People v. Adams

• Decision Date: 25 November 1974
• Docket Number: Cr. 7489
• Citation: 117 Cal.Rptr. 905,43 Cal.App.3d 697
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lupe Vacon ADAMS, Defendant and Appellant.

Page 905

117 Cal.Rptr. 905

43 Cal.App.3d 697

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lupe Vacon ADAMS, Defendant and Appellant.

Cr. 7489.

Court of Appeal, Third District, California.

Nov. 25, 1974.

Hearing Denied Jan. 23, 1975.

Evelle J. Younger, Atty. Gen., by Peter J. McBrien, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Patrick A. McAravy, Dunnigan, for defendant and appellant.

PUGLIA, Associate Justice.

Defendant was convicted by jury of a violation of Penal Code section 496. The exact language of subdivision 1 of that provision is involved in the issues on appeal and accordingly is set out verbatim:

'1. Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds or aids in concealing, selling, or withholding any such property from the owner, knowing the property to be so stolen or obtained, is punishable by imprisonment in a state prison for not more than 10 years, or in a county jail for not more than one year; provided, that where the district attorney or the grand jury determines that such action would be in the interests of justice, the district attorney or the grand jury, as the case may be, may, if the value of the property does not exceed two hundred dollars ($200), specify in the accusatory pleading that the offense shall be a misdemeanor punishable only by imprisonment in the county jail not exceeding one year.'

Defendant's contentions on appeal may be summarized as follows: (1) the refusal to subpoena certain witnesses violated defendant's statutory and constitutional rights to call witnesses in a criminal case; (2) defendant was not afforded adequate time in which to prepare for trial on the amended information; (3) defendant's trial counsel was incompetent; (4) Penal Code section 496 is unconstitutional and; (5) the sentence imposed is unconstitutionally excessive.

We shall consider defendant's contentions after summarizing the facts of the case which are pertinent to the appeal.

FACTS

On the afternoon of August 30, 1973, defendant, together with two children, was in Judy's Apparel Shop in Roseville. They were in the store about 10 or 15 minutes. The proprietress did not watch the children as they moved about in the store but she watched defendant. The children left the store and defendant left shortly thereafter. Just before he left he purchased one item, a ladies' handkerchief. When the proprietress closed the store five or ten minutes later she discovered a pair of pink pajamas missing from a counter on which there had been three pairs. Later it was determined that a pair of blue jeans, a pair of ladies' shorts, and a women's nightgown were also missing from the store. The same afternoon Sergeant Sparks, an Army recruiter, was looking out the window of his office in Roseville and noticed defendant and two children, who appeared to be about nine and ten years of age. He first noticed the children because they were smoking. He saw the children removing articles from inside their clothing. He became suspicious when he saw this conduct repeated a short time later and phoned the police.

Roseville Police Officer McConnell intercepted defendant and the children soon thereafter. Defendant was carrying a large grocery bag. The officer asked defendant's permission to look into the bag and defendant consented. In the bag were the times described above which had been taken from Judy's Apparel. Some still had price tags and labels from Judy's Apparel and all were later identified by the proprietress.

When Officer McConnell first saw the clothing in the bag, he advised defendant of his Miranda rights. Then the officer asked defendant how he came into possession of the items. Defendant replied that he had bought them from a 'white dude' and a 'Mexican dude' around the corner for $10. The officer saw the labels from Judy's Apparel and asked if defendant had been there. Defendant denied that he had been. The officer asked if defendant had considered the items in the bag might be stolen because the price was so low and defendant replied that he had bought them because it was a good price. ¹ The actual retail value of the items which had come from Judy's Apparel was $26.27.

At trial defendant himself was the only defense witness. He testified that he had gone into Judy's Apparel and purchased the handkerchief and later met two men, a Caucasian and a Mexican, who sold him the goods found in the bag. He claimed they asked $25 but finally accepted $15. He testified he did not see the Judy's Apparel labels on the items when he bought them and did not think they were stolen. He denied stealing the items or sending the children into the store to steal them.

