People v. Hisquierdo

• Decision Date: 07 February 1975
• Citation: 119 Cal.Rptr. 378,45 Cal.App.3d 397
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rosalio HISQUIERDO, Defendant and Appellant. Crim. 7460.

Page 378

119 Cal.Rptr. 378

45 Cal.App.3d 397

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rosalio HISQUIERDO, Defendant and Appellant.

Crim. 7460.

Court of Appeal, Third District, California.

Feb. 7, 1975.

Hearing Denied April 24, 1975.

Evelle J. Younger, Atty. Gen. by Janice Hayes, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

Richard Keith Corbin, Sacramento, Court Appointed Counsel, for defendant and appellant.

REGAN, Acting Presiding Justice.

Defendant was convicted by jury of assault with a deadly weapon wile serving a life sentence in a state prison (a violation of Pen.Code, § 4500), and of possessing a dirk or dagger while a prisoner in a state prison (a violation of Pen.Code, § 4502).

Defendant was serving a life term in Folsom Prison. David Hamilton was another prisoner at Folsom. On November 13, 1972, Correction Officers William Sandoval and Chester Moore both observed a fight or scuffle in progress between defendant and Hamilton. From a distance of about 30 feet Officer Sandoval saw defendant strike Hamilton several times with a weapon consisting of a pushrod from a toilet or sink. Officer Moore also saw the weapon in defendant's hand. Hamilton suffered puncture woulds of the arm, chest and back.

The defense consisted principally of testimony by defendant and David Hamilton. Their version of how Hamilton was wounded was substantially that an unidentified Mexican-American inmate had stabbed Hamilton and had fled just before defendant arrived at the scene; that Hamilton had thought defendant was part of a gang out to get him and consequently Hamilton started fighting with defendant; that defendant saw the pushrod weapon on the floor and he picked it up, used it to push Hamilton away from him but did not stab Hamilton with it.

At arraignment on May 2, 1973, defendant told the court he had no lawyer and no funds but did not want the public defender to represent him. The court made tentative appointment of the public defender and continued arraignment to May 9, 1973. On May 9, 1973, defendant was represented by the public defender at arraignment but made a speaking motion himself to have a specific private attorney whom he named (Anthony Scalora represent him rather than the public defender. The court informed defendant that it had authority only to appoint the public defender under the circumstances. Subsequently on various dates before trial both the public defender and defendant acting on his own behalf filed various motions, including motions to dismiss, motions for continuance, and motions to disqualify certain trial judges. On July 20, 1973, defendant, in addition to other pretrial matters, raised again in propria persona the matter of dismissal of the public defender and appointment of private counsel to defend him. Defendant stated he had no funds to hire private counsel; that he desired to have counsel, but not the public defender. He attempted to file on that date and have the court read a formal written motion stating, inter alia, that he had no faith in the public defender, that he was not competent and that he wanted to prove this at an evidentiary hearing. The court refused to read the written motion and declaration, pointing out that absence of funds required that under the circumstances the public defender handle the case. The declaration of defendant was filed thereafter on November 26, 1973, and stated as grounds for dismissal that the public defender did not visit it and consult with defendant 'sufficiently' and that there was a 'conflict of interest and tactics' between defendant and the public defender.

