People v. Doane, D005351

CourtCalifornia Court of Appeals
Citation246 Cal.Rptr. 366,200 Cal.App.3d 852
Decision Date26 April 1988
Docket NumberNo. D005351,D005351
PartiesThe PEOPLE, Plaintiff and Respondent, v. Earl DOANE, Defendant and Appellant.
Janice M. Lagerlof and Howard Cohen, San Diego, under appointments by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Michael D. Wellington and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Earl Doane was convicted in three separate jury trials of possession of amphetamines (Health & Saf.Code, § 11377, subd. (a), super.ct. case no. CR 75182), vehicle theft (Veh.Code, § 10851, subd. (a), super.ct. case no. CR 76710) and attempted burglary (Pen.Code, §§ 459, 664, super.ct. case no. CR 77412). He also admitted he had suffered a prior prison felony conviction for forgery (Pen.Code, § 667.5, subd. (b)). These cases were consolidated for appeal.

On appeal, Doane contends his convictions for possession of amphetamines and attempted burglary where he represented himself must be reversed because his advisory counsel provided ineffective assistance and the court failed to remind him of his Fifth Amendment right not to incriminate himself before he took the stand in his own defense. Doane also contends imposition of the one-year enhancement of Penal

Code section 667.5, subdivision (b), violated thedouble-the-base-term limitation of Penal Code section 1170.1, subdivision (g). We find no merit to these contentions and affirm

Because Doane makes no contentions of error on appeal as to his trial for vehicle theft we state only the facts of his attempted burglary and his possession of amphetamines cases.

Attempted Burglary

At 10 p.m. on November 8, 1985, Du Cao noticed the hall light in front of his apartment went off. He went to the front door of his apartment and saw Doane at his next door neighbor's apartment trying to push the screen and shake the door's handle. Doane was two or three feet away. Du Cao saw Doane holding something red in one hand which he thought was a [200 Cal.App.3d 858] flashlight and something steel colored in the other hand which he thought was a knife. Doane was attempting to break the door's lock with the knife. Du Cao asked what Doane wanted. Doane did not answer or look in Du Cao's direction.

Du Cao observed Doane over a half hour period and then called the police. The police arrived within two minutes of Du Cao's call. They found Doane in the apartment hallway, standing with his back against the wall and a knife in one hand. Doane said he was trying to get in to see his girlfriend. The resident of the apartment testified she did not know Doane and had never been his girlfriend. During a pat down search, the police found a red pen light and a small pocket knife on Doane.

Du Cao testified after the police left, he pulled a bench which had some plants on it over to the light fixture outside his apartment, stood on it and screwed in the light bulb which had been loosened. Du Cao noticed there were broken leaves on the ground beneath the light bulb, which had been there before he moved the bench.

Doane testified he was hiding in the darkened hallway of the apartment complex to escape from "Motorcycle Walt," a Hell's Angels bodyguard, who was chasing him due to a misunderstanding about some jewelry. Doane claimed he knocked on Du Cao's door in an attempt to find someone to call the police. Because Du Cao did not speak English, Doane opened the screen door of the next apartment, knocked but there was no answer. Doane was afraid Walt would hear the knocking, so he rang the doorbell and stood up against the wall for the next 30 minutes, eventually taking out his knife as he waited for Walt. Doane explained he lied to the police about his girlfriend living in the apartment because he was afraid of the police.

Possession of Amphetamines

At 6:20 a.m. on June 21, 1985, San Diego State University Police Agent Ken Forney, while on routine patrol, saw Doane slumped over in the driver's seat of a Datsun Z car. Doane appeared to be asleep. The car radio was softly playing. Officer Forney saw in Doane's hand a small baggie containing an amber-colored vial, a cotton ball and two yellow pills which fell out of Doane's hand when Forney woke him. Doane tried to shove the baggie under the seat with his hand.

During a pat down search, the officer found two syringes in Doane's socks. In his jacket pocket the officer found a baggie containing amphetamines. Later, after the police booked Doane at San Diego State University, another syringe was found under Doane's chair.

[200 Cal.App.3d 859] Doane was transported and booked at the county jail. Officer Forney inspected Doane's arms and found four trackmarks, between one and three days old, with the most recent being only hours old.

