People v. Kellett

• Decision Date: 13 November 1969
• Docket Number: Cr. 5054
• Citation: 81 Cal.Rptr. 917,1 Cal.App.3d 704
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer Gordon KELLETT, Defendant and Appellant.

Page 917

81 Cal.Rptr. 917

1 Cal.App.3d 704

The PEOPLE of the State of California, Plaintiff and Respondent, v. Elmer Gordon KELLETT, Defendant and Appellant.

Cr. 5054.

Court of Appeal, Third District, California.

Nov. 13, 1969.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer, Stephen Cooper, Jack Winkler and Edward W. Bergtholdt, Deputy Attys. Gen., by Nelson, Kempsky, Sacramento, for plaintiff-respondent.

Robert J. Nareau, Woodland, for defendant-appellant.

REGAN, Associate Justice.

After a trial by jury, defendant was convicted of the following crimes: burglary of the second degree (Pen.Code, §§ 459, 460); possession of codeine, demerol, opium, and percobarb (Health & Saf.Code, § 11500); possession of marijuana for sale (Health & Saf.Code, § 11530.5); and possession of dangerous drugs for sale (Health & Saf.Code, § 11911). He appeals from the judgment, contending:

1. The court below prejudicially erred in allowing the defendant to represent himself in propria persona.

2. The search and seizure of the drugs and narcotics from the defendant's dwelling was a violation of the defendant's constitutional guarantee under the Fourth Amendment of the United States Constitution.

3. The conviction of the defendant for burglary and for Counts II, III and IV for possession of narcotics and drugs constituted 'Double punishment for a single act' in violation of the California Penal Code (§ 654), where the act of stealing the narcotics was the fulfillment of the object of the alleged burglarious intent.

4. That by reason of the foregoing, defendant was denied due process of law as guaranteed under the federal and state Constitutions.

FACTS

On December 25, 1967, at 10:30 a.m., the manager of Western Drug Supply in Sacramento discovered the premises of that business had been broken into and numerous drugs removed therefrom. Subsequent police investigation of the burglarized premises revealed several sets of latent fingerprints. Some were identified as belonging to the defendant. This identification was made on December 27 and the technician's report was made at 2:30 p.m. on that date and forwarded to the detective division.

At approximately 7:30 p.m. on December 27, 1967, a group of Sacramento policemen gathered near defendant's home for the purpose of arresting him. Melvin Cozzalio, an agent for the State Bureau of Narcotics, was also present. The officers had neither an arrest, nor search, warrant.

Officers Stanley and Santich and Agent Cozzalio approached the front door of the defendant's house. Stanley knocked on the door. In response to the knock, defendant answered the door and was immediately placed under arrest for burglary. At this time defendant was advised of his rights under the Miranda decision. (Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602 16 L.Ed.2d 694, 10 A.L.R.3d 974.) Defendant's wife was also present.

A thorough search was then made of the rooms in defendant's house. The officers remained in defendant's home a considerable length of time ('most of the evening') collecting evidence. A search of the dining room area disclosed a trap door leading to the basement beneath a closet where a large cache of narcotics, barbiturates and amphetamines were found. Marijuana was also found. Drugs were also recovered from defendant's locker located in his bedroom.

The manager of the Western Drug Supply identified several of the drugs as drugs of the same brand and type taken from the store. Some of the items seized, however, were not taken from Western Drug Supply.

Upon the discovery of the large cache of drugs, defendant was again advised of his constitutional rights when he was also placed under arrest for possession of marijuana and narcotics. Defendant, in response to an inquiry as to how much marijuana was in the bag found, stated, 'Approximately a kilo.' Upon seeing that the officers were arresting his wife, defendant asked, 'Why are you arresting her? She didn't have anything to do with it.' In response to the question of who burglarized Western Drug Supply, defendant replied, 'I did myself.' Defendant also told the officers that prior to their arrival he had been forewarned. He had therefore placed the drugs and marijuana in the hole in the floor under the closet. In the opinion of Cozzalio and chemist Agent Kvick, the marijuana found in the twenty-nine plastic bags was packaged in the way typical of marijuana held for sale.

Defendant conducted his own defense in propria persona. He attempted to impeach the reliability of the People's witnesses to show inconsistencies in their testimony.

