People v. Lyons, Cr. 4107

• Decision Date: 16 July 1971
• Docket Number: Cr. 4107
• Citation: 96 Cal.Rptr. 76,18 Cal.App.3d 760
• Parties: The PEOPLE of the State of Califoria, Plaintiff and Respondent, v. Mack LYONS, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 76

96 Cal.Rptr. 76

18 Cal.App.3d 760

The PEOPLE of the State of Califoria, Plaintiff and Respondent, v. Mack LYONS, Jr., Defendant and Appellant.

Cr. 4107.

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

July 16, 1971.

[18 Cal.App.3d 764] Paul A. Hanna, Costa Mesa, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Joel S. Moskowitz, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

In a two-count information, defendant was charged with robbery involving the use of a deadly weapon (Pen.Code, § 211; count I) and burglary (Pen.Code, § 459; count II). The information also alleged with respect to count II that defendant was armed with a deadly weapon and further alleged a prior conviction of burglary.

Pleas of not guilty and not guilty by reason of insanity were entered. Defendant admitted the prior conviction. A jury found defendant guilty of the charged offense; determined the robbery to be first degree and found the deadly weapon allegations true. Defendant's motion for new trial was denied; probation was denied and defendant was sentenced to state prison for the term prescribed by law on each count. Execution of sentence on count II (the burglary charge) was stayed.

Defendant appeals from the judgment of conviction, contending that: his pretrial and in-court identifications by John Etchandy were erroneously admitted into evidence; defendant's extrajudicial confessions were erroneously admitted into evidence; the jury was improperly instructed; the prosecutor committed prejudicial misconduct; defendant's motion for new trial was improperly denied; his plea of not guilty by reason of insanity was not properly disposed of; and the sentence imposed by the court violated the prohibition against double punishment contained in Penal Code, section 654.

Prepetration of the Crime and Defendant's Identification

On July 27, 1969, John Etchandy and his fiance, Juanita Gruwell, were in Bo-Jon's Liquor Store in Garden Grove. Mr. Etchandy was the owner of the liquor store. At 10 p.m., Mr. Etchandy had taken the cash and checks from the safe and was getting ready to list the checks. Miss Gruwell kicked him and said something like 'Ditch the money.' Mr. Etchandy turned around and saw two men coming into the store. One of them was subsequently identified as defendant as hereinafter detailed.

Defendant was described as having had long hair tied in a ponytail, a mustache and whiskers. Defendant remained in the liquor store from two to four minutes. He was not wearing a mask.

Defendant pulled out a greyish-blue revolver and said, 'This is a stick-up.' He and the other man took approximately $600 from the cash register. While these events were transpiring, a customer came into the store. Defendant said to the customer, 'This is a stick-up * * *. Give me your wallet.' After defendant received the wallet he looked through it and gave it back to the customer. Defendant and his confederate then left the store.

Mr. Etchandy got a rifle and went outside. He saw defendant and his confederate running. Mr. Etchandy fired two shots in the direction of the fleeing robbers.

At trial Miss Gruwell made a positive identification of defendant as the robber who had the ponytail, mustache and whiskers and who held the gun. She further testified that she had made a positive pretrial identification of defendant from a group of photographs shown to her by the police. She was shown batches of photographs on three different occasions. She selected defendant's photograph from the third batch. There is no indication in the record that the photographic identification was in any way suggestive or unfair.

At trial, over defense objection, Mr. Etchandy was permitted to make a positive in-court identification of defendant as the robber with the gun, the ponytail, mustache and whiskers and, further, to testify that he had made a positive pretrial identification of defendant. Defendant contended at trial, as he does on appeal, that, at the pretrial identification, he was entitled to be and was not represented by counsel (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; People v. Fowler, 1 Cal.3d 335, 349, 82 Cal.Rptr. 363, 461 P.2d 643); that absent a determination by the trial court that the incourt identification had a source independent of the illegal pretrial identification, the in-court identification testimony, like the testimony of the pretrial identification, was erroneously admitted (People v. Martin, 2 Cal.3d 822, 832--833, 87 Cal.Rptr. 709, 471 P.2d 29); and that it is not shown 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained' (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 710; People v. Fowler, Supra, 1 Cal.3d at p. 350, 82 Cal.Rptr. 363, 461 P.2d 643).

