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People v. Leung4/9/1992
e steps to the basement. Once they reached the basement, David and the third man went back upstairs. Chan remained and told Mr. Nagayama to give him money. Mr. Nagayama gave Chan $100 from his pocket. Chan then turned to Hiroshi and asked Hiroshi to give him money. Hiroshi produced his wallet but there was no money in it. Chan told Mr. Nagayama and Hiroshi not to move and to "stay there" and then he went upstairs. A man with a pipe stood guard at the top of the stairs. Mr. Nagayama and Hiroshi later saw four men leave the restaurant.
Ten days after the robbery, Mr. Nagayama, Mr. Nakamura and Hiroshi and Kikuo identified defendants at a photographic identification. Defendants were charged by information with three counts of robbery (Pen. Code, § 211/212.5, subd. (b)), one count of attempted robbery (Pen. Code, § 664/211/212.5, subd. (b)) and four counts of false imprisonment (Pen. Code, § 236/237). It was further alleged that David Leung had personally used a gun (Pen. Code, § 12022.5, subd. (a)), Jeffrey Leung had personally used a pipe (Pen. Code, § 12022, subd. (b)) and all three defendants had been armed with a firearm within the meaning of Penal Code section 12022, subdivision (a)(1). Pursuant to Penal Code sections 667 and 667.5, subdivision (b), Jeffrey Leung was charged with prior felony convictions and prior prison terms.
Defendants moved in limine to suppress evidence of the prearrest photographic identification as the product of an unduly suggestive identification
procedure. After a lengthy evidentiary hearing, the court determined that the identification procedure was not suggestive and therefore denied the motion.
Defendants were convicted on all counts and the enhancements were found true. Jeffrey Leung admitted the allegations of prior convictions and prior prison terms. Michael Chan was sentenced to six years, eight months in state prison. Jeffrey Leung was sentenced to sixteen years, eight months in state prison. David Leung was sentenced to nine years, eight months in state prison.
Discussion
A. Challenge to Code of Civil Procedure Section 223
Defendants assert that Code of Civil Procedure section 223 unconstitutionally prohibits criminal litigants, but not civil litigants, from conducting voir dire in support of peremptory challenges. Thus, defendants claim that the application of that statute below prejudiced them and requires reversal of their convictions. Code of Civil Procedure section 223, as enacted by the voters in Proposition 115, provides as follows:
"In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper, or shall itself submit to the prospective jurors upon such a showing, such additional questions by the parties as it deems proper. Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases. Examination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause. The trial court's exercise of its discretion in the manner in which voir dire is conducted shall not c
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