People v. Anjell

sion (a)(1), and that he had been armed within the meaning of section 12022, subdivision (a), during the commission of the offense.

The trial court sentenced him to state prison for a total term of eight years. The terms imposed on the two counts were ordered to run consecutively, with enhancement terms added by reason of the special findings and the two priors admitted by appellant. He appeals from the judgment of conviction.

The Trial

The Prosecution’s Case

Robert Michie, an employee at a service station located in Orinda, testified that he was robbed by two men as he was closing the premises at 8:30 p.m. on October 22, 1977. One of the men, whom Michie identified as appellant, was armed with a shotgun. The robbers took approximately $100 from the station and Michie’s wallet, which contained a few dollars. A few weeks later, Michie selected appellant’s picture from a lineup of police photographs. He made positive in-court identifications of appellant at the preliminary examination and the trial.

Gail Schneider testified that she was working in her office at the Greyhound depot in Pleasant Hill on the night of October 22, 1977. Two men entered the depot at 9:27 p.m. and robbed her. The shorter of the two men was armed with a gun. They took money from the cash register in the depot. The witness subsequently identified Daniel Tillery as the robber with the gun. She could not identify appellant as the other man, but she testified that he had a similar height and build. She also testified that she had become acquainted with appellant outside the courtroom at his preliminary examination, that she had made a trip to Sacramento with him, and that he had subsequently visited her at the Greyhound depot.

Detective Frank Fonda and Officer Jack Harper testified to a series of statements appellant had made to one or both of them concerning the Orinda and Pleasant Hill robberies. On November 14, 1977, he told Fonda that he had beep present when both robberies were committed; that he was only “technically involved” in them, and had been no more than a nonparticipating bystander on each occasion; that the robbers were two men whom he had met for the first time on October 22, 1977;

Cal.3d 441 at p. 453; People v. Rist (1976) 16 Cal.3d 211 , 218-219 [ 127 Cal.Rptr. 457 , 545 P.2d 833 ].)

Appellant first contends that the trial court failed to consider all of the foregoing factors because its ruling on the Beagle motion made no reference to the importance of having the jury hear appellant’s testimony.

Although the court’s discussion included explicit references to the first three Beagle factors only, a close reading of the record demonstrates that the fourth factor was also considered. In defense counsel’s written points and authorities on the motion, he asserted that it was more important for the jury to hear the defendant testify than to have him remain silent through fear of impeachment, and that “priors may be excluded on this ground alone.”

In oral argument on the motion, counsel stated that an adverse ruling “may compel Mr. Anjell not to take the stand and give evidence in his own behalf.” The prosecutor cited passages in Beagle to the asserted effect that a defendant should not be permitted to “blackmail” the trial court by threatening not to testify. Immediately after this exchange, the court announced that “.. . applying the Beagle standards [plural] and weighing the factors that I must weigh in making the decision, I am going to deny the Beagle motion. ...” (Italics added.) The record thus dispels the contention that the court did not consider all the Beagle factors.

Appellant next contests the court’s ruling on its merits. Application of the Beagle principles produces several conclusions to be enumerated as follows:

(1) The crimes of grand larceny and receiving stolen property are both recognized as reflective of a person’s honesty and integrity, and are therefore probative for purposes of impeachment. (See People v. Beagle, supra, 6 Cal.3d 441 at p. 453; People v. Banks (1976) 62 Cal.App.3d 38 , 44 [ 132 Cal.Rptr. 751 ]. Cf. People v. Rist, supra, 16 Cal.3d 211 at p. 220.) Appellant in effect proposes the adoption of a new rule of exclusion for all crimes which do not involve making false statements, arguing that only offenses which require false assertions significantly bear upon a defendant’s ability to lie or feign sincerity. A holding to that effect would effectively eliminate “honesty” and “integ

rity” as traits which bear upon credibility, and would be contrary to the Supreme Court’s pronouncements on the subject. (People v. Beagle, supra; People v. Rist, supra. See also Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 , 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].) In any event, there is no merit in the argument that a person’s propensity to give false testimony may be shown only by instances of past lying. In many instances, actions speak louder than words.

