People v. McElroy

Opinion

FROEHLICH, J.

Defendant Felix A. McElroy was convicted of fifteen counts of robbery with personal use of a firearm (Pen. Code, 2 §§ 211, 12022.5), ten counts of robbery while armed with a firearm (§§ 211, 12022, subd. (a)), two counts of robbery (§211), one count of attempted robbery with personal use of a firearm (§§ 664/211, 12022.5) and one count of *1419 attempted robbery while armed with a firearm. (§§ 664/211, 12022, subd. (a).) McElroy was sentenced to state prison for an aggregate term of 31 years and 8 months. 3

I

Summary of Contentions on Appeal

McElroy raises numerous contentions on appeal, challenging several of the judgments of conviction (i.e., counts 7, 9, 15, 25 and 26), and further challenging the propriety of the sentence imposed by the trial court.

McElroy raises four different challenges to the judgments of conviction. First, he contends the evidence was insufficient to support the conviction on count 7 (robbery) because there was no evidence any property was taken from the victim. Second, McElroy claims there was insufficient evidence to support the convictions on counts 25 (robbery) and 26 (robbery), contending the eyewitness identification of him as the perpetrator of the robberies was too weak. His third contention is that the conviction on count 15 (attempted robbery) is void because the trial court, having previously granted his motion for acquittal on the original count 15 charge of robbery, thereafter lacked jurisdiction to permit the People to amend count 15 to charge attempted robbery. Fourth, McElroy contends his convictions on counts 9 (robbery) and 26 (robbery) must be reversed because the convictions were based solely upon the transcript of testimony given by the victims at the preliminary hearing. McElroy argues the transcript was improperly admitted at trial because the People failed to demonstrate due diligence in attempting to secure the attendance of the two witnesses for trial.

McElroy challenges the propriety of the sentencing on two grounds. First, he contends the imposition of consecutive enhancements for each of the section 12022.5 firearm use allegations found to be true was improper under the “single-occasion” rule. Second, McElroy contends the trial *1420 court’s reasons for imposing consecutive sentences were improper, requiring remand for resentencing.

Because we are persuaded by some, but not all, of McElroy’s contentions, we affirm in part, reverse in part, modify in part, and remand this matter to the trial court for resentencing in accordance with this, opinion. After reviewing the litany of crimes which gave rise to McElroy’s convictions, we will address McElroy’s contentions seriatim.

II

Factual Background

McElroy was convicted of participating in 11 different robberies over a 6-week period during which at least 27 different people were victimized by actual or attempted robberies, most of which involved the use or possession of a firearm.

On March 9, 1987 (count 6), McElroy and a partner committed robbery in a retail establishment by forcing the victim-employee, at gunpoint, to open two cash registers, from which money was removed. McElroy was convicted of robbery, with the jury finding he personally used a firearm in committing this crime.

On March 11, 1987 (counts 8 through 11), McElroy and a partner robbed victims in another retail establishment at gunpoint, taking money from the cash register of one victim-employee and robbing three victim-customers who were standing in line. McElroy was convicted of four counts of robbery, with the jury finding (on each count) he was armed with a firearm in committing these crimes.

On March 12, 1987 (count 16), McElroy and a partner robbed in another retail establishment, forcing the victim-employee at gunpoint to open the cash register, from which the cash was removed. McElroy was convicted of robbery, with the jury finding he personally used a firearm in committing this crime.

On March 18, 1987 (counts 12 through 15), McElroy and a partner returned to the site of the March 11 robbery, and again robbed personnel at the store. The first victim, an employee, was forced, at gunpoint, to open the cash register, from which the cash was removed. As the first victim was being robbed, a second victim (also an employee) began to approach the register, and was warned not to try anything. A few moments later, McElroy instructed his partner to “Go back and get his [the second victim’s] *1421 money.” The partner then robbed the second victim of the cash in his wallet. A third victim (a customer), who had entered the store while the robbery was in progress, was also forced at gunpoint to turn over his money. A fourth victim-customer (count 15) was also in the store during the robbery. McElroy approached her, pointed his gun at her and demanded her money. The victim stated she had no cash, and gave McElroy her “A.T.M.” card instead. McElroy returned her card, slapped her, and he and his partner then exited. McElroy was convicted of three counts of robbery (counts 12 through 14), with the jury finding (on each count) he personally used a firearm in committing the crimes. McElroy was also convicted of attempted robbery (count 15) with the jury finding he personally used a firearm in committing this crime.

