOPLE of the State of California, Plaintiff and Respondent, v. Victor GREEN and Terrell Dean, Defendants and Appellants.

Cr. 17021, 17209.

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

July 17, 1979.

George Deukmejian, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

William Flenniken, Jr., San Francisco, for defendant and appellant Green.

Robert Hale McConnell, San Francisco, for defendant and appellant Dean.

TAYLOR, Presiding Justice.

Codefendants appeal from separate judgments ¹ of conviction entered on identical jury verdicts finding each guilty of attempted murder in the first degree (Pen.Code, §§ 664 and 187); kidnapping to commit robbery (Pen.Code, § 209) with bodily harm; and robbery in the first degree (Pen.Code, § 211) with intentional infliction of bodily injury. Each contends that the evidence is insufficient to support the verdict as to the robbery count, and that his motion for a separate trial should have been granted. Dean contends that: 1) the court erred in ordering his appearance at the preliminary hearing without adequately protecting his due process rights; 2) there was insufficient evidence to hold him for a preliminary examination; 3) his Penal Code section 995 motion should have been granted; 4) the court erred by denying his motions to exclude his trial identification by the victim; 5) the court failed to exclude codefendant Green's out-of-court statement; 6) he had a right to prevent the testimony of codefendant Green as the jury was instructed on aiding and abetting; and 7) his sentence for kidnapping and attempted murder was in violation of Penal Code section 654. Green also contends that he is eligible for parole and that the prohibition against parole must be stricken from the judgment. For the reasons set forth below, we have concluded that each judgment must be modified to stay the imposition of sentence for the attempted murder and robbery, and as so modified, affirmed.

The record reveals the following pertinent facts: On the evening of November 3, 1976, shortly after 6 p.m., Mrs. Virginia Emery drove her 1976 Volkswagen bus to the juvenile hall facility in San Leandro to take some medication to her son. She parked her vehicle in the parking lot adjacent to the front entrance of the building, locked it, and returned about 15 minutes later with her keys in hand.

As Mrs. Emery walked around the rear of the bus, and just before she reached the driver's door, she was grabbed from behind by her hair. In the darkness, she was not able immediately to see who had grabbed her. A knife was stuck in the side of her throat, and she was addressed as a "honkie bitch" and instructed to open the driver's door. After she had unlocked and opened the driver's door, the inside light of the vehicle went on, and she was able to take a close look at her assailant. ² He got in first, pulled her into the driver's seat by the hair, and sat in the passenger seat. He continued to hold onto her hair. Then, a second man ³ climbed in through the driver's door, over Mrs. Emery, and crouched in the aisle behind the two front bucket seats.

Green ordered Mrs. Emery to start the vehicle and to drive them to 98th Avenue in Oakland. She was nervous, and stalled the vehicle, but then backed up and drove down the driveway of the juvenile hall facility. Meanwhile, Dean asked Green to give him Mrs. Emery's purse which she had placed beside her on the front floorboard. Green told Dean to wait for a while before taking the purse and advised Mrs. Emery to not "do anything stupid." Dean several times repeated that he wanted the purse; Green repeatedly instructed him to "cool it."

When Mrs. Emery arrived at the stop sign at the end of the driveway, she saw a third man and believed that he might be associated with her assailants. When the vehicle came to a stop, she heard the sliding door of the van open, but was not able to turn around, as Green still held her by her hair.

Green ordered Mrs. Emery to drive down Fairmont Boulevard, turn right, enter the MacArthur Freeway and head west toward Oakland. She drove in the right-hand lane on the freeway at approximately 50 miles per hour. Dean continued to ask for her purse and Green repeatedly indicated "later." After they had driven on the freeway for some distance, Dean said: "Let's get rid of her"; Green did not reply. Mrs. Emery was terrified and told them that they could have the van and her purse as long as they did not kill her.

While she was driving, Mrs. Emery was aware that the lock and latch on the driver's door were moving as Dean manipulated them from behind her. As soon as they were open, Dean moved to the driver's seat, and pushed her out the door while Green let go of her hair and pushed her with his foot. She managed to grasp the door handle and steering wheel, but let go of the latter when the two men began smashing her fingers. Then her legs hit the ground and flipped her over and eventually she was bounced free of the vehicle and by her momentum rolled along the freeway in the slow lane. She escaped being hit by oncoming vehicles and came to a stop in the right-hand shoulder. Her purse, which contained $500 in cash, was left in the vehicle.

