People v. Moore

Defendant was convicted by a jury of possession of marijuana; he admitted a prior narcotic misdemeanor conviction.

Viewing the evidence in a light most favorable to respondent the following is a résumé of the events leading up to defendant’s arrest. Defendant quarreled with one Gloria Hernandez who also occupied his apartment; thereafter she made to police a report charging him with assault with a deadly weapon, alleging that he had a small nickel-plated automatic in his apartment. Pursuant thereto officers went to the apartment house around 5 p. m. on December 9, 1960; they asked the manager’s wife for a key to defendant’s apartment. Officer Norris went with her to get the key, but when they arrived at defendant’s apartment they found the door already open and Officers Wapato and Guy inside. The pass key was not used to open the door. The officers had been admitted by defendant. Officer Wapato had knocked on defendant’s door;

Defendant took the witness stand and denied he opened the door to the officers. He said he had been asleep while they entered by the landlady’s pass key; he denied giving the officers permission to search the apartment, and testified that Gloria also occupied his apartment, they had a quarrel the night before, he had no knowledge of the four cigarettes, and did not tell the officers that they were his or that he knew anything about them.

Appellant claims that inasmuch as there is no testimony of any illegal activity in his apartment, the lower court erred in finding the officers’ entry without a warrant to be legal; he also complains that the jury was not properly instructed concerning knowledge and possession of the narcotic.

Acting upon information that defendant had committed an assault upon a woman, it was not unreasonable for the officers to call upon him at his apartment for the purpose of seeking an interview with him. (People v. Michael, 45 Cal.2d 751 [ 290 P.2d 852 ].) Defendant voluntarily opened the door to their knock, and upon being asked if he minded if they come in, defendant not only responded, “No,” but opened the door wide and told them to, “Come on in.”

Without weight is appellant’s argument that the jury was not properly instructed relative to his knowledge and possession of the marijuana, for he neither sets forth the instructions given nor therein points up the error; moreover, no instructions were included in the record for our consideration and they are not before us. (People v. Roberts, 182 Cal.App.2d 431 [ 6 Cal.Rptr. 161 ]; People v. Casado, 181 Cal.App.2d 4 [ 4 Cal.Rptr. 851 ].) Thus we assume them to be correct. (People v. Danielson, 203 Cal.App.2d 498 [ 21 Cal.Rptr. 469 ].)

Appellant claims he was denied the right to independent counsel. He says he was unaware of his right to counsel, the full nature and extent of his deprivation of counsel and the effect of his waiver thereof; and that he was not represented at the time of sentence.

On January 4, 1961, prior to arraignment, the public defender was appointed to represent defendant; he represented him at arraignment and plea and at the trial during the presentation of evidence and argument of both counsel to the jury. On the last day of the two-day trial, when the case

While an accused has a right to be represented by counsel (Cal. Const., art. I, § 13; Pen. Code, § 686), he may waive that right (In re Berry, 43 Cal.2d 838 [ 279 P.2d 18 ]) and defend himself. (People v. Ballentine, 39 Cal.2d 193 [ 246 P.2d 35 ].) However, such waiver to be effective must be the result of an intelligent understanding of what he does in that connection. (People v. Chesser, 29 Cal.2d 815 [ 178 P.2d 761 ,

The conviction at bar is defendant’s second within a year. The former offense, No. 220641, also involved possession of marijuana; he was convicted in December 1959, and placed on probation. It appears from the record herein, that in No. 220641 defendant was also represented by the public defender; he insisted that he appear in propria persona in his place and, representing himself, made a motion under section 995, Penal Code. Later the public defender was reappointed and he thereafter represented the defendant. Thus prior to the within trial, defendant had experience representing himself; he knew what to expect upon discharging his lawyer; he also knew that had he wanted the public defender again the court in all probability would have reappointed him. Prom his previous experience as his own counsel, his statements to the court relative to his right to counsel, his desire to represent himself several times expressed to the trial court, the judge’s explanation concerning his right to counsel, his argument (with an obvious understanding of the law and citation of authorities) to discharge his lawyer, and his subsequent conduct wherein he moved to dismiss and for a mistrial, argued the matter and proceeded in place of counsel, it is obvious that defendant well knew of his constitutional right and that he could request the public defender to remain, thoroughly understood his actions in discharging the public defender and proceeding on his own, had an intelligent conception of the consequences of those acts knowing that he would thereafter have to defend himself (People v. Williams, 174 Cal.App.2d 364 [ 345 P.2d 47 ]; People v. Butcher, 174 Cal.App.2d 722 [ 345 P.2d 127 ]), knew what he faced as his own lawyer, and was competent, as a lay person, to represent

Defendant did not discharge the public defender until after the evidence was in and counsel had argued to the jury; all that remained was the court’s instructions to the jury, its return with a verdict and the imposition of sentence. The fact that the trial court permitted defendant to proceed to represent himself during the latter proceedings, under the instant circumstances and after his waiver of the right to counsel, does not constitute error. (People v. Linden, 52 Cal.2d 1 [ 338 P.2d 397 ].) Actually the trial court had no choice in the matter for defendant insisted on discharging the public defender and representing himself (People v. Mattson, 51 Cal.2d 777 [ 336 P.2d 937 ]), and the record shows that the court properly protected the defendant’s rights in all proceedings.

Appellant cites at length from People v. Havel, 134 Cal. App.2d 213 [ 285 P.2d 317 ], We have no quarrel with the principles stated therein but find them to be here inapplicable for the circumstances reveal a waiver of right to counsel; in the Savel case they do not.

While he claims “unsurmountable bias and prejudice” in the minds of the jury caused by his act of waiving counsel, appellant has failed to point up in what manner his rights were prejudiced. “‘The burden of showing unfairness and a miscarriage of justice by the denial of defendant’s right to counsel in some stage in a proceeding against him rests upon the defendant. ’ (Stroble v. California, supra, at page 198 [ 343 U.S. 181 ( 72 S.Ct. 599 , 96 L.Ed. 872 )].)” (People v. O’Ward, 168 Cal.App.2d 127 ,131 [ 335 P.2d 762 ].)

Other alleged error relates to the action of the trial court permitting the jury, after argument of counsel but before instructing the jurors, to separate and return to their homes. In the late afternoon of Thursday, March 2, the jury was excused and ordered to return Monday, March 6, for instructions; the court explained: “We will have to defer it (submission) until Monday morning.” The record disclosed no objection to this continuance. Appellant now says the delay was too long in that it subjected the jurors to news accounts of narcotic enforcement problems, prejudicing his' cause. While he made the same argument on March 6 on a motion for mistrial, it was rejected by the lower court by its denial of the motion.

Whether a jury may separate or be kept together prior to

Appellant’s last contention is that he was not sentenced within the time prescribed by law. The jury reached a verdict on March 6, 1961, and the matter was continued for further proceedings to March 30, 1961, 24 days later. He says that the time for pronouncing judgment and sentence was not set within 21 days after the verdict, citing section 1191, Penal Code. Appellant presents no argument in support of his claim.

The record discloses that on March 6, 1961, after the jury returned its verdict of guilty, the trial judge advised the defendant that he was referring the matter to the probation department for investigation and a report. He then asked defendant: “Do you waive time for sentence? Do you understand what I am talking about ? You have the right to have sentence imposed within 21 days but the report will probably take a few days longer unless you waive time for sentence. In other words the hearing on probation and sentence would be set for March 30—that is about 24 days away. Is that satisfactory?”; to which the defendant responded, “Yes.” Then on March 30 he asked defendant if there was any legal cause

The judgment is affirmed.

Wood, P. J., and Pourt, J., concurred.