(2) The respective prior convictions having been three and six years old, they were not so remote in time as to diminish their probative value. (See People v. Boothe (1977) 65 Cal.App.3d 685 , 688-689 [ 135 Cal.Rptr. 570 ] [six-year-old robbery conviction not too remote].)

(3) Grand larceny and receiving stolen property are somewhat similar in nature to the crime of robbery with which appellant was charged. Because all three offenses are larcenous, there was a degree of risk that the jury might be persuaded to find appellant guilty of the robberies on the basis of his past larcenous conduct. (See People v. Rist, supra, 16 Cal.3d 211 at p. 219; People v. Banks, supra, 62 Cal.App.3d 38 at p. 44.) However, the crime of robbery is assaultive as well as larcenous (People v. Rist, supra, at p. 220), and preponderantly so in the perception of lay people sitting as jurors. The risk mentioned was accordingly diminished because neither of appellant’s priors indicated assaultive conduct in the past. No abuse of discretion has been shown in the trial court’s treatment of the third Beagle factor.

(4) The fourth Beagle factor presents a more difficult problem because of appellant’s election not to testify after his Beagle motion was denied. The problem originated because the trial court had no way of knowing what his testimony might be when it ruled on the motion. It persists on this review because we have no way of knowing what his testimony might have been if the motion had been granted and he had elected to take the stand. He supplied no indication of his testimony by making an offer of proof on the motion, but none was required. (People v. Rist, supra, 16 Cal.3d 211 at p. 222.) None could be required, in any case, without indirectly compromising the constitutional right of a defendant not to testify directly. (People v. Fries (1979) 24 Cal.3d 222 , 232-233 [ 155 Cal.Rptr. 194 , 594 P.2d 19 ].)

In consequence, the combination of an unsuccessful Beagle motion and the failure of the defendant to testify requires a reviewing court to

hypothesize substantive testimony from a silent record. Appellant contends that his motion should have been granted in order to permit the jury to hear his “version and/or explanation of his confession,” with particular reference to the Pleasant Hill robbery. This is legitimate argument by appellate counsel, but it still invokes no more than hypothetical assessments of testimony not given. The result exemplifies the Rist court’s observation that “[p]erhaps the most difficult to evaluate of the Beagle factors is the adverse effect on the administration of justice should a defendant elect not to testify for fear of impeachment.” (People v. Rist, supra, 16 Cal.3d 211 at p. 222.) The court followed the observation by defining the only way out of the difficulty: the requisite “evaluation must necessarily depend in large part on the totality of other evidence bearing on the question of the defendant’s guilt in the unique circumstances of the particular case.” (Ibid.) We follow the way.

Appellant’s Beagle motion was not made until after his first alibi witness had testified, and immediately before the second one took the stand. The record supports the inference that the trial court was aware of the second alibi witness, and her prospective testimony, when it ruled on the motion. Both witnesses testified to the alibi defense in detail, and each corroborated the other. We may reasonably assume (i.e., hypothesize) that appellant would have testified to his own “version” of his alibi. His testimony was not essential to the alibi defense, of which it would have been corroborative and cumulative. The order denying his Beagle motion thus did not operate to impair his presentation of the defense in any respect.

The only other prospect conceivably frustrated by the order was appellant’s opportunity to give the jury an “explanation of his confession,” as his attorney now suggests. Any possible advantage to have been derived from that effort was reasonably offset by the fact that it would inevitably have refocused the jury’s attention on the confession and its damaging effect. There was also a substantial degree of risk that appellant’s own credibility would be impaired if he attempted a plausible “explanation” and failed. That result would have impaired the credibility of the alibi witnesses whose testimony he would presumably (i.e., hypothetically) have corroborated.

