People v. Ross

Defendant was charged with possession of heroin (§11500, Health & Saf. Code) and four prior felony convictions—two violations, Marijuana Tax Act, possession (1953) and two failure to register as narcotic violator (1957, 1961), all federal narcotic violations. The cause was submitted on the transcript of the testimony taken at the preliminary hearing. The court found him guilty as charged and two prior felony convictions to be true—violation, Marijuana Act, possession (1953) and failure to register as narcotic violator (1957). He appeals from the judgment.

Investigating a grand theft committed on October 7, 1961, Officer Smith obtained information that the goods stolen had been sold to Newman’s Junk Yard; he went there and talked with Mr. Cohen who told him that he had purchased them as metal from two male Negroes using a 1959 Chevrolet, license number JDF 672, describing one (defendant) as a male Negro, 35 to 40, 5 feet 5 to 5 feet 7, 115 pounds, a large mustache, a goatee and wearing glasses. Officer Smith followed up the information and traced the car to an address on East 35th Street where he determined it was parked. He had additional information from another person that defendant had been using the vehicle and that he fit the .description of one of the suspects given by Cohen. Officer Smith and his partner went to the 35th Street address around 2:50 a.m. on November 3, 1967; they observed defendant walk down the

The sole issue relates to the representation given to defendant by his trial counsel. Appellant contends that it was improper for his counsel to submit the cause on the preliminary hearing transcript because any objections he might have had to the admission of evidence were waived by his failure to raise them at the trial; and the transcript reflected the actual or potential existence of several legal defenses. He speculates that trial counsel “could” have objected to the introduction of any evidence on the ground of unlawful search and seizure, to the information received from Cohen as merely information from an unreliable informant not sufficient upon which to base probable cause for his arrest, to the introduction of evidence on the ground that it was obtained in violation of section 844, Penal Code, and he “could” have subpoenaed Officer Smith and questioned him further about the entry, and to his admission that the balloons contained heroin and he had been using heroin for some time, on the ground that he was not properly advised of his constitutional rights.

In retrospect it is easy, especially where the cause has been submitted to the trial court on the transcript of the testimony.

“Defendant has the burden ... of establishing his allegation of inadequate representation ‘not as a matter of speculation but as a demonstrable reality. ’ ” (People v. Reeves, 64 Cal.2d 766 , 774 [ 51 Cal.Rptr. 691 , 415 P.2d 35 ].) Appellant has not sustained his burden. Further, 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 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 ease did not develop until on appeal.

Actually appellant’s complaint that his counsel should not have stipulated to submission of the cause on the preliminary hearing transcript consists of an attack on the competency and effectiveness of trial counsel in the sense of strategy, tactics and judgment exercised by him during his conduct and control of the case. He claims that because of the submission he was deprived of defenses that his counsel “could” have raised on a trial. Defendant was represented at the trial by a deputy public defender. His counsel 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

As to the objections trial counsel “could” have made at a trial, an examination of the record confirms his decision that

Beyond mere speculation appellant has pointed up no facts which could have been raised on a further cross-examination of Officer Smith to show a violation of section 844, Penal Code. Actually, the preliminary hearing transcript shows that Officer Smith knew nothing about the entry into the residence, and he so testified. He said that he was not present when his partner entered the premises; he went to the rear and his partner went to the front where he entered; he knew nothing about the entry except what he was told. Thus, to offer further proof it would have been necessary for defendant to have called Smith’s partner as his own witness. The record as it stands shows no violation of section 844, Penal Code. In discussing the case with his client, counsel may well have discovered one of many factors confirming the validity of the entry, i.e., that defendant himself admitted the officer or that the officer entered with defendant’s consent.

At the preliminary hearing defense counsel objected to the admissions of defendant on the ground that he had not been adequately advised of his constitutional rights. The objection was properly overruled. Before defendant made any