People v. Grigsby

• Decision Date: 21 August 1969
• Docket Number: Cr. 575
• Citation: 275 Cal.App.2d 767,80 Cal.Rptr. 294
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward GRIGSBY and Elizabeth Jane Sherman, Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 294

80 Cal.Rptr. 294

275 Cal.App.2d 767

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward GRIGSBY and Elizabeth Jane Sherman, Defendants and Appellants.

Cr. 575.

Court of Appeal, Fifth District, California.

Aug. 21, 1969.

Donald F. Manfredo, Fresno, under appointment by Court of Appeal, for appellant Grigsby.

Eugene L. Adams, Fresno, under appointment by Court of Appeal, for appellant Sherman.

Thomas C. Lynch, Atty. Gen., Donald J. Kremer and Peter J. DeMauro, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

GARGANO, Acting Presiding Justice.

On January 26, 1968, the district attorney of Fresno County filed an information charging appellants Edward Grigsby and Elizabeth Jane Sherman with armed robbery (count I), assault with a deadly weapon (count II), grand theft auto (count III) and attempted murder (count IV). On April 1, 1968, the day of the trial, the district attorney moved the superior court to amend count I of the information in order to allege that appellants intended to and did in fact inflict great bodily injury on the victim, Herman Williams, during the commission of the robbery charged in that count. The motion was granted by the court over appellants' objections. However, the court neglected to arraign appellants on the amended information, and the cause proceeded to jury trial without a new plea. At the conclusion of the trial the jury returned verdicts finding appellants guilty on counts I, II and IV as charged. As to count III, the jury found appellants guilty of the lesser included offense of joy riding. The judgments were entered on the jury's verdicts, and appellants have appealed. ¹

The facts, when viewed in the light most favorable to respondent, are substantially as follows: Herman Williams, who lived in Challenge, California, met Wilma Shell in a bar on Tulare Street on the evening of December 24, 1967, at about 11:30 p.m. Wilma introduced Williams to appellants Edward Grigsby and Elizabeth Sherman. The foursome then remained at the bar for approximately 30 minutes, drinking and socializing. Afterwards, they all left in Williams' car and drove to another bar.

Williams and his newly found companions were at the second bar for about 45 minutes when Wilma asked Williams to take appellants home. Williams agreed. He also agreed to let Wilma drive his car while he sat in the front seat on the passenger side. Appellants sat in the back seat. Then, Wilma drove the car toward the country.

When the group arrived in the country, Wilma suddenly put on the brakes and stopped the car. She threw her arms around Williams and removed his wallet. At about the same time Grigsby hit Williams on the head from behind. Elizabeth Sherman then attacked Williams with a knife, stabbing him at least five times about the arms and chest. In the meanwhile, Grigsby continued to beat Williams and told Elizabeth Sherman to '(k)ill him.' However, Williams managed to roll out of the car, got to his feet and ran to a nearby farm house. He collapsed on the porch, bleeding profusely. Later Williams was taken to the hospital where he was treated for five stab wounds, four in the chest within the proximity of the heart, and one through the muscle of the left forearm.

At appellants' trial Wilma Shell, who had pleaded guilty to armed robbery, testified for the prosecution. She stated that she and the appellants left the second bar with Williams in Williams' car and drove to the country. She admitted taking Williams' wallet and corroborated his version of the stabbing insofar as appellant Sherman was concerned. However, she said that appellant Grigsby did not know of the crime beforehand, did not hit Williams and did not aid or abet in the stabbing. She also testified that after Williams made good his escape she, Grigsby and Sherman left in his automobile, returned to town and separated.

APPELLANTS' JOINT CONTENTIONS

Appellants assert that the trial judge improperly permitted the district attorney to amend count I of the information on the day of the trial and then compounded his error by pemitting the cause to proceed to trial without giving appellants the opportunity to plead to the count as amended. However, we note that appellants' trial counsel did not object to the proposed amendment on the ground that appellants were misled and unprepared to meet the new issue. On the contrary, trial counsel told the court 'our preparation is basically the same,' and then objected solely on the ground that the evidence adduced at appellants' preliminary hearing did not support the amendment as required by Penal Code section 1009. We shall restrict our discussion accordingly.

