People v. McDaniels

• Decision Date: 18 May 1972
• Docket Number: Cr. 5959
• Citation: 25 Cal.App.3d 708,102 Cal.Rptr. 444
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Eddie McDANIELS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 444

102 Cal.Rptr. 444

25 Cal.App.3d 708

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Eddie McDANIELS, Defendant and Appellant.

Cr. 5959.

Court of Appeal, Third District, California.

May 18, 1972.

Rehearing Denied June 5, 1972.

Hearing Denied July 12, 1972.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., by Charles Just and Roger Venturi, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

William Gregory, Sacramento, for defendant-appellant.

COAKLEY ^*, Associate Justice.

Defendant appeals from the judgment following jury verdict finding him guilty of two counts of first degree robbery (Pen.Code, §§ 211 and 211a), rape by threats (Pen.Code, § 261, subd. 3), ¹ and the use of a firearm in the commission of the three offenses (Pen.Code, § 12022.5),

Facts

On March 12, 1970, defendant entered a bar in Sacramento County with a shotgun and took money from the patrons and from the cash register. Then after herding the patrons into another room, he forced one of the cocktail waitresses to have sexual intercourse with him.

On March 15, three days after the crime, defendant, a Negro, was placed in a lineup with four other male Negroes. He effectively waived counsel at the lineup. All five men in the lineup were dressed in civilian clothes. The defendant, alone, wore a blue shirt, one which he had put on at his home at the time of his arrest.

The officer in charge at the lineup was aware of statements made by several of the victims on the day of the offenses to the effect that the perpetrator of the crime wore a blue shirt. The defendant was not advised of this fact when he appeared in the lineup wearing his blue shirt.

The in-court identification by the five witnesses who viewed the lineup were based upon observations of the defendant at the time of his offenses. This identification was independent of the lineup identification and was convincing. The rape victim viewed the defendant's face during the robbery and rape for over ten minutes and identified the defendant by his eyes and his face, and not by the clothes which he wore. Other victims made similar facial identifications. Several of the victims had previously identified the defendant from photographs.

The defendant first contends that because of the circumstances attendant upon his being the only man in the lineup wearing a blue shirt, he was singularly marked for identification by the victims; that the lineup was unreasonably and unnecessarily suggestive and conducive to irreparable mistaken identification and therefore violative of the defendant's right to due process. The defendant further contends that when it is demonstrated that the lineup was conducted unfairly, the prosecution must prove by 'clear and convincing evidence' that the in-court identifications were based upon observations of the accused at the scene of the robbery. (Citing People v. Caruso (1968) 68 Cal.2d 183, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Floyd (1970) 1 Cal.3d 694, 83 Cal.Rptr. 608, 464 P.2d 64; United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.)

Under the circumstances, prudence suggests that the officer conducting the lineup should have advised the defendant not to wear a blue shirt. Prudence, however, is not a criterion. The criterion is whether the lineup was unnecessarily suggestive and conducive to irreparable mistaken identity. (Stovall v. Denno (1967) 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Caruso, supra, 68 Cal.2d 188, 65 Cal.Rptr. 336, 436 P.2d 336.) The application of that criterion in a given case 'depends upon 'the totality of the circumstances. " (See, People v. Harris, (1971) 18 Cal.App.3d 1, 95 Cal.Rptr. 468, 470; People v. Harris (1969) 274 Cal.App.2d 826, 832, 79 Cal.Rptr. 352, and the numerous United States Supreme Court cases cited in the latter case.)

The evidence in this case, summarized above, establishes that, in fact, the several victim-witnesses had ample opportunity to observe the defendant's facial and other physical characteristics during the commission of the crimes, and that the in-court identifications were based on characteristics other than the blue shirt. The fact that some of the witnesses also testified to defendant's wearing a blue shirt does not, in our opinion, negate or even cast any substantial doubt upon the certainty of identification based on the other factors of identification present in this case.

The recent case of People v. Harris, supra, 18 Cal.App.3d 1, 95 Cal.Rptr. 468, 469 is indistinguishable from our case. There, the defendant was one of four black men in the lineup and the only one wearing bright yellow pants. The court held: 'The mere fact that defendant was wearing the same color pants worn by the robber did not make the lineup unfair.' There, as here, the in-court identification was positive, based on the defendant's 'looks' and physical characteristics. There, as here, the witnesses also noted that the defendant wore a garment of distinctive color. (See People v. Stanton (1969) 274 Cal.App.2d 13, 78 Cal.Rptr. 771.)

