People v. Weaver

Opinion

WILLIAMSON, J.* Appellant Richard C. Weaver was charged with robbery (Pen. Code, § 211), attempted murder (Pen. Code, §§ 664, 187) and 10 other offenses. The information further alleged as follows; (1) appellant used a firearm in the commission of the robbery and attempted murder within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a); (2) appellant had suffered two prior felony convictions within the meaning of Penal Code section 1203, subdivision (e)(4); and (3) appellant had suffered an additional prior felony conviction within the meaning of Penal Code section 667.5, subdivision (b). Appellant pleaded guilty to the above named charges and allegations. On motion of the district attorney, the other charges were dismissed in the interest of justice.

On December 13, 1982, the superior court sentenced appellant to state prison for the upper term of nine years for the attempted murder, plus an additional two years for the use enhancement, plus a consecutive sentence of one year and eight months for the robbery with a use enhancement, plus one year for the Penal Code section 667.5 prior; for a total of thirteen years, eight months. He was given the appropriate credits. Timely notice of appeal from “the sentencing only” was filed February 3, 1983.

Appellant contends that the superior court erred in imposing consecutive sentences because the three factors relied upon were each improper in light of the facts of this case.

[595]The relevant facts of the case are as follows: Appellant robbed the owner of a pharmacy at gunpoint at about 6 p.m. on August 22, 1983. Immediately prior to the robbery police Officer Bradley J. Bales had observed suspicious activity in the vicinity of the pharmacy and he was investigating the area. Then the officer saw appellant leave the pharmacy in a suspicious manner. The officer described appellant’s reaction to their meeting as follows: “he suddenly did like a double take and he looked in my direction .... He did a couple of double takes and looked at me and looked again . . . .”

The officer called out for appellant to stop and talk to him. Appellant did not heed the command and instead, entered an automobile and drove away. Officer Bales pursued him in his vehicle and radioed for assistance. A high speed chase ensued which ended when appellant stopped his automobile. The chase continued on foot until appellant seized first a pickup truck and then a red Pontiac TransAm, in each case ordering the occupants from the vehicles at gun point, and escaped from officer Bales. Officer Bales had chased appellant for three miles and four and one-half to five minutes. He had constantly broadcast his and appellant’s positions over the police radio.