People v. Hernandez

• Decision Date: 25 October 1962
• Docket Number: Cr. 8048
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Gilbert HERNANDEZ, Defendant and Appellant.

Page 640

25 Cal.Rptr. 640

209 Cal.App.2d 33

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Gilbert HERNANDEZ, Defendant and Appellant.

Cr. 8048.

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

Oct. 25, 1962.

Hearing Denied Dec. 19, 1962.

Robert Barnett, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gilbert F. Nelson, Los Angeles, for respondent.

ASHBURN, Justice.

Defendant was charged by information with burglary from an automobile in violation of § 459 of the Penal Code. He was arraigned on April 7, 1961, and at that time the public defender was appointed to represent him as his attorney. He entered a plea of not guilty. Trial was set for May 19, 1961, and on that date defendant moved to have the public defender relieved as counsel. The motion was granted after explanation of what the effect would be and recommendation that defendant not insist on his motion; but he did insist and he was substituted in propria persona, and the trial was continued until May 24th. The trial took place on May 24th and May 25th and the jury found defendant guilty of second degree burglary. A motion to dismiss and a motion for new trial were both denied and defendant was sentenced to the state penitentiary. Defendant appeals, being now represented by private counsel.

Mrs. Costello, a witness, testified that on March 17, 1961, at approximately 5:00 in the afternoon, she parked her car in a vacant lot. She left her purse on the seat of the car having covered it with a baby's blanket. She closed all the windows and locked all the car doors. She returned 10 or 15 minutes later to find that the wind wing of her car was open, the latch having been broken off; it was lying in the grass in front of the car. Her wallet which contained $10 was missing from her purse. A few days later it was found along the highway near Marineland but the money had been taken from it.

Another witness, Mr. Comstock, testified that he had parked his Camper (a truck with living quarters mounted on the rear) on the same lot during the same period of time. On the same afternoon he went to the back of the Camper to get a jacket. Through the front window of the Camper he saw a hand reaching in a window; he looked out a little further and saw defendant walking away from the Camper. He then observed defendant walking down a line of automobiles looking into cars and trying door handles on four or five automobiles until he came to Mrs. Costello's automobile. Defendant then returned to his own car which was parked next to the Camper. He got something from under the seat of his car, concealed it under his coat and walked back to the front seat of Mrs. Costello's car on the passenger's side. He placed something against the window and gave the impression that he was prying down. Mr. Comstock then observed a metallic object fly out into the field and saw the defendant bend down over Mrs. Costello's automobile and it appeared that he opened the car door. He then observed appellant return to his own automobile. The witness wrote down defendant's license number and walked over to Mrs. Costello's car. At that time Mrs. Costello was returning to her car. The police came and Mr. Comstock told them the story. Two days later he was called down to the Palos Verdes Police Station where he identified defendant in a lineup.

Defendant claims three instances of misconduct on the part of the prosecuting attorney. Defendant did not take the stand in his own behalf. In the People's closing argument the prosecuting attorney referred to defendant's argument to the jury as follows: 'He says that there is no evidence in this case, that he has not been convicted of other crimes. It's true, there is no evidence here that he has been convicted of other crimes. However, if he took the stand, I would have liked to ask him a few questions about other things that I could properly have asked him about, but he knows that I would have asked him about it and didn't want to take the stand * * *.'

In People v. Sanchez, 35 Cal.2d 522, 219 P.2d 9, references in argument to prior convictions where the defendant was neither charged with them nor did he take the stand were deemed improper and in that case prejudicial under the facts. The comments of counsel in the instant case, although not express with respect to prior convictions, were subject to criticism. This argument is not adequately met by the People. However, in view of the rather overwhelming evidence the misconduct was not prejudicial.

The second item of alleged misconduct is the contention that the prosecutor appealed to the jury's passion and prejudice. At one point counsel stated to the jury that defendant was trying to make a mockery of the court and the judicial system and that he was trying to draw upon the jury's sympathy so that they would feel sorry for him and feel that the prosecutor and the judge had picked on him. The prosecutor was merely replying to argument made by the defendant in which he obviously sought the jury's sympathy because he was without counsel--this in spite of the fact that he discharged the public defender. He argued that he did not have an opportunity to prepare his case and repeated references were made as to what a lawyer would have done had one represented defendant. The comments of the prosecutor were not excessive and were appropriate to combat those of defendant.

The third alleged item of misconduct is that the prosecutor told the jury that the court would instruct them that because defendant did not testify in his own behalf they 'must' accept inferences adverse to defendant and reject-inferences pointing to his innocence. This is clearly a misstatement of the law. However, the trial court correctly instructed the jury with respect to the inferences that may be drawn from defendant's failure to explain or deny evidence against him. ¹ In addition, the court further instructed the jury: 'In determining the guilt or innocence of the defendant you are to be governed solely by the evidence introduced in this trial and the law as stated to you by the Court.' Any effect which the prosecutor's comments may have had was remedied by the instructions.

Defendant's next argument is that in spite of the fact that he discharged the public defender the court should have appointed private counsel for him at public expense. Counsel for defendant now concedes 'that the cases in California all seem to hold that where a Defendant knowingly discharges the public defender he does not have the right to have the trial judge appoint him private counsel.' (People v. Simeone, 132 Cal.App.2d 593, 597, 282 P.2d 971; People v. Douglas, 187 Cal.App.2d 802, 806, 10 Cal.Rptr. 188; People v. Williams, 174 Cal.App.2d 364, 378, 345 P.2d 47; People v. Hood, 141 Cal.App.2d 585, 589, 297 P.2d 52.) It is argued that the court did not inquire into defendant's history, educational level, family background, legal background or any of the factors 'which have been stated to comprise the intellectual makeup of a defendant in determining whether he can effectually dismiss his court appointed counsel.' It is further argued that the court did not determine whether defendant understood the issues and available defenses and had capacity to effectively waive counsel. The record, however, reveals that the court discussed the question with defendant at length repeatedly, advising defendant that the law did not entitle him to have private counsel appointed even though he discharged the public defender and defendant made repeated references to § 987 of the Penal Code, arguing that it authorizes the judge to appoint private counsel. Defendant throughout the exchange appeared to be remarkably articulate and at least as qualified as the average layman to conduct his defense. However, defendant made it clear that he had no intention of conducting his defense but was going to stand on his 'rights' under § 987 and remain mute throughout the trial,--this in spite of the fact...