People v. Burch

• Decision Date: 13 November 1961
• Docket Number: Cr. 3861
• Citation: 196 Cal.App.2d 754,17 Cal.Rptr. 102
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Peter BURCH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 102

17 Cal.Rptr. 102

196 Cal.App.2d 754

PEOPLE of the State of California, Plaintiff and Respondent, v. Peter BURCH, Defendant and Appellant.

Cr. 3861.

District Court of Appeal, First District, Division 1, California.

Nov. 13, 1961.

Rehearing Denied Dec. 4, 1961.

Hearing Denied Jan. 9, 1962.

Howard B. Crittenden, Jr., San Francisco, for appellant (under appointment of the District Court of Appeal.)

Stanley Mosk, Atty. Gen., of the State of California, Arlo E. Smith, Edward P. O'Brien, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Appellant has meticulously drawn to our attention every conceivable point in this case that might demonstrate error in the trial court. Despite his industry appellant fails to present any issue of importance or, indeed, of merit. As we shall point, out, we can ascertain no reason why appellant's conviction for violation of section 12021 of the Penal Code (possession of a concealable weapon by an ex-felon) should not be affirmed.

On February 12, 1960, Inspectors Dunwell and Van Laak of the San Francisco Police Department, assigned to investigate the theft and stripping of an automobile, found the dismantled car near a little knoll in a wooded area of McLaren Park. Searching the area for evidence as to the guilty party, the officers, at about 3 p. m., observed appellant approaching the knoll, traveling toward them on the small dirt road which terminated at the knoll. Before reaching the officers, appellant turned his car around and journeyed away from the area. Deciding to investigate, the officers pursued and stopped appellant.

Inspector Dunwell approached appellant's car, exhibited his badge and identified himself, instructing appellant to produce his identification. Appellant complied. When appellant asked the officers why he had been stopped, they told him that they had done so because he had acted in a suspicious manner. The officers found that the 1960 Cadillac in which appellant had been driving was a car rented for the period from February 8, to 10, 1960. Upon the query of the officers as to whether he had been previously arrested, appellant denied any prior arrests other than for traffic tags or malicious mischief.

Inspector Dunwell then asked appellant if 'it would be all right if * * * [he] searched his vehicle'; appellant 'said it would.' Appellant took the key from the ignition and opened the trunk; the officers found 'nothing of a suspicious manner.' Inspector Dunwell then 'punched the glove compartment and finding it was locked * * * asked * * * [appellant] * * * if he would unlock it.' Appellant did unlock it. In the glove compartment Inspector Dunwell found a small flat box with the word "Browning" written across the top of it and a cartridge box of ammunition. The flat box contained a black-colored .25 caliber Browning Automatic.

Inspector Dunwell asked appellant "What about this gun," and, then, "How did this gun get in the car?" According to Inspector Dunwell, appellant answered "Well, maybe some friend put it in the car," or "A friend of mine put it in the car." While Inspector Dunwell was engaged in contacting Communications on the police radio, appellant stated to Inspector Van Laak that the gun belonged to a friend of his; that it was 'worth approximately forty dollars' and that he had 'brought it up to the city with his friend and they had intended to sell it.'

Upon learning that appellant was an exconvict, the officers booked appellant for suspicion of violating section 12021 of the Penal Code. During the course of the booking appellant produced from his pocket a vial of pills marked 'for prescription use only,' bearing the name 'Xanthinux,' which appellant laughingly described as "a sex pill." At the trial appellant's psychiatrist testified that the pill was a tonic, but that it had been advertised as a sex stimulant.

At the trial appellant testified as to why he came to McLaren Park at that particular time. He had returned from San Jose to San Francisco in order to see his psychiatrist. Since he could do so only after 6 o'clock he intended to use the interval between 3 and 6 o'clock to drive about San Francisco, and there was 'a very excellent view at the top of the hill * * *.' Appellant denied seeing the pistol in the car at any time before its discovery. When the police found the weapon, he said, he recognized it and told the police that it belonged to his friend, Heald. Appellant testified that he had seen Heald three times between the date when he rented the car and the date of his arrest.

