People v. Walkkein

• Decision Date: 13 April 1993
• Docket Number: No. B062314,B062314
• Citation: 18 Cal.Rptr.2d 383,14 Cal.App.4th 1401
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph L. WALKKEIN, et al., Defendants and Appellants.

Page 383

18 Cal.Rptr.2d 383

14 Cal.App.4th 1401

The PEOPLE, Plaintiff and Respondent, v. Joseph L. WALKKEIN, et al., Defendants and Appellants.

No. B062314.

Court of Appeal, Second District, Division 3, California.

April 13, 1993.

Review Denied July 15, 1993.

Richard D. Rome, Van Nuys, under appointment by the Court of Appeal; Gardner & Derham and Robert Derham, San Francisco, under appointment by the Court of Appeal, for defendants and appellants.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Roger E CROSKEY, Associate Justice.

Venturi, Supervising Deputy Atty. Gen., Maureen A. Daly, Deputy Atty. Gen., for plaintiff and respondent.

Joseph L. Walkkein and Antonio Royal Watson were charged by information with attempted robbery (Count 1; Pen.Code, § 664/211) ¹ and burglary (Count 2; § 459). During their court trial, over Watson's objection, extrajudicial statements by Walkkein which incriminated Watson were admitted into evidence as to Walkkein only.

Watson's appeal raises the issue of whether the rule of People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, prohibiting the admission into evidence of extrajudicial statements by one codefendant, which incriminate another codefendant, applies where the defendants waive trial by jury and are tried by the court. This issue has not been explicitly resolved in any published California case. However, well-established federal authorities have concluded the United States Constitution does not require application of the rule in a court trial. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176; Rogers v. McMackin (6th Cir.1989) 884 F.2d 252, 256-257, cert. denied in Rogers v. Hills (1990) 493 U.S. 1061, 110 S.Ct. 877, 107 L.Ed.2d 960. We therefore will conclude that article I, section 28, subdivision (d), the "Truth-in-Evidence" provision of the California Constitution, forbids such application.

In the proceedings below, Walkkein was found guilty of burglary and attempted robbery as charged. The charge of attempted robbery was dismissed as to Watson, and he was convicted of burglary only. In bifurcated proceedings, the court found true allegations made in amendments to the information that Walkkein had suffered 1 prior serious felony conviction (§ 667, subd. (a)) and served 3 prior prison terms (§ 667.5, subd. (b)) and that Watson had served 1 prior prison term (§ 667.5, subd. (b)). ² Walkkein was sentenced to a total unstayed term of 14 years in the state prison, consisting of the upper term of 6 years for the burglary, 5 years for the prior serious felony and 1 year for each of the prior prison terms. Watson was sentenced to 7 years in the state prison, consisting of the upper term of 6 years for the burglary and 1 year for the prior prison term.

The sole error which we find in the proceedings below is the award of one day of unauthorized pre-sentence conduct credit to each defendant. We therefore shall order each abstract of judgment modified by the deduction of one day from each defendant's conduct credits and shall otherwise affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Viewing the facts according to the usual rules governing appellate review (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738), at approximately 9:35 a.m. on May 31, 1991, 86-year-old Antonia Prejean and her roommate Rose Lee Sherwood, were in separate rooms of their fifth floor apartment, apartment number 512 at 1725 The Promenade in the city of Santa Monica, California, when Ms. Prejean heard a knock at the door. When she opened the door, a person she later identified as Walkkein was standing outside holding a paper bag. Walkkein spoke, but Ms. Prejean, who was hard of hearing, could not understand him. Concluding he was trying to sell something, Ms. Prejean said she had no money and tried to close the door, but Walkkein's foot was in the door.

As Ms. Prejean tried to close her door, Walkkein put his hand over her face and pushed her backward onto a sofa. She screamed. At this point, Ms. Sherwood entered the living room from a bedroom, and another man entered the apartment.

Ms. Sherwood also screamed, whereupon both men "ran like heck."

A neighbor, Thomas Clappier, heard the women's screams and saw two men running away. Another neighbor telephoned the police. Shortly thereafter, Watson was arrested at a nearby bus stop. Clappier identified him at an in-field show-up and at trial as one of the men he had seen fleeing. Walkkein was arrested outside Ms. Prejean's apartment building. Ms. Prejean identified him at an in-field show-up as the first man who entered her apartment, the one who shoved her onto the couch. A brown paper shopping bag was found on the ground near Walkkein when he was arrested. When Watson was searched at the time of booking, a brown paper shopping bag was found concealed in the waistband of his pants.

