People v. Harris

• Decision Date: 05 January 1977
• Docket Number: Cr. 28188
• Citation: 135 Cal.Rptr. 668,65 Cal.App.3d 978
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Eddrick Lewis HARRIS, Defendant and Appellant.

Page 668

135 Cal.Rptr. 668

65 Cal.App.3d 978

The PEOPLE of the State of California, Plaintiff and Respondent, v. Eddrick Lewis HARRIS, Defendant and Appellant.

Cr. 28188.

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

Jan. 5, 1977.

Craig H. Anderson, Marina Del Rey, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Frederick R. Millar, Jr., and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

HANSON, Associate Justice.

INTRODUCTION

Defendant Eddrick Lewis Harris (hereinafter defendant) following a jury trial appeals from conviction of grand theft in violation of Penal Code section 487, subdivision 1 (Count I) and robbery in the first degree in violation of Penal Code section 211 (Count II). ¹ Defendant appeared in propria persona at both the preliminary hearing and at the trial.

FACTS

As to Count I

On June 22, 1975, defendant Harris entered the Broadway-Crenshaw Department Store and had a brief conversation with Robert Coleman about a television set on display. After the conversation had ended, Mr. Coleman saw defendant walking around another department and then saw him leaving the store with the Sony color television set valued at about $410. Mr. Coleman had seen defendant two or three times before and recognized him during their conversation. He was certain that defendant was the man who took the television set.

As to Counts II and III

On July 13, 1975, at approximately 3:30 p.m., Vicki Govan was working at the jewelry counter in the Broadway-Crenshaw store. While she was showing a lady customer a ring, defendant Harris walked up to the case. She had seen him on several other occasions and knew him by the name 'Pee Wee.' He (Harris) pulled out a knife which looked like a butcher knife with a wooden handle. Defendant started prying open the display case where the rubber was connected to the glass. He put the knife in the seam at one point and then moved it along the seam to another point and the glass came loose and he started to lift it up. Miss Govan told him to 'Stop' and put her hands on top of the glass, leaning on it as he was lifting it up with her hands still on top of the glass. Defendant exerted more pressure than she did and reached in and got three cases of diamonds.

Miss Govan picked the phone up as defendant had reached one end of the counter. He (defendant) came back and got some more rings. He took a total of four more trays of diamond rings valued at approximately $11,000.

When defendant was almost to the door, Miss Govan yelled to the manager that he had her diamonds and was running out of the door. The manager started to run to the door, but defendant was already out of the door. Miss Govan could see him going across a divider in the street over a gate. She testified that she was not afraid of defendant when he did this as she did not think that defendant was serious. However, when she realized that defendant was going to take the diamonds she went to call security.

Defense

Defendant Harris testified on his own behalf. He admitted being in the Broadway-Crenshaw Department Store on the two days in question, but denied taking either the television set or the diamond rings.

By way of alibi as to the July 13, 1975, date, his mother, Lizzy Williams, and Frank Harris testified defendant was at home between 3:00 and 4:30 p.m. on that date.

CONTENTIONS

On appeal defendant contends (1) that he was denied the effective assistance of counsel, and (2) there was insufficient evidence to support the force or fear requisite to constitute the robbery (Count II) conviction.

DISCUSSION

We conclude the record does not support either of defendant's contentions and affirm the judgments of conviction.

I

The thrust of defendant's first contention advanced by appointed counsel on appeal is directed at a reversal of the conviction of both Counts I and II in that the court erred in granting defendant's request to appear in propria persona at both the preliminary hearing and trial and defendant ineffectively represented himself requiring a reversal.

The United States Supreme Court in Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, held that a defendant has an independent constitutional right to represent himself which is absolute if he requests it and knowingly and intelligently waives his right to counsel.

Here, three separate judges (at the preliminary hearing, arraignment, and trial) at defendant's request granted his request to appear in propria persona. The reporter's transcript of the preliminary hearing ² and the arraignment proceedings ³ reflects defendant, who said he knew how to read and count, was fully advised of his right to counsel, questioned by the court and warned of pitfalls of self-representation and that he would be bound by the same rules that attorneys are bound by during the conduct of the proceedings. The trial judge conveyed to defendant in no uncertain terms the foolishness of any one (even attorneys) representing himself in a criminal matter. Defendant after such admonitions chose to conduct his own defense and now, on appeal, seeks a second bite at the apple claiming the court erred in allowing him to proceed in propria persona. Defendant's Harris' counsel on appeal asserts that if counsel had been appointed the matter should not have been tried and a plea bargain should have been negotiated.

