People v. Guerin

• Decision Date: 10 January 1972
• Docket Number: Cr. 18867
• Citation: 22 Cal.App.3d 775,99 Cal.Rptr. 573
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Henry GUERIN, Defendant and Appellant.

Page 573

99 Cal.Rptr. 573

22 Cal.App.3d 775

The PEOPLE, Plaintiff and Respondent, v. Joseph Henry GUERIN, Defendant and Appellant.

Cr. 18867.

Court of Appeal, Second District, Division 4, California.

Jan. 10, 1972.

Rehearing Denied Jan. 28, 1972.

Hearing Denied March 8, 1972.

John Guerin, Huntington Beach, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Donald J. Oeser, and William K. McCallister, Jr., Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant was charged with robbery of four victims, in violation of section 211 of the Penal Code; it was alleged that he was armed at the time of the offense. After a trial by jury, he was found guilty as charged; his motion for a new trial was denied; he was sentenced to state prison, the sentences on each charge to run concurrently. He has appealed; we modify the judgment and affirm it as modified.

I

Defendant contends that the trial court lacked jurisdiction because the preliminary examination was conducted in such a manner as to deny him a fair hearing. That contention amounts to a claim that he was not legally committed. (Jennings v. Superior Court (1967) 66 Cal.2d 867, 874, 59 Cal.Rptr. 440, 428 P.2d 304.) That identical contention was raised by defendant and was determined against him, expressly 'on the merits,' in Guerin v. Superior Court (1969) 269 Cal.App.2d 80 ¹ 75 Cal.Rptr. 923. It is not again available to him on this appeal.

II

It is not contended that a robbery did not take place as alleged; the issue before the trial court was that of identity of the robber.

Defendant contended in the trial court, and contends here, that his identification by photographs was conducted in such a manner as to be inherently unfair and suggestive. The trial court conducted an extensive hearing on that issue. We have reviewed the record of that hearing. We cannot say that the trial court's determination, adverse to defendant, was without substantial support in the evidence. Under those circumstances, the trial court finding is binding on us. (People v. Hawkins (1970) 7 Cal.App.3d 117, 86 Cal.Rptr. 428; People v. Neal (1969) 271 Cal.App.2d 826, 77 Cal.Rptr. 65.)

Defendant's other objections to the identification process have all been considered and rejected in prior decisions. We need not repeat here the reasoning involved. (Consult: People v. Lawrence (1971) 4 Cal.3d 273, 279--280, 93 Cal.Rptr. 204, 481 P.2d 212; People v. Baxter (1970) 7 Cal.App.3d 579, 585, 86 Cal.Rptr. 812; People v. Lyons (1970) 4 Cal.App.3d 662, 667, 84 Cal.Rptr. 535.)

III

Originally defendant was charged in count I only with the robbery of Harry Simon, and in counts, II, III, IV and V with kidnaping Simon and three other persons for the purpose of robbery. Those other persons were: Harry Reifel, the liquor department clerk, David Hassan, a box boy, and Vera Ward, a checker. Thereafter the kidnaping counts were dismissed and count I was amended to add the names of the persons formerly named as victims in the kidnaping counts as additional robbery victims. ² It also was charged that defendant was armed with a concealable deadly weapon, to wit, a revolver. The record shows that defense counsel was offered his election to have the amendment add three additional counts or to have a single count with three additional victims. He elected the form used. Under these circumstances, defendant is not now in a position to complain that the pleading was in an improper form.

However, at the close of the trial, the court gave to the jury several sets of verdict forms--two sets for each of the alleged victims. Separate but concurrent sentences were pronounced. Defendant now contends that that was error. We agree in part.

For many years, it was regarded as a settled rule that a defendant who had committed offenses against several victims during a single transaction could be convicted and punished separately for each such victim. (2 Witkin, California Crimes (1963) § 954, pp. 908--909.) In People v. Bauer (1969) 1 Cal.3d 368, 82 Cal.Rptr. 357, 461 P.2d 637, the Supreme Court had occasion to re-examine the rule. The pertinent language (pp. 377--378, 82 Cal.Rptr. pp. 362--363, 461 P.2d pp. 642--643) is as follows:

'A number of cases have upheld multiple punishment for a single criminal transaction where crimes of violence were committed against different persons. (In re Ford, 66 Cal.2d 183, 57 Cal.Rptr. 129, 424 P.2d 681 (kidnaping for purposes of robbery and robbery); In re Wright, 65 Cal.2d 650, 656, 56 Cal.Rptr. 110, 422 P.2d 998 (robbery and kidnaping); People v. Ridley, 63 Cal.2d 671, 678, 47 Cal.Rptr. 796, 408 P.2d 124 (robbery and assault); Neal v. State of California, Supra, 55 Cal.2d 11, 21, 9 Cal.Rptr. 607, 357 P.2d 839 (attempted murder of two victims); People v. Knowles, Supra 35 Cal.2d 175, 189, 217 P.2d 1 (two kidnapings); People v. Brannon, 70 Cal.App. 225, 235, 233 P. 88 (murder and assault with a deadly weapon).)

