People v. Morga

• Decision Date: 21 May 1969
• Docket Number: Cr. 14842
• Citation: 78 Cal.Rptr. 120,273 Cal.App.2d 200
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Richard MORGA, Defendant and Appellant.

Page 120

78 Cal.Rptr. 120

273 Cal.App.2d 200

The PEOPLE of the State of California, Plaintiff and Respondent, v. Gilbert Richard MORGA, Defendant and Appellant.

Cr. 14842.

Court of Appeal, Second District, Division 5, California.

May 21, 1969.

Hearing Denied July 16, 1969.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jerold A. Prod, Deputy Atty. Gen., for plaintiff and respondent.

AISO, Associate Justice.

Defendant Gilbert Richard Morga was convicted for burglary (Penal Code, § 459 violation) by a court sitting without a jury. His motion for new trial and request for probation were denied and he was sentenced to state prison. At the same time, his probation in an earlier case, No. 320784, in which he had pleaded 'nolo contendere' to a charge of statutory rape (Penal Code, § 261, subd. 1), was revoked and a sentence of one year in the county jail imposed and suspended. His notice of appeal states merely that he appeals from 'the judgment and sentence,' but the notice lists both the current and earlier case Nos. A225037 and 320784.

He contends: (1) the evidence is insufficient to support his conviction for burglary, (2) he was prejudicially denied the right to separate counsel, and (3) his probation was improperly revoked in case No. 320784. We conclude that no prejudicial error was committed and that both the judgment in the instant case and the order revoking probation in case No. 320784 should be affirmed.

The Procedural Background

Defendant Morga and two co-defendants, Edward Guzman and Alfred Jurado, were charged in an amended information with burglary (Penal Code, § 459), and a Frank Aguilar with receiving stolen property (Penal Code, § 496.) A prior felony conviction for rape (Penal Code, § 261, subd. 1) was charged against Morga, which he denied.

At the preliminary hearing, Morga, Guzman, and Jurado were represented by the same deputy public defender. On the morning of trial, November 15, 1967, the deputy public defender then representing the defendants announced that there was a conflict of interest between Jurado on one hand and Morga and Guzman on the other. He requested appointment of a private counsel for Morga and Guzman. A private practitioner in the courtroom volunteered to undertake the representation of the two, without compensation. After a short recess, he conferred with the deputy public defender and announced that he was 'going to suggest a jury waiver and submission on the transcript.' Aguilar, represented by a different retained attorney, moved for a severance of his case and severance was granted. All three remaining defendants (Morga, Guzman, and Jurado) and their respective counsel waived jury trial and agreed that the court could read and consider the transcript of the preliminary hearing as evidence. Further proceedings were continued to November 20, 1967. On the latter date, the three defendants testified the People put on an arresting officer as a rebuttal witness, and the case was submitted. The court found Guzman 'not guilty' and Morga and Jurado 'guilty as charged.' The reporter's transcript reflects the court fixing the burglary at first degree, but the judgment reflects that no degree was fixed and no disposition of the prior felony conviction pleaded. We therefore treat the burglary as being of the second degree. (Penal Code, § 1157; People v. De Arkland (1968) 262 Cal.App.2d 802, 818, 69 Cal.Rptr. 144.)

The Evidence

The Testimony of Mrs. Irene Montes, the victim of the burglary, given by way of the transcript of the preliminary hearing was as follows: She was returning from the market about 9:15 in the evening of September 3, 1967. As she first drove up, she saw a car parked 'on the wrong side of the street.' In the lights of her car, she saw the head of one person in the car and two people outside, kneeling on the grass. The front door to the driver's seat was open. She saw the faces of Guzman and Morga, who were outside the car. She turned her car around and parked it across the street from her apartment and was taking groceries out of her car, when she spotted Jurado carrying her television set from her home to the car parked across the street. Jurado had said, 'Okay, let's go,' and Morga and Guzman were getting into the car. She ran across the street and tried to stop them. Jurado got into the back seat and slammed the door. She remonstrated against their taking her television set and 'grabbed the driver.' Morga was the driver. As she struggled with Morga, Jurado and Guzman helped brush her off. The car drove off without lights. There were in all, four people in the car, two in front and two in back. She saw the faces of three, but not that of the fourth person.

