People v. Sandoval

• Decision Date: 25 May 1977
• Docket Number: Cr. 29171
• Citation: 138 Cal.Rptr. 609,70 Cal.App.3d 73
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 A.L.R.3d 765 The PEOPLE, Plaintiff and Respondent, v. Edward SANDOVAL, aka Robert Ruiz, Defendant and Appellant.

Page 609

138 Cal.Rptr. 609

70 Cal.App.3d 73, 99 A.L.R.3d 765

The PEOPLE, Plaintiff and Respondent, v. Edward SANDOVAL, aka Robert Ruiz, Defendant and Appellant.

Cr. 29171.

Court of Appeal, Second District, Division 3, California.

May 25, 1977.

Dennis L. Cava, 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., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Edward T. Fogel, Jr., and Gary R. Hahn, Deputy Attys. Gen., for plaintiff and respondent.

POTTER, Associate Justice.

Defendant Edward Sandoval appeals from the judgment revoking his probation. On February 25, 1975, defendant pleaded guilty to second degree robbery (Pen.Code, § 211). On March 18, 1975, imposition of sentence was suspended and defendant was placed on formal probation for five years. The conditions of probation included, among others, that he spend one year in the county jail with credit for 91 days served and that he obey all laws.

On May 7, 1976, defendant was arrested on a robbery charge arising out of an incident in J. C. Penney's parking lot in San Fernando. At approximately 8:30 p.m., a man 'came up behind' the victim, Mrs. Keeling, 'snatched' her purse off her arm, knocking her down and spraining her wrist. The victim saw 'the back' of her assailant as he was running across the parking lot with the purse in his hand. Earlier, she had seen a man in the crosswalk as she exited from the store; she had, however, only 'glanced up' at his face for a second or two and 'didn't pay attention to him.'

Laurie Massey heard the victim scream, turned around and saw 'this guy' from the back run past her with a purse. He was wearing overalls, a long-sleeved, dark, plaid '(P)endleton' shirt and had shoulder length dark hair. A light blue 'patterned' van drove up, the robber 'hopped' in on the passenger side, and the van left. 'About a minute or two' later, the victim and witness informed a police officer in a patrol car of the robbery. The victim described the man she had seen before the purse-snatch as 'Mexican' with black hair and a mustache. Ms. Massey described in detail the robber's clothing and the van. The police broadcasted the report of the robbery and the descriptions.

About five minutes after hearing a police broadcast, Reserve Officer Casper spotted a van which matched the broadcast description, at the intersection of Hubbard and Fourth Streets. He followed it down a dead-end street where the van parked temporarily 'under a street light.' Casper drove by the van twice, saw defendant in a plaid shirt in the van and jotted down the license number. Casper then located Officer Hatfield in a patrol car about three blocks away and relayed the information, including the license number. This additional information was then broadcast.

At about 8:45 p.m., Officer Hatfield stopped the blue van as it was exiting from the Boys Market parking lot. He arrested the three persons in the van: defendant, Mr. Garza, and Ms. Valadez. Defendant was the only person whose appearance and clothing fit the broadcast description. Reserve Officer Casper also identified him as the man he had just seen a few minutes previously in the parked van. No money was found on defendant. Garza and Valadez however, had in their possession bills and coins matching the denominations described in great detail by the victim (e.g., two $20 bills, three $5 bills, four quarters, etc.).

As the van was stopped by Hatfield, a private citizen, Mr. Haddock, pulled up. He explained to the officer that he had been following the van. He had heard the police broadcasts on his car radio which was equipped with a 'police scanner device.' As he was driving up Hubbard Street towards Boys Market, he observed the van, with the license number mentioned on the broadcast, enter the parking lot. He followed it to the rear of the market where he saw Garza and Valadez get out of the vehicle, place an 'object' in a trash bin, and re-enter the van. The van then exited from the lot and was intercepted by Hatfield. Haddock returned with the police to the rear of the market where the victim's emptied purse was retrieved from the trash bin.

Approximately 30 to 45 minutes after the robbery, the victim who was sitting in a room at the police station was told by the police that the suspect would be brought 'through the hallway.' As defendant passed, the victim identified him as the man she had seen in the crosswalk, recognizing him 'by his face.' The witness, Ms. Massey, was also in that room. In response to the police inquiry whether the man who 'was walking by' was wearing the 'same kind' of clothes as she had seen on the purse snatcher, she replied that '(t)hose were the same clothes' that she had previously described to the police immediately after the robbery.

