People v. Bryant

• Decision Date: 28 July 1969
• Docket Number: Cr. 15134
• Citation: 275 Cal.App.2d 215,79 Cal.Rptr. 549
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Benjamin BRYANT, Defendant and Appellant.

Page 549

79 Cal.Rptr. 549

275 Cal.App.2d 215

The PEOPLE, Plaintiff and Respondent, v. James Benjamin BRYANT, Defendant and Appellant.

Cr. 15134.

Court of Appeal, Second District, Division 4, California.

July 28, 1969.

Richard H. Levin, Los Angeles, by court appointment, for defendant and appellant.

Thomas C. Lynch, Atty Gen., William E. James, Asst. Atty. Gen., and Lola M. McAlpin, Deputy Atty. Gen., for plaintiff and respondent.

DUNN, Associate Justice.

After a joint nonjury trial, appellant and his codefendant, James Davis, were found guilty of burglary, a felony, committed in violation of Pen.Code § 459. The crime was fixed by the court as second degree. The information, as amended, charged appellant with a prior conviction of felony burglary, which was found by the court to be true. ¹ After the complaint was filed and municipal court arraignment held, a preliminary examination took place on October 2, 1967 wherein appellant and Davis were both represented by the public defender. The burglary victim under Count I, ² Mrs. Parks, testified she returned to her house in Los Angeles the afternoon of July 17, 1967 to find that $400 cash and a watch had been stolen. Louver panes in a kitchen window were found to have been removed. She called the police. It was stipulated (for purposes of the preliminary examination, only) that a qualified officer went that date to the premises and lifted fingerprints from a louver, photographed the same and compared them with exemplar fingerprints of appellant and Davis and had the opinion they were made by these same men.

The superior court trial was held January 3, 1968. Appellant and Davis again were appropriate discussion, each defendant waived jury trial on all issues and submitted the case to the court on the transcript of the testimony of Mrs. Parks given at the preliminary examination, plus added evidence to be produced at trial. The latter consisted of testimony of two police fingerprint experts who stated the prints found at the Parks' residence were those of appellant and Davis. The prints were received in evidence. There were no further witnesses for either side; appellant and Davis did not testify.

Appellant raises two points on this appeal.

I. Were Appellant's Fingerprints Secured In Violation Of His Constitutional Rights?

At the court trial one fingerprint expert testified that the latent prints obtained at the Parks' residence had been compared with fingerprint cards from Prior arrests of each defendant and positive identification was made. However, the cards did not show particular areas of the thumb which appeared on the latent prints. As the officer expert believed a comparative demonstration of each area would be desirable for court purposes, he obtained new fingerprint cards dated September 20, 1967 which showed the areas in question. ³

The police were entitled to fingerprint each defendant at the time arrested for the burglary charged, and were not obligated to rely on fingerprint cards obtained from the prior arrests. Accordingly, defendants properly were fingerprinted September 20, 1967. ⁴

Appellant argues that his rights to the assistance of counsel (Sixth Amendment, U.S. Const.) and against self-incrimination (Fifth Amendment, U.S. Const.) were violated by taking from him a second set of fingerprints. But his Sixth Amendment point is disposed of by People v. Graves (1966) 64 (Cal.2d 208, 49 Cal.Rptr. 386, 411 P.2d 114 (no right to counsel at the time handwriting exemplars are obtained). Schaeffer v. Municipal Court (1968) 260 Cal.App.2d 819, 67 Cal.Rptr. 479 (involving the giving of intoxication tests) may also be cited, particularly the footnote on page 822, 67 Cal.Rptr. 479.

Fifth Amendment rights are disposed of by Gilbert v. California (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (handwriting exemplar); Schmerber v. California (1966) 384 U.S. 757, 763--764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (blood samples); People v. Ellis (1966) 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (voice identification); People v. Sudduth (1966) 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401 (breach samples); People v. Sowers (1962) 204 Cal.App.2d 640, 644--645, 22 Cal.Rptr. 401 (fingerprints); and People v. McDaniel (1958) 157 Cal.App.2d 492, 500, 321 P.2d 497 (fingerprints). ⁵

Appellant is heedful of the foregoing but, observing that Art. I, § 13 of the Cal. Const. insures to an accused the rights of counsel and against self-incrimination, argues that California courts are free to give broader scope to those rights than is granted to the same rights under the federal constitution. However, as noted by the court in Cohen v. Superior Court, 173 Cal.App.2d 61, 66--67, 343 P.2d 286 (1959) and People v. Estrada, 234 Cal.App.2d 136, 145, 44 Cal.Rptr. 165, 11 A.L.R.3d 1307 (1965), the pertinent language in the federal constitution is quite similar to that in our state constitution, for which reason interpretation of the United States Constitution by federal courts is very persuasive in interpreting our own. We are cited to no basis in precedent or reason for holding that appellant's rights under Cal. Const. Art. I, § 13 were violated and we find none.

