People v. Savala

• Citation: 116 Cal.App.3d 41,171 Cal.Rptr. 882
• Decision Date: 20 February 1981
• Docket Number: Cr. 10608
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy SAVALA, Defendant and Appellant.

Page 882

171 Cal.Rptr. 882

116 Cal.App.3d 41

PEOPLE of the State of California, Plaintiff and Respondent, v. Rudy SAVALA, Defendant and Appellant.

Cr. 10608.

Court of Appeal, Third District, California.

Feb. 20, 1981.

As Modified Feb. 23, 1981.

Hearing Denied May 13, 1981.

Greisen & Stewart, Paul H. Greisen, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall, and Garrett Beaumont, Deputy Attys. Gen., for plaintiff and respondent.

CARR, Associate Justice.

Defendant appeals from a judgment sentencing him to state prison for a total unstayed term of twelve and one-third years after a jury found him guilty of four counts of robbery; that in each robbery defendant personally used a firearm (Pen.Code, §§ 211, 12022.5.) and guilty of assault upon a police officer engaged in the performance of his duties. (Pen.Code, § 245, subd. (b).) The trial court found him guilty of being a convicted felon in the possession of a firearm after he waived a jury trial on that charge. Prior to trial defendant admitted one prior felony conviction.

Defendant makes numerous contentions: (1) the in-court identification by eyewitnesses should have been suppressed because of an unduly suggestive confrontation at the scene of his arrest; (2) that the charges of robbery should have been severed for separate trials; (3) the trial court erred in refusing to grant a mistrial when a codefendant changed his plea to guilty pursuant to a plea bargain after jury selection but before evidence was taken; (4) the trial court coerced an original codefendant into invoking his privilege against self-incrimination; (5) the prosecutor suppressed evidence; and (6) the trial court erred in calculating his sentence by adding an enhancement for the use of a firearm in the commission of each of the four robberies for which consecutive sentences were imposed. We conclude defendant's sole, meritorious contention is the improper enhancement of his sentence.

The facts disclose that on the evening of March 15, 1979, at about 11:30 p. m., Cheryle Esparaza was working at Sambo's restaurant on 16th Street in Sacramento. A man of Mexican descent was standing near the cash register looking "uptight," when she asked if she could help him; he opened his shirt, showed her a pistol, and told her to give him the money from the cash register. He took the money handed to him, said thank you, and left. She saw the robber leave in a large car, which was either yellow or gold.

On the evening of March 16, 1979, Emelia Mejia was working at Jimboy's Taco on 29th Street in Sacramento. A man of Mexican descent approached her, showed her a pistol, and demanded money. She gave him about $50 and he left.

In the early morning hours of March 18, 1979, Tanya Inez Kumenkov was working as a cashier at the Pancake Parade on 30th Street in Sacramento. A man of Mexican descent walked up to the cash register, opened his shirt to show a pistol, and demanded money. She had difficulty understanding the robber, and said, "I beg your pardon," at which time the robber took his gun, pointed it at her and again demanded money. During this robbery another person was standing by the door. Three witnesses heard this person address the robber as "Rudy". After getting the money, both men left.

At 11:00 o'clock on the evening of March 18, 1979, Dorothy Ballah was working at Denny's Restaurant on 15th and Broadway, in Sacramento. A man who appeared to be of Mexican descent entered, stood in front of the cash register, pulled open his jacket to reveal a pistol, and demanded money. Instead of opening the register, she backed down the counter. James Perry, the assistant manager, saw Ballah backing away and saw the robber. He opened the cash register, and the robber took between $100 and $125, mostly in ones and fives, and a roll of coins from Bank of America before leaving. Ballah in the meantime called the police.

Perry and two other Denny's employees saw the robber with a passenger driving away in a yellow car. They observed the car turn onto 15th Street and go east on Broadway. A few minutes later, the car passed Denny's going west on Broadway. While the suspect vehicle was still in sight, Sacramento City Police Officers Randall Twilling and Kent Thorpe arrived at Denny's, having received a call that an armed robbery had taken place about one minute before. Several people pointed out the yellow Dodge Polara as the robber's car. The officers followed the vehicle and activated their red lights and siren. The yellow vehicle accelerated.

