People v. McGraw

Citation119 Cal.App.3d 582,174 Cal.Rptr. 711
Decision Date28 May 1981
Docket NumberCr. 19245
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Nathaniel McGRAW, Defendant and Appellant.

Benjamin R. Winslow, Winslow & Schmidt, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen. of the State of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty, Gen., W. Eric Collins, David D. Salmon, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Defendant and appellant Nathaniel McGraw appeals from the judgment of the Superior Court of Alameda County entered after a jury found him guilty of burglary (Pen. Code, § 459) in case No. 66405, and possession of stolen property (Pen. Code, § 496) in case No. 66320, as amended, which had been consolidated for trial.

In case No. 66405 appellant was represented by retained counsel, attorney Jerry Rossman. In case No. 66320 he was assigned Mr. Bloom, a public defender to assist in his defense. With the trial court's permission and appellant's consent and/or agreement, retained counsel did not assist or participate in the selection of the jury. Mr. Bloom selected the jury in his capacity as attorney in case No. 66320. We hold that as a consequence appellant did not receive a fair trial in case No. 66405.

What retained counsel characterized as "minimal" representation, this court holds to be a denial of appellant's constitutional right to assistance of counsel, reversible error per se. (U.S.Const., 6th Amend.; Cal.Const., art. I, § 15.) Unless waived, a criminal defendant is entitled to the assistance of a competent, active and diligent attorney during jury impanelment. (See People v. Locklar (1978) 84 Cal.App.3d 224, 148 Cal.Rptr. 322.)

The People contend that the record demonstrates that Mr. Bloom "in fact substituted" for Mr. Rossman during jury selection. The People's contention is without merit. Further, appellant's asserted consent to and apparent approval of Mr. Rossman's "minimal" representation in case No. 66405 did not meet even the minimal constitutional requisites for a valid waiver of the right to counsel. (See In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420.)

Additional issues raised by appellant's brief are argued at length by the parties in case No. 66405. In view of our decision to reverse the judgment on grounds of denial of counsel, we find no reason to discuss and resolve issues of Pope error (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859), Griffin error (Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106) and Glasser error (Glasser v. United States (1942) 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680).

In the appeal of case No. 66320, as amended, we determine that the ruling denying appellant's pretrial Penal Code section 1538.5 motion to suppress evidence was not in error. Appellant essentially contends that the police seizure of personal property on March 24, 1978 from appellant's residence was not in good faith and impermissibly exploratory. (United States v. Tranquillo (M.D.Fla.1971) 330 F.Supp. 871.)

The trial court in our view correctly found a Skelton search. (Skelton v. Superior Court (1969) 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485.) The substantial evidence supports the finding that the entire search of appellant's premises was not exploratory but in good faith. Accordingly, we affirm the judgment in case No. 66320.

On January 20, 1978, while on patrol in the Piedmont area, Officer Randolph Souza of the Piedmont Police Department received a police radio communication. He was given a description of a vehicle and driver that had been spotted in his area.

Souza headed toward the intersection of Alta and Blair, the location he had been given, and saw a 1973 Oldsmobile which matched the description he had received. Upon spotting the car, Souza turned his car around to follow and activated his siren and lights. At the sound of the siren the Oldsmobile increased its speed; Souza chased the vehicle through a residential neighborhood for approximately one-half mile. When finally halted, after attaining speeds approaching 50 miles per hour, "running" four stop signs and passing traffic on the wrong side of the road, appellant was ordered by Officer Souza several times to get out of his vehicle, but he did not comply. Officer Souza then approached the driver's side with weapon drawn and yelled at appellant to put his hands up and get out. With Officer Ronald Stroshine providing cover, Officer Souza opened the driver's door and pulled appellant from the car. At some stage he was asked to identify himself and the owner of the car. Appellant made no reply except to say, "I want my attorney."

Appellant was forcibly placed in a prone position, handcuffed, and given a pat-down search by Officer Souza. Visible in appellant's right jacket pocket was a pair of surgical gloves. When Officer Souza pulled them from his pocket, a yellow metal watch which had been wrapped inside them fell out. Officer Stroshine found a long screwdriver tucked inside appellant's sock.