II. Was Appellant's Right To Counsel Violated Because He Was Represented By The Same Attorney Who Represented His Codefendant?

Appellant contends that, since the public defender represented both him and Davis, his representation was thus ineffective and he thereby was deprived of his constitutional right to counsel. He relies upon People v. Chacon, 69 Cal.2d 765 (1968), 69 A.C. 795 (modified in 70 A.C. 13), 73 Cal.Rptr. 10, 447 P.2d 106; People v. Gallardo, 269 Cal.App.2d --- (1969), 269 A.C.A. 75, 74 Cal.Rptr. 572; People v. Baker, 268 Cal.App.2d --- (1968), 268 A.C.A. 270, 73 Cal.Rptr. 758; and People v. Keesee, 250 Cal.App.2d 794, 58 Cal.Rptr. 780 (1967). Appellant further argues he was never informed by the court of his right to separate counsel and therefore cannot be held to have waived it.

A recital of the historical development of the rule would serve little purpose. As stated in Chacon, Supra (pp. 803--804 of 69 A.C., p. 15 of 73 Cal.Rptr., p. 111 of 447 P.2d):

'(2) The right to counsel at trial guaranteed by the Sixth Amendment of the United States Constitution (Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (93 A.L.R.2d 733)) and article 1, section 13 of the California Constitution does not include an automatic right to separate counsel for each defendant. One counsel may represent more than one defendant so long as the representation is effective. (Powell v. Alabama (1932) 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (171--172, 84 A.L.R. 527).) (3) Effective Assistance of counsel is assistance 'untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.' (Glasser v. United States (1942) 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (699); People v. Douglas (1964) 61 Cal.2d 430, 437, 38 Cal.Rptr. 884, 392 P.2d 964.) If counsel must represent conflicting interests or is ineffective because of the burdens of representing more than one defendant, the injured defendant has been denied his constitutional right to effective counsel. (Glasser v. United States, Supra; People v. Robinson (1954) 42 Cal.2d 741, 745--748, 269 P.2d 6; People v. Lanigan (1943) 22 Cal.2d 569, 576--577, 140 P.2d 24, 148 A.L.R. 176; People v. Douglas, Supra; People v. Donohoe (1962) 200 (Cal.App.2d 17, 24, 19 Cal.Rptr. 454.)'

The court went on to find the presence of an actual conflict between defendants at the penalty trial. Furthermore, the record of the guilt trial as interpreted by the court showed '* * * the facts of the case are fraught with potentially effective individual defenses', which separate counsel for Chacon could have developed and argued but a single attorney '* * * could not make these arguments in favor of each defendant to dissociate him from his codefendants' cases, for he represented them all and had to make common cause for them.' Having found counsel was rendered ineffective by these conflicting interests, thus creating a right to separate counsel if desired, the Supreme Court went on to conclude that the right to separate counsel had not been waived.

In the present case, we fail to find, or even suspect, the possibility of any conflict in interest and none is brought to our attention by appellant in his briefs. The facts, as previously recited, are simple. Appellant and Davis were tied to the burglary by leaving their fingerprints there. Either could have attacked the fingerprint experts' identification without affecting the other's defense and each could have denied the prints were his. No inconsistency would be involved. At the trial, counsel expressed no belief to the court they any conflict existed. The case against one defendant was no stronger than against the other. None of the elements of conflict found present in the guilt phase of Chacon was present here. Cases are to be distinguished wherein counsel informed the trial court of a conflict and the appellate court found appellant was deprived of his right to effective counsel by presence of a probable conflict: People v. Douglas, 61 Cal.2d 430, 38 Cal.Rptr. 884, 392 P.2d 964 (1964); People v. Robinson, 42 Cal.2d 741, 269 P.2d 6 (1954); People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176 (1943); People v. Perry, 242 Cal.App.2d 724, 51 Cal.Rptr. 740 (1966); People v. Donohoe, 200 Cal.App.2d 17, 19 Cal.Rptr. 454 (1962); and People v. Kerfoot, 184 Cal.App.2d 622, 7 Cal.Rptr. 674 (1960). Also to be distinguished are those cases where both actual and probable conflict were apparent because of the deeper involvement of one defendant than others: People v. Gallardo, Supra, 269 A.C.A. 75, 74 Cal.Rptr. 572; People v. Keesee, Supra, 250 Cal.App.2d 794, 58 Cal.Rptr. 780.

Here, it was appellant who was charged with a prior felony conviction, Davis was...