Opinion
Rehearing Denied Oct. 10, 1969.
William James Carroll, in pro. per., and Richard H. Levin, 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 James H. Kline, Deputy Atty. Gen., for plaintiff and respondent.
FILES, Presiding Justice.
After a court trial, a jury having been waived, defendant was convicted of three offenses: count I, robbery, first degree, of Pat Morano (Pen.Code, § 211); count II, robbery, first degree, of Norman Gulsvig (Pen.Code, § 211); count III, assault with a deadly weapon with intent to murder Gulsvig (Pen.Code, § 217). The court sentenced defendant to state prison on all counts, but suspended execution of the sentence on count III, pending completion of the term under count II.
This suspension was apparently ordered because of the rule against multiple punishment as set forth in In re Wright (1967) 65 Cal.2d 650, 655, 56 Cal.Rptr. 110, 422 P.2d 998.
Count II of the information also alleged, and the court found, that during the commission of the robbery the defendant intentionally inflicted great bodily injury upon the person of Norman Gulsvig. The effect of such a finding is to increase the minimum term of imprisonment to 15 years, under the 1967 amendment to Penal Code section 213.
This is defendant's appeal from the judgment. The notice of appeal also refers to the order denying a new trial, which is not separately appealable.
All three offenses were committed shortly after midnight on June 1, 1968, at the Jet Bird Bar in El Monte, owned by Pat Morano. When Gulsvig entered the restroom defendant, who was apparently waiting there, pointed a gun at him and said "Hand me your wallet." Gulsvig complied. When defendant saw there was no money in the wallet he threw it on the sink. Gulsvig then ran out of the washroom, slamming the door in defendant's face. Defendant pursued Gulsvig, shouting "I'm going to kill him."
Gulsvig ran behind the bar to hide. Defendant fired two shots, one of which missed while the other grazed Gulsvig's chin. Gulsvig then threw a beer bottle at defendant and lay down under the bar. Defendant came behind the bar to the cash register and noticed Gulsvig on the floor. Simultaneously Gulsvig threw a case of beer bottles at defendant and defendant shot Gulsvig in the abdomen, inflicting a serious wound.
After that defendant took money out of the cash register and departed.
The evidence adequately supports the finding that defendant was guilty of both robberies and the assault. Morano and a patron of the bar testified positively that defendant was the man. The brief filed by defendant in propria persona attacks the People v. Hills
There is no evidence that the identification testimony was influenced by any improper police practices.
The taking of Gulsvig's wallet was a robbery even though the defendant threw it away as soon as he discovered it was empty. It is a reasonable inference that at the time defendant demanded and received the wallet he intended to deprive the owner of it permanently. (See People v. Hall (1967) 253 Cal.App.2d 1051, 1054, 61 Cal.Rptr. 676.)
There remains the question of the interpretation and application of the 1967 amendment to Penal Code section 213 which provides:
'The preceding provisions of this section notwithstanding, in any case in which defendant committed robbery, and in the course of commission of the robbery, with the intent to inflict such injury, inflicted great bodily injury on the victim of the robbery, such fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial or if admitted by the defendant, defendant shall suffer confinement in the state prison from 15 years to life.'
Count II of the information in this case alleges 'That during the commission of said robbery, said defendant, with the intent to inflict injury, did inflict great bodily injury upon the person of Ronald Norman Gulsvig.'
At the close of the trial the court announced from the bench 'At this time the Court will find the defendant guilty of each count charged in the information.'
At the time of arraignment for judgment the court said:
'In Count 2, to clarify the record, the Court has found that the defendant is guilty of robbery in the first degree, that the defendant did inflict great bodily injury upon the person of Ronald Gulsvig.'
Despite this statement from the bench, the abstract of judgment appearing in the clerk's transcript fails to mention any finding regarding bodily injury.
If, as appears likely, the absence of this finding in the abstract of judgment is a clerical error, the superior court has continuing jurisdiction to correct the written record to make it conform to what the court actually decided. (See Witkin, Cal. Criminal Procedure, § 634.)
Since the finding which appears in the reporter's transcript may be used to the prejudice of defendant, it is necessary and proper to determine at this time whether the evidence brings the case within the meaning of the 1967 amendment to section 213.