The officers, joined by other police units, gave chase. When the vehicle went out of control and made an 180-degree turn, the pursuing police cars stopped in front of it. Officers Twilling and Thorpe got out of their unit and positioned themselves behind the vehicle doors to effect a felony vehicle stop. After Twilling and Thorpe yelled "police officers" and told the driver and occupant to "freeze," the suspect vehicle accelerated and headed to the right side of the squad car, then swerved and struck the door, pinning Officer Thorpe against the car body. It then again reversed directions and sped off. Though severely injured, Officer Thorpe was able to radio a description of the vehicle.

Several minutes later, after yet another chase involving several additional police units and a California Highway Patrol helicopter, the suspect and his companion were apprehended and arrested. The suspect was defendant.

When Officer Hoffman, the arresting officer, gave defendant a pat-down, he found a bundle of money protruding from defendant's jacket pocket. It consisted of one $20 bill, four $5 bills, and twenty-nine $1 bills.

Officer McHale, dispatched to the scene of the vehicle stop to investigate the suspect vehicle, found a rolled package of nickels from Bank of America on the front seat, a .38 caliber revolver with some bullets wrapped in a white tee shirt under the passenger side of the vehicle, and seven $5 bills crumpled together and jammed between the seat and the passenger door.

Ballah and Perry were brought to the scene of the arrest shortly after the arrest and identified defendant as the Denny's robber. They likewise identified defendant at trial.

After defendant's arrest a photographic line-up of ten photographs, including one of defendant, was composed and shown to witnesses to the robberies at Jimboy's, Pancake Parade, and Sambo's. The victim of the Sambo's robbery picked out defendant as the robber. She also identified defendant as the Sambo's robber at trial. Two witnesses to the Jimboy's robbery identified defendant from the photographic line-up and at trial. Four witnesses to the robbery of the Pancake Parade identified defendant from the photographic line-up and at trial.

An information was filed against defendant and one Daniel Moreno. A negotiated plea was entered by defendant, conditioned upon the right of the court to withdraw its acceptance of such plea after receipt of a probation report. When the court received and considered the probation report, it did withdraw its acceptance of the plea bargain and defendant's plea of not guilty was reinstated.

At trial, defendant and the People stipulated to the charge of being a convicted felon being tried before the court, a jury was selected, and out of the presence of the jury, defendant admitted one prior conviction, the other prior having previously been struck.

After the jury had been selected and sworn, Daniel Moreno advised the court that he had negotiated a plea bargain whereby he would plead guilty to one court of being an accessory (Pen.Code, § 32), and the district attorney would dismiss the remaining charges. The court conditionally accepted the plea, subject to consideration of the probation report. Defendant then moved for a mistrial, asserting that since Moreno had been present during the jury selection, the jurors might assume a disposition had been made as to him. The trial court denied the motion with an assurance that an admonition would be given on the absence at trial of Moreno.

When the prosecution rested its case, defendant advised the court, out of the presence of the jury, that he intended to call Moreno to testify. Moreno was called and sworn but asserted his privilege against self-incrimination. As the acceptance of the earlier plea bargain had been conditional, the court honored the claim of privilege. The defense then rested without calling any witnesses, having informed the court one potential witness could not be located and had not been interviewed. The witness allegedly had told police she could identify the robber of Sambo's.

I

Defendant contends the in-court identification of him as the robber of Denny's by Ballah and Perry ¹ should have been suppressed because of improper field identification procedures which were held in the absence of counsel and were impermissibly suggestive, creating a substantial likelihood of irreparable misidentification at trial.

The propriety of in-field identifications of a suspect without the presence of counsel has been repeatedly upheld. (People v. Craig (1978) 86 Cal.App.3d 905, 913, 150 Cal.Rptr. 676; In re Richard W. (1979) 91 Cal.App.3d 960, 970, 155 Cal.Rptr. 11; People v. Hall (1979) 95 Cal.App.3d 299, 309, 157 Cal.Rptr. 107, and cases cited therein. ² We affirm those holdings.

When the defendant asserts pre-trial identification was unnecessarily suggestive, he must show it gave rise to a very substantial likelihood of irreparable misidentification. (People v. Craig, supra, 86 Cal.App.3d 905, 150 Cal.Rptr. 676; In re Richard W., supra, 91 Cal.App.3d 960, 155 Cal.Rptr. 11.) In making this determination, the trial court should consider certain factors, i. e., the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of...