People v. Silva

The trial court found defendant guilty on three counts (I, II, III) of selling and one count (IV) of furnishing marijuana in violation of section 11531, Health and Safety Code, and two prior (1951, 1952) felony narcotic (marijuana) convictions (§11500, Health & Saf. Code) to be true. Timely appeal was filed. On May 6, 1965, this court filed its opinion affirming the judgment; petition for rehearing and petition for hearing by the Supreme Court were denied. Two years later appellant filed motion to recall remittitur denied by this court November 24, 1967. Thereafter, treating appellant’s petition for writ of habeas corpus as an application to recall remittitur, the Supreme Court directed this court to recall its remittitur, vacate its judgment and proceed in accord with Anders v. California, 386 U.S. 738 [ 18 L.Ed.2d 493 , 87 S.Ct. 1396 ], and People v. Feggans, 67 Cal.2d 444 [ 62 Cal.Rptr. 419 , 432 P.2d 21 ]; pursuant to the foregoing directions the appeal has been reinstated. Subsequently appellant filed herein notice of motion for leave to produce additional evidence attached to which was " declaration of Charles Gonzelo Silva”; the motion was denied. (The declaration of appellant, not a part of the record below, is not part of the record on appeal [People v. Shaffer, 182 Cal.App.2d 39 , 45-46 [ 5 Cal.Rptr. 844 ]].)

The following evidence was adduced at the preliminary hearing. Count I—Joe (Jose) Gonzales told State Narcotic Agent Edward Noriega that he could make a purchase of marijuana at defendant’s address in Canoga Park; on June 3, 1963, around 8 p.m. Gonzales took him to defendant’s residence ; the agent went there for the purpose of buying marijuana; he paid $30 to defendant in return for which defendant gave him two bags of marijuana (Exh. 1) ; this was the first time the agent had met defendant. Count II—Around 6 :15 p.m. on June 14, 1965, State Agent Paul Edward Pulliam met defendant near the intersection of Winnetka and Saticoy in Canoga Park; he paid defendant $30 for which defendant gave him two wax paper bags containing marijuana (Exh. 2). Count III—Agent Noriega again saw defendant on July 2, 1963; around 6 p.m. he met defendant in a liquor store parking lot near the intersection of Saticoy and Winnetka in

On October 31, 1963, Robert Stanley, who represented defendant at the preliminary hearing, was in superior court for arraignment but defendant failed to appear necessitating order forfeiting bail and directing the issuance of a bench warrant; on defendant’s late appearance, the orders were vacated and bail reinstated. On November 5, 1963, defendant entered a plea of not guilty and denied the priors. The trial was set for December 17, 1963, at which time defendant, with his counsel R. Stanley by J. White appeared, but the trial was continued to the next day to enable defense counsel to be present. On Decemebr 18, 1963, defendant appeared with his counsel R. Stanley by K. Foley. At the outset Mr. Foley stated: “My name is Kenneth Foley. May the record show I am appearing here for Robert Stanley in this matter and it is to be submitted if the court please?” Thereafter, defendant personally waived his right to a trial by jury of the case-in-chief and the matter of the priors; defense counsel and the People joined in the waivers. The prosecutor then offered the stipulation that the ease-in-chief be determined on the testimony taken at the preliminary hearing, and on the 1951 prior offered in evidence as Exhibit 5, by reference, the superior court file in People v. Silva, No. 136814 (microfilm) with the request that the court order the microfilm, which it did, and on the 1952 prior, as Exhibit 6, abstract of judgment in the superior court case, People v. Silva, No. 142598, and certified copy of records of Department of Corrections pertaining to defendant and his prison record. At the request of Mr. Foley, further trial was continued to January 14,1964.

However, on January 14, 1964, defendant failed to appear; the court ordered bail forfeited, issuance of a bench warrant and the cause off calendar. Apprehended several months later, defendant, in custody, was present with his counsel Robert Stanley on March 24, 1964, for further trial. The court advised that it had read the entire transcript and, no further evidence having been offered and the cause having been submitted without argument, found defendant guilty on all counts and “the priors ... to be true.” Defendant appeared with Robert Stanley for hearing on the probation

For reversal appellant relies on the claim of denial of due process at his trial “in that representation by counsel was a sham and an ineffectual formality only.” We conclude this and his other contention to be without substance and that the judgment must be affirmed.

