Perez
People v. Perez
Opinion
lead Opinion
Burke, J.
A jury found Enrique Perez guilty on four counts of first degree robbery (Pen. Code, § 211a). He admitted two prior first degree robbery convictions. A motion for a new trial was denied, and he appeals from the judgment, contending that evidence of a prior robbery was improperly admitted; that the evidence is insufficient to support his conviction on counts 3 and 4; and that he did not waive *617 his federal constitutional privilege against self-incrimination as to two of the robberies charged by testifying on direct examination as to the other robberies charged and therefore error was committed of the type condemned in Griffin v. California, 380 U.S. 609 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ].
Count 1 (January 3,1965, robbery at the Viking Club):
About 9 p.m. on January 3, 1965, two men entered the Viking Club in Sacramento. One of them was armed with a revolver and had a glove over his mouth. After informing the bartender, Frederick Fauble, that “this was a holdup,’' the robbers took $325, a Bankamerieard, and a Shell credit card. Defendant’s fingerprints were found on a cigar box that was knocked off a shelf by one of the robbers.
Defendant admitted using the stolen…
035concurrenceinpart Opinion
Peters, J.
I concur in part and dissent in part.
The practical effect of the majority opinion is that the prosecution by joining charges of separate and distinct robberies can effectively compel the defendant to testify as to all charges or be subject to adverse inferences where he elects to testify as to one and there is evidence, however weak, from which it can be concluded that the robberies disclose a common plan, pattern, or modus operands. If this is the law what becomes of the constitutional right to remain silent ?
Obviously, if the offenses were separately charged and tried, defendant would have the right to decide in each trial whether to testify or to rely upon his privilege against self-incrimination. I cannot agree that the rules relating to joinder of charges or proof of similar offenses were ever intended or should be applied to deprive a defendant of that constitutional right. Furthermore the majority ignores the fact that the trial court by sustaining an objection to cross-examination effectively ruled that there was no waiver of the privilege, but the majority treats the matter as if the trial court had made a contrary ruling.