People v. Johnson

• Decision Date: 10 April 1969
• Docket Number: Cr. 13873
• Citation: 76 Cal.Rptr. 768,271 Cal.App.2d 616
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Harold Bryan JOHNSON, Defendant and Appellant.

Page 768

76 Cal.Rptr. 768

271 Cal.App.2d 616

The PEOPLE of the State of California, Plaintiff and Respondent, v.Harold Bryan JOHNSON, Defendant and Appellant.

Cr. 13873.

Court of Appeal, Second District, Division 5, California.

April 10, 1969.

Hearing Denied June 4, 1969.

Edward L. Lascher, Ventura, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Arthur B. Rosenfeld, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

DefendantHarold Bryan Johnson was charged in count I, of a two count information, with a violation of section 459 of the Penal Code(burglary) and in count II with a violation of section 12021 of the Penal Code(possession of firearm concealable on the person by convicted felon).He was charged further with four prior felony convictions.After his motion under section 995 of the Penal Code was denied, he pleaded not guilty to the two charges and denied the prior felony convictions.A jury found him guilty on both counts, and fixed the burglary at first degree.He waived jury trial as to the prior felony convictions; the court found all four prior felony convictions to be true.Motion for new trial and request for probation were denied.Defendant was sentenced to the state prison on both counts.The sentence on count II was stayed in compliance with the Niles formula (People v. Niles(1964)227 Cal.App.2d 749, 755--756, 39 Cal.Rptr. 11, approvedIn re Wright(1967)65 Cal.2d 650, 655--666, fn. 4, 56 Cal.Rptr. 110, 422 P.2d 998).

Defendant appeals from the judgment and sentence (Penal Code, § 1237) and from the order denying his motion for new trial.Appeal from the order denying the motion for new trial is dismissed.(People v. Garcia(1967)67 Cal.2d 830, 832, fn. 1, 64 Cal.Rptr. 110, 434 P.2d 366.)

Defendant contends: (1)the court committed prejudicial error in permitting him to act as his own counsel in propria persona for some of the pretrial proceedings and in thereafter compelling him to accept counsel for the trial; (2)the court erred in giving a jury instruction on a defendant's right to remain silent and not to take the witness stand; (3)the court erred in giving an instruction on flight; and (4) the physical evidence introduced should have been suppressed as being the product of an illegal arrest.

We have concluded that none of the contentions have merit despite the ingenuity with which they have been presented.The judgment and sentence, therefore, should be affirmed.

We shall consider the assignments of error in reverse order from that used by the defendant.

I.

Only the facts relevant to assignments (3) and (4) are detailed here.Matters pertinent to assignments (1) and (2) will be set forth when we discuss those points.

On January 11, 1967, Mrs. Sue Sumiko Hutchins resided at 1847 West 41st Street, Los Angeles.She left her home for work at 8:30 a.m. Everything in her home was in good order; nothing was missing.

She received a call that someone had broken into her house; she returned about 3:30 p.m.She noticed that her back bedroom window, which was closed when she left at 8:30 a.m., was open.She found jewelry and coins missing from her jewelry box.She identified a watch, a ring, a 'Kennedy half dollar and two Las Vegas coins' as being the missing items.(These were items recovered by the police from the defendant who tossed them to the ground at the time of his apprehension (Exhibit 1).)

She had not given the defendant nor anyone else permission to enter her home in her absence or to take any of the items in question.She had never seen the defendant prior to January 11, 1967.

A Reverend Bertha Tinsley resided across the street.Her home was one house to the west of the one directly opposite Mrs. Hutchins' house.Looking out her front window around 1:00 p.m. on January 11, 1967, she saw the defendant in front of her house.Then she observed that defendant crossed the street, went to a 'green' house about two houses west of Mrs. Hutchins' place, and rang the doorbell.He was carrying a small black folder.After standing on the porch of the 'green' house for 'a period of time,'defendant'went down to 1847.'He rang the doorbell at 1847, stood for about five minutes, walked off the porch and went around the side to the back.When he did not reappear for a period of time, she phoned the police because people just 'don't go to the back.'She next saw the defendant being put in the police car.

Mrs. Verna Mae Tress resided at 1835 West 41st Street on the day in question.Her residence was on the same side of the street and was the third house to the east of 1847.She first had seen the defendant walking westerly past her house about 8:00 or 8:30 a.m. that day.

