People v. Hunt, Cr. N

• Court: United States State Supreme Court (California)
• Citation: 140 Cal.Rptr. 651,19 Cal.3d 888,568 P.2d 376
• Decision Date: 14 September 1977
• Docket Number: Cr. N
• Parties: , 568 P.2d 376 The PEOPLE, Plaintiff and Respondent, v. Jerroll Ray HUNT, Defendant and Appellant. o. 18653.

Page 651

140 Cal.Rptr. 651

19 Cal.3d 888, 568 P.2d 376

The PEOPLE, Plaintiff and Respondent, v. Jerroll Ray HUNT, Defendant and Appellant.

Cr. No. 18653.

Supreme Court of California.

Sept. 14, 1977.

Rehearing Denied Oct. 13, 1977.

Harold F. Tyvoll, San Diego, under appointment by the Supreme Court, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Jay M. Bloom and Steven H. Zeigen, Deputy Attys. Gen., for plaintiff and respondent.

CLARK, Justice.

Jerroll Ray Hunt appeals from judgment entered upon jury convictions of first degree robbery (Pen.Code, §§ 211, 211a) and assault with a deadly weapon (Pen.Code, § 245, subd. (a)). ¹ The jury also found as true an allegation that during the commission of the robbery defendant had used a firearm within the meaning of section 12022.5. ² Defendant contends that in imposing sentence the trial court effectively reduced the robbery conviction to the second degree and struck the finding that defendant had used a firearm during the commission of the robbery. In support of his contentions defendant relies on the trial court's failure at sentencing to specify the degree of the crime or to specify the imposition of the additional term of imprisonment pursuant to section 12022.5. ³ (See In re Candelario (1970) 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729.) Defendants further contends that in-court identifications should have been suppressed as they were tainted by improper pretrial procedures. We reject defendant's contentions and affirm the judgment.

The Reverend Joseph Swanner, a former police officer, observed a 1969 Mustang automobile blocking a driveway leading to his church parking lot. The window on the driver's side of the car was down and the car keys were inserted in the ignition switch. The church was in an isolated area and Swanner did not recognize the automobile. He removed the keys from the ignition switch and, seeking to ascertain the owner of the vehicle, opened its trunk. He found the name 'Johnnie Bolden' on a letter in the trunk compartment. Swanner made inquiries in the immediate area, including a neighborhood grocery store, but on learning nothing, reported the matter to the sheriff's office. While waiting for the sheriff's investigator to arrive Swanner saw a man running across church property and intercepted him in the parking lot. The man produced a gun, demanded and was given the keys to the Mustang automobile. However, when ordered by his assailent to get into the car, Swanner struck the gun away and ran off. Although it was just after sunset, Swanner had a clear view of the man as he stood under an overhead light. Swanner again called the sheriff's office and provided descriptions of the intruder and his clothing.

Parris Winkler, operator of the neighborhood grocery store at which Swanner had made inquiry, was robbed at gunpoint by a man who appeared in the store approximately 10 minutes after Swanner had made his inquiry. The lighting in the store was good and Winkler had a clear view of the robber.

Sheriff investigators, who responded to Swanner's telephone calls within a few minutes after the second call, established that the Mustang automobile belonged to Johnie Bolden, and that he had loaned the vehicle to defendant for a one-and-one-half to two-hour period during which the assault on Swanner and robbery of Winkler had occurred. The victims independently viewed at a police station photographs of six persons, including a photograph of defendant. Swanner made a qualified identification of the photograph of defendant as depicting the perpetrator of the assault, but Winkler was unable to identify any of the photographs as that of the robber. While being escorted to an area in the police station where a voice identification was to be attempted, Swanner looked into a room, saw defendant who was alone and not manacled, and volunteered: 'We don't have to talk to him. There is your guy there.' Winkler, however, could not positively identify defendant at that time although he thought that defendant looked like the man who had committed the robbery. ⁴ Both Swanner and Winkler made in-court identifications of defendant as the assailant and robber, respectively.