We hold the record reflects that defendant knowingly and intelligently waived his right to counsel and under Faretta v. California, supra, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the court had no authority to force counsel upon him and properly granted his motion to defend himself.

Moreover, the California case law, Pre-Faretta, was that a defendant is not entitled to have his case presented in court by himself and by co-counsel simultaneously. (People v. Sharp (1972) 7 Cal.3d 448, 459, 103 Cal.Rptr. 233, 499 P.2d 489; People v. Mattson (1959) 51 Cal.2d 777, 787--789, 336 P.2d 937; Thomas v. Superior Court (1976) 54 Cal.App.3d 1054, 1060, 126 Cal.Rptr. 830; People v. Hill (1969) 70 Cal.2d 678, 692, 76 Cal.Rptr. 225, 452 P.2d 329; see also Ligda v. Superior Court (1970) 5 Cal.App.3d 811, 820, 85 Cal.Rptr. 744; People v. Adame (1959) 169 Cal.App.2d 587, 601, 337 P.2d 477.)

Neither Faretta nor subsequent California case law changes the above rule. In Faretta, 422 U.S. at page 835, footnote 46, 95 S.Ct. at page 2541, the court said:

'(O)f course, a State may--even over objection by the accused--appoint a 'stand-by 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. . . .'

(Emphasis added.)

The word 'may' renders it merely within the discretion of the trial court and not mandated by law. In People v. McDaniel (1976) 16 Cal.3d 156, 162, 168 n. 6, 127 Cal.Rptr. 467, 545 P.2d 843, the California Supreme Court noted that United States v. Swinton (S.D.N.Y.1975) 400 F.Supp. 805, 807, held that Faretta did not give a constitutional right to co-counsel.

Here, the record reflects defendant did not make a bona fide serious motion for co-counsel after the court indicated his choice to appear in propria persona was not a wise one saying, 'If the court would like, I would like to ask for public defender co-counsel.' We hold the court did not abuse its discretion in refusing to appoint co-counsel.

Defendant's contention that he inadequately or ineffectively represented himself cannot be urged or sustained on appeal once he has elected to 'shoot craps' in the trial court and appear in propria persona. He was thoroughly warned of the pitfalls he would face as he represented himself. However, assuming Arguendo a defendant appearing in propria persona at trial could on appeal urge he ineffectively represented himself 'in order to justify relief on the ground of inadequate representation of counsel it must appear that counsel's lack of diligence reduced the trial to a 'farce or a sham. " (People v. Meals (1975) 48 Cal.App.3d 215, 223, 121 Cal.Rptr. 742, 747.) 'Moreover, defendant has the burden of establishing his allegation of inadequate representation "not as a matter of speculation but as a demonstrable reality. "' (Id.; see People v. Stephenson (1974) 10 Cal.3d 652, 661, 111 Cal.Rptr. 556, 517 P.2d 820.)

Here, the trial judge went to great length to explain various stages of the proceedings to defendant. Defendant has not shown as 'a demonstrable reality.' that the defense was a 'farce or a sham' and his contention that he did not adequately represent himself is not sustainable.

II

Defendant's final contention is that there was insufficient evidence to support the force or fear requisite to constitute his robbery conviction (Count II).

In considering the sufficiency of the evidence the appellate court must view all of the evidence, direct and indirect, in the light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce therefrom; the evidence may not be reweighed on appeal (People v. Williams (1971) 5 Cal.3d 211, 214, 95 Cal.Rptr. 530, 485 P.2d 1146; People v. Roberts (1975) 51 Cal.App.3d 125, 138, 123 Cal.Rptr. 893).

The trial court instructed the jury on CALJIC 14.20 (Grand and Petty Theft) and CALJIC 9.10 (Robbery--Defined) ⁴ in respect to the July 13, 1975, occurrence involving the diamond rings as charged in Counts II and III. The court also instructed on CALJIC 17.03 (Two Counts--Same Occurrence--Only One Crime) ⁵. In addition the court instructed on the lesser included offense of petty theft as to each count.

We hold the testimony that defendant was armed with a butcher-type knife in plain view to open the display case and overcame the force exerted by Miss Govan to...