Opinion
Rehearing Denied Feb. 6, 1964.
Stanley Mosk, Atty. Gen., and William E. James, Asst. Atty. Gen., for plaintiff and respondent.
By appointment of the District Court of Appeal.
Appellant and one Alvarez were charged with six counts of robbery (five counts as to Alzarez) and one count of grand theft; appellant was charged with four prior felony convictions, there of burglary and one of a violation of section 666 of the Penal Code. Alvarez pled guilty to three counts of robbery; the case then proceeded against appellant. Jury trial was waived and, after proceedings hereinafter discussed, the matter was submitted on the transcript of the preliminary examination, plus additional evidence as to the priors. The court found appellant guilty on all six counts of robbery, also finding him to have been armed at the time of five of the robberies (the theft count apparently was dismissed on motion, although this appears only from discussion at the trial and not from any portion of the clerk's transcript), and all four prior convictions were found to be true. A motion for new trial and probation were denied and appellant was sentenced to state prison for the term prescribed by law, the sentences to run concurrently.
Defendant appealed and, at his request, we appointed counsel on his behalf. Such counsel has filed herein a 'Report on Appeal,' together with certain memorandum of law sent to him by his client. His report sets out the facts and testimony, reviews certain possible arguments for reversal, but concludes that there are no grounds having 'the slightest possible merit.' The Attorney General then moved to dismiss the appeal as frivolous or to affirm the judgment. We denied the motion and submitted the matter on the record and the various documents on file. We have made our own examination of the record on appeal, and conclude that, contrary to the statement of counsel and the Attorney General, there are meritorious points which, while they do not call for a reversal of the judgment, do require its modification in two particulars.
Among the documents in the file is a letter from appellant to his court-appointed counsel, reading as follows: 'Please be advised that the sole question I desire raised on appeal, is whether the arrest, search and seizure Re Crim. No. 8937, were made in violation of the Constitutional Guarantee, State and Federal, against illegal arrests, searches, and seizures.
I
As above noted, the trial court found to be true the allegations that appellant had suffered four prior convictions and had served separate prison terms therefor. But the record shows that the People offered proof of only three of the alleged priors, expressly refraining from offering any proof at all as to the second alleged prior--an alleged conviction of burglary suffered in Shasta County on January 2, 1951. No proof having been offered or received as to this alleged prior, the finding that it was true must, of course, fall.
The effect is that appellant is an habitual criminal under subsection (a) of section 644 of the Penal Code, rather than under subsection (b), and that his eligibility for parole is governed by section 3047 and 3047.5 and not by section 3048.
II
The second count of the information alleged robbery in that defendants did 'by means of force and fear take from the person, possession and immediate presence of Betty Sandlow, the following personal propery, to wit: Forty-four Dollars ($44.00) in money * * *'
Betty Sandlow was the owner of the liquor store which was the scene of the
'Q. Were you frightened the second time?
'A. No, I wasn't frightened the second time.
'Q. Why did you give up your money?
'A. * * * Why, he stuck the gun on me and told me to open the cash register. How could I
'Q. You testified he had his hand like this? (Indicating)
'A. Yes, how do I know,
'Q. Yes, And you were frightened then, too, were you?
'A. No, I wasn't so frightened like I was the first.' [Emphasis added.]
(People v. Borra (1932), 123 Cal.App. 482, 483-484, 11 P.2d 403, 404.) On this testimony, the court concluded (123 Cal.App. at pp. 484-485, 11 P.2d at pp. 404-405):
'In the present case there is ample evidence of fear on the part of the owner of the store in spite of the fact that he stated he was not frightened on the occasion of the second robbery as much as he was the first time. He did testify that the robber 'stuck the gun' on him, and demanded that he open up the cash register. He admitted that he acquiesced in this demand very promptly. And he gave up the cash. Prompt compliance with the commands of an armed person, who by words or demonstration threatens bodily harm for failure to do so, furnishes some evidence of fear. The very prompt relinquishing of the money in the cash register is also evidence of fear. Men do not ordinarily give up their hardearned cash to a stranger who threatens them with a gun, except for fear of bodily injury in the event of a refusal to do so. In spite of the bravado of the merchant in declaring that he was not much afraid, we are inclined to believe he meant he was not afraid of receiving bodily harm so long as he complied with the demands of the robber.' [Emphasis added.]