On appeal, defendant contends it was reversible error for the court on July 20, 1973, to refuse to read his motion and declaration of reasons for dismissing the public defender. He relies principally on the case of People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 17, which held it reversible error for a trial judge to refuse to hear an explanation of reasons or grounds for dismissal and substitution of his appointed counsel. In Marsden, the defendant sought replacement of his counsel after the People had completed presentation of their case at trial and asked to be allowed to bring up specific instances from the trial which would show his counsel had not properly represented him. The court refused to listen on the grounds that the court did not want defendant to say anything that might prejudice him in the eyes of the judge. (See 2 Cal.3d at pp. 121--122, 84 Cal.Rptr. 156, 465 P.2d 44.) It was a jury trial. The Supreme Court pointed out that a defendant has an absolute right to appointed counsel, but that the right to discharge him and substitute another is qualified, subject to the discretion of the trial court; and the trial court cannot properly exercise this discretion without listening to defendant's specific allegations of misconduct or inadequate representation. (Id. at pp. 123--124, 84 Cal.Rptr. 156, 465 P.2d 44.) However, in the instant case, any abuse of discretion there might have been was clearly cured when, on July 21, 1973, defendant was allowed to state his reasons for wishing to dismiss his appointed counsel. Defendant stated his grounds were 'conflict of interest and tactics' between defendant and his appointed counsel. The matter was submitted and the court denied the motion to relieve the public defender and substitute a private appointed attorney. While it is true that in one declaration of defendant, mention was made of not enough 'consultation,' the same document also emphasized 'tactics,' and the court therefore saw the crux of the problem in its proper light, i.e., a matter principally of dispute over tactics and strategy. It was tacitly recognized in Marsden, supra, that such reasons as given by defendant herein are not sufficient grounds upon which to base an appellate holding of abuse and discretion. (Ibid.; People v. Floyd (1970) 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64.)

Defendant contends that lack of diligence in pretrial preparation and post-trial effort by the public defender resulted in denial of adequate representation. Defendant argues that the record in this case is 'replete with evidence of lack of diligence in preparation of (his) defense at pretrial, trial and post-trial levels.' Defendant particularizes his contention of inadequate preparation by pointing to (a) failure of the defender to interview witnesses named by defendant over a period of several months; (b) failure to obtain pretrial discovery as to prison files until the middle of the trial; (c) failure to move for a new trial until defendant had himself so moved in propria persona and then only to file a short motion with no grounds cited or points and authorities.

Our review of the record shows little support for defendant's arguments. Defendant himself hampered the preparation of the defense case, not only by attempting more than once to remove his counsel but also by instructing prospective defense witnesses not to discuss the case with the public defender or his investigator. (See People v. Beagle (1972) 6 Cal.3d 441, 459, 99 Cal.Rptr. 313, 492 P.2d 1.) It is true that a short continuance from one afternoon until the next morning was necessary for defense cross-examination of a witness based on prison files which had been subpoenaed during the trial. It is true that the trial court chastised the public defender for his part in causing the short continuance. However, there was nothing to indicate any impropriety or any inadequacy of representation of such a nature as would reduce the trial to a farce or sham or deny defendant any defense. (People v. Ibarra (1963) 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487; People v. Pena (1972) 25 Cal.App.3d 414, 424, 101 Cal.Rptr. 804.) As to the motion for new trial, defendant himself did indeed file his own motion, with supporting written declaration and points and authorities, on January 25, 1974. However, it is not true, as claimed by defendant, that the public defender failed him in this regard. The public defender also filed a written motion for new trial on February 1, 1974. It was not as elaborate as defendant's propria persona motion, but it was also ably argued orally to the court on February 14, 1974, and the motion was denied. We see no indication of inadequacy of counsel such as to warrant reversal on any of the grounds raised by defendant, or from our reading of the record in general.

Defendant contends the prosecutor indulged in several bad faith attempts to prejudice him in the minds of the jury. The incidents complained of are two questions but to defendant on the witness stand by the prosecutor, a question put to a defense witness, and an alleged imputation that defendant had manufactured or fabricated a defense.

The prosecutor asked defendant if he knew how to use a knife. Defendant responded 'no.' The prosecutor then asked if defendant had ever used a knife in the past. Defense counsel objected to this question, it was sustained, and the question was therefore unanswered. On appeal defendant argues that these questions were prejudicial misconduct of the prosecutor calling for reversal. They were not. Defendant argues that this was a bad faith attempt of the prosecutor to prove other offenses and a criminal propensity of the defendant. If it was such a bad faith attempt, which we do not hold it to be, the attempt was thwarted by alert defense counsel and proper ruling by the trial court.

Gilbert Salazar was a defense witness who was also an inmate at Folsom Prison. On cross-examination of Salazar, the prosecutor asked him if he was in the 'same association' with defendant. Defense counsel objected and on offer of proof it was disclosed that the line of questioning was intended to develope that both defendant and Salazar were members of the 'Mexican Mafia,' a known association of Mexican heritage prisoners within the California penal...