On May 18, 1976, a preliminary hearing was held on charges arising out of the purse snatching. Defendant was bound over to answer on one count of robbery (Pen.Code, § 211). His codefendants Garza and Valadez were held to answer on one count of receiving stolen property (Pen.Code, § 496).

On July 26, when the cause was called for trial, the public defender announced she was ready. The case (No. A 135593) was dismissed, however, because of the People's failure to proceed. Later that day, proceedings with respect to defendant's probation revocation, based on the same incident, were conducted. Defendant denied the violation, the public defender stated that she had just read the probation report and requested a continuance. She asked that the matter be set for 'hearing setting.' The court granted the continuance for 'the purpose of a hearing,' set the matter for 'hearing' on July 30, and ordered the probation officer to be present.

On July 30, the revocation hearing was held. Counsel stated she was 'not ready' and requested a further continuance. She relied upon (1) her inability to subpoena witnesses in three days' time, coupled with her concern as to whether the People would 'refile'; (2) her mistaken impression that the July 30 date was for 'hearing setting' only; and (3) her uncertainty as to whether the charged violation was based only on 'the alleged purse snatch.' The motion to continue was denied. Defendant's motions to exclude and strike the 'identification' testimony of the victim and the eyewitness were also denied, and their testimony with respect to the 'identification' and the events which occurred was received. The parties stipulated to the admission, in evidence of the preliminary hearing testimony of Officer Hatfield, Reserve Officer Casper and Mr. Haddock. Officer Hatfield was also cross-examined by defendant.

The court found defendant in violation of probation. Probation was revoked and sentence was imposed. At defendant's request, ¹ he was 'sentenced' to the Youth Authority, instead of to state prison, for the term prescribed by law. The court denied the defense request for credit for one year served in the county jail on the ground that it 'was served as a term of probation.' Although the court indicated it did not think that the credit applied to the Youth Authority, the court stated that it would 'note' that defendant had served 90 days in custody awaiting the trial and revocation proceedings. No notation of credits, however, was entered on the judgment (order of commitment to the Youth Authority). This appeal followed.

Contentions

Defendant contends: (1) the court improperly denied his motion for a continuance; (2) the court committed reversible error by admitting in evidence (a) the victim's identification of him, and (b) the witness' identification of his clothing; and (3) the court erroneously denied him credit for time served as a condition of probation.

We have concluded, for the reasons that follow, that the judgment should be affirmed, as modified to reflect credit for time served as a condition of probation and in custody awaiting proceedings on the violation.

Denial of a Continuance Was Not An Abuse of Discretion

Defendant contends that the court abused its discretion by refusing to grant him a further continuance 'for a reasonable period of time' so that the codefendants could be subpoenaed in his behalf. We disagree.

Our supreme court has long pointed out that '(i)t is a settled rule of practice that an application for a continuance is addressed to the sound discretion of the trial court.' (People v. Collins, 195 Cal. 325, 332, 233 P. 97, 100.) Its determination as to whether a defendant has affirmatively demonstrated that justice requires granting the motion 'will not be disturbed on appeal in the absence of a clear abuse of that discretion.' (People v. Duck Wong, 18 Cal.3d 178, 189, 133 Cal.Rptr. 511, 516, 555 P.2d 297, 302; People v. Serrata, 62 Cal.App.3d 9, 16, 133 Cal.Rptr. 144.)

The question of whether a particular denial of a continuance is an abuse of discretion must necessarily turn on the circumstances of each case. (People v. Reaves, 42 Cal.App.3d 852, 856, 117 Cal.Rptr. 163.) Where defendant, as here, alleges the absence of witnesses as the ground for a continuance certain conditions must be met. As was stated in People v. Buckey, 23 Cal.App.3d 740, 744, 100 Cal.Rptr. 551, 553:

'The granting of a continuance on the ground of the absence of a material witness is subject to certain well established conditions designed to prevent unwarranted delay in criminal prosecutions. These conditions are: '(1) a particular obtainable witness ( ); (2) materiality of the evidence ( ); (3) the necessity of his testimony ( ); and (4) diligence to obtain his attendance ( ).' (Witkin, Cal.Criminal Procedure (1963) p. 273.)'

Defendant apparently claims he was unable to have crucial defense witnesses present at the revocation hearing because of either or both of the following circumstances: (1) inability to subpoena witnesses within the few days' time granted by the earlier continuance; and (2) a...