The record fails to show as it did in People v. Ibarra, 60 Cal.2d 460 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ], relied upon by appellant, that he did not have diligent and reasonably competent representation by trial counsel in the court below, nor does it show that he availed himself of the privilege of complaining at the trial level that his counsel was not adequately representing him. (People v. Monk, 56 Cal.2d 288 , 299 [ 14 Cal.Rptr. 633 , 363 P.2d 865 ].) The explanation for this is found in the factual complexion of the ease which demonstrates that counsel was in a position to exercise his professional judgment, did so, and adopted such strategy and tactics as he deemed to be in the best interest of his client, and that defendant’s dissatisfaction with his conduct of the case did not develop until on appeal. The evidence reflected in the preliminary transcript is simple, direct, clear and undisputed. The amount of marijuana sold, the price paid, the direct dealings with defendant, the number of sales, the period over which the transactions took place, the locations of the sales, and the use of an informer in making the original contact establish that defendant was engaged in the business of selling marijuana. Proof that twice he had been convicted (January 13, 1951, January 3, 1952) of violations of section 11500, Health and Safety Code (possession of marijuana) in the Superior Court of Los Angeles County, indicates that defendant was no stranger to either the narcotic traffic or local court procedure. His general attitude toward the court is reflected in his late appearance on arraignment and his complete failure to appear for trial necessitating the issuance of a second

“ To justify relief on the ground that counsel was inadequate, it must appear that the trial was reduced to a farce or sham through the attorney’s lack of competence, diligence, or knowledge of law. {People v. Ibarra, 60 Cal.2d 460 , 464 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ].) If a crucial defense is withdrawn from the case through the failure of counsel to investigate carefully all defenses of fact and law, the defendant has not received adequate representation. {People v. Mattson, 51 Cal.2d 777 , 790-791 [ 336 P.2d 937 ].) ” {In re Beaty, 64 Cal.2d 760 , 764 [ 51 Cal.Rptr. 521 , 414 P.2d 817 ].) “Defendant has the burden, moreover, of establishing his allegation of inadequate representation ‘not as a matter of speculation but as a demonstrable reality. ’ {Adams v. United States ex rel. McCann (1942) 317 U.S. 269 , 281 [ 87 L.Ed. 268 , 275, 63 S.Ct. 236 , 143 A.L.E. 435]; accord, People v. Robillard (1960.) supra, 55 Cal.2d 88 , 97 [ 10 Cal.Rptr. 167 , 358 P.2d 295 , 83 A.L.E.2d 1086].)” {People v. Reeves, 64 Cal.2d 766 , 774 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ].) Here appellant has failed to sustain his burden; the record simply does not admit the application of the rule announced in People v. Ibarra, 60 Cal.2d 460 [ 34 Cal.Rptr. 863 , 386 P.2d 487 ], or Brubaker v. Dickson, 310 F.2d 30 .

To establish his claim that counsel submitted the cause on the preliminary transcript and offered no defense because he did not prepare and had no familiarity with the case, lacked concern for his client and was interested only in a fee, appellant cites his counsel’s failure to engage in lengthy cross-examination, use the preliminary hearing as a “discovery procedure” to cheek defenses, names of witnesses and the

Nor has appellant supported his claim that he waived his right to a jury trial “without the aid or advice of his counsel.” We cannot assume, as does appellant, that merely because Mr. Foley was not attorney of record he was not conversant with the facts, or because Mr. Stanley was not personally present, the waivers and submission were given no thought or preparation or were accomplished without defendant’s consent or prior consultation with him. Implicit in Mr. Foley’s statement “. . . I am appearing here for Robert Stanley in this matter and it is to be submitted . . .’’is the reality that Mr. Foley appeared not on his own behalf as defendant’s attorney but solely as agent of and for Mr. Stanley and that Mr. Stanley, perhaps even defendant, had discussed with Mr. Foley the waivers and submission of the cause. That this disposition was the result of advice given to defendant by his counsel and made with defendant’s prior knowledge and consent was confirmed by the conduct of both —when defendant personally told the court he knew he was entitled to a trial by jury of the ease-in-ehief and the priors, wished to waive the same and understood that he was doing so, and remained silent when Mr. Foley submitted the cause; and when, several months later, defendant and Mr. Stanley proceeded on the submission. Mr. Stanley was “the manager of the lawsuit” (Wilson v. Gray, 345 F.2d 282 , 290), in control of the case and had the authority and duty to determine all questions of strategy and trial tactics, and it was within the scope of his authority and he had the right to submit the cause on the preliminary transcript; in doing so, there was no violation of defendant’s constitutional and statutory right to be confronted with the witnesses against him. {People v. Foster, 67 Cal.2d 604 , 606 [ 63 Cal.Rptr. 288 , 432 P.2d 976 ].) Defense counsel had the opportunity to and did cross-examine the agents at the preliminary hearing, “and any objection to the use of the preliminary hearing transcript at the trial was waived when defense counsel, in defendant’s presence and without objection by him, joined in the stipulation regarding the use of that transcript. [Citations.] ” {People v. Foster, 67 Cal.2d 604 , 606 [ 63 Cal.Rptr. 288 , 432 P.2d 976 ]; People v. Cruz, 244 Cal.App.2d 137 , 140 [ 53 Cal.Rptr. 354 ].) This undoubtedly was the wisest course for counsel to take. From what he then knew of the circumstances, including what his own client had told him {People v. Garrison, 246