On March 30, 1987 (count 7), McElroy and a partner returned to the site of the March 9 robbery. He confronted the victim, and forced him at gunpoint toward the register. McElroy was convicted of robbery, with the jury finding he personally used a firearm in committing this crime.

On April 6, 1987 (counts 19 and 20), McElroy and a partner committed robbery at another retail establishment. He forced one victim-employee, at gunpoint, into the cash register area where a second victim-employee was standing. The robbers forced the first victim to open the register, from which the money was removed. The robbers also took cash from the wallet of the second victim, and then fled. McElroy was convicted of two counts of robbery.

On April 7, 1987 (counts 21 through 24), McElroy and two partners perpetrated robberies at a grocery store. Three victim-employees were working at their respective checkstands when the robbers entered, announced the robbery, and ordered everyone to “get down.” Each of the robbers displayed firearms, and took cash from each of the three cash registers. A fourth victim, a customer, was standing in line at one of the registers and was also robbed at gunpoint. McElroy was convicted of four counts of robbery with the jury finding (on each count) he personally used a firearm in committing these crimes.

On April 8, 1987 (counts 25 and 26), McElroy and a partner robbed victims at another retail establishment. Four employees were at work when the two robbers entered, pulled their pistols, and ordered everyone to the floor. The first victim-employee was forced by one robber, at gunpoint, to open two registers, from which the cash was removed. Meanwhile, the second robber was standing at the second victim-employee’s register (count 26), threatening to kill her because she was unable to open the register. The first victim ran to assist in opening the register and was told by one of the *1422 robbers “You want everybody in the store to die? You better pop it open.” After this register was opened, the money was removed and the robbers fled. McElroy was convicted of two counts of robbery, with the jury finding (on each count) he personally used a firearm in committing these crimes.

On April 13, 1987 (counts 27 through 32), McElroy and two partners robbed victims at a coffee shop. The robbers, armed with guns, entered and surrounded the cash register, from which cash was removed. While one robber waited by the register, the other two robbers approached the counter where the customers were seated. One robber forced a victim-employee, at gunpoint, to open a second register, but found it was empty. The robber, joined by one of his confederates, then proceeded to rob four customers seated at the counter. McElroy was convicted of five counts of robbery and one count of attempted robbery, with the jury finding (on each count) he was armed with a firearm in committing these crimes.

McElroy’s crime spree continued the following night. On April 14, 1987 (count 33), McElroy and a partner robbed at yet another retail establishment. The victim, an employee, was forced at gunpoint to open the cash register and turn over the cash. McElroy was convicted of one count of robbery, with the jury finding he was armed with a firearm in committing this crime.

The crime spree ended two days later. On April 16, 1987 (counts 1 and 2), McElroy and a partner committed their final robberies at a retail establishment. McElroy robbed one victim-employee at gunpoint, forcing her to open her cash register and hand over the cash, while his partner forced another victim-employee to open her register, from which he removed its contents. McElroy was convicted of two counts of robbery, with the jury finding (on each count) he personally used a firearm in committing these crimes.

III-A, III-B *

C. The Judgment on Count 15 Must Be Reversed Because the Unqualified Grant of Defendant’s Motion for Acquittal on the Charged Offense of Robbery Barred Subsequent Prosecution for the Uncharged Lesser Included Offense of Attempted Robbery

At the conclusion of the People’s case, McElroy moved for acquittal pursuant to section 1118.1 as to counts 15 (robbery) and 27 (robbery), *1423 arguing the evidence failed to show any property was taken from either victim. The People conceded no property had been taken from the victim in count 27, and therefore moved to amend count 27 to plead attempted robbery, which motion was granted. On count 15, however, the People argued property (albeit of minimal value) had been briefly taken from the victim which justified a conviction for robbery. The trial court disagreed with the People’s argument, and therefore granted McElroy’s motion without qualification, ordering count 15 deleted from the information.