But in the instant case, the witness indulged in no comparisons of degrees of fear, nor did he contradict his denial of fear by testimony that he was motivated by the fact that a gun was pointed at him. The witness was not the owner, it was not his 'hard-earned' money that was at stake. We are left to speculate on whether his answer was 'bravado' or whether he gave up the money in obedience to a not uncommon direction from the owner to acquiesce in holdup demands without question. The prosecutor having elected not to attempt to secure any qualification of the victim's flat denial of fear, must be bound by that answer from his own witness.
III
The other contentions made by appellant or by his counsel are without merit:
(a) Appellant contends that his arrest was without probable cause and that the search which followed, and which led (b) The identification testimony in some of the counts was open to doubt, since there were variances in description, and in one case appellant was seen only in profile while he acted as look-out. But these matters went merely to the weight of the positive identification made by each victim and raised only matters of fact as to which the trial court's determination is binding on appellant and on us.
(c) Nine days before the trial date, appellant substituted counsel of his own choice for the public defender. A request for continuance made at that time was denied, as was a second request made at the start of the trial. We can see no error in the rulings. The showing made was clearly insufficient to justify a continuance or to explain why missing witnesses had not been contacted and subpoenaed in the period of over a week, during which counsel was on notice that he would be expected to go to trial at the date originally set.
(d) The new counsel sought leave to withdraw the pleas of not guilty entered earlier in order to make a motion for dismissal under Penal Code, section 995. The request was denied. While a defendant may, as of right, move to set aside the indictment or information under section 995 of the Penal Code if the motion is made before plea, a motion to withdraw a plea for the purpose of making a motion under section 995, or in order to interpose a demurrer or other objection, is subject to the discretion of the trial court. (People v. Staples (1906), 149 Cal. 405, 86 P. 886.) Here, as in the case cited, counsel merely interposed his motion, with no showing of the details of the grounds he intended to urge, much less that they were in any way meritorious. While we think that it would have been better practice, in light of the recent substitution, to have granted the request, we cannot say that the discretion of the trial court was abused. In addition, it appears that the trial court, after the matter of guilt or innocence had been submitted to him on the transcript of the preliminary examination, granted counsel over two months within which he submitted written arguments as to the sufficiency of the evidence and sought, unsuccessfully, to obtain a writ of prohibition from this court. In effect, although not in form, defendant secured the same consideration of his point as though a motion under section 995 had actually been allowed.
The petition (Civ. No. 26960), which was denied without a hearing, merely alleged, by way of conclusions, that the denial of the requested continuance and of the request to withdraw the pleas were 'illegal' acts destroying jurisdiction in the trial court. No statement of facts, or of the nature of the contentions sought to be made under 995 was included. Because the petition clearly failed to state a ground for interposition of our discretionary power, we do not regard its denial as a decision on the merits.
The judgment appealed from is modified (1) by striking the finding that the second alleged prior conviction ('burglary, a felony, Superior Court of the State of California, Shasta County, January 2, 1951') was true; and (2) by reducing the conviction of robbery under Count II of the Information to a conviction of petty theft with a prior conviction of a felony under Penal Code, section 667; in all other respects, the judgment is affirmed.
BURKE, P.J., and JEFFERSON, J., concur.
'Be further advised that I will not come in agreement with any other grounds that you may raise on appeal.'
This letter, of course, does not absolve counsel for appellant, the Attorney General, nor this court, from noticing and acting on any error appearing in the record.