People v. Moore

• Decision Date: 08 November 1962
• Docket Number: Cr. 7745
• Citation: 209 Cal.App.2d 345,26 Cal.Rptr. 36
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James Wadie MOORE, Defendant and Appellant.

Page 36

26 Cal.Rptr. 36

209 Cal.App.2d 345

PEOPLE of the State of California, Plaintiff and Respondent, v. James Wadie MOORE, Defendant and Appellant.

Cr. 7745.

District Court of Appeal, Second District, Division 1, California.

Nov. 8, 1962.

Virgil V. Becker, Pasadena, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was convicted by a jury of possession of marijuana; he admitted a prior narcotic misdemeanor conviction.

Viewing the evidence in a light most favorable to respondent the following is a resume of the events leading up to defendant's arrest. Defendant quarrelled with one Gloria Hernandez who also occupied his apartment; thereafter she made to police a report charging him with assault with a deadly weapon, alleging that he had a small nickel-plated automatic in his apartment. Pursuant thereto officers went to the apartment house around 5 p. m. on December 9, 1960; they asked the manager's wife for a key to defendant's apartment. Officer Norris went with her to get the key, but when they arrived at defendant's apartment they found the door already open and officers Wapato and Guzy inside. The pass key was not used to open the door. The officers had been admitted by defendant. Officer Wapato had knocked on defendant's door; defendant opened it several inches. The officer asked him his name; he answered, 'Jimmy Moore.' He asked him under what name he had rented the apartment; defendant said, 'James Roberts.' The officer then told defendant that Gloria had gone to the Wilshire Station and made an assault with a deadly weapon report naming him as a suspect, stating that he had a small nickel-plated automatic in the apartment; he asked defendant if he minded if they came in and talked to him. Defendant replied, 'No,' backed up a couple of steps, opened the door wide and said, 'Come on in.' The officers then talked to defendant and asked him if he had a gun in the apartment and if he minded if they looked around for it; he responded, 'Go ahead. I have nothing to hide.' Officer Norris questioned him concerning some bullet holes in the closet and bathroom doors. The officers looked around and under the pillow on the left side of the bed they found a white napkin containing 4 marijuana cigarettes and 2 red capsules. They also found a half-smoked marijuana cigarette on the floor near an ash tray; they found no gun. Asked about the 4 cigarettes defendant said, 'That is my marijuana. I should have throwed it out the window when you knocked on the door, but I was sleepy.' When asked about the cigarette butt, defendant said he did not know to whom it belonged.

Defendant took the witness stand and denied he opened the door to the officers. He said he had been asleep while they entered by the landlady's pass key; he denied giving the officers permission to search the apartment, and testified that Gloria also occupied his apartment, they had a quarrel the night before, he had no knowledge of the four cigarettes, and did not tell the officers that they were his or that he knew anything about them.

Appellant claims that inasmuch as there is no testimony of any illegal activity in his apartment, the lower court erred in finding the officers' entry without a warrant to be legal; he also complains that the jury was not properly instructed concerning knowledge and possession of the narcotic.

Acting upon information that defendant had committed an assault upon a woman, it was not unreasonable for the officers to call upon him at his apartment for the purpose of seeking an interview with him. (People v. Michael, 45 Cal.2d 751, 290 P.2d 852.) Defendant voluntarily opened the door to their knock, and upon being asked if he minded if they come in, defendant not only responded, 'No,' but opened the door wide and told them to, 'Come on in.' This clearly constituted a voluntary consent to the entry by the officers, and the trier of fact so found. (People v. Michael, 45 Cal.2d 751, 290 P.2d 852; People v. Elliott, 186 Cal.App.2d 178, 8 Cal.Rptr. 795; People v. Neal, 181 Cal.App.2d 304, 5 Cal.Rptr. 241.) Also established in the evidence is defendant's voluntary consent to the officers' search. They held a 'rather lengthy conversation' with defendant; they advised him of the report made by Gloria and her statement regarding the gun. They asked him if he had a gun and he said, 'No.' Officer Norris questioned him about some bullet holes in the closet and the bathroom doors. They then asked him if he minded if they looked around for the gun; defendant responded, 'Go ahead. I have nothing to hide.' While the evidence is in conflict on this point, defendant having denied that he either admitted the officers to the premises or permitted them to search, the trial judge on the issue of probable cause, as he had a right to do, (People v. Neal, 181 Cal.App.2d 304, 5 Cal.Rptr. 241), rejected the defendant's testimony as not credible and accepted the officers' version of what occurred. If one freely consents to an entry or search his constitutional rights are not violated and any search and taking of evidence pursuant thereto is not unreasonable. (People v. Burke, 47 Cal.2d 45, 301 P.2d 241; People v. Davis, 178 Cal.App.2d 887, 3 Cal.Rptr. 465.)

