People v. Walkkein

14 Cal. App. 4th 1401, 18 Cal. Rptr. 2d 383
California Court of Appeal·Decided April 13, 1993·No. B062314·Published·Cited by 20 cases

Opinion

14 Cal.App.4th 1401 (1993)
18 Cal. Rptr.2d 383

THE PEOPLE, Plaintiff and Respondent,
v.
JOSEPH L. WALKKEIN et al., Defendants and Appellants.

Docket No. B062314.

Court of Appeals of California, Second District, Division Three.

April 13, 1993.

*1403 COUNSEL

Richard D. Rome and Robert Derham, under appointments by the Court of Appeal, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CROSKEY, J.

Joseph L. Walkkein and Antonio Royal Watson were charged by information with attempted robbery (count 1; Pen. Code, *1404 § 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 [95 L.Ed.2d 176, 184-185, 107 S.Ct. 1702]; Rogers v. McMackin (6th Cir.1989) 884 F.2d 252, 256-257, cert. denied in Rogers v. Hills (1990) (493 U.S. 1061 [107 L.Ed.2d 960, 110 S.Ct. 877].) 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 one prior serious felony conviction (§ 667, subd. (a)) and served three prior prison terms (§ 667.5, subd. (b)) and that Watson had served one prior prison term (§ 667.5, subd. (b)).[2] Walkkein was sentenced to a total unstayed term of fourteen years in the state prison, consisting of the upper term of six years for the burglary, five years for the prior serious felony and one year for each of the prior prison terms. Watson was sentenced to seven years in the state prison, consisting of the upper term of six years for the burglary and one year for the prior prison term.

The sole error which we find in the proceedings below is the award of one day of unauthorized presentence 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 *1405 738, 16 A.L.R.4th 1255]), 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 No. 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.

*1406 CONTENTIONS ON APPEAL

Watson contends that: (1) his rights under People v. Aranda, supra, 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] 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 presentence 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)

People v. Walkkein, 14 Cal. App. 4th 1401, 18 Cal. Rptr. 2d 383 (Cal. Ct. App. 1993).

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