People v. Sutter

• Citation: 184 Cal.Rptr. 829,134 Cal.App.3d 806
• Decision Date: 05 August 1982
• Docket Number: Cr. 4735
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Claud SUTTER, Defendant and Appellant.

Page 829

184 Cal.Rptr. 829

134 Cal.App.3d 806

The PEOPLE, Plaintiff and Respondent, v. Michael Claud SUTTER, Defendant and Appellant.

Cr. 4735.

Court of Appeal, Fifth District, California.

Aug. 5, 1982.

Hearing Denied Oct. 13, 1982.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Julia Cline Newcomb, Deputy State Public Defender, Sacramento, for defendant and appellant

[134 Cal.App.3d 809] George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and Jane Kirkland Fischer, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

CONKLIN, Associate Justice. ^*

Appellant, Michael Claud Sutter, and Archie Mayhew (not a party to this appeal) were charged with violation of Penal Code section 211, robbery. There were special allegations that Mayhew used a firearm (Pen.Code, § 12022.5) and that appellant was armed as a principal (Pen.Code, § 12022 subd. (a)).

Thereafter, the court accepted defendant Mayhew's guilty plea to robbery in count I (Pen.Code, § 211) without any special allegations. Mayhew had not been sentenced at the time of appellant's trial.

Appellant was convicted of robbery and the jury made a true finding that he was a principal in the robbery while another principal was armed with a firearm. The trial court then denied appellant's motion for a new trial because of juror misconduct and sentenced him to state prison for three years, which was the middle term for the robbery, plus an additional year for a violation of Penal Code section 12022, subdivision (a).

FACTS

On the afternoon of August 9, 1979, appellant Michael Sutter and Archie Mayhew were drinking and playing pool at a bar in Visalia. There was evidence they were probably drunk. Later, appellant and Mayhew went to Galen's Market. Appellant parked his car in the parking lot. The passenger door was open and the engine was running. ¹

Mayhew took a six-pack of beer to the clerk; when she told him the price, he said he did not have the money and she could take it out of the cash register. She replied there was not much there and he told her to take it out and give it to him. He also told her he was not joking around and he had just gotten out of Soledad; he said, "I don't want to pull a piece on you, give me the money" and he lifted up his shirt and showed her what the clerk described as a "butt end." She took approximately $105 out of the register and gave it to Mayhew; he put it in his pants pocket and said he was sorry he had to do it but he needed the money. Then he left.

Mayhew came out of the store with a paper sack. He was walking really fast and then running. He then jumped in appellant's car which took off, throwing up gravel as it left.

After being arrested, appellant waived his Miranda rights and gave a statement to a Tulare County sheriff's deputy. He said he and Mayhew had been playing pool and drinking beer at the Green Olive Bar when Mayhew suggested that appellant give him a ride to Galen's Market because Mayhew was going to borrow some money from the market owner or the owner owed him some money. Appellant said they went to the market, Mayhew went inside and came out a short time later carrying a sack containing a six-pack of beer and they then left. Appellant also stated he did not know Mayhew was going to rob the market and he was not aware Mayhew had a firearm.

On the passenger side of the front seat of appellant's car sheriff's deputies found a transparent yellowish-colored plastic container containing some unspent 32-caliber cartridges.

Appellant testified he had had trouble starting his car and left the engine running so that he would not have to jump start it again as he had done on three earlier occasions that day. He did not recall the passenger door being open when Mayhew was in the store. He indicated the passenger door did not always close because the car had been wrecked and the door sometimes was ajar. He stated that Mayhew walked out of the store, offered him a beer which he declined, and they then left. He testified his car could not accelerate fast enough to throw up gravel.

Appellant further testified that Mayhew never showed him any money; he did not see Mayhew with any firearm; he had never seen the plastic container of bullets and had no idea how it got into his car.

I.

Before testimony was taken, the trial court held a hearing to determine if the prospective defense witness, Archie Mayhew, was going to take the Fifth Amendment. Mayhew testified that he was going to assert the privilege.

