People v. Walker

• Decision Date: 08 August 1978
• Docket Number: Cr. 8797
• Citation: 83 Cal.App.3d 619,148 Cal.Rptr. 66
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Arlen Henry WALKER et al., Defendants and Appellants.

Page 66

148 Cal.Rptr. 66

83 Cal.App.3d 619

The PEOPLE of the State of California, Plaintiff and Respondent, v. Arlen Henry WALKER et al., Defendants and Appellants.

Cr. 8797.

Court of Appeal, Fourth District, Division 1, California.

Aug. 8, 1978.

Hearing Denied Oct. 4, 1978.

Appellate Defenders, Inc. by Barry D. Utsinger, San Diego, under appointment by the Court of Appeal, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Beatrice W. Kemp, Deputy Attys. Gen., for plaintiff and respondent.

GERALD BROWN, Presiding Justice.

Arlen Henry Walker and Andre Enos Walker appeal the judgments after a jury found each of them had committed four robberies (Pen. Code § 211); each was found to have been armed with a firearm during two of the robberies. Arlen received two consecutive sentences; Andre, concurrent sentences.

Andre and an associate robbed four different 7-11 stores on four different occasions. Arlen drove the car.

After they were arrested, first Arlen and then Andre confessed. Both argue the trial court erred in ruling on the voluntariness of their confessions by failing to state what standard of proof it was using. While the case was pending the California Supreme Court held that voluntariness of confessions should be judged by the standard of proof beyond a reasonable doubt (People v. Jiminez, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672). With regard to pending cases, where the record is silent as to the standard used, the appellate court should review the record as a whole and determine whether there was a reasonable probability that a result more favorable to the defendant would have been reached had there been no error (People v. Jiminez, supra, 21 Cal.3d 595, 609, 147 Cal.Rptr. 172, 580 P.2d 672; People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243).

Here there was conflicting testimony on the question of voluntariness. The officers testified that after giving the Miranda warning and getting the defendants' consent, Arlen and Andre had confessed voluntarily and no threats or promises had been made to either of them. The defendants said the officers had threatened them and it was the officers' threats which had induced them to confess. The trial court believed the officers, not the defendants. The court's finding on voluntariness depended completely on which witnesses it believed; the testimony of the witnesses the court believed was the bare statement there had been no threats or promises. Thus, there is no probability the confessions would have been found involuntary if the court had used the beyond a reasonable doubt standard rather than the preponderance of the evidence standard. The court's finding on voluntariness must be sustained.

Arlen argues that the trial court erred in sentencing him because it did not state any reasons for imposing consecutive sentences. Penal Code section 1170(c) provides:

"The court shall state the reasons for its sentence choice on the record at the time of sentencing. . . ."

The parties disagree on whether the selection of consecutive rather than concurrent sentences is a "sentence choice." California Rules of Court Rule 405(f) states:

" 'Sentence...