People v. Jones

• Court: California Court of Appeals
• Writing for the Court: ASHBURN; FOX, P. J., and HERNDON
• Citation: People v. Jones, 177 Cal.App.2d 420, 2 Cal.Rptr. 305 (Cal. App. 1960)
• Decision Date: 25 January 1960
• Docket Number: Cr. 6835
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, V. James Lee JONES, Defendant and Appellant.

Page 305

2 Cal.Rptr. 305

177 Cal.App.2d 420

PEOPLE of the State of California, Plaintiff and Respondent,

V.

James Lee JONES, Defendant and Appellant.

Cr. 6835.

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

Jan. 25, 1960.

James Lee Jones, appellant, in pro. per.

Stanley Mosk, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was convicted of second degree burglary in a nonjury trial. In propria persona defendant filed his notice of appeal 'from the decision * * * and from the Order of the Court sentencing the defendant to the State Prison. * * *' In view of the policy requiring a liberal construction of a notice of appeal in favor of its sufficiency (Rule 31(b), Rules on Appeal; In re Gonsalves, 48 Cal.2d 638, 642-643, 311 P.2d 483), and the decisions in People v. Perkins, 147 Cal.App.2d 793, 797, 305 P.2d 932, and People v. Smith, 164 Cal. App.2d 510, 514, 330 P.2d 678, which view the judgment and sentence as one and the same, this appeal will be treated as an appeal from the judgment. See also, People v. Baker, 170 Cal.App.2d 240, 338 P.2d 556.

Appellant contends that he 'was deprived of the effective assistance of counsel at the speedy and reckless trial, in violation of constitutional rights.' This argument is based upon the assertion that the court limited defense counsel to 15 or 20 minutes in the presentation of his case. Intimations in appellant's brief that he was not adequately represented by counsel, or that counsel was denied sufficient time to investigate or prepare the defense, are without support in the record. The only question in this respect is whether the defense was improperly restricted or unduly rushed in the presentation of his defense.

Although the record does not disclose a specific promise by appellant's counsel that he would present his defense within 15 or 20 minutes (and the record does not indicate whether it took less or in excess of this period of time), the judge made it clear to counsel that he was previously engaged in a 'long trial,' indicated his reluctance to hear the matter because of the time element, and advised counsel of the availability of another department. Under these circumstances appellant's counsel renewed a request to have the matter heard by Judge Brandler; he had indicated that the defense would not 'take long.' Implicit in the agreement was the mutual accommodation of appellant and the court.

'A defense attorney must exercise his own best judgment in the conduct of a case, and in the absence of complaint by defendant in the trial court the acts of defendant's counsel are imputed to him.' People v. Wren, 140 Cal.App.2d 368,370, 295 P.2d 54, 55. It cannot be said that the handling of the defense by appellant's counsel showed such lack of diligence or competence as to reduce the trial to a farce or sham. See, People v. Wein, 50 Cal.2d 383, 410, 326 P.2d 457.

It is, of course, the duty of the trial court to see that the defendant in a criminal case receives a fair trial. People v. Lapin, 138 Cal.App.2d 251, 264, 291 P.2d 575; People v. Sarazzawski, 27 Cal.2d 7, 11, 161 P.2d 934; Killpatrick v. Superior Court, 153 Cal.App.2d 146, 151, 314 P.2d 164. It is also the duty of the court to control all proceedings with a view to expeditious and effective ascertainment of the truth (Pen.Code, § 1044; Code Civ.Proc. § 2044; People v. Rickson, 112 Cal.App.2d 475, 480, 246 P.2d 700; People v. Williams, 32 Cal.2d 78, 84, 195 P.2d 393).

Although the court made statements concerning appellant's previous representations and, in effect, suggested that the matter be expedited, he did not cut off counsel's examination of any witness. The record indicates that the court permitted and heard all of the evidence counsel desired to present. Appellant raised no question during the trial of not having enough time to properly present his case; there is no showing as to what additional material evidence appellant desired to present, and he did not ask for a continuance. There was no motion for a new trial.