At approximately 1:00 p.m., she was watering her lawn in front of her house.She saw the following: Defendant went to 1847 and rang the doorbell.No one answered.Defendant stood there about ten minutes.He was carrying a small black case.

Then Mrs. Tress saw a police car turn the corner, drive close to the curb on her side and stop in front of 1847.At that time, defendant was no longer on the porch.The policeman went to the door and rang the doorbell.Then she saw defendant come out of the house.There was some conversation and then defendant went back inside the house.Then she heard a commotion to the rear of her house and saw another policeman coming from the alley and jumping into her next door neighbor's yard.She ran along the driveway to the rear.She wanted to tell the officer that defendant was in Mrs. Hutchins' house.She saw that the 'policemen had Mr. Johnson.'

James K. Allen was a plainclothes officer assigned to the Wilshire Division Detectives on the day in question.He and his partner, Officer Borck, went to 1847 West 41st Street, Los Angeles, in an unmarked police vehicle in response to a call that a burglary was possibly in progess at that location.He arrived about 2:15 p.m.

He approached the house while his partner drove the car toward the alley which runs along the back of the premises.He noticed no one in view, that is, no one was on the street and no one was in front of the house.As he started to walk along the driveway extending to the rear along the westerly side of the premises, he heard the front door open when he was about five steps beyond the front of the house.He returned to the front of the house and there observed defendant emerging from the house onto the front porch.'(Defendant) was carrying something in his left hand.His right hand was inside his coat * * * in the area of his left waistband.'

'(Officer Allen) asked him if he had called the police and he said that he had not.He told me that he had seen someone * * * running from the location at this house.And as he was saying this he was backing slowly toward the front door of the house.''(Officer Allen) said, 'Oh, then you must live here?" Defendant'replied to the effect that he did live there and backed into the door and quickly closed the front door.'The impact of defendant's conduct upon Officer Allen caused him to go to the corner of the driveway and the house where he'hollered' his partner officer's name, saying 'Pete, he is coming out the back.'Officer Allen proceeded to the back area and observed defendant in the rear yard of 1843 West 41st Street, one house east of 1847.He identified the defendant as the person who had come out of the front door of 1847.It took Officer Allen about 20 seconds to get from the front of the house to the rear.

Officer Arthur L. Ramirez of the Los Angeles Police Department, one of the arresting officers, testified that he arrested defendant around 2:20 p.m. on January 11, 1967.He and his partner officer, Sergeant Cleghorn, received a radio call that there was a burglary suspect at 1847 West 41st Street.They drove to the location through an alley to the rear of the place, arriving about 2:15 p.m. Officer Ramirez observed another police car coming along the same alley westbound.

He stopped at what he thought was the rear of 1847.As he did so, Sergeant Cleghorn 'got out' and Ramirez followed.He heard his partner shout, 'police officer, halt' and saw defendant at that moment in the rear yard of 1843 West 41st Street, coming from the direction of a three-foot-high fence.It had no gate and extended between 1843 and 1847.Defendant was coming from the direction of 1847, and was carrying a black bag or package in his left hand.When Sergeant Cleghorn identified himself as a police officer, defendant dropped the package to the ground.Ramirez and his partner approached defendant, and when Sergeant Cleghorn again told defendant to put up his hands, defendant threw what appeared to be jewelry or coins from his right hand.Ramirez gave the defendant a cursory search and then picked up the package which defendant had thrown from his left hand and ascertained that inside there was a .38 caliber revolver, two inches long, fully loaded.He next picked up the items of jewelry and coins (Exhibit 1), identified at trial by Mrs. Hutchins as having been taken from her jewelry box.He noted that a window in the right rear side of the Hutchins' residence was open.

James D. Steele, an officer assigned to the University Detective Division, went to 1847 W. 41st Street on January 11, 1967.He also went there in response to a burglary call.He arrived shortly after 2:00 p.m., and saw defendant at the rear of 1843 West 41st Street in custody of the other officers.He searched defendant and recovered a screwdriver from the defendant's left rear pocket and a notebook and twine from an inside coat pocket.(Exhibit 8.)He also observed a window open in the rear bedroom of 1847 West 41st Street.

The defense offered no evidence before the jury.Defendant had testified out of the jury's presence in the hearing on his motion to suppress the physical evidence recovered...