People v. Cruz

• Decision Date: 27 July 1978
• Docket Number: Cr. 30303
• Citation: 147 Cal.Rptr. 740,83 Cal.App.3d 308
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Hernandez CRUZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 740

147 Cal.Rptr. 740

83 Cal.App.3d 308

The PEOPLE, Plaintiff and Respondent, v. James Hernandez CRUZ, Defendant and Appellant.

Cr. 30303.

Court of Appeal, Second District, Division 5, California.

July 27, 1978.

As Modified Aug. 7, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, Richard A. Curtis and Patricia Nelson, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

In counts I through III, defendant James Hernandez Cruz was charged by information with separate violations of Penal Code ¹ section 245, subdivision (a) (assault with a deadly weapon). Each of the above counts included an allegation that defendant used a firearm within the meaning of section 12022.5 in the commission of the assaults. In count IV of the information, defendant was charged with a violation of section 12021 (possession of a concealable firearm by a former felon). Count IV was based upon an alleged 1968 conviction of robbery. The information was later amended to include an additional prior conviction for robbery, which allegedly occurred in 1973.

Defendant was arraigned and pleaded not guilty with the assistance of a deputy public defender. Prior to the selection of the jury and trial, under circumstances that will be discussed Infra, defendant requested to proceed in propria persona (hereinafter referred to as pro. per.). After questioning defendant concerning his competency and warning him about the dangers involved in self-representation, the trial court granted defendant's request. Prior to trial, defendant denied the alleged prior felony convictions.

After a jury trial, defendant was found guilty as charged in the information. At the sentencing hearing the trial court struck the use of a firearm allegation as to counts II and III. Defendant was sentenced to state prison for the term prescribed by law. The sentences on counts I through III were ordered to run concurrently with each other, and consecutively to the sentence imposed on count IV. Defendant appeals from the judgment.

The evidence introduced by the prosecution established that shortly after midnight on September 5, 1976, defendant attempted to gain entrance into a bar. The doorman, thinking that defendant had already had too much to drink, refused to let defendant in. Defendant without incident left the bar. Approximately three to five minutes later, defendant returned to the bar armed with a small handgun. Defendant fired five shots, each hitting the doorman. Two of the bullets passed through the doorman and hit two persons inside the bar. Defendant then fled and was chased by the manager of the bar. During the chase, defendant turned and twice pointed the gun towards the manager. Defendant did not fire his gun at the manager. A short time later defendant was captured by police officers. The handgun used in the shootings, apparently thrown by defendant during the chase, was recovered.

Defendant principally relied upon the defense of unconsciousness due to involuntary ingestion of L.S.D. and alcohol. The prosecution had in its case in chief presented evidence that defendant, though slightly intoxicated, had acted as if conscious. Testifying in his own behalf, defendant stated that during the afternoon of September 4 he had visited the house of a friend. The claim was made by defendant that the friend, without defendant's knowledge, placed L.S.D. in defendant's beer. Defendant later consumed the beer. Defendant testified that shortly thereafter he began to feel "like I was all myself was just being drawn into inner parts of my body as if it was just being I don't know. I felt really weird." Upon the inception of such feelings, defendant went home to his wife. From that point until he awoke in a hospital the next day, the defendant testified (with the exception of a vague recollection of trying to enter a church) he could not remember anything. Defendant called witnesses who gave testimony relating to defendant's abnormal conduct during the night of September 4-5: defendant watched television without the sound on; defendant drove erratically on the freeway at speeds up to 90 miles per hour; and defendant abandoned the car, saying something about finding a church. Witnesses also testified that defendant had consumed approximately a fifth of brandy within a short period of time during the evening of September 4.

On appeal, defendant does not challenge the sufficiency of the evidence supporting the judgment. Instead, defendant contends that errors committed by the court and prosecution require reversal. Specifically, defendant assigns as error the following:

(1) Self-Representation : there was no effective waiver of his right to appointed counsel; the court improperly denied his motion to withdraw his waiver of counsel.