Walkkein gave the police a false name when he was arrested. A few days later, he spoke with detective Robert Bird and denied all involvement in the offense. When Bird stated he did not believe Walkkein's story and also told him Ms. Prejean had identified him as one of the robbers, Walkkein admitted he and Watson went to Ms. Prejean's apartment intending to steal her purse and anything else of small value. They carried brown paper bags to hide the purses they intended to steal.

Watson testified at trial. He said he had met Walkkein the day before the offense. On the morning of the offense, the two decided to go to Santa Monica to visit either a friend of Watson's or a girl Walkkein had recently met at the beach. They both carried brown shopping bags with them to carry their belongings. Watson went with Walkkein to the fifth floor of Ms. Prejean's building, but had no intent to steal anything there. When he saw that Walkkein was about to rob Ms. Prejean, he entered the apartment and tried to persuade Walkkein to stop, but was unsuccessful.

CONTENTIONS ON APPEAL

Watson contends that: (1) his rights under People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 and Bruton v. United States (1968) 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 were violated by the admission into evidence of statements by Walkkein which incriminated Watson; (2) his conviction was not supported by sufficient evidence of an intent to commit a larceny or felony within the victim's apartment. Walkkein contends the court improperly imposed an enhancement under section 667.5, subdivision (b), for a prior prison term which arose out of an offense committed while serving an earlier term of imprisonment.

The People dispute each of the defendants' contentions and argue that both defendants were granted unauthorized good time-work time credits for pre-sentence custody.

1. The "Bruton-Aranda" Rule Does Not Apply to Court Trials.

Shortly after his arrest, Walkkein waived his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, spoke with a police officer, and gave the officer two mutually inconsistent accounts of events surrounding the offense. Watson contends the admission of those statements into evidence without excising all references to Watson violated his rights under People v. Aranda, supra, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265 ("Aranda") and Bruton v. United States, supra, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 ("Bruton").

We may dispose quickly of the contention that Watson's rights under Bruton were violated. Bruton does not require the exclusion of one codefendant's extrajudicial statement incriminating the other codefendant in a court trial. (Rogers v. McMackin, supra, 884 F.2d at pp. 256-257; Cockrell v. Oberhauser (9th Cir.1969) 413 F.2d 256, 258. ³

As regards Watson's claim under Aranda, prior to the adoption by the electorate of Proposition 8, and in particular, its "Truth-in-Evidence" provision, California In Aranda, the California Supreme Court held that when the prosecution seeks to introduce a codefendant's extrajudicial statement that incriminates not only the codefendant but also the nondeclarant defendant, the trial court must adopt one of the following procedures: (1) permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant; (2) grant severance of the trials if the prosecution insists it must use the extrajudicial statements and it appears effective deletions cannot be made; (3) if the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, exclude the statement if effective deletions are not possible. (63 Cal.2d at pp. 530-531, 47 Cal.Rptr. 353, 407 P.2d 265.) The Supreme Court did not find the rule it enunciated in Aranda to be constitutionally compelled, but adopted it as a judicially declared rule of procedure. (Id. at p. 530, 47 Cal.Rptr. 353, 407 P.2d 265.)

                Constitution article I, section 28, subdivision (d) (article I, section 28(d)), it was assumed, although never actually decided, that the Aranda rule would apply in court trials, as well as jury trials.  (People v. Charles (1967) 66 Cal.2d 330, 338-339, fn. 12, 57 Cal.Rptr. 745, 425 P.2d 545;  People v. Miles (1969) 272 [14 Cal.App.4th 1407] Cal.App.2d 212, 219, fn. 4, 77 Cal.Rptr. 89.)   However, since the adoption of article I, section 28(d), 4 that conclusion is open to serious question
                

Three years after the California Supreme Court's decision in Aranda, the United States Supreme Court held in Bruton that an accused's rights under the confrontation clause of the Sixth Amendment are violated at the accused's joint trial with a nontestifying codefendant, if the codefendant's confession which facially inculpates the accused is admitted into evidence. (391 U.S. at p. 126, 88 S.Ct. at p. 1622.) The Supreme...