The People then represented there was another robbery which was committed in the same "time frame," the vehicles had the same descriptions, the descriptions of the participants were the same, and indicated there was a common modus operandi. The deputy district attorney noted that, although the charges had been dismissed, the charge against Mayhew could still be refiled. ²

Appellant's defense counsel argued that Mayhew should be allowed to testify. He contended the first offense was irrelevant to the second offense and noted how the district attorney had not been interested in the other robbery for nine to ten weeks. Also, he had interviewed Mayhew with regard to the crime to which Mayhew had pled guilty. Defense counsel represented:

"It's my belief that he would testify that Mr. Sutter had nothing to do with the alleged offense to which he pled guilty, had no prior knowledge or intent knowledge as to what had occurred inside the store, and that thereafter, he and Mr. Sutter separated company, and Mr. Mayhew was then arrested in the Round Table Pizza, in Visalia. [p] Mr. Sutter was nowhere around. That's corroborated by the police and other witnesses. It's my belief that the testimony of Mr. Mayhew would not be incriminatory since he has already pled guilty to the offense."

Appellant's defense counsel disputed the similarities of the crimes and also made an offer of proof that Mayhew had talked to the probation department, had admitted to them his involvement in the robbery at Galen's Market, ³ that appellant was outside the store when he committed the offense, and appellant had no knowledge as to what Mayhew intended before or even afterward.

The trial court ruled that Mayhew could properly assert his Fifth Amendment privilege stating "[his testimony] would tend to tie him to another similar robbery and be enough to fill in the gaps of the prosecution's case and threaten him with actual prosecution."

Defense counsel then made a motion that the court grant Mayhew immunity with regard to any other offense that occurred on that evening, i.e., the second robbery. Recognizing the request was "unusual" and probably outside the statute as the district attorney usually made the motion, defense counsel argued it would be in the interests of justice and getting the truth out for the court, which would be within its power, to grant Mayhew immunity.

The trial court denied the motion noting that the statute permitting the granting of immunity gives the prosecution sole discretion and does not give the court jurisdiction to initiate those proceedings unless the prosecution requests. The People indicated they would not request immunity and that the second robbery was an open file.

Appellant now contends the trial court erred in failing to grant judicial (not statutory) use immunity to Mayhew so as to overcome his Fifth Amendment claim. Appellant premises his argument on the Fifth Amendment (due process), the Sixth Amendment (right to compulsory process) and on federal case law which has authorized such immunity.

Respondent contends the request for such immunity was not raised below and has therefore been waived; if use immunity were granted, a heavy burden would be placed upon the prosecution to prove that the evidence of the other robbery was obtained from a wholly independent source; and the government had a continuing interest in prosecuting Mayhew.

Generally, an "objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290, 145 Cal.Rptr. 876, 578 P.2d 123; see also People v. Sipress (1975) 51 Cal.App.3d 98, 102-103, 123 Cal.Rptr. 884.)

Defense counsel stated that the request was "probably" outside the statute as the motion was usually made by the district attorney, yet he implied there could be a grant of judicial immunity as "the Court would be well within it's [sic ] power" to grant Mayhew immunity.

Here, defense counsel did not request that the trial court grant Mayhew judicial use immunity nor did defense counsel specify that he was basing his claim on the Fifth and Sixth Amendments. In fact, it appears the trial judge understood defense counsel to be requesting a type of immunity very different from that now being asserted on appeal because the lower court denied the motion on the ground that the statute (Pen.Code, § 1324) gives the prosecution sole discretion. Under settled principles of appellate review a claim of error not made in the trial court is waived.

The discussion of the grant of immunity issue should end here. However, the dissent contends that, notwithstanding state and federal statutory and case law to the contrary, we should declare a doctrine of judicially declared use immunity based upon constitutional principles. In that context we are compelled to explain why we disagree.

Use immunity protects a witness only against the actual use of his compelled testimony and evidence derived directly or indirectly therefrom, while transactional immunity protects the person against all later prosecutions relating to matters about which he testifies. (Witkin, Cal.Evidence (2d ed. 1982 Supp.) § 928, p. 508.)

In Kastigar v. United States (1972) 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 312, the Supreme Court held that a federal statute conferring use immunity was consonant with the ...