(2) Continuances : the master calendar and trial court judges abused their discretion in denying defendant's motions for continuances to prepare and investigate his defense, to secure witnesses, and to appoint an investigator.

(3) Prior Convictions : the trial court erroneously permitted into evidence prejudicial and immaterial information contained in exhibits used by the prosecution to prove defendant's prior convictions; the trial court improperly instructed the jury concerning the prior convictions (CALJIC No. 17.25).

(4) Unconsciousness Defense : CALJIC No. 4.31 (1972 Rev.) given by the trial court concerning the burden of proof on the issue of unconsciousness was prejudicially confusing.

(5) Multiple Punishment : under section 654, defendant's possession of a concealable handgun, under the facts of the case, constitutes one transaction for which defendant cannot be punished under sections 12021 and 245; that the section 12021 violation as the lesser offense must be stayed.

(6) Modification of Sentence : the 1968 conviction, as an element of count IV, cannot be used to enhance the minimum sentences under counts I through III.

The numerous assignments of error which have merit require us to reverse defendant's conviction.

1. Self-Representation

A. Defendant did not effectively waive the right to counsel

The duties of a trial judge faced with a motion for substitution of an appointed attorney by an indigent defendant have been expanded. While the granting or denial of a defendant's motion is still a matter vested in the discretion of the court, People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, requires a trial judge to listen to a defendant's offer to relate specific instances of attorney misconduct or inadequacy. In Marsden, the Supreme Court found it error for a trial court to have denied a defendant's motion for substitution of attorneys solely on the basis of courtroom observations, where it prevented the defendant from articulating his reasons for desiring the change. Marsden was followed by People v. Munoz (1974) 41 Cal.App.3d 62, 115 Cal.Rptr. 726. The court in Munoz stated, at page 66, 115 Cal.Rptr. at page 728: "(T)he mandate of (the Marsden ) decision is not limited necessarily to a case where the trial judge refuses to give the defendant the opportunity to be heard as the Attorney General suggests. On the contrary, the Ratio decidendi of the high court's opinion tells us that the judge's obligation to listen to an indigent defendant's reasons for claiming inadequate representation by court-appointed counsel is not a pro forma function. It tells us also that under some circumstances a court's ruling denying the request for a substitution of attorneys without a careful inquiry into the defendant's reasons for requesting the substitution 'is lacking in all the attributes of a judicial determination.' (Citations.)" According to Munoz, the duty of the trial court includes "an inquiry into the state of mind of the court-appointed attorney" and an attempt "to ascertain in what particulars the attorney was not providing appellant with a competent defense." (41 Cal.App.3d at p. 66, 115 Cal.Rptr. at p. 728.) Munoz has been cited with apparent approval by the Supreme Court in People v. Lewis (1978) 20 Cal.3d 496, 499, 143 Cal.Rptr. 138, 573 P.2d 40.

It has been suggested in People v. Molina (1977) 74 Cal.App.3d 544, 549, 141 Cal.Rptr. 533, 536, that the trial court's duty of inquiry is triggered only when the nature and degree of defendant's dissatisfaction amounts to an "assert(ion) directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel."

In the instant case defendant charged, not the particular deputy appointed to represent him, but the office of the public defender as a whole with improper conduct. Defendant made his charge early in the proceedings, on October 4, 1976, where the following occurred:

"MR. GALLAGHER (Deputy Public Defender): Well, Mr. Cruz now indicates to me, Your Honor, that he has the reason he wants to go pro per is that he has a general conflict of interest with the public defender's office.

"THE DEFENDANT: I think it's far more than general.

"THE COURT: Do you want to elaborate on what a general conflict of interest is? What's your problem"

"THE DEFENDANT: It's a definite conflict of interest, Your Honor. In the past I have been represented by the public defender's office and each and every time the record will show there's never been any investigation into the cases I've had, there's been nothing as far as anything I've asked them to do, certain things and they said, no, there is no such thing. And we just got a definite conflict. (P) I wrote a letter to the public defender's office and I got a letter back stating, well, that I shouldn't, you know, look to...