People v. Sequeira

Decision Date25 November 1981
Docket NumberCr. 20592,C
Citation126 Cal.App.3d 1,179 Cal.Rptr. 249
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Michael D. SEQUEIRA, Defendant and Appellant (two cases). r. 21412.

Quin Denvir, State Public Defender, Howard Charles Harpham, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, John T. Murphy, Asst. Attys. Gen., Ronald E. Niver, Mark S. Howell, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

Appellant was charged with numerous counts of robbery (Pen.Code, § 211) and false imprisonment (Pen.Code, § 236), each accompanied by an enhancement clause alleging firearm use (Pen.Code, § 12022.5); he was convicted of some of these charges after a first jury trial, and of others upon retrial. Appellant was sentenced after his second trial to consecutive terms amounting to an aggregate of 21 years and 4 months. Two appeals were filed, one after each trial, which we have consolidated.

The crimes of which appellant was convicted following his first trial related to two separate incidents at the Quarts and Pints Liquor Store in San Francisco occurring on February 10, 1979 (Count I) and February 20, 1979 (Counts X-XV).

At approximately 7:30 p.m. on February 10, 1979, two men entered the liquor store, exhibited handguns, and ordered everyone in the store, including two clerks and a number of customers, to fall to the floor. One of the gunmen, later identified as appellant, directed the store clerk on duty, Robert Stubblefield, to open the cash register; Stubblefield complied. After Stubblefield had returned to his position on the floor, appellant removed money from the cash register and took some cigarettes from a drawer.

As the two robbers left the store, the victims were ordered to count to 50. Subsequently, an unopened box of Camel cigarettes was found on the floor. 1

At trial, appellant was identified as a perpetrator of the February 10 robbery by Stubblefield and Michael Burke, an off-duty clerk who was in the liquor store when the robbery occurred. However, none of the customers on the premises at the time of the robbery could identify appellant, and their descriptions did not match appellant's appearance.

On February 20, 1979, Robert Stubblefield was again the clerk on duty at about 7:30 p. m. when two armed men entered the Quarts and Pints Liquor Store. Stubblefield recognized appellant as one of the persons involved in the February 10 robbery. According to Stubblefield, appellant stated, "You know the procedure," and then proceeded to remove the clerk's wallet, place him in the beer cooler, and return to the cash register.

A few moments later two customers, Brian Peterson and Dan Dente, entered the store and were placed in the cooler at gunpoint. Money was taken from the wallets of both customers. From the beer cooler, the three witnesses observed the robbers open the cash register. As the robbers left the store, the victims were told to count to 100 before exiting the cooler. Both Stubblefield and Peterson identified appellant as one of the perpetrators of the February 20 robbery.

Four separate San Francisco robberies were the subjects of appellant's second trial.

The first occurred on February 20, 1979, at the Bacon Street Market. On that date, Nimeh Ayyad was working as a cashier in the market-owned by her father-when she observed a man she identified as appellant, and his partner, enter the store, display a pistol, and lead herself, her father and a salesman, Doyle Lambert, to a garage behind the store. While appellant's blond-haired partner guarded the group in the garage, appellant returned to the front of the store. The group was then taken to a walk-in cooler inside the store where they joined Nimeh's mother, brother and a beer salesman. All were told to count to 100 before leaving. Both Nimeh Ayyad and Doyle Lambert identified appellant as one of the robbers.

On February 25, 1979, the Miraloma Market, owned by Jeanette Ross and her husband Bernard, was robbed. At approximately 6 p. m. Jeanette was tending the cash register when a man she identified as appellant asked for help locating "Cup-of-Soup"; he subsequently produced a gun and directed Jeanette and the store customers into a meat cooler. After a few minutes, Jeanette was ordered by appellant's blond partner to return with him to open one of the cash registers, which was found to be empty. Jeanette was thereafter returned to the meat cooler where she waited with the remaining victims until the police arrived, whereupon it was found that the cash register had been emptied. Jeanette and two of the customers were able to identify appellant as one of the robbers at trial.

