People v. Linden

• Decision Date: 28 October 1960
• Docket Number: Cr. 1453
• Citation: 8 Cal.Rptr. 640,185 Cal.App.2d 752
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Elmer LINDEN, Defendant and Appellant.

Page 640

8 Cal.Rptr. 640

185 Cal.App.2d 752

PEOPLE of the State of California, Plaintiff and Respondent, v. Walter Elmer LINDEN, Defendant and Appellant.

Cr. 1453.

District Court of Appeal, Fourth District, California.

Oct. 28, 1960.

Walter Elmer Linden, appellant, in pro. per.

George Ritner, San Diego, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., James Don Keller, Dist. Atty., and Donald L. Meloche, Deputy Dist, Atty., San Diego, for respondent.

SHEPARD, Justice.

Defendant was convicted of possession of a firearm capable of being concealed upon the person by one previously convicted of a felony. Penal Code, Sec. 12021. He appeals in propria persona from the judgment of conviction. Defendant's trial counsel was appointed to represent defendant on this appeal and he has filed a written certificate with this Court that he has reviewed the record and finds no meritorious grounds for an appeal. The attorney general has filed a memorandum brief setting forth his review of the record and he likewise finds that there are no meritorious grounds on appeal. However, defendant has himself filed with this Court a document entitled 'Petition for a Writ of Habeas Corpus'. He therein advances only one contention, which is, in effect, that the evidence of possession by him of the firearms capable of being concealed upon the person was obtained by illegal search and seizure, and that the receipt by the court during trial of such evidence was therefore prejudicially erroneous.

The facts as shown by the record before us are as follows: On October 14, 1959, about 10 o'clock p. m., officers Deaver and Odam of the Escondido Police Department, were informed by radio of a suspected drunk driver on highway 395 near Escondido in a vehicle described as a 4-door black Buick sedan with two male occupants. Proceeding south on highway 395, the officers noticed a black Buick sedan similar in appearance to that described on the radio, parked on the shoulder of the highway also headed south near 8th Street. Defendant was out of the car standing near the fence opposite the car. The officers were forced by traffic to proceed to 9th Street, where they turned around, proceeded back north to the next crossing above the Buick, again turned around and proceeded south, and stopped on the shoulder of the highway behind the Buick. A service station at 9th Street was in the process of closing. As the officers stopped a few feet behind the Buick, defendant appeared to be facing south toward the service station. He immediately rushed back to the Buick, where his companion, French, was seated in the front passenger seat with the door open and his feet on the ground. Defendant appeared to reach across French toward the driver's side of the car. While this was happening, the officers were alighting from their own car. They approached defendant's Buick and saw there was no license plate attached to the rear of the car. Questioned by the officers, defendant stated he was the driver and owner of the car. No registration certificate was found in the car. Questioned about this, defendant produced a purported bill of sale, handwritten on a piece of paper resembling scratch pad paper, from some used car automobile agency in Texas. Defendant later testified he had just returned from the State of Texas the night before.

About this time, California Highway Patrolman Moyse stopped his car behind the police car, got out, approached and overheard the conversation between defendant and the police officers concerning the ownership of the car and the handwritten bill of sale. At this point French got out of the car, and Moyse directed his flashlight through the open door into the front compartment. He observed two pillows on the seat directly behind the drive wheel, from beneath which he saw and recognized the butt of a revolver. He reached in, raised the cushions to confirm his recognition of what he had seen, stepped back, called officer Deaver to bring Linden, and while Linden and Deaver were looking, reached into the car and picked up two revolvers which had been partially concealed under the pillows. Both revolvers were fully loaded. Questioned then, defendant stated the revolvers belonged to his wife for her protection, and that he had never been arrested before. Defendant and French were then arrested.

Next day, October 15, defendant again stated that the revolvers belonged to his wife, and that he had never been convicted of a felony. The officers then interviewed Linden's wife. On October 16, the officers again interviewed defendant and told defendant that his wife had denied ownership of the revolvers and had said that defendant had been convicted of armed robbery in Missouri. Defendant then stated that he had purchased the weapons in a Union Hall in St. Louis, Missouri, that he had placed the revolvers in the front seat, and admitted the previous conviction of armed robbery.

In his trial testimony, defendant admitted conviction in 1955 in St. Louis, Missouri, of first degree robbery by means of a dangerous weapon, and also admitted conviction of attempted robbery, first degree, by means of a dangerous weapon. There was also introduced into evidence by the prosecution, a certified copy of the record of such convictions.

In his testimony, defendant denied standing near the fence, or rushing back to the car, or reaching into the car, contending he had been standing near the car urinating; denied knowledge of the service station nearby, denied any knowledge of the guns until he saw them in officer Moyse's hands, denied stating they belonged to his wife, denied stating he obtained the guns in St. Louis, Missouri, and denied telling the police they were his guns. He testified that French came with him in the car from Missouri, and that the officers refused to permit defendant to consult an attorney until after defendant was taken to San Diego some two or three days later.

French testified that he obtained the guns at the Union Hall in San Diego by means of a loan of $12 to a man whose name he did not know. He denied having told prosecution witness Woods that the guns were purchased out of money obtained from the sale of defendant's wife's TV set, denied having stated to said witness that defendant had possession of the pistols, and admitted ownership of them.

While it is difficult to ascertain with exactitude the points of complaint defendant seeks to make in this appeal, we will discuss those matters to which he has apparently given some attention in his document filed with this court and referred to above.

Hearsay Recitals Adequately Instructed By Court's Instructions

During the testimony of officer Woline, the witness testified to a conversation with defendant, in which conversation the witness related to defendant the statement of defendant's wife that defendant had served a term for armed robbery in Missouri, and that she denied owning the guns. Whereupon in said conversation defendant admitted the prior conviction of armed robbery and having obtained the guns at the Union Hall in St. Louis, Missouri. The court then adequately and carefully explained to and instructed the jury that such recital of conversation thus containing statements of the wife, was not itself admissible as evidence against defendant, but was admitted only for the purpose of enabling the jury to interpret and understand what defendant himself said. The manner in which the evidence was received and restricted by the court's instructions clearly directed the jury to receive it solely on the question of whether or not defendant at that time did make an admission against interest. No other or additional instruction was requested on this subject by defendant, and the court's instruction which was given adequately and properly informed the jury how to...