Doane told Officer Forney at least three times that his name was Raymond Doane and his birthdate was June 4, 1949. Raymond Doane is his brother and June 4, 1949, is his brother's birthdate.

In his defense, Doane testified his ex-wife was involved in drugs and Doane did not approve. He had a plan to get his ex-wife away from drugs and as part of this plan, he jabbed his arm with a sewing needle and bruised it to simulate trackmarks.

The night before he was arrested, Doane had gone with his ex-wife to visit some of her friends at a house. While there he met Bobby Angel, a drug dealer, who did not like Doane because Angel was involved with Doane's ex-wife. At his ex-wife's request, Doane agreed to give Angel a ride home. Because it was getting chilly, Doane borrowed a jacket from someone at the house. On the way to Angel's house, Angel asked Doane to stop at a house on Hewlett Street so he could get some gas money from a friend for Doane. Doane waited in his car for Angel to return. When Angel did not return, Doane fell asleep. Doane testified when he was awakened by the officer, he gave his brother's name because he had been dreaming about him.

Doane claimed the drugs and paraphernalia found in the car had been planted there by Angel. He also claimed Angel had drugged him earlier in the evening by putting something into his coffee. He called a witness who said she saw Angel putting two pills in Doane's coffee but said nothing at the time because she thought the pills were nutrasweet or something similar.


Doane contends he was denied a fair trial by the failure of his appointed advisory counsel to attend the trial and to provide him with needed legal advice on impeaching a witness with prior inconsistent statements. 1

[200 Cal.App.3d 860] Under the Sixth Amendment of the federal constitution, a defendant has a right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and is able and willing to abide by rules of procedure and courtroom protocol. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; People v. Teron (1979) 23 Cal.3d 103, 113, 151 Cal.Rptr. 633, 588 P.2d 773, overruled on other grounds in People v. Chadd (1981) 28 Cal.3d 739, 170 Cal.Rptr. 798, 621 P.2d 837.) It is not required that the defendant be competent to serve as counsel; "his technical legal knowledge, as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself" ( Faretta v. California, supra, 422 U.S. at p. 836, 95 S.Ct. at p. 2541); the defendant "need not pass a 'mini-bar examination' " in order to represent himself. (People v. Joseph (1983) 34 Cal.3d 936, 943, 196 Cal.Rptr. 339, 671 P.2d 843.) The right to appear pro se exists to affirm the accused's individual dignity and autonomy. (McKaskle v. Wiggins (1984) 465 U.S. 168, 179, 104 S.Ct. 944, 951, 79 L.Ed.2d 122; People v. Joseph, supra, 34 Cal.3d at p. 946, 196 Cal.Rptr. 339, 671 P.2d 843.) The core of the Faretta right is the defendant's right to have actual control over the case

he chooses to present to the jury. (See McKaskle v. Wiggins, supra, 465 U.S. at p. 174, 104 S.Ct. at p. 948.)

"A defendant's right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial." ( McKaskle v. Wiggins, supra, 465 U.S. at p. 174, 104 S.Ct. at p. 949.)

A defendant who chooses to represent himself may request the court to appoint an "advisory" or "standby" counsel 2 to assist him in the [200 Cal.App.3d 861] presentation of the defense. (See Faretta v. California, supra, 422 U.S. at p. 835, fn. 46, 95 S.Ct. at p. 2541, fn. 46; People v. Bigelow (1984) 37 Cal.3d 731, 741-744, 209 Cal.Rptr. 328, 691 P.2d 994.) There is no constitutional right to advisory counsel; the decision to appoint an advisory counsel lies within a trial court's discretion. (People v. Miranda (1987) 44 Cal.3d 57, 75-76, 241 Cal.Rptr. 594, 744 P.2d 1127.) "[A] ' "defendant is not entitled to have his case presented in court both by himself and by counsel acting at the same time or alternating at defendant's pleasure;" ' " a defendant does not have "an absolute right to act as cocounsel." (Ibid.) 3 On the other hand, the court "... may--even over objection by the accused--appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary. [Citation.]" ( Faretta v. California, supra, 422 U.S. at p. 835, fn. 46, 95 S.Ct. at p. 2541, fn. 46.) In McKaskle v. Wiggins, supra, the United States Supreme Court explained the limits of an advisory or standby counsel's unsolicited participation:

"First, the pro...

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