People v. Miller

• Decision Date: 20 January 1977
• Docket Number: Cr. 19380
• Citation: 135 Cal.Rptr. 654,18 Cal.3d 873,558 P.2d 552
• Court: California Supreme Court
• Parties: , 558 P.2d 552 The PEOPLE, Plaintiff and Respondent, v. Herbert Charles MILLER, Defendant and Appellant. In Bank

Page 654

135 Cal.Rptr. 654

18 Cal.3d 873, 558 P.2d 552

The PEOPLE, Plaintiff and Respondent, v. Herbert Charles MILLER, Defendant and Appellant.

Cr. 19380.

Supreme Court of California,

In Bank.

Jan. 20, 1977.

Herbert Charles Miller, in pro. per.

Boyd Lemon, Los Angeles, under appointment by the Supreme Court, and Barry M. Folinsky, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Frederick R. Millar, Jr., Los Angeles, for plaintiff and respondent.

WRIGHT, Chief Justice.

Herbert Charles Miller appeals from a judgment upon convictions by jury of robbery in the first degree (Pen.Code, §§ 211, 211a), ¹ burglary in the first degree (§§ 459, 460) and assault with a deadly weapon (§ 245, subd. (a)). The jury found to be true allegations that defendant inflicted great bodily injury on an employee of the business establishment where the crimes took place (§§ 213, 461) and also found to be true allegations that defendant used a firearm in the commission of each of the violations (§ 12022.5). Such findings are designed to increase the punishment for various of the crimes committed.

Defendant contends on appeal that the increased punishment provided by section 213 for the robbery conviction cannot be imposed because there is no evidence or finding that he intentionally inflicted great bodily injury on the victim of the robbery. We agree, but we also conclude that the finding that defendant intentionally inflicted great bodily injury on an occupant of the burglarized premises was properly made by the jury and that the increased punishment provided by section 461 was properly imposed. Defendant also contends that he was improperly sentenced for multiple violations arising out of the same course of conduct. (§ 654.) We agree and modify the judgment in the manner hereinafter provided. ²

Defendant and an accomplice entered the sales department of a jewelry store during business hours in November 1973. The accomplice asked to see some watches and John Keating displayed watches and otherwise waited on the accomplice. Defendant approached Charles Burk, a nonuniformed security guard, and made inquiries concerning merchandise. Burk unsuccessfully attempted to direct defendant to salespersons and after the third inquiry defendant advised Burk that 'This is a goddam holdup,' and attempted to draw a gun from a shoulder holster. Burk grabbed defendant's wrist and in an ensuing struggle the two men fell to the floor. According to Burk's testimony, as he attempted to rise, defendant, who had retained possession of the weapon, 'pulled the trigger' and shot Burk in the chest area. Burk fell back and defendant shot him a second time, the bullet piercing Bruk's right arm. Burk attempted to crawl along the floor but stopped when defendant stated: 'You better lie down there, old man.' Thereafter Burk heard noises like gunshots and glass being broken.

Keating, as he waited on defendant's accomplice, noted that the accomplice frequently looked over in defendant's direction until the latter became involved in a disturbance and shouted something. The accomplice then exhibited a gun and ordered Keating to the floor. While on the floor he heard gunshots and the breaking of glass from the direction in which he had observed defendant.

Mrs. Betty Sherman, an employee at the jewelry store, heard a disturbance and then observed defendant who held a gun and told her to get under a display case. She watched as defendant broke into a second display case, stating 'Let's get some of this and get out.' Mrs. Marjorie Diaz, still another employee, gave testimony similar to the testimony of Mrs. Sherman.

Jewelry having a retail value of approximately $441,000 was taken during the robbery. Witnesses for the People established that defendant and perhaps three accomplices arrived in the vicinity of the jewelry store in a stolen vehicle, parked nearby with the motor running and, after the robbery, returned to the car and drove off. Shortly after the robbery the car was found illegally parked in an alley with some of the stolen property in it. Other items of the stolen property were found in a clothing bag buried in the yard of the house occupied by defendant's father and a brother, one of defendant's accomplices. The fingerprints of such accomplice were found on the stolen vehicle.