Our recital of the hypothetical circumstances must end short of impermissible speculation by this court as to what and whom the jury

scene is of no assistance to a jury where the defendant does not dispute that all elements of the crime were present but denies that he was the robber. This is true because the instruction becomes relevant only if the sole contested issue in the case—the defendant’s identity as the robber —is assumed. Even if the robber’s flight tends to show his (the robber’s) guilt, this is immaterial unless the jury believes that the defendant is the robber. If such is the case, there is no need to “connect” him with the crime any further.

It has often been stated that a flight instruction which assumes “neither the guilt nor the flight of the defendant” is not erroneous. (See People v. Cannady (1972) 8 Cal.3d 379 , 392 [ 105 Cal.Rptr. 129 , 503 P.2d 585 ] [quoting People v. Daener (1950) 96 Cal.App.2d 827 , 832-833 ( 216 P.2d 511 )]; People v. Hansen (1933) 130 Cal.App. 217 , 221 [ 19 P.2d 993 ]; People v. Forsythe (1884) 65 Cal. 101 , 104 [ 3 P. 402 ].) It may be inferred that an instruction on flight is improper if it does appear to assume such “guilt.”

This is imported in People v. Mora (1956) 139 Cal.App.2d 266 [ 293 P.2d 522 ], although the reasoning of the court is not expressed. In that case, three robbers had fled after holding up a store. (Id., at p. 269.) The three defendants each denied being among the robbers. (Id., at p. 271.) The Court of Appeal held that a flight instruction was proper as to two of the defendants because the evidence showed that they had failed to return to their homes the day after the robbery and had spent the night elsewhere after learning that the police were looking for them. (Id., at p. 274.) The court, however, went on to hold that it was error (although not prejudicial) to give the instruction as to the defendant Mora because there was no such evidence pertaining to him. (Ibid.) Insofar as the presently challenged instruction might have led the jury to conclude that the flight of the robber (whoever he was) was indicative of appellant’s guilt, it was misleading.

(2) Appellant’s statements about leaving for Mexico were insufficient to warrant an instruction on flight. Gail Schneider, the victim of the second robbery, testified that appellant had visited her at the Greyhound station while the proceedings against him were pending, and that “he wanted to know if he could borrow some money because earlier in the day he had talked about he was very unhappy with the court case and he...felt like leaving town and he had mentioned Mexico, and Dan and I had tried to talk him out of it... . And then... the subject was just dropped.”

While it is true that flight “requires neither the physical act of running nor the reaching of a far-away haven” (People v. Cannady, supra, 8 Cal.3d 379 at p. 391), it requires more than mere idle words or thoughts. There was no evidence that appellant actually left the jurisdiction. No case has been found or cited which indicates that statements alone may suffice to justify a flight instruction.

(3) Contrary to the prosecutor’s characterization of the testimony by the witness Payne, the latter had not testified that appellant had moved out of the area shortly after the crime was committed. Payne did testify that appellant’s wife had terminated her employment at the restaurant two days after the crime. Her reasons, according to Payne, were that appellant “had decided he couldn’t find suitable employment here to support him and three of them and that he was leaving to get better employment and she was going with him.. . . ” The prosecutor later asked Payne if he had a conversation with appellant’s wife “about them moving out of the area.” An objection to that question was sustained, and the inquiry ended.

Because the only evidence of flight which could have been relied upon by the prosecution was an inadmissible hearsay statement attributed to appellant’s wife about his “leaving to get better employment,” and there was no evidence that he had actually gone away, the record does not support the giving of CALJIC No. 2.52. Since the evidence relied on by the prosecution, “without more, cannot logically tend to support an inference of guilt,” the instruction was given in error. (People v. Watson (1977) 75 Cal.App.3d 384 , 403 [ 142 Cal.Rptr. 134 ].)

The error nevertheless does not appear to have been prejudicial. The instruction told the jury that the fact of flight, “if proved,” might be considered with all other circumstances in determining guilt, and that the weight of such circumstance was for them to decide. (See CALJIC No. 2.52, quoted in fn. 3, ante.) In his argument to the jury, the prosecutor made only passing reference to appellant’s statements about Mexico. The prosecutor did not argue that any of appellant’s actions constituted flight showing guilt.