ADMISSIBILITY OF IN-COURT IDENTIFICATIONS

Defendant contends that he was subjected to a pretrial showupso impermissively suggestive as to taint the in-court identifications, rendering them inadmissible. (See United States v . Wade (1967) 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149.) But even if we assume that a chance confrontation in a police station is analogous to an in-field or other informal identification at which a single suspect is exhibited to an eyewitness, it does not necessarily follow that a resulting positive or tentatively positive identification is impermissibly suggestive. '(T)he 'single person showup' is not inherently unfair.' (People v. Floyd (1970) 1 Cal. 3d 694, 714, 83 Cal.Rptr. 608, 620, 464 P.2d 64, 76, quoting from Stovall v. Denno (1967) 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199.) In Floyd a lone suspect was identified at a police station by a witness to a crime occurring 'several hours' earlier. We noted the desirability of absolving innocent suspects without formal lineup proceedings when the suspect's retention is dependent on an eyewitness' identification. The confrontation in the present case, whether planned or not, occurred within hours after commission of the crimes and afforded an immediate opportunity for defendant to gain his release should the victims be unable to identify defendant. The issue is not whether a confrontation occurred, but whether the circumstances of that confrontation were unduly suggestive. (See People v. Feggans (1967) 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 432 P.2d 21.)

When the fairness of a confrontation is challenged, the burden is on the defendant to establish that the confrontation resulted in such unfairness that it infringed his right to due process. (People v. Caruso (1967) 68 Cal.2d 183, 184, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Romero (1968) 263 Cal.App.2d 590, 593, 69 Cal.Rptr. 748.) Here the victim of the assault viewed defendant when he was alone in a room, was not visibly subjected to any restraints, and there was nothing else to indicate he was even suspected of a crime. There was thus even less suggestion defendant had perpetrated the crimes on the victim-witnesses than would have resulted had defendant been exhibited to the witnesses at a properly conducted lineup. 'A procedure is unfair which suggests in advance of identification by the witness the identity of the person suspected by the police.' (People v. Slutts (1968) 259 Cal.App.2d 886, 891, 66 Cal.Rptr. 862, 865.) As there is no showing of a suggestion of the identity of defendant in the circumstances of the confrontation in this case, defendant has failed to establish the procedure was unfair (see, People v. Burns (1969) 270 Cal.App.2d 238, 246, 75 Cal.Rptr. 688), and his claim that the confrontation infringed due process protections must be rejected.

Although photographic identification procedures had been utilized by the police prior to Swanner's confrontation of defendant, no impropriety appears. A conviction based on eyewitness identification at trial after a pretrial display of photographs, including photographs of the defendant, 'will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' (Simmons v. United States (1968) 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247; see also People v. Feggans, supra, 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 432 P.2d 21.) Defendant does not claim, nor does it appear that the photographic display was unduly suggestive and, although neither witness was able to make a positive photographic identification, we are unable to discern that the procedures gave rise to any substantial likelihood of irreparable misidentification.

We conclude that no unfairness resulted in defendant's in-court identification by the witnesses, and that uncertainties, if any, in the witnesses' testimony raised only evidentiary issues which were properly resolved against defendant by the jury.

REDUCTION OF DEGREE OF ROBBERY

Defendant's reliance on In re Candelario, supra, 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729, for the proposition that the degree of the robbery must be reduced, is misplaced. In Candelario a defendant who admitted a prior felony conviction for possession of marijuana was convicted by a jury of selling heroin. Under the then prevailing statutes the prior conviction substantially augmented the minimum term without possibility of parole for the substantive crime. However, there was no recitation of a finding of the prior conviction in either the court minutes or the original abstract of judgment. We held that an amended abstract of judgment, purporting to include a finding of the prior conviction, was ineffective for that purpose. In so holding we noted that judicial as distinguished from clerical errors cannot be corrected by court amendment. 'The distinction between clearical and judicial error is 'whether the error was made in rendering the judgment, or in recording the judgment rendered . . .' (57) An amendment . . . may not be made by the court under its authority to correct clerical error, therefore, unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion. (Citations.)' (Id., at p. 705, 91 Cal.Rptr. at p. 498, 477 P.2d at p. 730.)

In addressing the question of the significance of the court's omission to make and recite a finding of the prior conviction in Candelario, we stated: 'Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the...