People v. Smith

• Decision Date: 06 March 1968
• Docket Number: Cr. 13082
• Citation: 259 Cal.App.2d 814,66 Cal.Rptr. 551
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Wayne SMITH, Defendant and Appellant.

Page 551

66 Cal.Rptr. 551

259 Cal.App.2d 814

PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Wayne SMITH, Defendant and Appellant.

Cr. 13082.

Court of Appeal, Second District, Division 5, California.

March 6, 1968.

[259 Cal.App.2d 815] Harvey M. Grossman, Los Angeles, under appointment by the Court of Appeal for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce William Dodds, Deputy Atty. Gen., for plaintiff and respondent.

AISO ^*, Associate Justice pro tem.

Defendant Thomas Wayne Smith appeals from a judgment sentencing him to the state penitentiary on two first degree robberies (Counts I and II) and one second degree robbery (Count IV) in violation of sections 211 and 211a of the Penal Code. The judgment further recites that 'defendant was armed as alleged' at the time of the first degree robberies and that the 'Sentences as to Counts 1, 2 and 4 are ordered to run CONSECUTIVELY.'

Count I of the information charged Smith and his codefendant Larry Edward Monfort with having robbed Vinson Schendel on or about March 15, 1966, and further alleged that defendants were armed with a deadly weapon, to wit, a .32 caliber automatic pistol in committing the offense.

Count II charged Smith and Monfort with having robbed Clara (sic) Schafer on or about March 29, 1966, and with being armed with a deadly weapon, to wit, a .32 caliber automatic pistol on the occasion of this offense.

Count III charged Monfort alone with an armed robbery on or about March 25, 1966, of one Robert S. Fink and being armed with a deadly weapon on that occasion.

Count IV charged defendant Smith alone with having robbed Clara (sic) Schafer on or about March 14, 1966, and being armed with a deadly weapon, to wit, a .32 caliber automatic pistol on the occasion of this robbery.

Both Smith and Monfort were additionally charged with prior felony convictions; Smith of illegal possession of marijuana (Health & Saf. Code § 11530) and Monfort of robbery (Pen.Code, § 211).

Monfort, represented by private counsel, pleaded guilty to the three counts of armed robbery charged against him in Counts I, II and III. Defendant Smith, represented by a deputy public defender, admitted the alleged prior felony conviction out of the presence of the jury, and proceeded to trial before a jury on the three counts of robbery charged against him in Counts I, II and IV of the information. The jury found him guilty on all three counts, fixing the degree of the robberies charged in Counts I and II to be of the first degree and that charged in Count IV to be of the second degree. The jury also returned separate verdicts as required by section 1158a of the Penal Code finding the allegations of defendant being armed at the time of committing the two robberies charged in Counts I and II true, but the similar allegation charged in Count IV not true.

Defendant's court-appointed appellate counsel advances the following contentions of error: ¹ (1) the findings of being armed with a deadly weapon should have been stricken upon the jury's finding the robberies to be of the first degree because committed with a deadly weapon where the particular defendant was not himself personally so armed; (2) the showing of The facts and evidence necessary to disposition of these respective contentions will be set forth as they are taken up seriatim. We have concluded that contention (1) has merit, but that contentions (2) and (3) do not.

                identification photographs to prosecution witnesses prior to their in court identification of defendant violated defendant's constitutional rights; and (3) the adverse statements of a defendant in a pre-sentence probation officer's report may not be used against him in considering his eligibility for probation and sentencing him without an affirmative compliance with the Miranda 2  rules by a probation officer conducting a pre-sentence investigation in the absence of defense counsel
                

RECITAL OF BEING ARMED WITH DEADLY WEAPON IMPROPER

The evidence amply establishes that when Smith and his codefendant Monfort robbed Vinson Schendel on March 15, 1966, and again on March 29, 1966, Monfort was armed with a .32 caliber automatic pistol. In striking contrast, the evidence is completely barren as to Smith's having been armed.

People v. Thomsen (1965) 239 Cal.App.2d 84, 97--98, 48 Cal.Rptr. 455, held it improper for the judgment to recite that defendant was armed with a deadly weapon at the time of the offense where the conviction for first degree robbery is predicated upon a confederate being so armed in course of committing the crime. The defendant was being subjected to increased punishment, the court reasoned, just by the conviction for first degree robbery rather than second degree robbery carrying a lesser punishment. And since an essential factor in the finding of first degree is the use of a deadly weapon, the rationale of In re Shull (1944) 23 Cal.2d 745, 146 P.2d 417, prohibited applying section 12022 of the Penal Code to increase the punishment.

