People v. Hood

• Decision Date: 16 May 1956
• Docket Number: Cr. 5581
• Citation: 141 Cal.App.2d 585,297 P.2d 52
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert HOOD, Defendant and Appellant.

Page 52

297 P.2d 52

141 Cal.App.2d 585

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert HOOD, Defendant and Appellant.

Cr. 5581.

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

May 16, 1956.

Robert M. Maslow, Hollywood, under appointment by the District Court of Appeal, for appellant.

Edmund G. Brown, Atty. Gen., Arthur L. Martin, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was charged in two counts with the crime of burglary. He was also charged with two prior felony convictions. Not guilty pleas were entered as to both counts of the information, and the prior convictions were denied. Trial by jury was waived and the People's case was by stipulation submitted on the testimony adduced at the preliminary examination with both the prosecution and defense reserving the right to offer additional evidence if desired. Defendant offered no testimony in his behalf. Defendant was acquitted on Count I, and found guilty on Count II. The burglary therein charged was fixed as second degree. The allegations as to both alleged prior convictions were found to be true. Defendant's motion for a new trial was denied. Defendant in propria persona, filed notice of appeal from the 'verdick' (sic), which we shall consider as an appeal from the judgment of conviction.

As to the factual background surrounding this prosecution, the record reflects that Clentren Guiller testified that his home is located at 4127 Woodlawn, in the City of Los Angeles. At 10:30 a. m. on July 20, 1955, he locked the doors to his house and departed. Returning at 2 p. m. the same day he discovered that a 21"' Admiral television set, a radio, and some curtains, clothes and a quart of milk were missing. He noticed that the screen on his rear-outer door was cut and a glass window in the inner door was broken. Quiller had not given the defendant nor anyone else permission to enter his home or to take anything out of it.

Luther Bass testified that he lives at 1283 West 36th Place and that he works at Felds Expect. In the middle of July, 1955, he saw the defendant, Albert Hood, coming out the back gate of the court behind Feld Expect carrying a table model television set with a blanket over the top of the set. The time of day was close to noon. That defendant walked over to a waiting yellow cab that was parked on the edge of the Feld Expect parking lot. He tried to get the television set in the left side of the automobile but it wouldn't fit. Then he brought the set to the righthand side and put it in through the front door next of the driver.

Bass' attention was attracted because the driver would not help Hood put the set in the car. Noting this and anticipating questions he took the number of the cab. At the trial he stated that he remembered the number which was 9040. After Hood got the set inside he drove off in the cab. The next time Bass saw Hood was at the police station where he identified him in a 'line-up'.

Otto Leisy, a taxi cab driver, testified that on July 20, 1955, he picked up a male passenger whom he identified at the trial as the defendant. He picked up the defendant near 41st and Main Streets. At this time the defendant was carrying an eight to ten inch bundle of clothes. The defendant directed Leisy to drive in the alley behind Woodlawn and Main Streets and park behind a court in a vacant lot. Leisy waited outside while the defendant went in to 'get some more articles'. The defendant returned with a table model television set. The set wouldn't fit in the back seat so the defendant set it in the front seat of the cab. Leisy noticed that one of the defendant's hands had evidently been 'scuffed' on his way into the house. His finger was bleeding quite a bit and he had a handkerchief wrapped around it.

Leisy took the defendant to an apartment house in the vicinity of the eleven hundred block which was situated across the street from 1106 West Eleventh Street.

As a first ground for reversal appellant urges that he was denied his constitutional guarantee of counsel to advise and defend him at his trial, Constitution of California, Article I, § 13; Penal Code, § 987. In support of this claim appellant states in his brief, 'Appellant at the outset admits that counsel was physically present with him at all stages of the proceedings, assigned to him by the court after first having had an opportunity to procure counsel of his own choice * * *. Appellant does not allege nor imply the incompetence of the Public Defender assigned. Indeed, his appointment to that office signifies his requisite ability. A perusal of the record, however, demonstrates gross neglect and callous indifference and this, it is submitted, vitiates the right to counsel.' We are in accord with appellant's statement that the best criterion of the competency, care and alertness of the Public Defender who represented appellant is the record in the case. We have carefully scrutinized the record herein and have no hesitancy in saying that it does not disclose 'gross neglect and callous indifference' on the part of appellant's counsel.

Appellant asserts that it was not an exercise of sound discretion for his trial attorney to waive a jury and permit the prosecution to submit its case on the evidence adduced at the preliminary examination. Aside from the fact that such procedure is common practice, the record here reflects that appellant was represented at the preliminary examination by counsel who carefully and painstakingly cross-examined each witness who testified thereat.

It is urged that no testimony was produced at the trial in appellant's behalf, and that 'not even the defendant himself was permitted to deny his guilt'. However, it is not claimed that appellant was desirous of becoming a witness in his own behalf or could have denied his guilt without committing perjury, and unless we resort to suppositions we would be unfair were we to criticize the discretion of possibly wise choice made by trial counsel in this regard.

Present counsel is also critical of the fact that no defense testimony was produced. Again he indulges in the assumption that such testimony was available and that it would have proven beneficial to the cause of the accused. We are persuaded that trial counsel was the best judge of what testimony could or should have been offered.

Appellant's contention that the Public Defender was derelict in not taking an appeal from the judgment herein is totally without merit. Undoubtedly, the Public Defender was aware of the long recognized rule that appellate courts do not reweigh evidence or pass upon the credibility of witnesses, People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, and confronted as he was with a situation which involved a conviction devoid of any questions of law, it cannot justly be said that he violated the provisions of section 27706(a) of the Government Code which provides in part as the duty of the Public Defender to 'prosecute all appeals to a higher court or courts of any person who has been convicted, where, in his opinion, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.' (Emphasis added.) Appellant tacitly admits the wisdom of the Public Defender in not appealing from the judgment of conviction when in that part of his brief attacking the sufficiency of the evidence to sustain the conviction, he states, 'this brief should more properly be directed to the trial court'.

The next criticism directed by counsel against the conduct of the trial by the former counsel is that 'even the motion for a new trial was made with a minimum of exertion using the stereotyped phraseology of 'on all the grounds set forth in 1181 of the Penal Code.'' The record refutes this claim for it shows that at the time the motion was made the Public Defender stated, '* * * I didn't get the transcript back from the probation office until this morning. I'm not prepared to argue it. I would request the matter go over a week for the purpose of...