People v. Hall

• Decision Date: 08 September 1980
• Docket Number: Cr. 21070
• Citation: 167 Cal.Rptr. 844,616 P.2d 826,28 Cal.3d 143
• Court: California Supreme Court
• Parties: , 616 P.2d 826 The PEOPLE, Plaintiff and Respondent, v. Robert Edward HALL et al., Defendants and Appellants.

Page 844

167 Cal.Rptr. 844

28 Cal.3d 143, 616 P.2d 826

The PEOPLE, Plaintiff and Respondent, v. Robert Edward HALL et al., Defendants and Appellants.

Cr. 21070.

Supreme Court of California, In Bank.

Sept. 8, 1980.

Rehearing Denied October 8, 1980.

James Kyle Gee, Oakland, under appointment by the Supreme Court, for defendants and appellants.

Quinn Denvir, State Public Defender, and William Wesley Patton, Deputy State Public Defender, as Amici Curiae on behalf of defendant and appellant Hall.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler and Robert H. Philibosian, Chief Asst. Attys. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Eugene W. Kaster and John H. Sugiyama, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

This court must decide whether the trial court's refusal to accept a criminal defendant's admission of a prior felony conviction was reversible error. A separate issue concerns the failure of a codefendant's attorney to move for severance of his client's trial.

I

Appellants, Robert Edward Hall and Stanley Edward Nichols, were charged by information with the joint commission of a robbery (Pen.Code, § 211). ¹ Two additional robbery counts and three counts of ex-felon in possession of a concealable firearm were also filed against Hall (§ 12021). Both appellants were alleged to have used a firearm (§ 12022.5). They were jointly tried and convicted on all counts.

Two of the robbery charges involved a Jack-in-the-Box restaurant on San Pablo Avenue in Richmond. On August 8, 1977, two men entered that restaurant and conversed briefly with another customer, David Worley. One of the two men approached the counter and placed an order with Sharon Lee. When the order was brought to him, the man produced a gun. He demanded and received all the money from the cash register. The robber and his companion fled. Lee and Worley described the robber to the police as black, approximately six feet tall, wearing a black coat and black pants. Worley stated the man wore sandals and a straw hat but Lee indicated he wore no hat at all and that his hair was cut close to his head.

On August 10, 1977, a six-foot-tall black man, wearing a black shirt and a white straw hat with a black hat band, entered Omo's One Hour Martinizing on San Pablo Avenue to pick up some laundry. When Earl Anderson, the clerk on duty, went to look for the laundry, the man came up behind him and placed a gun at his side. After demanding and receiving money from the cash register, the robber directed Anderson, Anderson's wife Sandra, and Rosemary Klarnet to lie down. They complied and the robber fled through a side door into an adjoining parking lot.

At about the same time, Officer James Breuner parked his car in the lot next to Omo's and noticed two black men. One was wearing a tan shirt and light-colored pants and leaning against a light brown car. The other man was coming out of the side door of Omo's, wearing a black shirt and straw hat. Officer Breuner entered Omo's and learned from Anderson that the store had just been robbed by "two guys." The officer ran to the parking lot but the two men he had seen were gone. Meanwhile, Anderson saw a man he believed to be the robber wearing a straw hat and riding in the passenger seat of a gray Ford Falcon driven by a white blonde woman. ²

Half an hour later and approximately a five-minute drive from Omo's, a black man, wearing dark clothing and a white straw hat, entered the Jack-in-the-Box on San Pablo. Sharon Lee, believing him to be the same man who had robbed her two days earlier, went to the back of the store with coemployee Loretta Young. Assistant Manager Steve Schlussel took Lee's place waiting on customers and ignored the fact that Young was calling to him. Upon receiving his order from Schlussel, the man displayed a gun and demanded money from the cash register.

A second man, wearing blue pants, a jacket and a hat ran to the back of the store and pointed a gun at Young and Lee. Five minutes later this man left through a side door while the robber went out the front door with the money.

Identification was the central issue at the trial. One of Hall's fingerprints was taken from a bottle found in a dumpster in a parking lot across the street from the restaurant on August 8th, the day of the first Jack-in-the-Box robbery. ³ Worley, the customer who was present during that robbery, could not identify Hall and Nichols and failed to identify the sandals worn by Hall when he was arrested. Lee identified Hall as the person who robbed her on the 8th and again on the 10th. She identified Nichols as the accomplice on the 10th but stated that he was not present on the 8th. Anderson's wife did not testify, and Schlussel could not identify appellants as the robbers of Jack-in-the-Box on August 10th. However, Young identified both Hall and Nichols as having committed that robbery. Anderson and Klarnet positively identified Hall as the robber of Omo's.