As stated in People v. Fude, 117 Cal.App.2d 186, 189, 255 P.2d 23, 24: 'There is nothing in the record to justify appellant's claim that he was deprived of his constitutional rights in the matter of examination of the witnesses. Both appellant and his counsel were present at every stage of the proceedings. No objection was made to the procedure in any respect; no request was made to be allowed to examine any witness further. No motion for a new trial was filed.' See also, People v. Acuff, 94 Cal.App.2d 551, 558, 560, 211 P.2d 17; People v. Parry, 105 Cal.App.2d 319, 323, 232 P.2d 899; People v. Reimringer, 116 Cal.App.2d 332, 338, 253, P.2d 756.

There is nothing in the record to indicate that the judge was prejudiced or that he had prejudged the case. Cf. People v. Barquera, 154 Cal.App.2d 513, 519, 316 P.2d 641.

Under these circumstances, appellant has failed to show wherein he was prejudiced by the conduct of either the court or his counsel, and a review of the entire record convinces us that appellant received a fair and impartial trial.

Appellant makes the statement: 'The defense made a demand to see the police report and while the prosecutor offered his entire file it does not appear if the file included the demanded report.' The request was made by defense counsel during the direct examination of Officer Buckner who had been called by appellant as his own witness. The witness, upon inquiry, stated that he had refreshed his memory from the police report before he took the stand. The district attorney interposed an objection. However, no ruling was made and none was required for the district attorney voluntarily offered his entire file to counsel, who thanked him and the matter was dropped. The file was not introduced into evidence. There is no showing that the file did not contain the requested report or that appellant's counsel did not inspect the same. We can assume that counsel was satisfied. See, People v. Hollins, 164 Cal.App.2d 191, 197, 330 P.2d 246; People v. Carter, 48 Cal.2d 737, 748, 312 P.2d 665. It further appears that appellant had no right to the inspection of the report under these circumstances. It is not a situation to which § 2047 of the Code of Civil Procedure applies, for the witness did not use the report while on the stand and, further, appellant was questioning his own witness, not cross-examining a government witness. See, People v. Gallardo, 41 Cal.2d 57, 67, 257 P.2d 29; People v. Tapia, 174 Cal.App. 2d 52, 344 P.2d 33. The contention is without substance.

Appellant's next contention is that the court deprived him of the defense of entrapment. There is no basis in the record for this contention. It is the following colloquy which occurred during the cross-examination of Officer Seret at the preliminary hearing of which appellant complains:

'Q. [Counsel for appellant]: Did you get any information from any source as to the fact that a burglary----

'The Court: Counsel, that has been asked and answered. ¹

'Mr. Hamel: Pardon me, your Honor. I think I previously asked this question in regard to the radio call, but not a general broad question.

'The Court: I don't think it makes any difference. It is immaterial.

'Mr. Hamel: Your Honor, the reason I'd like to introduce this at this time or ask this question is the fact I would like to bring out a relationship or connection later on that the other party involved or the other figure was the same accomplice. I think it would be relevant and material at this particular time for the defense of entrapment, which would be presented.

'The Court: Is that an offer of proof, sir?

'Mr. Hamel: Yes, Your Honor.

'The Court: It will be rejected.'

Cross-examination on an immaterial matter is properly excluded by the court (People v. Newton, 139 Cal.App.2d 289, 291, 293 P.2d 476), and '* * * the party claiming that the court committed error by so restricting cross examination 'must show by the record some definite and legal purpose in the asking of the excluded question.' [Citations.]' People v. Heinmann, 174 Cal.App.2d 270, 344 P.2d 415, 416. Counsel's offer of proof must fully and clearly state 'the fact which counsel desires to prove and the manner and evidence by which he proposes to prove it * * *' (Fricke, Calif. Evidence, 3rd Ed., p. 236; People v. Monson, ...