Upon defendant's objection to the incourt identification testimony by Mr. Etchandy, the court held a hearing out of the presence of the jury during which the following facts were developed. Subsequent to the robbery, Mr. Etchandy was shown mug shots by the police but was unable to identify any of the photographs as being either of the robbers. On August 26, 1969, ¹ Mr. Etchandy received a telephone call from someone in the Garden Grove Police Department who asked him to go to Division 4 of the West Orange County Municipal Court. In the hall outside the courtroom, he was met by Officer Lowery. Officer Lowery had not placed the telephone call to Mr. Etchandy, nor had he had any substantially prior contact with the case. He was frequently in that court on official business and was asked by another officer of the Garden Grove police to meet Mr. Etchandy at the courthouse for the purpose of having him attempt an identification of defendant who was to be in court, apparently for arraignment. Officer Lowery made no statements to Mr. Etchandy suggestive of defendant's identification. When he met Etchandy in the hall, Lowery stated '* * * I am to meet you here for the purpose of looking at some persons in the courtroom and seeing if identification could be made.'

When the court was in recess and the judge absent from the bench, Officer Lowery and Mr. Etchandy entered the courtroom. Mr. Etchandy looked around the courtroom. He saw no one he recognized in the spectator section. The jury box in the courtroom was occupied by from 8 to 10 male persons. Immediately, upon looking at the jury box, Mr. Etchandy recognized defendant. He then went closer to the jury box to get a better look, returned and told Detective Lowery that defendant was one of the robbers. Defendant looked the same as he did on the night of the robbery except that his hair was not in a ponytail, and he had shaved off his beard.

Officer Lowery then asked 'Is there anyone else in the courtroom?' Mr. Etchandy looked at the jury box again and saw a man he identified as the other robber (Robert Griffin). Although he said nothing about it to Mr. Etchandy, Officer Lowery recognized defendant and Robert Griffin from prior contact with them.

The trial court ruled that this pretrial identification procedure was not equivalent to a lineup and was not such as to entitle defendant to be represented thereat by counsel. ² It is not essential that we resolve this problem. ³ Even if Mr. Etchandy's identification testimony was erroneously received, the remaining evidence against defendant was overwhelming and shows 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman v. California, Supra, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; People v. Fowler, Supra, 1 Cal.3d at p. 350, 82 Cal.Rptr. 363, 461 P.2d 643.) Miss Gruwell was a percipient witness to the crime. She positively identified defendant both in court and by a pretrial photographic identification. In view of Miss Gruwell's testimony and defendant's three confessions, there is not the slightest doubt that the jury would have returned the same verdict absent the identification testimony of Mr. Etchandy.

Defendant's Detention, Arrest and Confessions

On the day of trial, prior to selection of the jury, defendant made a motion to suppress all evidence of his confessions on several grounds: that his confessions resulted from an unlawful detention or arrest by Anaheim police officers in the city of Fullerton outside their territorial jurisdiction; that his confessions were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625; and People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580; and that, in any event, his confessions were not knowingly and voluntarily made because he was in the throes of withdrawal from heroin use.

The court held a prolonged (one and one-half trial days) hearing on the admissibility of the confessions, at the conclusion of which it ruled that there was no unlawful detention or arrest and that the confessions were admissible, finding that beyond a reasonable doubt, as to all three confessions made by defendant, defendant was advised of his Miranda rights, that he knowingly and intelligently waived those rights; that his statements were voluntarily made and were not coerced or compelled in any way whatever or induced by any offers of reward.

The testimony adduced at the hearing may be summarized as follows. At 9:30 a.m. on August 22, 1969, Officer Willard A. Lowman and another officer, both of the Anaheim Police Department, went to an apartment in the city of Fullerton looking for one Duane Buttram. They had a warrant for Buttram's arrest and had been informed by another officer of their...