People v. Colligan

California Court of Appeal Apr 12, 1979 No. Crim. 9777Published

Before: Paras, Evans, Mason

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Holding. The court held that the use of hypnosis to assist a witness in recalling a license plate does not per se invalidate an identification, that displaying a firearm to induce compliance constitutes 'use' under Penal Code section 12022.5, and that trial counsel was not ineffective for failing to move for severance or object to identification procedures.

Issues

Whether the use of hypnosis to assist a witness's memory invalidates a subsequent in-court identification.
Whether displaying a firearm and threatening its use during a robbery constitutes 'use' of a firearm under Penal Code section 12022.5.
Whether trial counsel provided ineffective assistance by failing to object to identification procedures and failing to move for separate trials.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We decline to hold that the use of hypnosis to help a witness remember a license number per se invalidates identification of a person seen and heard by that witness.”

“Penal Code section 12022.5 is applicable in a case in which a firearm is displayed menacingly in the commission of a robbery.”

“It would be fatuous to conclude under these circumstances that the gun was not “used” in the commission of the robbery.”

[849]

Opinion

PARAS, Acting P. J.

Defendant appeals from a judgment entered after a jury found him guilty of two robberies (Pen. Code, § 211), in both of which he used a firearm (Pen. Code, § 12022.5). He claims error in pretrial identification procedures, insufficient evidence to support the gun-use finding in one of the robberies, and ineffective assistance of counsel.

About noon on Monday, August 1, 1977, the bookkeeper for the Black Angus Restaurant in Citrus Heights was robbed in the restaurant parking lot as she was taking the Sunday receipts to the bank. The bank bags taken contained $4,800 in cash, $540 in checks, and about $700 in charge slips. The bookkeeper, Caroline Holmes, saw a man approach as she was entering her car. After he reached her, he pulled his shirt open at the waist and showed her the handle of a gun, telling her to be quiet, that he had a gun, and that he didn’t want to use it. Holmes feared for her life and safety; she gave the man the money and he drove off in a car.

No gun was admitted into evidence at the trial. The court held a hearing outside the presence of the jury and ruled that Holmes could not sufficiently identify an offered weapon. Holmes testified on March 29, 1978, at the trial, and identified defendant as the man who robbed her. She had previously identified defendant at the preliminary hearing on January 19, 1978. On October 4, 1977, two months after the robbery, she was shown a set of 10 photographs by a detective from the sheriff’s office. The detective told her to go through them and see if they depicted anyone she recognized, that a photograph of the man who robbed her might or might not be in the set. Holmes picked out a picture of defendant from the middle of the stack after looking at all the photographs; she told the detective she was certain that “looked like the guy,” although she couldn’t be positive because “pictures are just not the same.”

At some point after the robbery, Holmes was hypnotized by a police officer in an attempt to help her recall the entire license plate number of the car used in the robbery. She also gave a description of the robber during the session. The record does not show when this was done, but the briefs of both counsel assume it was before Holmes was shown the photographs.

[850]

People v. Colligan

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