Appellant’s contention that the instruction implied that there was other evidence of flight, which had not been disclosed to the jury, cannot be sustained in view of another instruction which told the jurors that their determination must be governed by the evidence received at

time involved in rereading the requested testimony, so that they could make a knowledgeable decision as to whether they desired to hear it. The court did not attempt to discourage a reading, and in fact emphasized that the jurors were “entitled” to have the testimony reread if they felt it was needed. (See ibid.)

The case therefore stands in sharp contrast to People v. Butler (1975) 47 Cal.App.3d 273 [ 120 Cal.Rptr. 647 ], and People v. Litteral (1978) 79 Cal.App.3d 790 [ 145 Cal.Rptr. 186 ], both of which involved outright refusals to comply with the jury’s request. It is more analogous to People v. Sprinkle (1962) 201 Cal.App.2d 277 [ 19 Cal.Rptr. 804 ], where the trial court told the jury that “‘unless you can pinpoint the request as to William Sprinkle’s testimony any finer, we will have to read it all, and we will do that if you wish it, if it is important in your deliberations. ...’” {Id., at p. 282.) When the jurors were then sent back to decide what to do, they promptly returned with a guilty verdict. (P. 283.) The Court of Appeal rejected a claim of section 1138 error, finding “absolutely nothing which would indicate that these comments of the trial court could in any way be interpreted as having prejudiced the jury against the appellants.” (Ibid.)

A similar result is indicated here. Because the trial judge stressed the facts that a rereading of testimony was both feasible and would be ordered if requested (see fn. 4, ante), his comments concerning the length of time involved cannot properly be characterized as “coercion.” Appellant was not deprived of any substantial right in violation of section 1138.

The Consecutive Sentences

Appellant contends that the trial judge erroneously failed to state his reasons for imposing consecutive sentences on counts one and two. The Attorney General replies that a statement of reasons was unnecessary because the record shows that the consecutive sentences were appropriate. Section 1170, subdivision (c), provides that “[t]he court shall state the reasons for its sentence choice on the record at the time of sentencing.” A decision to impose consecutive rather than concurrent sentences is a “sentence choice” within the meaning of the statutory language. (Rule 405(f), Cal. Rules of Court; People v. Walker (1978) 83 Cal.App.3d 619 , 622 [ 148 Cal.Rptr. 66 ].)

A Court of Appeal has recently held that a statement of reasons for consecutive sentences was unnecessary where the record showed that the defendant’s crimes met all the criteria prescribed in rule 425 and there were no mitigating circumstances. (People v. Blessing (1979) 94 Cal.App.3d 835 , 838-839 [ 155 Cal.Rptr. 780 ] [hg. den. July 25, 1979].) The probation report on appellant included a statement of reasons in support of a recommendation by the probation officer that consecutive sentences be imposed. In pronouncing sentence, the judge stated that he had “read and considered the probation report.” Blessing is nevertheless distinguishable from the present case because several of the criteria listed in rule 425 militated in favor of the imposition of concurrent sentences: the crimes involved small amounts of money and were highly similar in nature, they were committed only an hour apart, they suggested only a “single period of aberrant behavior” (rule 425(a)(3)), and appellant confessed his involvement to the police. Without a statement of reasons by the court, we cannot ascertain why consecutive sentences were imposed in the face of these countervailing circumstances. “In order to assess whether judges are imposing like sentences in like situations (Pen. Code, § 1170.4), it is necessary for them to state on the record why a certain sentence has been selected (Pen. Code, §§ 1170, subd. (c), 1170.3)....” (People v. Walker, supra, 83 Cal.App.3d 619 at p. 622.) Remand for resentencing is required as ordered below.

The judgment of conviction is affirmed. The cause is remanded to the trial court with directions that appellant be resentenced consistent with the views expressed in this opinion.

Caldecott, P. J., and Poché, J., concurred.