The People thereafter moved to amend count 15 to plead attempted robbery. The court, over McElroy’s objection, granted the motion to amend, On appeal, McElroy contends the court, having orally rendered a judgment of acquittal, was without jurisdiction to modify or reconsider any portion of the pronounced judgment. McElroy relies principally upon People v. Garcia (1985) 166 Cal.App.3d 1056 [212 Cal.Rptr. 822].

Garcia cannot be distinguished from the instant case, and we are persuaded by the reasoning in Garcia that the trial court here was without power to modify its previously ordered judgment of acquittal through permitting an amendment to the information. In Garcia, as here, the information charged defendant with the greater offense (i.e., forcible rape) but was silent on any lesser included offenses as to that victim. In Garcia, as here, the trial court orally granted defendant’s motion for acquittal on the charged offense without qualification. In Garcia, as here, before any further trial proceedings transpired, the People sought “clarification” on whether the acquittal precluded further prosecution for the lesser included offense of attempted rape. In Garcia, as here, the trial court concluded the judgment of acquittal on the charged offense did not include acquittal of the uncharged lesser included offenses. 5 Finally, in Garcia, as here, defendant was convicted of the lesser included offense.

The Garcia court reversed the conviction for the lesser included offense of attempted rape, holding the unqualified grant of the motion for acquittal on *1424 the charged offense encompassed acquittal on any lesser included offense. (People v. Garcia, supra, 166 Cal.App.3d at p. 1069.) We likewise conclude that, in the limited circumstances before us (i.e., where the accusatory pleading fails separately to charge lesser included offenses, and the court grants a motion for acquittal under section 1118.1 without any prior indication that the ruling is intended to be limited to acquittal only on the greater, charged offense), the judgment of acquittal on the charged offense includes acquittal on all uncharged lesser included offenses.

Our conclusion, and the reasoning in Garcia, finds support in the logical premise that a judgment of acquittal, whether entered by jury verdict or by grant of a section 1118.1 motion, should be accorded equal weight and consequences. A jury’s verdict of acquittal on the charged offense protects a defendant from further liability for any lesser offenses necessarily included in the charged offense (§ 1023; People v. McDonald (1984) 37 Cal.3d 351, 377-378 [208 Cal.Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011] [acquittal of robbery by jury bars prosecution for attempted robbery]) unless that verdict is accompanied by an indication that the judgment of acquittal did not encompass acquittal of the uncharged lesser included offenses. (Stone v. Superior Court (1982) 31 Cal.3d 503 [183 Cal.Rptr. 647, 646 P.2d 809].) Where a jury verdict both acquits the defendant of the greater offense, and remains silent with respect to uncharged lesser included offenses, the defendant is protected from further liability. (People v. McDonald, supra, at p. 378.)

Our holding here accords similar consequences to a trial court’s judgment of acquittal: When a trial court grants a defendant’s motion under section 1118.1, and remains silent as to whether the acquittal is limited to the charged greater offense, the trial court should not thereafter be permitted to alter or modify its apparently unqualified acquittal by permitting the People (through amendment of the accusatory pleading) to charge necessarily included lesser offenses.

Our decision, of course, does not prohibit the trial court from appropriately limiting the impact of the grant of a section 1118.1 motion. As stated in People v. Garcia, supra, 166 Cal.App.3d 1056, trial courts may properly limit their rulings (by, for example, entertaining motions to amend the accusatory pleading specifically to charge the lesser included offense before ruling on the section 1118.1 motion). Our holding is that the trial court may not unqualifiedly acquit a defendant of the charged offense on the merits, and subsequently modify its ruling to reinstate liability for the same conduct through permitting an amendment to charge a lesser included offense.

*1425 For the foregoing reasons, McElroy’s conviction on count 15 is reversed.

