People v. Conway

• Decision Date: 24 March 1969
• Docket Number: Cr. 14900
• Citation: 76 Cal.Rptr. 251,271 Cal.App.2d 15
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Mine CONWAY, Defendant and Appellant.

Page 251

76 Cal.Rptr. 251

271 Cal.App.2d 15

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald Mine CONWAY, Defendant and Appellant.

Cr. 14900.

Court of Appeal, Second District, Division 2, California.

March 24, 1969.

Hearing Denied May 21, 1969.

[271 Cal.App.2d 16] Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Suzanne E. Graber, Deputy Atty. Gen., for plaintiff and respondent.

WRIGHT, Associate Justice.

Defendant Donald Mine Conway was charged with a violation of section 459 of the Penal Code, burglary, a felony. A motion to set aside the information under section 995 of the Penal Code was heard and denied. Defendant entered a plea of not guilty and trial on the cause was set for December 13, 1967. On November 28, 1967, a motion to advance the cause from the trial date was granted for the purpose of hearing a writ of habeas corpus and a motion to relieve the public defender and substitute the defendant in propria persona. Both the application for the writ and the motion were denied. The original trial date of December 13, 1967 remained. On December 15, 1967, after two days trailing by reason of the court's congested calendar counsel for defendant and for the People and the defendant personally waived trial by jury and pursuant to stipulation the cause was submitted upon the transcript of the preliminary hearing, each side reserving the right to call additional witnesses. The court read the transcript of the preliminary hearing, defendant and a witness for the defendant testified for the defense. The court found the defendant guilty of burglary and fixed the same as in the second degree. A probation report was ordered; a motion for a new trial was heard and denied; and the court denied the application for probation, sentencing the defendant to serve 90 days in the county jail. The defendant appeals from the judgment.

Defendant contends as follows:

(1) That there was insufficient evidence to sustain the conviction;

(2) That the trial court's denial of his motion to proceed in propria persona violated his constitutional rights; and

(3) That defendant's right to a speedy trial was violated.

We have concluded that each contention is without merit.

STATEMENT OF FACTS

On May 19, 1967, at about 1:00 p.m., defendant and one Grady Charles Brown (Brown) entered Kay's Men's Store in Torrance. Brown was carrying a suitcase. Defendant told Modesto Ponce DeLeon (DeLeon) that he wanted to see a suit. Defendant was shown one and then proceeded to a rear dressing room, tried on the suit and returned with it to that portion of the store where merchandise was displayed. Defendant told DeLeon that he would purchase the suit. DeLeon, noticing that Brown was missing, inquired of the defendant 'Say, where's your friend?' Defendant replied 'I think he wanted to see a suit himself. So, he's back there trying on a suit.' DeLeon, knowing that he had not shown any clothing to Brown, told the defendant to wait for the purchase order to be written up. DeLeon then went back to the dressing room and discovered Brown with several suits in his hand. He also noticed that the suitcase was bulging. DeLeon left the dressing room, returned to the location where he had last seen the defendant and discovered that defendant had taken off the suit and that he had departed from the store. Brown came out of the dressing room without the suitcase and quickly left the store. Upon opening the suitcase, DeLeon found five new sport coats in the same, all of which were the property of Kay's Men's Store. DeLeon did not give either the defendant or Brown premission to take any of the clothing from the store or to place any of it in the suitcase.

Defendant returned to his car in the parking lot adjacent to the store and as he was slowly approaching the exit Brown was observed running across the parking lot and entering the car driven by defendant. DeLeon left the store to give chase, observed a California Highway Patrol officer and informed him of the incident. The officer gave chase, stopped the car and returned with defendant and Brown to the store where they were placed under arrest.

Defendant took the stand in his own behalf and testified that he had entered the store with $93.72 in cash with the intention of purchasing a suit; that he had observed Brown find the suitcase (also described as a brief case) in some trash near a pole in the shopping center. Defendant further testified that he had been a friend of Brown for about ten years, that they had been together for about four hours and that he had never been in Kay's Men's Store prior to the day of his arrest. Defendant further testified that he decided to leave the store when an employee told him 'The guy that you was with, we think that he has committed something, and it would be best for you to leave if you don't want to be involved in it.' Defendant further testified that he left the store, returned to his car, waited a few moments for Brown and was driving out of the lot when Brown called for him to stop. Defendant testified that as he did not know the area at all he drove into a dead end street where he was stopped by the highway patrol officer. Defendant called Grady Charles Brown as a witness on his behalf. Brown testified that his case had 'already been handled' and for that reason there was no problem concerning self-incrimination. Brown testified that he found the suitcase in some trash and that he had it with him when he entered the store. At that time he had no intention to steal anything and it was only when he saw some coats in a dressing room that he decided to take the same. He further testified that at no time did he communicate his intentions to defendant.

First Contention

Defendant contends that the evidence does not prove that he had the felonious intent necessary to sustain his conviction of burglary. Although it is a necessary element of burglary to prove that at the moment of the entry there was the requisite specific intent to commit theft or a felony therein, such intent may be inferred from all of the facts and circumstances disclosed by the evidence.

In the instant case defendant and Brown, long time friends, drove together to the scene, entered a store which defendant had never visited before located in an area unfamiliar to him. Brown carried an empty suitcase sutiable for accomplishing shoplifting. The court was justified in believing that defendant acted as a decoy for Brown by proceeding to try on a suit, agreeing to purchase the same and upon inquiry as to the whereabouts of his friend, falsely stating that Brown also wished to purchase a suit and was in a dressing room. Upon the discovery of Brown's activities, defendant failed to complete the purchase of the suit but instead hastily departed from the store where he waited in his car for the arrival of Brown, thus providing his friend with a means of escape from the scene.

It was a reasonable inference for the trial judge to draw that defendant entered the store with the specific intent to aid and abet Brown in the commission of a theft. As such defendant was equally guilty as a principal. (Penal Code, § 31; People v. Jordan (1962) 204 Cal.App.2d 782, 787, 22 Cal.Rptr. 731.) The trial court was also justified in drawing an inference adverse to the defendant by reason of his flight from the scene. (People v. Santora (1942) 51 Cal.App.2d 707, 710, 125 P.2d 606.)

'Guilty participation may be shown by circumstantial evidence as well as by direct evidence. If the circumstances proved reasonably justify the conclusion of the jury, the reviewing court has no authority to interfere therewith.' (People v. Anderson (1940) 37 Cal.App.2d 615, 619, 100 P.2d 348, 349.)

A similar rule is applicable where the trier of fact is the court. Defendant's first contention is without merit.

Second Contention

Defendant contends that the trial court's denial of his motion to proceed in propria persona violated his constitutional rights. Both the California Constitution (art. I, § 13) and the Penal Code of this state (section 686) provide that a defendant in a criminal action is entitled 'to appear and defend, in person and with counsel.'

In People v. Carter (1967) 66 Cal.2d 666 at page 669, 427 P.2d 214, at page 218, the court stated as follows:

'Speaking of the right to counsel and the effective waiver thereof, we declared in (citation): "The right to counsel is a fundamental constitutional right, which has been carefully guarded by the courts of this state.' (Citation.) Meaningfully applied, the right to counsel includes the opportunity to receive 'effective aid in the preparation and trial of the case.' (Citations.) To be sure, this right may be waived (citation), but 'a finding of waiver is not...