People v. Jolke

Decision Date11 May 1966
Docket NumberCr. 4921
Citation242 Cal.App.2d 132,51 Cal.Rptr. 171
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Stuart JOLKE and Joseph E. Endal, Defendants and Appellants.

Frank D. Winston, San Francisco, under appointment of the District Court of Appeal, for appellants.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Justice.

This action involves separate appeals by the defendants Jolke and Endal from judgments resulting in prison sentences imposed for respective offenses which were originally charged in the same indictment because they evolved out of the same series of events. Jolke was sentenced following his conviction by plea of guilty of possession of marijuana in violation of section 11530 of the Health and Safety Code with an admitted prior conviction of the same offense in 1963. Endal was sentenced following his conviction by jury verdict of burglary in the second degree in violation of section 459 of the Penal Code, and his admission of prior convictions for burglary and forgery in 1953 and for grand theft and burglary in 1956.

The events giving rise to the charges were the burglary of two apartments on O'Farrell Street in San Francisco over the Fourth of July weekend in 1964. As a result of the investigation Jolke was taken into custody following the discovery in his apartment of articles stolen in the burglary and also some marijuana. The information secured from Jolke led to the apprehension of Endal and one Williams. The indictment originally charged: I All three defendants with conspiracy to commit burglary; II Jolke and Williams with burglary of one apartment; III Jolke and Endal with burglary of another apartment; IV Jolke with possession of marijuana; and V Jolke with receiving stolen goods. At the trial the first count was dismissed. The counts were renumbered, and following Jolke's guilty plea to the possession charge (renumbered as III), the remaining counts were dismissed as to him. Endal and Williams each stood trial on the respective burglary charged to have been committed with Jolke. The former was found guilty and the latter was acquitted. The remaining facts appear in connection with the appeals of the convicted defendants.

Appeal of Jolke

Defendant Jolke contends that he was deprived of the effective assistance of counsel because his attorney also represented his codefendant Endal and was thereby unable to give Jolke impartial advice. He apparently urges that this vice not only contaminated the sentencing proceedings, which were abruptedly foreshortened after he testified in favor of his codefendant with the approval, if not at the direction of their joint attorney, but also his earlier plea. Secondly he asserts error in the sentencing procedure because the trial court set aside its order for proceedings 'to ascertain whether he was addicted to narcotics or in imminent danger thereof' pursuant to the provisions of section 6451 of the Penal Code 1 and the proceedings initiated pursuant to that order. Finally he seeks to raise in these proceedings, a point not reflected by the record, namely, that his plea of guilty should be set aside because it was induced by the prosecutor's representation that he would be considered for commitment as provided in section 6451 of the Penal Code, and in fact he was denied such consideration by the aforementioned action of the trial court.

An examination of these contentions reveals no prejudicial error in the conviction and sentencing of defendant Jolke.

At his original arraignment July 29, 1964, Jolke was represented by the public defender. The matter was continued to August 10, 1964, at which time the public defender interposed a motion to dismiss (Pen.Code, § 995) on behalf of all of the defendants. By consent the matter was continued to August 21st at which time the motion was denied. This hearing reflects that in addition to the appearance made by the public defender, there was an appearance by a named attorney who is identified in a subsequent hearing as an associate of the attorney who ultimately represented Endal. On the 21st each of the defendants entered his pleas of not guilty and denied the prior convictions charged against him. A motion to sever was interposed, apparently on behalf of Endal, and continued to August 25th. On that date the motion was granted and the matter was set for trial September 14th as to Endal and Jolke and continued to September 1, 1964 to be set for trial as to Jolke and Williams. On September 1st an appearance was entered for Jolke and Williams by the attorney who subsequently represented Williams at the trial. His motion to sever the charges against these two defendants was denied and the matter was continued for trial on the same date as that theretofore set for Endal's trial. All matters were continued to the 18th at which time the attorney who represented Williams at the trial was granted leave to withdraw as attorney for Jolke. Whether he was left unrepresented or represented by the public defender does not appear. The matter was then continued to September 23, 1964 for trial.

The minutes of the court reflect that the attorney who had theretofore in person or by associate appeared for Endal, appeared for both Endal and Jolke and joined with the attorney for Williams in moving for consolidation of the trials. The court granted the motion and set aside the severance which had been granted August 25th. At the suggestion of the court the assistant district attorney dismissed the conspiracy charge contained in the first count. The reporter's transcript reflects that although the attorney had discussed the matter with Jolke he had not been officially substituted as his counsel of record. The court was advised there was no conflict between Endal and Jolke, and the latter, who was present, made no request for independent counsel nor did he otherwise object to the proceedings. 2

A jury was selected and sworn and at 12:30 the court recessed until the afternoon session. At 3 p.m. out of the presence of the jury each of the defendants admitted the prior convictions charged against him, and the counts were renumbered because of the prior dismissal of the first count. It was then announced by the attorney for Endal and Jolke that the latter wished to change his plea, and plead guilty to the count which charged the possession of marijuana. The change of plea was accepted by the prosecutor who stated he consented 'since he's admitted the narcotic prior, the punishment for that would be far greater than anything that could happen to him under any of the other counts.' Jolke then changed his plea, admitted his guilt in response to interrogation by the court, and was arraigned for judgment. On motion of his attorney, and without objection by the district attorney, the court ordered the latter to file a petition pursuant to the provisions of section 6451 of the Penal Code the following morning. The court then dismissed the remaining charges against Jolke on the motion of the district attorney.

The following morning a verified petition was filed as prescribed by the provisions of section 6451. The court made an order appointing two doctors to examine the defendant and fixing the hearing for October 8th. The defendant, who appeared with his counsel, was served with copies of the moving papers, and arraigned. Thereupon, the attorney advised the court for the first time that he wanted Jolke available as a witness for Endal.

At the trial of Endal and Williams the examination of the police inspector who arrested Endal brought out that he had first arrested Jolke, after going with him to his room to get identification, when he observed a clock reported as stolen; that he found two other missing items in Jolke's apartment; that Jolke was questioned concerning the burglaries and gave the officers certain information. Inquiry as to the nature of that information was conducted out of the presence of the jury. The record reflects that the parties had before them a transcript of the testimony before the grand jury and that it was assumed therefrom that the officer would testify that Jolke told him that he found a key in the hallway and gave it to an ex-convict whom he knew as Joe, and whom he further identified by description and residence address. Subsequently, before the jury on cross-examination, the inspector testified that Jolke had told him he gave the key to Endal so the latter could go upstairs to commit the burglary, and that he received some Methedrine crystals in return.

The inspector further testified out of the presence of the jury that Jolke stated: that he gave another key to Williams, whom he described; that Williams had burglarized the room and returned with an armful of clothes; and that Williams had returned the key which Jolke then threw away.

When called to testify for the defendants Jolke asserted that it was he who entered the apartment in which Endal's presence had been suggested by evidence of his fingerprints on a jewel box therein; that the entry was effected with a key he found; that he invited Endal to the apartment and represented it was his and never told him that it belonged to somebody else; that he removed and gave to Endal the hair drier that was subsequently found in Endal's apartment; and that he never disclosed from whom it had been obtained. Jolke further testified that he had sold to Williams the garments, stolen from the other apartment, in which Williams was clothed at the time of his arrest. On cross-examination Jolke stated he lied when he told the officers he gave the key to one apartment to a man named Joe at the address where Endal was found with the hair drier. He denied other statements concerning Endal's participation which were allegedly attributed to him by the officers. He also stated that...

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