D. The Trial Court Did Not Abuse Its Discretion in Concluding the Prosecution Had Exercised “Due Diligence” in Attempting to Locate and Secure the Attendance of Witnesses Potvin and Veanoni, and Properly Permitted Their Preliminary Hearing Testimony to be Introduced at Trial

McElroy finally challenges the convictions on counts 9 and 26. He argues the trial court erroneously permitted the People to utilize the transcripts of the preliminary hearing testimony of two witnesses (Steve Potvin, the victim in count 9; and Heather Veanoni, the victim in count 26) who had become unavailable before trial subpoenas were served. The parties sharply differ on both the appropriate standard for our review of the trial court’s determination of “due diligence,” and on whether the prosecution met its burden of showing it exercised due diligence. 6

1. Standard of Review

McElroy contends the issue of whether due diligence was shown is subject to “independent review” by the appellate court, relying on People v. Louis (1986) 42 Cal.3d 969 [232 Cal.Rptr. 110, 728 P.2d 180]. The People, on the other hand, contend Louis did not alter the traditional standard of review, and argue our review remains circumscribed by the traditional standard of “abuse of discretion.”

We conclude, based on subsequent pronouncements of the California Supreme Court and a careful review of Louis, the traditional standard of review (i.e., “abuse of discretion”) remains the governing standard of review.

In Louis, our Supreme Court considered whether to abandon the governing standard of “abuse of discretion,” confirmed in People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], and to substitute the broader standard of “independent review.” The court indicated the issue of “due diligence” was a mixed question of law and fact, and surmised the proper standard may be “independent review.” (People v. Louis, supra, 42 Cal.3d at p. 984.) Although indicating independent review might be appropriate, the court declined the opportunity to impose this new standard of *1426 review, stating that “. . . we need not resolve the issue; under any standard, the admission . . . was error. . . (Id. at p. 989.)

While the Louis dicta ordinarily would be accorded substantial weight by this court (Smith v. Mt. Diablo Unified Sch. Dist. (1976) 56 Cal.App.3d 412, 418 [128 Cal.Rptr. 572]), the subsequent Supreme Court decision in People v. Hovey (1988) 44 Cal.3d 543 [244 Cal.Rptr. 121, 749 P.2d 776] compels us to conclude the Supreme Court continues to adhere to the traditional “abuse of discretion” standard. The Hovey court, discussing the applicable standard, stated: “We have held that the question of due diligence is a factual one depending on the circumstances in each case, and that the trial court’s determination of the issue will not be disturbed in the absence of a showing of an abuse of discretion [citations]. In People v. Louis (1986) 42 Cal.3d 969, 984-989 [citations] we suggested (but did not decide) that an appellate court should independently review the . . . due diligence issue.” (People v. Hovey, supra, at p. 563, italics added.) The Hovey court apparently applied the “abuse of discretion” standard when it sustained the trial court’s finding of due diligence, concluding the . . finding [was] supported by substantial evidence.” (Id. at p. 562.)

Thus, the most recent Supreme Court guidance on this issue both reaffirmed the vitality of prior cases applying the “abuse of discretion” standard, and cautioned that any contrary analysis or suggestions in People v. Louis, supra, 42 Cal.3d 969 were dicta. We adhere to the Supreme Court’s guidance, and therefore apply the abuse of discretion standard to this case. 7

*1427 2. The Trial Court Did Not Abuse Its Discretion in Finding “Due Diligence”

Before admitting the preliminary hearing testimony of the two missing witnesses, the trial court conducted an extensive evidentiary hearing to determine whether the People could demonstrate the foundational elements necessary to admissibility of the prior testimony. The trial court found the People had satisfied their burden and, accordingly, permitted the transcripts to be introduced at trial.

McElroy contends the trial court erred in finding “due diligence” had been exercised. 8 We disagree. The record amply supports the trial court’s determination that due diligence was exercised. The subpoenas were issued 24 days in advance of trial; even shorter periods have been found reasonable. (People v. Clayton (1967) 248 Cal.App.2d 345 [56 Cal.Rptr. 413] [18 days].) After customary efforts to serve the witnesses were undertaken, without success, investigators undertook significant efforts to locate the missing witnesses. The investigators visited the witnesses’ last known addresses; contacted roommates, parents and family members seeking current addresses, and left messages in case the witness contacted these individuals; contacted former employers; reviewed county and state-wide police records; checked motor vehicle department records; checked traffic court records; and checked post office records.