It is of course true, as appellants contend, that no medical evidence was introduced at the preliminary hearing describing the nature or extent of the wounds received by Williams during the commission of the robbery. Nevertheless, Williams testified that Grigsby hit him in the temple shortly before the car came to a stop, and then Elizabeth Sherman stabbed him five times with a knife. He said that Grigsby continued to beat him during the stabbing and told Elizabeth Sherman to '(k)ill him.' He also testified that he received four stab wounds in the chest in the vicinity of his heart and one through the muscle of his right arm and that 'the only thing that saved my life, mind you, was I finally got a foot up where I could kick her, and I rolled out of the car.' Thus, from this testimony alone, there was reasonable or probable cause for the trial judge to believe that appellants Intended to and Did in fact inflict great bodily injury on their robbery victim (see People v. McGee, 31 Cal.2d 229, 187 P.2d 706; Pen.Code § 739). And, since the amendment did not change the gravamen of the offense charged in count I, it was properly allowed under Penal Code section 1009. ²

At this point we note parenthetically that the cases cited by the attorney general for the proposition that the wounds inflicted on Williams were sufficient to constitute 'great bodily injury' under section 213 are not necessarily controlling. They are all concerned with Penal Code section 245 which focuses on the 'force likely to produce great bodily injury,' not necessarily on the resulting injury. However, to invoke the minimum punishment prescribed by Penal Code section 213 for the crime of robbery, the People must not only allege and prove that the defendant Intended to inflict great bodily injury on the victim of the robbery but that he Actually did so. Thus, under this section it is the nature and extent of the injury, as well as its location and the force used, which are controlling. Nevertheless, Williams testified that he received four stab wounds in the vicinity of the heart and one through his right arm. He also testified that he collapsed on a farmer's front doorstep bleeding profusely and was hospitalized. Manifestly, the court could reasonably infer from this testimony that the wounds which Williams received could have resulted in serious disability and even death, and hence caused him 'great bodily injury' within the ambit of section 213.

Appellants' secondary contention that it was error for the trial judge to fail to arraign them on the information as amended has merit (Pen.Code, §§ 1009, 1017, 988). Nevertheless, the error does not require reversal. Appellants' trial counsel failed to object at the trial level, and the objection may not be raised for the first time on appeal (People v. Franklin 202 Cal.App.2d 528, 21 Cal.Rptr. 29; People v. Walker, 170 Cal.App.2d 159, 164, 338 P.2d 536). Moreover, where as here, there is no arraignment or plea but the case is tried as if a 'not guilty' plea has been entered, no miscarriage of justice results from the procedural error (People v. Sturdy, 235 Cal.App.2d 306, 45 Cal.Rptr. 203).

APPELLANT SHERMAN'S SEPARATE CONTENTIONS

Appellant Sherman contends she was the victim of an illegal lineup, because she was not informed of her right to have counsel present. She also alleges she was the only redhead in the lineup, and hence it was unnecessarily suggestive and conducive to mistaken identity.

It is now firmly settled that if a defendant is not informed of his right to have counsel present at a lineup, an in-court identification by a witness who also identified him at the lineup is impermissible unless the People establish by 'clear and convincing evidence' that the in-court identification was not influenced by the lineup United States v. Wade, 388 U.S. 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178. It is also firmly settled that if a lineup is unduly suggestive it is tainted, and '(t)o overcome the effect of the taint, the People must * * * show by clear and convincing proof that the in-court identifications were based on observations of the accused at the scene of the robbery.' (People v. Caruso, 68 Cal.2d 183, 189, 65 Cal.Rptr. 336, 341, 436 P.2d 336, 341.) However, even if we should assume that appellant was not advised of her right to have counsel present at the lineup, or that it was unduly suggestive, we need not reverse the judgment, because the allegedly illegal lineup did not taint the in-court identification. In short, it is clear beyond a reasonable doubt that Williams' in-court identification of appellant was based on his observations of appellant before and at the scene of the crime and was not influenced or induced by anything that may have occurred at or during the lineup. ³

First, Williams met appellant Wilma Shell and Edward Grigsby at a bar where they drank and socialized together for at least 30 minutes. Then he drove the trio to a second bar, where they remained together for about 45 minutes. In addition, Williams was with the robbers while they drove to the country. Thus, unlike People v. Caruso, Supra, this is not a case in which the victim of the robbery had but a fleeting glance at the robber under...