Refusal to Subpoena Witnesses

Defendant contends he was denied his statutory and constitutional rights to call witnesses to testify in his behalf. He correctly points out that the right to produce witnesses in his behalf is guaranteed to a defendant in a criminal case by the United States and California Constitutions as well as by the Penal Code. (U.S.Const., 6th Amend.; Cal.Const., art. I, § 13; Pen.Code, § 686, subd. 3.) Defendant asserts that the two children, ages 9 1/2 and 11 1/2 respectively, were his only defense witnesses. He claims they were necessary to add to or corroborate his own testimony, in particular as to whether Officer McConnell requested to see the contents of the bag, whether a Miranda warning was given, and on the question whether he had constructive knowledge that the goods were stolen. Defense counsel did not want the children to testify because he believed they would not aid the defense. ² Nonetheless defendant personally made several efforts at trial to get the court to subpoena the children. He assigns the refusal by the court to do as reversible error. We do not agree.

First, the children were not the only witnesses who were available to defendant. He himself was a witness in his own behalf. Furthermore the children would have added nothing on the question whether defendant consented to Officer McConnell's looking into the bag, since defendant himself testified that he told McConnell, 'If you don't know what I have in here (the bag), I'll let you open it.' Second, as to the Miranda warning, defendant testified at first that he did not recall any Miranda warning being given him. Upon further questioning he stated he was given the warning in jail but not on the street. Admittedly there is ambiguity in his version which testimony from other percipient witnesses might clarify. However, even assuming the children's testimony on this point would be helpful to defendant, counsel was obviously of the view that the overall effect of their testimony would be damaging to defendant. Third, with respect to the element of knowledge that the goods were stolen, defendant's argument assumes that the jury found that he had only constructive knowledge. Clearly, the jury could have believed he had actual knowledge. Even if we assume his conviction was based on constructive knowledge arising from the suspicious circumstances of the purchase of the goods from the two men as testified to by defendant, it is sheer speculation that the children could testify to defendant's state of mind or belief as to how the goods were acquired by the two men from whom he claimed to have bought them.

The most significant thing, however, is that from the very beginning of the trial it was made clear to the court by defense counsel that the two children could not testify favorably to defendant. Counsel had discussed the matter with his client before trial. The prosecutor informed the court that the prosecution had attempted to subpoena the children as witnesses to testify against defendant as they had testified at prior juvenile court proceedings. They were not immediately available because they had moved to Texas and the prosecution had decided to proceed without them.

Defense counsel was convinced the children would testify against, not for, his client's position and the record bears this out. Control of court proceedings or selection of trial tactics, including the decision whether to call certain witnesses is for counsel to decide. (People v. Williams (1970) 2 Cal.3d 894, 905, 88 Cal.Rptr. 208, 471 P.2d 1008.) The trial court did not err in failing to subpoena the children.

The Adequacy of Time of Prepare for Trial

On the day set for trial an amended information was filed, defendant was arraigned thereon and trial commenced. Defendant contends he was deprived of due process of law by being denied sufficient time to prepare for trial on the amended information which, he urges, charged a different offense than charged in the original information. This contention has no merit. The original information was filed December 4, 1973. Defendant was arraigned with counsel present on December 5, 1973, and the case was set for trial on January 22, 1974. On the latter date the amended information was filed. The original information alleged 'violation of California Penal Code section 496, CONCEALING STOLEN PROPERTY, a felony, in that on or about August 30, 1973, said defendant, at and in the County of Placer, State of California, did wilfully, unlawfully and feloniously conceal, sell and withhold certain property, to wit, wearing apparel, sunglasses and watchband, said property having been stolen, knowing at the time that said property had been stolen.' The amended information alleged 'violation of California Penal Code section 496, RECEIVING STOLEN PROPERTY, a felony, in that on or about August 30, 1973, said defendant, at and in the County of Placer, State of California, did wilfully, unlawfully and feloniously buy and receive and conceal, sell and withhold certain property, to wit, wearing apparel, belonging to MARGUERITE JUDY, doing business...