It will be remembered that In re Shull, supra, held increased punishment provisions of a predecessor statute to section 12022 inapplicable where the defendant had been convicted for an assault with a deadly weapon (Pen.Code § 245), stating at page 751, 146 P.2d at page 419:

'Briefly, the Legislature has fixed the punishment for an assault where a deadly weapon is used, a particular crime, and it is not to be supposed that for the same offense without any additional factor existing the added punishment should be imposed. In felonies where a deadly weapon is not a factor in the offense, the additional punishment is imposed by section 3 of the Deadly Weapons Act, because of the additional factor of a deadly weapon being involved.

'The foregoing view of the legislative intent is fortified by the very wording of section 3. It refers to the commission of a felony As complete in itself and then Adds 'while armed' with a pistol. The felony of assault with a deadly weapon would not be complete in itself unless the element of the weapon were present. Hence, there is no occasion for Adding the weapon factor.' (Italics in original text.)

People v. Bryant (1957) 154 Cal.App.2d 121, 130--131, 315 P.2d 734, held that In re Shull, supra, likewise rendered inapplicable section 3024 of the Penal Code to a conviction for an assault with a deadly weapon.

In the recent case of People v. Sparks (1967) 257 Cal.App.2d ---, --- ^a, 64 Cal.Rptr. 682, 685, the court which had rendered the opinion in Thomsen (1965), supra, 239 Cal.App.2d 84, 97--98, 48 Cal.Rptr. 455, extended its holding therein to one who himself was armed and convicted of first degree robbery and ordered the finding that defendant was armed 'pursuant to Penal Code, sections 969c and 3024' expunged from the judgment so as to eliminate additional punishment under section 12022 of the Penal Code.

Upon the question in issue in this case as to whether sections 969c, 3024 and 12022 of the Penal Code apply to a defendant who was not himself armed with a deadly weapon but found guilty of first degree robbery because of his confederate being so armed, the cases of People v. Stevens (1939) 32 Cal.App.2d 666, 90 P.2d 595 and People v. Kiser (1937) 22 Cal.App.2d 435, 71 P.2d 98 are no longer controlling following the 1949 amendment to section 1203 of the Penal Code providing that a person who is not himself personally armed is eligible as an applicant for probation. (People v. Perkins (1951) 37 Cal.2d 62, 230 P.2d 353; Civ.Code § 3510.)

In view of the foregoing authorities, the trial court erred in refusing to strike the special verdicts (under Pen.Code § 1158a) upon defendant's motion for new trial when his trial counsel called the trial court's attention to the evidence being devoid of any showing that defendant Smith was personally armed in course of committing the first degree robberies for which he was convicted. The recital 'and that defendant was armed as alleged' following the words, 'Robbery of the first degree' in the judgment constituted error. ³

NO ILLEGAL USE OF IDENTIFICATION PHOTOGRAPHS

Defendant contends that the extrajudicial use of identification photographs by the police in this case violated his right to counsel analogous to that recognized as applicable to pretrial police lineup identifications in United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. State of California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Even as to lineups, the holding of those cases are not applicable to cases tried prior to June 12, 1967, the date on which those decisions were rendered. (Stovall v. Denno (1967) 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Feggans (1967) 67 Cal.2d ---, --- ^b, 62 Cal.Rptr. 419, 432 P.2d 21; People v. Caruso (1968) 68 Cal.2d ---, --- ^c, 65 Cal.Rptr. 336, 436 P.2d 336.) The trial of this case was completed on August 1, 1966. We, therefore, decline to apply the Wade and Gilbert theories as to right to counsel to this case.

In these extra-judicial confrontations or uses of photographs for identification purposes, aside from the defendant's right to counsel, there is the question of fairness under the requirements of due process. (Stovall v. Denno, supra, at p. 301 of 388 U.S., p. 1972 of 87 S.Ct.; People v. Caruso, supra, 68 Cal.2d at p. --- et seq. (68 A.C. 181, 183 et seq.), 65 Cal.Rptr. 336, 436 P.2d 336.) Under the concept of due process 'a deliberate pervicacious (unfair extrajudicial use of photographs) calculated to nail down an identification later to be used in court' has been condemned (People v. Pedercine (1967) 256 Cal.App.2d ---, --- ^d, 63 Cal.Rptr. 873), whereas a proper use thereof has been upheld in Feggans, supra.

This case does not present a situation where the identification of Smith was so shaky that resort to photographs was required to prime the witnesses. There was an in court...