Without weight is appellant's argument that the jury was not properly instructed relative to his knowledge and possession of the marijuana, for he neither sets forth the instructions given nor therein points up the error; moreover, no instructions were included in the record for our consideration and they are not before us. (People v. Roberts, 182 Cal.App.2d 431, 6 Cal.Rptr. 161; People v. Casado, 181 Cal.App.2d 4, 4 Cal.Rptr. 851.) Thus we assume them to be correct. (People v. Danielson, 203 A.C.A. 545, 21 Cal.Rptr. 469.)

Appellant claims he was denied the right to independent counsel. He says he was unaware of his right to counsel, the full nature and extent of his deprivation of counsel and the effect of his waiver thereof; and that he was not represented at the time of sentence.

On January 4, 1961, prior to arraignment, the public defender was appointed to represent defendant; he represented him at arraignment and plea and at the trial during the presentation of evidence and argument of both counsel to the jury. On the last day of the two-day trial, when the case was called and just before the court instructed the jury, and in its presence, defendant advised the court that he had discharged his attorney inasmuch as he had been 'inadequately represented.' Then out of the presence of the jury, Mr. Littlefield, the public defender, advised that this was the first time he had known of defendant's dissatisfaction with his representation although he had refused to bring up various points of law urged by defendant which he deemed inapplicable. Defendant then cited Woods v. United States [99 U.S.App.D.C. 351, 240 F.2d 37; 315 U.S. 941, 77 S.Ct. 815, 1 L.Ed.2d 760] and its holding and charged he had been 'misled and misrepresented,' and that his lawyer had refused to bring out certain relevant points of law and subpoena his 'informer' (Gloria Hernandez). The court asked him if he wished to represent himself and he answered, 'Yes, I do.' The public defender advised the court of his unsuccessful efforts to locate Gloria, whereupon the judge said to defendant: 'All right, now you have a constitutional right to represent yourself * * *.' Defendant interrupted by declaring he wanted to move for a mistrial, but the court continued and the following colloquy took place: 'The Court: First lets get--You understand your constitutional right to be represented by counsel at all stages of the proceedings? The Defendant: Yes. The Court: You have a right to represent yourself if you so desire. The Defendant: I do desire. The Court: You fully understand your right to counsel, is that right? The Defendant: Could you explain it to me in detail? I have a vague understanding. I don't know. I am not that familiar with the law. The Court: The Constitution says you have a right to have a lawyer represent you, but you yourself, can give up that right and represent yourself if you so desire. The Defendant: I do desire. The Court: Very well, you may. Mr. Littlefield: May the public defender be relieved? The Court: You may represent yourself as your own counsel and the public defender is relieved as attorney of record on your motion for the record.' Defendant then proceeding on his own behalf moved for a mistrial on two grounds. He argued the matter intelligently and at length, citing various authorities.

While an accused has a right to be represented by counsel (California Constitution, Article 1, § 13; Penal Code, § 686), he may waive that right (In re Berry, 43 Cal.2d 838, 279 P.2d 18) and defend himself. (People v. Ballentine, 39 Cal.2d 193, 246 P.2d 35.) However, such waiver to be effective must be the result of an intelligent understanding of what he does in that connection. (People v. Chesser, 29 Cal.2d 815, 178 P.2d 761; People v. O'Ward, 168 Cal.App.2d 127, 335 P.2d 762.) 'The determination of whether there has been an intelligent waiver of counsel involves a consideration of the nature of the charge, the facts and circumstances of the case, and the background, experience, mental competence and conduct of the accused. In re Connor, 16 Cal.2d 701, 710, 108 P.2d 10; People v. Chesser, supra, 29 Cal.2d 815, 822, 178 P.2d 761. Whether a waiver in a particular case meets the standard is largely a matter for the determination of the trial judge, and his decision will not be disturbed on review in the absence of an abuse of discretion. People v. Loignon, 160 Cal.App.2d 412, 418, 325 P.2d 541.' (People v. O'Ward, 168 Cal.App.2d 127, 131, 335 P.2d 762.)

The conviction at bar is defendant's second within a year. The former offense, No. 220641, also involved possession of marijuana; he was convicted in...