Nichols was not in any of several pretrial lineups; Hall was in the third. Sharon Lee did not choose anyone from the first two lineups, but identified Hall in the third. Officer Abramson testified that Lee told him after the second lineup that a man named Torrence looked like the robber but that she wasn't positive. At trial, Lee testified that she didn't recall that particular conversation with the officer.

Lee had also seen a photographic display which included Nichols and Torrence but not Hall. Lee said that Torrence looked very much like the person who had robbed her on both occasions but that she did not believe it was he. She failed to select Nichols' picture.

Officer Dick Tak testified that immediately following the August 10th robbery, Loretta Young was not at all certain of the principal robber's description. She said that she would not be able to identify him and failed to choose anyone during the lineups. After the third lineup, she did not return her identification card until she overheard Officer Oliver inquire about it with some other officers. At that point, she volunteered that she had it and turned it over to him in blank. She said she was not sure whether the robber was in the lineup, but after it was over she identified Hall.

Before the lineups, Omo's employees had seen a photographic display with Torrence and Nichols but not Hall. Rosemary Klarnet and Sandra Anderson stated that Torrence looked like the robber, and Mrs. Anderson thought that a person named Alexander looked like the robber. Earl Anderson did not make any identifications from the photographic display or from the first two lineups. However, he identified Hall at the third lineup. Sandra Anderson was 80 percent sure at the time of the second lineup that Torrence was the robber but she changed her mind the next day because he was too small. No evidence was introduced concerning her reaction to the third lineup.

Klarnet picked Torrence out of the second lineup, stating he looked like the robber but that it was not he. Because her view was blocked by an officer at the third lineup, Klarnet initially marked her identification card with a question mark next to the figure which corresponded to appellant Hall's position. Later, when she was more certain of her identification she was unable to change the mark on her card because her pen ran out of ink. The officer gave her a pen and she wrote that explanation on the card at the officer's direction.

At the trial, Hall did not testify. Ed Randolph, who had known him for 10 to 15 years, testified that he had hired Hall to take some trash from an Oakland bar that Randolph managed. Hall arrived at the bar on August 10th around noon and stayed until 3 or 3:30 p. m. when the bar's owner came to pay Hall for his work.

Nichols also presented an alibi defense. He, his wife, and his sisters-in-law Mackay and Bradley testified. According to these witnesses, Nichols was at home all morning on August 10th after he completed his night shift as an aircraft mechanic for World Airways. Three sisters-in-law arrived shortly after 11 a. m. and left shortly after noon. When Bradley picked up her baby about 12:30 p. m., Nichols was asleep upstairs. Mrs. Nichols spent the rest of the afternoon sewing. Nichols woke up between 4 and 5 p. m. and looked at the garment Mrs. Nichols was sewing for a wedding the next Saturday. A receipt introduced into evidence showed that Mrs. Nichols took the garment to the cleaners on August 11th. She testified that she knew her husband was home on the day before she took the finished garment to the cleaners because she remembered showing it to him at that time. Nichols spent the rest of the evening at his home leaving only to go to work at the Oakland Airport for his 11:15 p. m. shift. He borrowed a car to get there.

Nichols testified that after his arrest in late August, Officer Abramson told him he was suspected of being involved in the Jack-in-the-Box robberies on August 8th and 10th, and that he was under arrest for the latter robbery. Nichols stated that he was at home with his family on the 10th. He had visited a friend in Richmond on Wednesday, the 11th, and had had car trouble on that date. He had been given a ride to Oakland by a triple A employee who had towed the borrowed car to the owner's house.

Abramson testified that Nichols told him he had car trouble in Richmond on August 10th. Abramson believed Alexander, a friend of was the getaway driver at both the August 8th and 10th robberies and had thrown the bottle found in the dumpster on August 8th. He said he knew that Nichols and Alexander had been arrested together following an Oakland robbery, but did not know the outcome of that arrest. A certified copy of the dismissal of that case was later introduced into evidence. Records were also introduced showing that on the morning of August 10th Nichols got off work at 3:20 a. m. rather than 7:30 a. m. as Nichols had testified....