Upon arraignment for judgment, the judge told counsel “this amounts to a sale of a considerable amount of marijuana. This isn’t cMld’s play, you know”; he responded, “I agree.” Appellant says counsel should have kept quiet. Of course, the truth is that sale of a considerable amount of marijuana is not “child’s play,” the judge’s statement reasonably called for comment, and counsel could hardly have expressed himself otherwise. Appellant also says counsel should have made a more impassioned plea for probation or hospitalization. Again, the truth is that defendant had placed himself in a most precarious situation consistent with neither probation, county jail sentence, nor hospitalization—he had admitted to the probation officer that he sold marijuana to the agents, the probation report showed a criminal narcotic record, including his last arrest while on bail for possession for sale of marijuana, and it was known to the judge that during trial he had “jumped” bail and fled to Mexico. In the face of this, the two narcotic priors, the probation officer’s recommendation denying probation, the strong inculpatory evidence against his client and the judge’s comment, about the only reasonable approach counsel could make was to acknowledge the seriousness of the offenses and advise the court that defendant “has faced up to his responsibilities.” Except for the sake of repetition, what advantage would have resulted from again calling the court’s attention to the fact that defendant “had no formal education” and had sold marijuana “in order to support Ms family?” These matters,

Appellant directs further criticism to the failure of his counsel to challenge the priors on the ground that there was no showing that in 1951 and 1952 he was represented by counsel or knowingly and intelligently waived his right thereto, and to request the district attorney to dismiss the priors, which were 15 (actually 13 and 12) years old, in the interest of justice. The lack of formal request in the record does not establish that trial counsel did not informally ask the prosecutor to dismiss the priors and was refused. Contrary to appellant’s interpretation of the prosecutor’s statement— “there is evidence that the priors have been admitted, your Honor”'—that he (defendant) admitted the prior felony convictions, the record shows that the reference was to the priors having been admitted in evidence, for after considering Exhibits 5 and 6, the trial court specifically found the priors to be true. Proof of the 1951 prior conviction consisted of Exhibit 5 by reference, the superior court file in People v. Silva, No. 136814 (microfilm), and of the 1952 prior, Exhibit 6, abstract of judgment in the superior court ease of People v. Silva, No. 142598, and certified copies of defendant’s prison records. There is good reason for an absence of challenge to either prior by trial counsel for the fact is—as disclosed by our examination of the microfilm (Exh. 5) ordered by the trial judge and brought up by this court—that defendant at all stages of the 1951 criminal proceeding was represented by attorney W. W. Larsen; and the abstract of judgment (Exh. 6) of the 1952 proceeding shows on its face that again defendant was presented by Larsen. We assume that in the preparation of the cause, trial counsel learned from either the exhibits or his client that in both cases he had been represented by a private attorney.

Finally, appellant accuses trial counsel of abdicating his duty in failing to point out to the court under People v. Pineda, 238 Cal.App.2d 466 [ 47 Cal.Rptr. 879 ], that the 1951 prior conviction (§11500, Health & Saf. Code) was one for which he received a misdemeanor sentence of one year in the county jail in order to ameliorate his sentence and possibly to

The judgment is affirmed.

Wood, P. J., and Fourt, J., concurred.

A petition for a rehearing was denied October 21, 1968, and appellant’s petition for a hearing by the Supreme Court was denied November 20,1968.