People v. Levine

• Decision Date: 18 September 1969
• Docket Number: Cr. 15175
• Citation: 80 Cal.Rptr. 731,276 Cal.App.2d 206
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy LEVINE, Defendant and Appellant.

Page 731

80 Cal.Rptr. 731

276 Cal.App.2d 206

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roy LEVINE, Defendant and Appellant.

Cr. 15175.

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

Sept. 18, 1969.

Linn Davis, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Elizabeth Miller, and John C. Hamilton, Deputy Attys. Gen., for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant appeals from the judgment entered following a nonjury trial that resulted in his conviction of the crimes of robbery, two counts, and assault with intent to murder, one count. The matter was submitted upon the transcript of appellant's preliminary hearing and no evidence was presented by way of defense. The evidence of appellant's guilt is conclusive. It was not challenged in the court below and is not disputed on this appeal.

Appellant contends (1) that his pre-arrest identification was improper in that it failed to comply with the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1067, 18 L.Ed.2d 1199; and (2) that, insofar as the sentence imposed herein is intelligible, it appears to subject him to double punishment in violation of Penal Code section 654.

Appellant's initial contention is wholly without merit. At about 3:50 a.m. on November 16, 1967, appellant, at gun point, robbed both Henry Hall, the owner of a gas station in Los Angeles, and his employee, Cornelius Jones. As appellant was leaving the premises, Hall reached for a gun. Appellant saw this movement and in the ensuing battle Hall was shot three times and appellant was struck in the head by Jones with a bottle. Appellant's head bled freely with blood falling onto the ground and onto the money clutched in appellant's hand. Appellant dropped his gun which was picked up by a fireman who chanced upon the scene. Although told by the fireman to remain on the premises, appellant wandered off down the street.

The police arrived within minutes after the encounter and obtained a description of appellant. However, it only proved necessary for the officers to follow the trail of blood for about three-fourths of a block before they came upon appellant, still bleeding. They returned him to the station where he was identified by Jones who then accompanied appellant and the officers to the station to complete the arrest report and booking process.

Appellant was arrested more than five months after the effective date of the decisions in Wade and Gilbert, i.e., June 12, 1967. His failure to enter any objection to the manner in which he was identified either at the time of his preliminary hearing on December 6, 1967, or when the matter was submitted on the transcript of such hearing in the trial court on February 26, 1968, precludes objection thereto being made for the first time on appeal. Moreover, it has been held repeatedly that there is no denial of due process when a victim identifies his assailant at the scene of a crime moments after it occurs, even though there has been no appointment of counsel nor compliance with the formalities of orthodox lineup procedures. (People v. Singletary, 268 A.C.A. 19, 23--24, 73 Cal.Rptr. 855; People v. Irvin, 264 Cal.App.2d 747, 758--761, 70 Cal.Rptr. 892; People v. Romero, 263 Cal.App.2d 590, 593--594, 69 Cal.Rptr. 748; People v. Smith, 263 Cal.App.2d 631, 636--637, 69 Cal.Rptr. 670; Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206, 209--210.)

Appellant's second contention is sufficiently meritorious to require that the judgment be clarified by appropriate modification. Initially, it should be noted that although appellant does not complain thereof, the trial court found him to be 'armed as alleged' although the gun involved was used in each of the three primary offenses of which he was convicted.

The point actually raised by appellant on the issue of double punishment stems from the following language found in the 'Corrected Judgment' entered April 8, 1969: 'It is Therefore Ordered, Adjudged and Decreed that the said defendant be punished by imprisonment in the State Prison for the term prescribed by law, on said counts. Imposition of sentences as to Counts 2 and 3 is suspended until the time after the expiration of time to appeal.'

The original judgment had provided: 'It is Therefore Ordered, Adjudged and Decreed that the said defendant be punished by imprisonment in the State Prison for the term prescribed by law, as to Counts 1 and 2 only. Sentences as to Counts 1 and 2 are ordered to run CONCURRENTLY with each other. Imposition of sentence as to Count 3 is suspended pending the expiration of time for appeal.'

The reporter's transcript reveals that the court and respective counsel had discussed at some length the question of the appropriate disposition to be made herein since the victim of the murderous assault was also the victim of one of the robbery counts and the property actually taken was that of the owner-victim, Hall, although it also had been in the possession of the employee, Jones. The following is then reported:

'MR. MADDEN (Deputy District Attorney): It might be that the force used there is the same force that you need to accomplish the taking for robbery in Count One. It might be argued there. I am just offering this up to the Court. I don't know the facts completely. It may be separate assault committed beyond the force needed to accomplish the robbery. I do not know whether that is or not but we know for the purpose of robbery, getting away with the money is part of the corpus of...