People v. Karlin

• Decision Date: 15 December 1964
• Docket Number: Cr. 9416
• Citation: 41 Cal.Rptr. 786,231 Cal.App.2d 227
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Denis KARLIN, Defendant and Appellant.

Page 786

41 Cal.Rptr. 786

231 Cal.App.2d 227

The PEOPLE, Plaintiff and Respondent, v. Denis KARLIN, Defendant and Appellant.

Cr. 9416.

District Court of Appeal, Second District, Division 3, California.

Dec. 15, 1964.

Dahlstrum & Walton, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

FORD, Justice.

The defendant Karlin was convicted of the crime of possession of marijuana. (Health & Saf.Code, § 11530.) Imposition of judgment and sentence was suspended and the defendant was granted probation on condition that he serve a period of 90 days in the county jail. He purports to appeal from the judgment of conviction and from the nonappealable order denying his motion for a new trial. We treat his appeal as one from the order granting probation. (See People v. Sharer, 61 Cal.2d ----, ---- ^*, 40 Cal.Rptr. 851, 853, 395 P.2d 899.)

At the preliminary hearing the defendant Karlin, who is the appellant herein, was not represented by counsel separate and apart from the attorney who represented his then codefendant, Frank Mabry. Under circumstances hereinafter related, the defendant Karlin testified at that hearing that he, and no Mabry, had possession of the marijuana involved in the charge. It was ordered that Mabry be discharged. At the defendant Karlin's trial in the superior court, he unsuccessfully objected to the introduction of evidence of such admission of guilt on the ground that the evidence was incompetent because the admission was made at a time when he was not afforded adequate representation by counsel. The question presented on this appeal is whether the reception of that evidence constituted prejudicial error.

In the hearing conducted by the trial judge to determine the competency of the challenged evidence, the defendant Karlin testified that about there or four days after he was arrested he met the attorney who thereafter appeared at the preliminary hearing. The meeting was in the attorneys' room in the Hall of Justice. He had not summoned her. Frank Mabry, who had been arrested at the same time, was also present. Mabry had hired her as his attorney. The defendant Karlin further testified that in the presence of the attorney, Mabry told him that if he, Karlin, would 'turn him loose,' the 'most' that Karlin would receive would be 'straight probation.' The attorney said that that was 'about' what he would get, but she made no promise. Karlin said that he would think about it but that he doubted that he would 'turn him loose' at the preliminary hearing; he would have to find his own attorney and he wanted to be released on bail first. Karlin made no financial arrangements with the attorney to whom he talked in the jail.

The defendant Karlin further testified that the next time he saw the attorney was at the preliminary hearing. He had no conversation with her before the case was called and he had not advised her that he would testify. As they walked 'into the preliminary' he told Mabry that he would 'turn him loose' because Mabry 'had some trouble.' During the hearing the attorney asked Karlin if that was what he was going to do, and he said 'Yes'; this occurred while and arresting officer was testifying. He said that he would take the blame. He thereafter took the stand and was sworn as a witness.

On cross-examination the defendant Karlin said that he did not think that he needed an attorney at the preliminary hearing. He did not tell the judge that the attorney was not representing him or that he wanted an attorney. At that hearing he asked the attorney for advice as to what he should say. But, Karlin testified, she was not handling the case for him. He took the stand of his own free will because he wanted to testify. On redirect examination the defendant Karlin testified that he had never had occasion to hire an attorney to defend him in a criminal matter prior to his arrest in the present case.

The attorney who had appeared at the preliminary hearing was called as a witness on behalf of the People. Her first contact had been with Mabry at the city jail in response to a call. Thereafter she saw the defendant Karlin in the attorneys' room in the Hall of Justice shortly before the day of the preliminary hearing. She talked to Mabry and Karlin. She was retained as attorney for them. Mabry paid part of her fee and the balance remained unpaid. The attorney's testimony was in part as follows: 'Well, we were in the midst of the preliminary hearing before I had heard anything about him wanting to take the stand. I think this officer had just about finished testifying or had finished. * * * So Karlin leaned over and he says he wanted to take the stand. And he said, 'Would this cut my buddy loose?' I said, 'If the judge believes you are telling the truth he will let him out, but it isn't of necessity you are going to get him out if he figures you are just taking the stand to help him out.' So he said, 'Well, it was my stuff, and he didn't know anything about it.' And I said, 'Is that the truth?' He said, 'Yes.' I said, 'You realize if you take the stand, that anything you say here can be used against you at the time of trial?' He said, 'I know it. I plan to plead guilty to it, because I can get probation. I have never been in anything like this before.'' At the conclusion of the People's case, the attorney asked the defendant Karlin to take the stand. He did so of his own free will.

On cross-examination the attorney said that she never discussed the matter of her retainer with the defendant Karlin. Mabry told him that he had retained the attorney to represent both of them. She asked Karlin if that was what he wanted and he responded that it was. He wanted her to appear at the preliminary hearing for him. This was at the county jail when she first talked to him. At that time factual matters relating to the case were not discussed; the two men were concerned about the matter of bail. But she had discussed the facts with Mabry in the original interview at the city jail. With respect to her purpose in questioning the defendant Karlin as a witness at the preliminary hearing, the attorney stated: 'I was representing both of them, and my purpose was because he asked to take the stand.'

In response to questions by the court, the attorney testified that in the interview at the county jail she did not hear the defendant Karlin say anything about obtaining his own attorney. He asked her to represent him at the preliminary hearing. Mabry said that he was taking care of the arrangements, both as to the bail and as to the fees 'on both cases.' Nothing was said about any testimony to be given at the preliminary hearing. The first mention of the matter of the assumption of responsibility by Karlin so that Mabry could be freed occurred at the preliminary hearing. Mabry did not participate in that discussion. The discussion consisted of a brief whispered conversation at the counsel table while court was in session. She did not inform Karlin of his constitutional rights during any recess.

On further...