People v. Mink

Opinion

KAUFMAN, J. Defendant DouglasRay Mink was accused of committing a number of robberies and other crimes within a relatively short period of time, including the robbery of Mr. and Mrs. Reed in their home. Originally, the Reed robberies, other robberies and other crimes were charged together in Riverside Superior Court case No. 21440. It was also alleged in that case that defendant had suffered a prior robbery conviction in Riverside County in April 1970.

Defendant filed a Penal Code section 995 motion in case No. 21440 which resulted in the dismissal of the Reed robberies because at the preliminary hearing the magistrate had not permitted defendant to present the testimony of Mrs. Reed. Case No. 21440 was then consolidated with another case, No. 21320, and the two consolidated cases proceeded to trial. Defendant was convicted of several offenses. However, in a separate trial to the court the prior robbery conviction allegation was found not true.

Meanwhile, prosecution of the robberies of Mr. and Mrs. Reed were reinstituted as case No. 21680, the instant case. Two counts of robbery (Pen. Code, § 211) were alleged together with firearm armed and use allegations (Pen. Code, §§ 12022, subd. (a), 12022.5) and it was further alleged that defendant had suffered a prior robbery conviction in Riverside County in April 1970, the same prior conviction alleged but found not true in case No. 21440.

Originally, defendant pleaded not guilty and denied the prior conviction allegation on the basis of subdivisions 4 and 5 of Penal Code section 1016-former judgment of acquittal and once in jeopardy. Defendant subsequently moved to strike the prior conviction allegation on the same grounds. His motion was denied.

Defendant thereafter presented a nonstatutory motion to dismiss on the ground that an impermissibly suggestive identification had taken place at [769]the preliminary hearing when the magistrate required defendant to identify himself in the presence of witnesses before they were called to testify and identify him. The motion to dismiss was also denied.

Thereafter defendant withdrew his plea of not guilty to the robberies and entered pleas of guilty to both counts. A court trial was had, however, on the prior conviction allegation, and the allegation was found true. Defendant was sentenced to the midterm of four years on each count of robbery, plus a two-year enhancement on each count for the firearm use and a one-year enhancement on each count for the armed finding, the latter being stayed. The sentences were, however, ordered to be served concurrently with each other and concurrently with the sentence imposed in consolidated cases 21440 and 21320. But a consecutive five-year enhancement was imposed on account of the prior conviction.