Defendant does not challenge, as manifestly he cannot, the sufficiency of the

evidence in support of his convictions of the substantive crimes. Evidence and Findings of Bodily Injury to the Victim of the Robbery and to the Occupant of the Burglarized Premises

We deal initially with defendant's contention that there is no evidence or finding that he inflicted, with intent to do so, great bodily injury upon the victim of the robbery. The information charges that defendant by means of force or fear took personal property 'from the person, possession and immediate presence of Jon (sic) Keating, and in the course of the robbery, with the intent to inflict great bodily injury upon Charles Burk, did inflict great bodily injury upon Charles Burk.' The pertinent portions of section 213 provide for increased punishment in the case of a defendant who is found to be guilty of robbery if the trier of fact also finds upon proper allegations that such person 'with the intent to inflict such injury, inflicted great bodily injury on the victim of the robbery.' ³

Defendant makes two attacks on the conclusion that he intentionally injured the victim of the robbery. First, the alleged victim as charged in the information is John Keating, who in fact suffered no bodily injury, and the injury which was suffered by Charles Burk, not alleged as a victim of the robbery, cannot be substituted in lieu of injury to Keating. Second, even if it is assumed that section 213 encompasses an injury during the course of a robbery inflicted on a person other than the one from whom personal property is taken, the evidence is nevertheless insufficient to establish that defendant intended to inflict great bodily injury on Burk.

In attempting to refute defendant's first contention that it was not alleged that Burk was a victim of the robbery, the People contend that Burk was in fact a victim on the record presented. They argue that as a security guard on duty Burk had constructive possession of the personal property he was charged with safekeeping, and that the jewelry was taken by force from his immediate presence. 'Robbery is an offense against the person; thus a store employee may be a victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.' (People v. Johnson (1974) 38 Cal.App.3d 1, 9, 112 Cal.Rptr. 834, 839.) Robbery convictions have been upheld against contentions that janitors and night watchmen did not have a sufficient possessory interest in their employer's personal property to qualify as victims. (People v. Downs (1952) 114 Cal.App.2d 758, 765--766, 251 P.2d 369; People v. Dean (1924) 66 Cal.App. 602, 607, 226 P. 943.) Even a visitor in a store who was forced to remove and surrender money from the store's cash box was held to be a victim of the robbery. (People v. Moore (1970) 4 Cal.App.3d 668, 670--671, 84 Cal.Rptr. 771.)

Defendant would distinguish the foregoing cases on the ground that the victims of the robberies in those cases were the only persons present at the times of the robberies and, accordingly, were the only persons who could have been vested with constructive possession and from whom the personal property could have been taken. But the distinction is not one which excludes Burk as a potential robbery victim. He had constructive possession at the time of the robbery in the same sense as did the night watchman at the time of the robbery in Dean. The fact that there were other persons present in the store who also had constructive possession of the personal property is not relevant as more than one person may constructively possess personal property at the same time and be a victim of the same offender. (See People v. Johnson, supra, 38 Cal.App.3d 1,9, 112 Cal.Rptr. 834.) Thus Burk had constructive possession of the property taken and could properly have been alleged to be a victim. ⁴

Notwithstanding the fact that Burk could have been designated a victim of the robbery, he was not expressly so designated in the information. Section 213 provides in pertinent part that if a defendant 'inflicted great bodily injury on the Victim of the robbery, Such fact shall be charged in the indictment or information and if found to be true' the defendant shall suffer the augmented penalty. (See fn. 3, Ante, emphasis added.) The People would have us read into the information language which designates Burk as a victim by adding after the allegation that defendant 'did inflict great bodily injury upon Charles Burk,' the phrase 'another victim of the robbery.' The information otherwise in no way describes the role of Burk in the robbery; for all that appears as to the events constituting the robbery he may have been a complete stranger who was unintentionally and accidentally injured during the course of the commission of the crime. ⁵

Although an allegation of the existence of the circumstances which warrant the increased punishment provided by section 213 does not itself constitute the allegation of a substantive crime, nevertheless if such augmented punishment is to be imposed all the elements which are necessary to the imposition of that punishment must be alleged and found to be true. One such necessary element is great bodily injury to a victim of the robbery. It is not enough that Burk falls within that class of persons who may have been alleged to be a victim; the trier of fact must have found him to be a victim on pleadings and instructions which properly framed...