The Central Drugs Pharmacy in San Francisco was robbed by two persons on March 11, 1979, at approximately 5:30 p. m. Rosemary Knight, the clerk on duty working with pharmacist Jerry Tonelli, testified that a dark-haired gunman, identified by her as appellant, and his blond-haired partner ordered her from behind a cash register and into a pharmacy room along with Tonelli and two customers. Before being taken to the pharmacy room, Tonelli was ordered by appellant to get "Class A" drugs from a locked narcotics drawer in the back room.

Subsequently, Rosemary Knight was removed from the pharmacy room and told to empty the cash register. She removed the currency from the register and gave it to the robbers, whereupon she was returned to the pharmacy room. The victims were then asked for their wallets or money, and were told to count to 100 before leaving.

Both Rosemary Knight and Jerry Tonelli identified appellant as the dark-haired robber at trial, and from photographs. None of the customers could identify appellant.

On March 15, 1979, at about 3 p. m. Mimi Bergantz and Lois Kemp were working at the temporary trailer-office of the Richmond branch of Citizens Savings and Loan when two men with guns entered and announced a holdup. The employees were ordered to lie on the floor, while the robbers emptied the cash drawers. Appellant then asked Ms. Bergantz to open a vault. Thereafter, the robbers emptied the vault, told the employees to count to 100, and fled. Both employees identified appellant as one of the robbers.

Appellant was convicted of Count XXXI, robbery, (Pen.Code, § 211) upon retrial. He argues that his right to a timely preliminary hearing on that charge-within 10 days of arraignment or entry of plea-pursuant to Penal Code section 859b 2 was denied, requiring reversal of the conviction.

The facts pertinent to this issue are as follows: The proceedings involving Count XXXI were initiated by a complaint filed in municipal court on April 10, 1979, and on April 17, 1979, appellant appeared with counsel and entered a plea of not guilty to all counts. A preliminary hearing was originally set for May 2, 1979. However, on April 26, 1979, the district attorney filed a notice of motion to consolidate the action with another proceeding pending against appellant. Since the preliminary hearing on the latter proceeding was set for May 22, 1979, the district attorney also sought a continuance of the first action.

The motion for consolidation and continuance was scheduled for hearing on April 30, 1979, but was continued to May 3-the date originally set for preliminary hearing-because appellant was in the hospital. On May 3, 1979, appellant announced his readiness to proceed with the preliminary hearing on the original complaint. The district attorney, however, was not prepared for a preliminary hearing, and consequently, the magistrate declared: "The People can't proceed so I'm going to have to discharge the defendant on these charges."

Thereafter, the district attorney filed a new complaint against appellant containing the same charges. Appellant was arraigned on that complaint on May 14, 1979. Preliminary hearing was held on May 31, 1979-within 10 court days of his arraignment on the second complaint-but 35 court days after arraignment on the original complaint. He moved for discharge at the preliminary hearing, and again after being held to answer moved for a section 995 dismissal in superior court, on grounds that the 10-day limitation of section 859b was violated. Both motions were denied.

We are thus presented with the question of whether the 10-day requirement of section 859b relates back to the filing of an initial complaint and arraignment or runs from the date of refiled complaint on the same charge after discharge or dismissal of the original criminal action.

The answer is found in the recent decision of our high court in Landrum v. Superior Court (1981) 30 Cal.3d 1, 177 Cal.Rptr. 325, 3 where the court considered the issue in a factual context essentially identical to that presented here. Overruling People v. Peters (1978) 21 Cal.3d 749, 147 Cal.Rptr. 646, 581 P.2d 651, the court concluded that a magistrate has Penal Code section 1385 dismissal authority. (Id., at p. 14, 177 Cal.Rptr. 325.) From that conclusion, the court reasoned: "Since petitioner received his preliminary examination within 10 court days of his arraignment and plea on the second complaint, there was no violation of section 859b and petitioner was legally committed by the magistrate." (Id., at p. 15.) In accordance with the holding in Landrum, we conclude that the trial court did not err in denying appellant's motions for discharge and dismissal of the information.

Appellant next argues that the trial court erred in denying his motion to suppress the identification testimony of two witnesses, Robert Stubblefield and Michael Burke. It is appellant's position that the pretrial and in-court identifications of the witnesses were the product of an impermissibly...

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