As an additional ground for reversal of the judgment, the defendant contends that Penal Code section 12022.5 is unconstitutional in that it unreasonably increases--for a minimum period of five years--the penalty for the commission of specified offenses when accompanied by the use of a firearm, whereas the prescribed punishment for the same offenses, absent the use of a firearm, does not carry an additional five years.

We first point out that Penal Code sections 12022.5 and 12022 are in Pari materia. A brief history of those code sections will be helpful to an understanding of our decision.

Penal Code section 12022 ² derives from the Deadly Weapons Act. That act in its initial form was adopted in 1917 (Stats.1917, ch. 145, p. 221). It was reenacted with modifications in 1923 (Stats.1923, ch. 339, p. 695), and again with modifications in 1953 (Stats.1953, ch. 36, p. 653), each reenactment simultaneously repealing the prior statute. The 1953 enactment provided for the codification of the act, and it is now Part 4, Title 2, sections 12000 et seq. of the Penal Code (known as 'The Dangerous Weapons' Control Law'--see Pen.Code § 12000). Section 12022 was amended in 1968 (Stats.1968, ch. 1386, p. 2720, § 1). It is unnecessary to discuss the amendments referred to because they do not affect the decision in this case, and a discussion will not enlighten this opinion. Section 12022.5 was added in 1969 (Stats.1969, ch. 954, p. 1900, § 1). ³

The provision for an additional period of imprisonment upon conviction of a felony while armed with a deadly weapon first appears in the 1923 version of the act. It has remained a part of our penal law since that date. Its purpose is succinctly set forth in the following language from People v. Robinson (1970) 6 Cal.App.3d 448, 455, 86 Cal.Rptr. 56, 61: 'The obvious legislative purpose behind sections 3024 and 12022 is to discourage the use of guns and similar deadly weapons in the commission of crimes to minimize the risk of death or serious physical injury to the victim; an armed felon is far more dangerous than an unarmed one.'

In In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417, 419, which is cited in Robinson, supra, the court found reasonable grounds for imposing an additional penalty where a deadly weapon accompanied the commission of a basic offense. However, it declared that it did not believe that the Legislature intended to impose the additional penalty 'where the felony of which the person stands convicted is that of assault with a pistol under section 245,' i.e., where a deadly weapon is an essential element of the basic crime. It reasoned that the Deadly Weapons Act (Stats.1923, ch. 339, p. 695) is a general statute applicable to All felonies, whereas Penal Code section 245 is a special statute which controls the general statute. Accordingly, it held that the Deadly Weapons Act was not applicable to an assault with a deadly weapon (Pen.Code, § 245). The court clearly and expressly limited its holding to what it believed was the legislative intent. It did not go further and adopt the petitioner's (in habeas corpus) contention that such additional punishment constituted double punishment and double jeopardy. And in People v. Henry (1970) 14 Cal.App.3d 89, 91 Cal.Rptr. 841 (hg. den.) this court held that the additional penalty provided in Penal Code section 12022.5 for first degree robbery does not constitute either double jeopardy or double punishment.

Applying the rationale of Shull, supra, subsequent decisions held that Penal Code section 12022 was not applicable where the conviction was for the basic crime of assault with a deadly weapon (Pen.Code § 245) ⁴ or for armed robbery (Pen.Code § 211a). ⁵ The line of cases culminated in People v. Floyd (1969) 71 Cal.2d 879, 80 Cal.Rptr. 22, 457 P.2d 862, People v. King (1969) 71 Cal.2d 885, 80 Cal.Rptr. 26, 457 P.2d 866 and People v. Hogan (1969) 71 Cal.2d 888, 80 Cal.Rptr. 28, 457 P.2d 868, all decided by our Supreme Court on August 20, 1969. Each involved conviction for first degree robbery. In each the court limited its decision to holding that Penal Code section 12022 was not applicable to robbery first degree for the same reason it gave in Shull, viz., it was not the legislative intent to make Penal Code section 12022 applicable to offenses in which a firearm is generic to the offense. It is significant though not controlling that in the many cases which have followed the Shull-Floyd doctrine not one has suggested that the additional penalty provided by Penal Code section 12022 may be constitutionally infirm. And, as noted earlier, this court in People v. Henry, supra, 14 Cal.App.3d 89, 91 Cal.Rptr. 841, held that Penal Code section 12022 is not violative of one's Sixth Amendment rights. So much for the history of Penal Code section 12022.

We now consider the history of Penal Code section 12022.5, the...