The evidence shows that Gulsvig was shot after the robber had taken his wallet and abandoned it. The shooting preceded the robbery of Morano's cash register, and may have been done for the purpose of preventing any interference with that taking. But Gulsvig was not a victim of the cash register robbery. There is no conflict in the evidence as to the sequence of events. The question is whether the injury was inflicted upon Gulsvig 'in the course of commission' of the only robbery in which he was the victim, that is, the taking of his wallet.
This new statute does not appear to have been interpreted in any reported appellate decision. Two other statutes which provide increased punishment for robbery-connected offenses are Penal Code sections 209 (kidnaping for robbery) and 189 (felony murder). But the language of those sections is different, and the cases interpreting them are not necessarily a guide to the interpretation of section 213. On the contrary, the Legislature's choice of different language suggests that a different meaning is intended. Penal Code section 209 prescribes punishment for a person who kidnaps 'any individual to commit robbery.' That section may apply when the person kidnaped is not the victim of the robbery, e. g., a passing motorist who is kidnaped to facilitate the robber's escape. (People v. Curry (1964) 224 Cal.App.2d 66, 36 Cal.Rptr. 218.)
Penal Code section 189, the felony murder statute, provides that all murder which is committed 'in the perpetration or attempt to perpetrate arson, rape, robbery, burglary * * * is murder of the first degree.' A homicide committed by a robber, after the robbery, to facilitate escape, comes within that section. (People v. Ketchel (1963) 59 Cal.2d 503, 523, 30 Cal.Rptr. 538, 548, 381 P.2d 394, 404.) The court there pointed out "The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property."
Judgment vacated on other grounds (1966) 63 Cal.2d 859, 48 Cal.Rptr. 614, 409 P.2d 694. After retrial, the convictions were again affirmed (1969) 71 A.C. 659, 79 Cal.Rptr. 92, 456 P.2d 660.
The broad sweep given the felony murder statute is illustrated by People v. Chavez (1951) 37 Cal.2d 656, 234 P.2d 632, where the defendant had committed a burglary by entering a house, then raped an occupant, and then stabbed to death the woman he had raped. The defendant in that case requested an instruction that in order to find a killing in the perpetration of rape, the jury must find that the defendant killed the deceased while committing an act of rape or in pursuance of the act of rape. In holding that such an instruction was rightly refused, the Supreme Court said (at pp. 669-670, 234 P.2d at pp. 640-641):
'In his argument, Chavez erroneously assumes that to bring a homicide within the terms of section 189 of the Penal Code, the killing must have occurred 'while committing,' 'while engaged in', or 'in pursuance' of the named felonies, and that the killing must have been 'a part of' the felony or attempted felony 'in an actual and material sense, and have resulted as a natural and probable consequence thereof.' The law of this state has never required proof of a strict causal relationship between the felony and the homicide. * * * The homicide is committed in the perpetration of the felony if the killing and felony are parts of one continuous transaction. * * *
'There being no requirement that the homicide occur 'while committing' or 'while engaged in' the felony, or that the killing be 'a part of' the felony, other than that the two acts be parts of one continuous transaction, the trial court did not err in refusing the requested instructions.'
Against this background the Legislature, in 1967, provided increased punishment where 'in the course of commission of the robbery' the robber injured 'the victim of the robbery.' This language calls for a narrower interpretation than section 189, which was not limited to acts done in the course of the commission, and was not limited to the victim of the robbery. Applying what appears to us the plain meaning of the language chosen by the Legislature, we must hold that the defendant at bench did not injure Gulsvig 'in the course of commission' of the robbery in which Gulsvig was the victim. All of the elements of that robbery itself had been completed before the shooting began. Defendant had already abandoned the wallet, so it cannot be said he was engaged in asportation of the loot. Had defendant been seeking to escape following the Gulsvig robbery he would not have gone behind the bar where Gulsvig was hiding. The injury may have been inflicted in the commission of the cash register robbery, but not in the commission of the Gulsvig robbery. Defendant therefore is not subject to the increased punishment provided by the 1967 amendment to Penal Code section 213. Since the judgment, as entered, does not presently contain the special finding, no formal modification of the judgment is now required. The finding that in the course of the commission of the robbery charged in count II of the information the defendant inflicted great bodily injury on the victim of the robbery is hereby stricken. The judgment is affirmed. The appeal from the order denying a new trial is dismissed.
KINGSLEY and DUNN, JJ., concur.