Heald, the alleged owner of the pistol, attested that at the time of the arrest he was living in a trailer court in San Jose and that appellant planned to move in with him. Heald said he had placed the weapon and the cartridges in appellant's car outside the presence of appellant and without appellant's knowledge. Heald put the pistol in the car because he and appellant planned to do some target shooting on the coast. On cross-examination Heald testified to the purchase of another automatic pistol during the week that appellant was arrested. Heald likewise stated that although he and appellant had gone to the coast with the pistol in the car they had not used it because of fog and people on the beach. Nor had Heald talked with appellant as to their intention to try out the pistol.

Appellant's first trial, for violation of section 12021, resulted in a hung jury; appellant suffered a conviction in the second trial. We consider the points on appeal seriatim.

1. The dismissal for lack of a speedy trial.

When, on May 26th, the court fixed the trial date for July 5th it did so in deference to appellant's representations. Upon the court's statement that 'now, we have got the problem of a trial date,' appellant's counsel immediately pointed out 'one of my important witnesses for the defense has planned to go on his vacation starting the 28th, for a thirty day vacation, which would put us in a bad spot.' While appellant's counsel urged a date 'like the 29th,' the court, in view of another two-week case starting on the 20th, suggested July 5th as 'a more realistic date * * *.' The parties stipulated to this date. Thus at least 30 days of the delay from May 3rd to July 5th resulted from appellant's request that the court not set a date before one of his important witnesses returned from his vacation.

It is true that the court on July 1st continued the trial from July 5th to July 6th and that as a result, the trial fell on a date one day after the elapse of the 60-day statutory limitation. Since the first trial terminated on May 3rd, when the jury failed to reach a verdict, section 1382 of the Penal Code permitted the state a period of 60 days to bring appellant to trial a second time. The sixtieth day, July 2nd, fell on a Saturday, and the following Monday, July 4th, was, of course, a holiday; hence the code section (People v. Brown (1956) 141 Cal.App.2d 299, 296 P.2d 560) required that the trial commence on July 5th in the absence of a showing of good cause to the contrary.

Neither the statute nor the decisions interpreting it, however, are so stringent as to excuse a defendant from trial because of delay caused by the court's accommodation of defendant's own request. Penal Code section 1382 provides that 'unless good cause to the contrary is shown' the court 'must order the action to be dismissed' if not brought to trial 'within 60 days' of the dismissal of the jury for failure to agree. (People v. Tahtinen (1958) 50 Cal.2d 127, 132, 323 P.2d 442.) Division Two of this District Court of Appeal has recently held that in applying the section those days of postponement 'requested by the defendant * * * must be deducted' from 'the 60-day limit * * *.' (People v. Harrison (1960) 182 Cal.App.2d 758, 759, 6 Cal.Rptr. 345.) This decision, in turn, relies upon People v. Martinelli (1953) 118 Cal.App.2d 94, 257 P.2d 37, and People v. Peter (1912) 20 Cal.App. 151, 128 P. 415. Ignoring the analysis of section 1382 of the Penal Code (see page 97 of 118 Cal.App.2d 257 P.2d 37) in the first-named case, appellant seeks to explain that the court decided only the inapplicability of a coram nobis proceeding to raise the point but the court likewise interpreted the secton. Appellant would distinguish the second case upon the ground that it involved 'consents which the record showed was a waiver of the right under P.C. 1382.' We believe, however, that appellant's request that the trial here not be set during the witness' 30-day vacation falls in no different category than a consent to a continuance; if anything, the request for the postponement is stronger reason than acquiescence in postponement for deducting the period of delay from the 60-day limitation.

We find somewhat anomalous appellant's argument that a delay to which he contributed, by requesting that the trial not be set during his witness' 30-day absence, defeated his constitutional and statutory right to a speedy trial.

2. The requests for discovery.

Appellant's contentions that the court improperly denied his requests for discovery founder in the first instance upon mootness and in the second upon the failure of a showing of abuse of the court's discretion.

The first objection portrays appellant's journey into the academic. A week before the trial, appellant sought the production of statements or notes made by Assistant District Attorney Dean of his interview with appellant's friend, Heald. The prosecution denied that Dean had ever seen Heald and accordingly had ever taken notes or statements of anything Heald said to him. Upon the submission of the matter, by affidavit, because of defense counsel's inability to attend the hearing, the court denied the motion. Although in the face of such absolute denials by the district attorney and the resolution of the factual dispute by the trial court, we find no showing of the abuse of the court's discretion, we need not rely upon that conclusion....