1. Representation of Defendant in Propria Persona.

'The defendant in a criminal case has the constitutional right to waive counsel and represent himself if he knowingly and intelligently elects to do so. (Citations.)' (People v. Maddox (1967), 67 Cal.2d 647, 651, 63 Cal.Rptr. 371, 374, 433 P.2d 163, 166.) When there is no question that the defendant is competent a denial of his right to represent himself is improper and will constitute error. (People v. Maddox, supra; People v. Ruiz (1968), 263 Cal.App.2d 216, 226--228, 69 Cal.Rptr. 473.)

'* * * As a constitutional right it is peculiar in that, as a condition precedent to its exercise, the defendant must prove to the satisfaction of the court that he is competent to waive the right to counsel. '* * * although every defendant in a criminal case has the constitutional right to represent himself if he so elects (citations), before his waiver of counsel may be accepted the trial court is duty bound to determine his competency to represent himself. (See, e.g., In re Johnson (1965), 62 Cal.2d 325, 335--337 (42 Cal.Rptr. 228, 398 P.2d 420), and cases there cited.) As stated in Johnson (at p. 335, 42 Cal.Rptr. at p. 235, 398 P.2d at p. 427), "the court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he 'understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted (quoting from In re James (1952), 38 Cal.2d 302, 313, (240 P.2d 596)." "' (People v. Addison (1967) 256 Cal.App.2d 18, 23, 63 Cal.Rptr. 626, 628.)

With regard to defendant's competency to waive the right to counsel in the instant case, the record shows the following: The superior court minutes for May 15, 1968, reflect that, 'The Court refused to allow Elmer Gordon Kellett to represent himself as Mr. Kellett is not competent to represent himself in pro per.' The court minutes for June 5, 1968, reflect the following: 'The Court granted the defendant's motion to have his attorney, Mr. Robert O' Neal relieved of his representation in order to act in Pro per. Mr. O'Neal is relieved of his representation, and the defendant, Elmer Gordon Kellett, will act in Pro per.' There is no reporter's transcript of those two proceedings in the record.

The trial began on June 12, 1968, before a superior court judge who did not preside over the former proceedings. Before the trial began, a colloquy was held among the trial judge, the prosecutor, and the defendant in chambers and was reported by the court reporter. It is clear from this discussion that defendant was adamant in not having Mr. O'Neal represent him, but wanted to proceed by himself with legal 'assist,' but not if such 'assist' would control the case. The trial court properly rejected this legal assistance since it appeared that defendant wished to act for himself. (People v. Ruiz, supra, 263 Cal.App.2d at p. 222, 69 Cal.Rptr. 473.) No finding was made on the competency of defendant as the trial judge rightly felt that that matter had been previously determined by another judge.

Nevertheless, this presents this court with an inadequate record as regards the sufficiency of the inquiries of the court relating to the competency of defendant to waive his right to counsel at the time he was granted leave to proceed in propria persona. However, as noted in People v. Santos (1966), 245 Cal.App.2d 337, 339, 53 Cal.Rptr. 859, the rule in Johnson is subject to qualification. In Santos the court, relying on other cases, states (at pp. 339--340, 53 Cal.Rptr. at p. 861):

"'As in People v. Mattson (1959) supra, 51 Cal.2d at pp. 788--789(1), 794(18), (336 P.2d at pages 945, 949) (937), the entire record establishes that defendant was fully aware of his situation when he insisted upon representing himself, and the court was not required to demand that defendant, as a prerequisite to appearing in person, demonstrate either the acumen or the learning of a skilled lawyer.' (People v. Linden, 52 Cal.2d 1, 18, 338 P.2d 397, 404.)' (People v. Collins, 220 Cal.App.2d 563, 573--574, 33 Cal.Rptr. 638, 644; accord, People v. Harmon, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 351 P.2d 329.)'

Furthermore, on appeal the defendant has the burden of establishing that he did not competently and intelligently waive this right. (People v. Kranhouse (1968), 265 Cal.App.2d 440, 447, 71 Cal.Rptr. 223.) While it would have been desirable to have an explicit determination of an intelligent waiver appear upon the record, it is not an absolute requirement; such waiver may be inferred from all the circumstances. (People v. Santos, supra, 245 Cal.App.2d at p. 340, 53 Cal.Rptr. 859.)

The determination of whether defendant intelligently waived his right to counsel depends upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused. (People v. Kranhouse, supra, 265 Cal.App.2d at p. 447, 71 Cal.Rptr. 223.)

Here, as in Santos, an intelligent waiver may be inferred. The following is made clear in the record during the colloquy before trial between the trial judge, prosecutor and defendant: Defendant knew he had a constitutional right to represent himself; defendant had been reading law books and drafting arguments; defendant indicated to the court that he could represent...