'Where, however, the offenses arising out of the same transaction are not crimes of violence but involve crimes against property interests of several persons, this court has recognized that only single punishment is permissible. Thus, this court has pointed out that the theft of several articles at the same time constitutes but one offense although such articles belong to several different owners. (People v. Smith, 26 Cal.2d 854, 859, 161 P.2d 941; cf. People v. Lyons, 50 Cal.2d 245, 275, 324 P.2d 556 (receiving stolen goods belonging to two owners).) This view has been followed '(i)n the vast majority of cases' where it has arisen or been discussed. (Annot. 28 A.L.R.2d 1182, 1184 et seq.) If the rule were otherwise a burglar who entered an empty house and took numerous articles belonging to one person could be punished for only one offense, but if some of the articles belonged to each of the other members of the family, the burglar could be given consecutive sentences for as many offenses as there are members of the family. The situation would be even more anomalous where stolen property was owned jointly or by a partnership.

'The crime of automobile theft is not a crime of violence but is a violation of property interests, and we are satisfied that the proscription against double punishment precludes punishment for this offense in the circumstances of the present case. People v. Churchill, 255 Cal.App.2d 448, 452, 63 Cal.Rptr. 312, which involved burglary and automobile theft is disapproved insofar as it is contrary to the views expressed herein.'

Unlike car theft, which was involved in Bauer, robbery is, by definition, a crime of violence. We can see nothing in the Bauer opinion, therefore, to change the longstanding doctrine about multiple victims.

In People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547, and in People v. Moore (1971) 20 Cal.App.3d 444, 97 Cal.Rptr. 601, it was held that, in a prosecution for drunk driving with resultant personal injury, in violation of section 23101 of the Vehicle Code, there was only a single offense--and therefore only a single sentence and penalty could be imposed--no matter how many persons were injured. The rationale of that holding was expressed in Lobaugh in the following words (18 Cal.App.3d at pp. 79--80, 95 Cal.Rptr. at pp. 549--550):

'We have concluded that a person who has violated section 23101 whether one, or several, persons be injured thereby, has committed but one offense. Unlike the usual 'multiple victim' case, here the fundamental concern of the state is not the outrage done the victims, but rather the prevention of 'drunken driving' and the punishment of those who so conduct themselves. It was said in People v. Chatham, 43 Cal.App.2d 298, 300, 110 P.2d 704 (referring to Vehicle Code section 501, predecessor to section 23101), '. . . it is not the receiving of the injury that concerns the state, but the Causing of such injuries which the state seeks to minimize.' The unlawful act denounced by the Vehicle Code is the 'mere act of driving a vehicle upon a public highway while intoxicated'; the act is either a misdemeanor (Veh.Code, § 23102, formerly § 502), or a felony (Veh.Code, § 23101, formerly § 501), depending on whether personal injuries result therefrom. (See People v. Thurston, 212 Cal.App.2d 713, 717, 28 Cal.Rptr. 254; In re Ryan, 61 Cal.App.2d 310, 313, 142 P.2d 769; People v. Levens, 28 Cal.App.2d 455, 459, 82 P.2d 698; People v. Freeman, 16 Cal.App.2d 101, 103, 60 P.2d 333.) The felony section (Veh.Code, § 23101, formerly § 501) simply 'graduate(s) the punishment according to the (more serious) consequences of the forbidden act. . . .' (Layport v. Rieder, 37 Cal.App.2d Supp. 742, 746, 94 P.2d 96, 98, disapproved on other grounds in Heald v. Friis-Hansen, 52 Cal.2d 834, 839, 345 P.2d 457.)'

The problem that confronts us in the case at bench arises from the fact that robbery is a compound crime, including the elements of both theft and of assault. (77 C.J.S. Robbery § 1, P. 447 (1952).) As a result, it has been classified by some authorities as a crime against the person, ³ other writers emphasize the property aspect of the crime, ⁴ while one authority, with stricter accuracy, classifies it separately as a 'compound larceny.' ⁵ It is grouped, in our Penal Code, in Title 8 of Part 1, as a crime against the person. It follows that we cannot say, as did the Lobaugh court above quoted, that the major purpose of the statute against robbery was to prevent the basic act, with the personal harm operating merely to aggravate the penalty. Clearly, the common law and our Legislature desired to deter not only theft but personal harm.

As to three of the alleged robbery victims we have no difficulty in reaching a conclusion. Reifel had control over his own cash register; the money taken from it was, under all the authorities, a robbery of him and properly was so charged. Miss Ward also presided over a separate cash register...