Similar efforts have been held sufficient to support a trial court’s finding of due diligence. (See People v. Ventura (1985) 174 Cal.App.3d 784, 792 *1428 [220 Cal.Rptr. 269].) We will not reverse a trial court’s determination simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, as here, that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” (See, e.g., People v. Smith (1980) 112 Cal.App.3d 37, 46 [169 Cal.Rptr. 108]; People v. Salas (1976) 58 Cal.App.3d 460, 471 [129 Cal.Rptr. 871].) The law requires only reasonable efforts, not prescient perfection. We conclude the trial court did not abuse its discretion in finding due diligence.

IV

Appellant’s Challenges to Sentencing

A. The Trial Court Erred in Imposing Sentence Enhancements for Each of the Penal Code Section 12022.5 Allegations Found to Be True

The trial court imposed consecutive term enhancements for 14 of the 15 counts on which the jury made “true” findings on the “use of firearm” allegations 9 under section 12022.5. 10 McElroy contends the court was only permitted to impose seven enhancements under the doctrine enunciated in In re Culbreth (1976) 17 Cal.3d 330 [130 Cal.Rptr. 719, 551 P.2d 23]. The People argue that Culbreth should be interpreted to allow multiple enhancements whenever McElroy’s course of conduct would permit multiple convictions notwithstanding section 654. Alternatively, they assert, a “proper” Culbreth analysis would permit at least nine enhancements.

We conclude the Culbreth constraints permit only seven enhancements as to those counts on which consecutive term enhancements were imposed. *1429 In Culbreth, our Supreme Court established the so-called “single-occasion” rule. The single-occasion rule prohibits the imposition of multiple sentencing enhancements for firearm use where the defendant is convicted of multiple offenses, each while using a firearm, when all of the offenses occur during a single, indivisible transaction. “[I]f all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, then section 12022.5 may be invoked only once and not in accordance with the number of victims.” (In re Culbreth, supra, 17 Cal.3d at p. 333.) 11

The Culbreth rule has been applied, sometimes reluctantly (see People v. Raby (1986) 179 Cal.App.3d 577 [224 Cal.Rptr. 576]), to robbery incidents which are substantively indistinguishable from the present case. For example, in People v. Polk (1982) 131 Cal.App.3d 764 [182 Cal.Rptr. 847], the defendant robbed numerous patrons during a single holdup of a restaurant and was charged and convicted of numerous robbery counts, each with true findings regarding the firearm use allegations. The appellate court held, under Culbreth, the trial court erred in imposing enhancements on each of the robbery convictions, and remanded the matter for sentencing with directions that only one firearm enhancement could be imposed because all of the convictions arose from a single, indivisible transaction. (Id. at p. 778.) Similarly, in People v. Edwards (1981) 117 Cal.App.3d 436 [172 Cal.Rptr. 652] defendant was convicted on two counts of robbery arising from one incident (robbery at a retail store with two victim-employees) and three other counts of robbery arising from a second incident (three victims in an apartment). The appellate court held, under Culbreth, the trial court was only permitted to impose one section 12022.5 enhancement for each occasion. (People v. Edwards, supra, at pp. 447-449.)