Stroshine also conducted a search of the vehicle. This search produced ignition keys, a second screwdriver, $220 in United States currency (one $100 bill and six $20 bills), and Y69,000 in Japanese currency (six Y10,000 notes and nine Y1,000 notes).

After appellant was transported and placed in custody, the police were notified that on this same day a burglary had been committed at the Kim residence, 634 Blair Avenue, Piedmont, while the Kims were away. Among the items missing was a lady's gold wristwatch, $220 in United States currency in denominations of one $100 and six $20 bills and Y69,000 in denominations of one Y10,000 bill and nine Y1,000 bills. Appellant was subsequently charged with the burglary of the Kim residence, or alternatively, possession of stolen property (information No. 66405). On these charges, he retained Attorney Rossman to assist in his defense. Apparently, appellant was released on bail.

On March 22, 1978, a burglary and robbery took place at the Oakland residence of Glen Carl Rich. The police treated appellant as their prime suspect, using his picture in a photo lineup. On the strength of an identification by Mr. Rich from the photo lineup, and later from a physical lineup, appellant was charged with the burglary and robbery of Glen Carl Rich (information No. 66283).

When reporting to the police on March 24, Mr. Rich gave a description of the clothing worn by the burglar. The police, on the strength of the photo lineup identification, prepared a search warrant for appellant's residence, 32 Moss, Oakland with authorization for night service. Appellant shared this residence with Robin Danette Strong, a codefendant until their cases were ordered severed. Sergeant Ned Ubben had been sent to watch the residence while the warrant was being obtained. Before it was issued, Sergeant Ubben arrested appellant. The warrant was issued to authorize a search for specific articles of clothing, $30 in United States currency, a legal-sized yellow pad, and indicia of residency as to 32 Moss. Following this fruitful search, appellant was charged with the felonious possession of stolen property (information No. 66320). Thereafter, appellant appears to have been indigent. He was unable to retain counsel or post bail. The public defender was appointed to represent McGraw on case Nos. 66283 and 66320 which in time was consolidated with case No. 66405.

At trial, Mr. Teng-Chung Wu identified 26 silver coins in brown wrapping paper and tied with ribbon, found in the search of 32 Moss as ones that had been taken from his home in February.

Ms. Fanny Chiu had been the victim of a burglary of her residence, 15 Lake, on December 2, 1977. She identified as hers a red pouch, a blue pouch and the contents of both. These items had been seized from Ms. Strong's room at appellant's residence during the search of March 24.

Based on this evidence, appellant was convicted of the burglary of the Kim residence (information No. 66405) and of the knowing possession of stolen property (information 66320). He was acquitted of both counts in case No. 66283 (i. e., the Glen Rich case).

Case No. 66405

Trial commenced on June 28, 1978. Counsel of record was not present. The following colloquy between the court, counsel and appellant explains his absence. "THE COURT: The matter of the People versus Nathaniel McGraw.

"MR. BLOOM: Ready for Mr. McGraw.

"MR. CUMMINGS: People are ready, Your Honor.

"MR. BLOOM: At this time before we proceed further I would like the record to reflect that my name is Howard Bloom of the Public Defender's Office. I represent Mr. McGraw in Action No. 66283 and 66320 which have been consolidated. It is my understanding that there is a third matter which was also consolidated for this trial in which I do not represent Mr. McGraw. I will not be representing his interest in those two counts, although I believe I will be selecting the jury.

"THE COURT: All right. Mr. McGraw, we have three matters pending before this Court at this time in which you are named as a defendant. As Mr. Bloom has indicated, in Action No. 66283 in which you are charged with one count of burglary and one count of robbery with the use of a deadly weapon allegation as to each count, those events alleged to have occurred on March 22nd and Mr. Bloom represents you. In 66320 the case in which Robin Danette Strong was also a defendant, but she has been severed, and in which you are charged with one count of receiving in violation of Section 496 of the Penal Code and one burglary count. Mr. Bloom also represents you. You also have pending before this Court No. 66405 in which you are charged with one burglary and one count of receiving or possession of stolen property on January 20, 1978. As to those...

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