At that time, Edmond Mikula was also driving in the slow westbound lane of the MacArthur Freeway. He saw a human body being ejected from the left side of the vehicle and managed to drive around it and avoid hitting it. He followed the Volkswagen bus and first saw one person and then a second jump from the right side of the bus onto the shoulder of the freeway. He watched the bus slow down, veer off the road, stop and tip over about 250 feet from Mrs. Emery. Mikula pulled up behind it and, after ascertaining that no one was inside, stopped another motorist to summon the police and an ambulance, and walked back to Mrs. Emery. The distance between the juvenile facility parking lot and the location where the Volkswagen bus was overturned was 1.7 miles.

Officer Glen Ward of the California Highway Patrol responded to the call and immediately recognized Mrs. Emery as he customarily took his uniforms to her cleaning establishment. He spoke to her briefly and then retrieved her purse from the bus. At this time, Ward did not know that any crimes had been committed. When he returned, he discovered that Mrs. Emery was being attended by a physician. ⁴ Ward remained at the scene for an hour and a half until a tow truck arrived to take the Volkswagen bus to the Alameda County Sheriff's substation. Ward then drove directly to Fairmont Hospital and turned over custody of Mrs. Emery's purse.

Schorr, the criminalist who was summoned immediately, and his colleague, Stam, spent five hours lifting 34 latent fingerprints from the vehicle. The following day, Barnum, a fingerprint comparison expert, positively identified as Green's one of the latent fingerprints that had been obtained from the front passenger window of Mrs. Emery's Volkswagen bus.

On the evening of November 3, 1976, Probation Officer Lawler was working in the kitchen of the juvenile hall complex on Fairmont Drive in San Leandro. Between 5:15 p.m. and 5:30 p.m., Lawler observed two black males on the patio near the kitchen doors, a place "off limits" to the public. When one of the two men stuck his head through the door, Lawler told him to leave and return to the administration building. From prior contacts, Lawler recognized this person as Green, but did not recognize the second man. Green and the other man left the area and walked in the direction of the administration building, located about a 10-minute walk from the kitchen.

Between 5:15 p.m. and 5:30 p.m. on the evening of November 3, 1976, Deputy Probation Officer Dunn was on duty on the first floor of one of the dormitories of the juvenile hall facility in San Leandro. He looked out the window and saw two young men, subsequently identified as Green and Dean, walk in the direction of the dining hall; several minutes later the pair returned and entered the dormitory. After one of the men identified himself as "Antone Williams" and engaged Dunn in conversation for a few minutes, both left the dormitory and proceeded in a northwest direction towards the exit.

Several days after the incident, sheriff's officers interviewed Dunn and showed him various photographs. At that time, Dunn positively identified Green as the man who had identified himself on November 3 as "Antone Williams." At trial, Dunn indicated that he was "absolutely certain" that Dean was the person who had been with Green that evening.

On November 13, 1976, Officer Scott and three other officers went to 1105 66th Avenue in Oakland to serve an arrest warrant on Green. Green was hiding in the apartment's attic crawl space and was taken into custody immediately. On the morning of November 23, 1976, Detective Tellardin of the Alameda County Sheriff's Department and three other officers went to apartment H at 1537 8th Avenue in Oakland to serve an arrest warrant on Dean. When Tellardin knocked, a woman answered and opened the door. Tellardin identified himself and told her that he was looking for Dean. The woman left and several minutes later, a black male appeared at the door. After a brief conversation, the officers were allowed to enter the back bedroom from which they had heard some unusual noises. Dean was hidden inside the closet and after being ordered out said: "OK, man, you got me."

Dean was then taken to the sheriff's substation, advised of his Miranda rights, and made a statement admitting his participation in the crimes. He admitted that he got into the Volkswagen van with the intent of stealing Mrs. Emery's purse. His statement was edited to excise all references to Green, and as so...