*1430 Here, the evidence indicates McElroy entertained a single intent and objective during each robbery: to take valuables from each store, and every person therein, insofar as time and circumstances would allow. There were no newly arisen objectives, nor did any significant time elapse between the robberies of each victim within the targeted locale. The People argue, however, that at least two of the robberies (i.e., the April 16 robbery, counts 1 and 2; and the March 18 robbery, counts 12 through 15) would permit multiple enhancements. The People’s argument for both occasions is identical: While McElroy was victimizing one employee by looting the cash register, a theretofore uninvolved employee approached and immediately became yet another victim. The People argue these employees were unexpected victims which gave McElroy a newly arisen objective, justifying additional enhancements. However, there was no temporal hiatus during which McElroy could pause to reflect on the penal consequences of his successive use of the firearm (People v. Levitt, supra, 156 Cal.App.3d at p. 512), nor can we conclude an employee of the store which McElroy intended to rob is an unexpected victim unrelated to the primary criminal enterprise. (People v. Raby, supra, 179 Cal.App.3d at pp. 587-588.) Accordingly, we conclude the seven robberies on which consecutive enhancements were imposed, while involving multiple victims, were indivisible transactions involving a single intention and objective. Under Culbreth, only seven enhancements may be imposed for those events. (In re Culbreth, supra, 17 Cal.3d at p. 333.)

The People urge “reexamination” of Culbreth. The People argue the same rationale which permits the imposition of multiple consecutive sentences for offenses committed during a single event, despite section 654, should also be applied to permit multiple enhancements. Under section 654, an “act or omission” which violates numerous laws may only result in one punishment. However, the courts have construed section 654 to permit multiple punishments for an otherwise indivisible “act” (such as robbery in a jewelry store) when, during the course of the event, the defendant commits crimes of violence against multiple victims. (People v. Miller (1977) 18 Cal.3d 873 [135 Cal.Rptr. 654, 558 P.2d 552].) The People argue we may apply the same rationale, which permits punishment for each person victimized during the event, to permit an enhancement for each such victim, without doing violence to Supreme Court’s mandate in Culbreth.

This argument overlooks the fact that the Culbreth court itself apparently considered and rejected this identical contention. Culbreth, citing with approval People v. Johnson (1974) 38 Cal.App.3d 1 [112 Cal.Rptr. 834], adopted the Johnson rationale in fashioning the “single-occasion” rule: “. . . [Johnson] discussed the issue with clarity: ‘Usually section 654’s prohibition against multiple sentences based upon a single criminal transaction *1431 will prevent judgments containing more than a single finding under section 12022.5. Multiple sentences were proper here [i.e., despite § 654] only because there were multiple victims. [However, ] [t\his multiplicity of sentences did not engender multiplicity of weapon use. Each defendant indulged in a single “use” in the course of the liquor store holdup, thus evoking section 12022.5 but once.’ ” (Culbreth, supra, 17 Cal.3d at p. 334, italics added.)

We are, therefore, rather clearly bound by Supreme Court precedent. 12

Accordingly, we hold the trial court may impose only one enhancement for each of McElroy’s robberies, calculating robberies by transaction rather than number of victims. 13

B. *

V

Disposition

The judgment of conviction on count 15 is reversed. The judgment of conviction on count 7 is modified to reflect a conviction of attempted robbery in the second degree (§§ 664/211, 212.5, subd. (b)), and as so modified, is affirmed. In all other respects, the judgments of conviction are affirmed.

The matter is remanded to the trial court for resentencing. Because the trial court is entitled, on remand, to reconsider its entire sentencing scheme and choices (People v. Savala (1983) 147 Cal.App.3d 63 [195 Cal.Rptr. 193]), and may elect to impose an aggregate sentence up to the aggregate term originally imposed (People v. Hood (1969) 1 Cal.3d 444, 459 [82 Cal.Rptr. 618, 462 P.2d 370]), we provide the following guidance for the trial court’s consideration:

*1432 First, only one firearm enhancement may be imposed per occasion. The record reflects seven “use of a firearm” (§ 12022.5) occasions, and three “armed with a firearm” (§ 12022, subd. (a)) occasions, each of which may justify a consecutive term enhancement.

Second, the trial court properly considered California Rules of Court, rule 425(a)(1), (2), (3) and (5) to be applicable in considering imposition of consecutive sentences. On remand, the trial court’s reasons for its sentencing choices should be explicitly restated during resentencing proceedings (People v. Thornton (1985) 167 Cal.App.3d 72 [212 Cal.Rptr. 916]) to ensure the trial court’s choices are adequately supported by the record.

Kremer, P. J., and Work, J., concurred.