Fernando Nejera's testimony reflected by the transcript of the preliminary hearing was as follows: He was a police officer of the City of Los Angeles, working a radio car that evening. He received a call around 9:15 or 9:20, proceeded to the location, and interviewed Mrs. Montes. She reported that four male Mexicans had taken 'a TV out of her house, they had used force.' 'She tried to stop the one that was carrying it and she tried to stop the driver. ( ) She gave me a description of three of the suspects and she told me that the fourth suspect was either passed out drunk or was asleep in the back seat of the car.' She also described the car and her television set in detail. He located the car parked, about two hours later, with three male Mexicans in it, two in the back seat and one in the front. He and his partner maintained surveillance of the vehicle, waiting for the fourth suspect to show up. In due time, he saw Jurado, the one described as having taken the television in the burglary, emerge from a house, holding two $10 bills in his hand. Apparently, just Jurado and two of the three persons in the car were arrested. ¹ He then proceeded to the house from which Jurado had emerged and knocked on the door. It was opened by Aguilar. He saw a television set fitting the description given to him by Mrs. Montes just three feet from the front door. He thereafter arrested Aguilar.

Jurado testified at the trial: Before he took the television set, he, 'Richard Morga and Joe Guzman' and another person had gone to a 'love-in' in the afternoon. He later corrected 'Joe Guzman' to Eddie Guzman and named the other person as one called 'Joe.' Asked, 'How did you happen to pick up Joe?' he replied, 'Well, he was with us before, with me and Richard Morga.' They left the 'love-in' about 8:00 ('(i)t was getting dark already') in a car, which he believed was Morga's. He and the others had drunk about a gallon of wine. He had also taken 'heroin and seconals' about 10:00 a.m., and was 'pretty intoxicated.' He had not drunk much wine.

He told the driver that he 'was going to go see some girl.' Her name was 'Nellie'; he had just met her a week before. He knew approximately where she lived. He went to see the girl, got out of the car, and walked up a flight of stairs. It was ten to fifteen yards uphill. He knocked on the door. The door was open and the television was on. He stepped inside to see if anybody was there, noticed no one around, and therefore took the television and walked out. He did not intend to steal anything until he was inside the apartment.

The others did not know he was going to 'steal the TV,' because even he didn't know that he would when he left the car.

When the lady came out, he told her that the television belonged to his friend, which was a lie. He lied because he was stealing the television set. 'I put it in the car, and then she started hollering.' On cross-examination, however, he denied that the lady hollered. He told the others, '(i)t is probably her mother,' and the car took off. Morga was not driving at the time, but he could not recall just who was driving. Morga did drive at times that evening. He could not recall where the others in the car were seated. He did not see anyone prevent the lady from recovering her television set. There was no 'scuffling or hasling.' He denied that the lady grabbed the driver or that the driver pushed her hands off.

They took the television set to a friend's (Aguilar's) house. He did not want to take it to his home as his parents would know that it was stolen.

He claimed that the $20.00 was in his pocket. He had worked at some upholstering place in Alhambra, the name of which he could not recall. '(His) parole officer (had) it.' He had been paid the Friday preceding the day of his arrest.

Guzman testified at the trial: He recalled being in the car with Jurado and Morga. The three went to a 'love-in' at Elysian Park. He had been drinking wine. They stayed at the 'love-in' until it got dark, around 8:00 or 8:30. They had a gallon of wine. He drank quite a bit. He did his drinking in the morning. He did not do any drinking at the 'love-in.'

After leaving the 'love-in' he, Jurado and Morga went driving a bit. Jurado mentioned a girl. He recalled that they parked awhile at one place, and then parked at another place. He was sitting in the back seat when he was handcuffed. He was asleep and work up with handcuffs on. He saw a 'TV', but didn't pay much attention to it. He had no idea when Jurado mentioned going to see a girl that Jurado would 'end up taking a TV set.' Asked, whether there was a hassle or a pulling with a woman in connection with the television, he replied, 'Not that I recall, sir.' He did not see any woman come out or claim the set as hers. He had no recollection of seeing the woman, who testified at the preliminary, on the night in question. He did not know Aguilar.

They switched drivers from time to time during the period he was in the car. He did not do any driving. He had no driver's license. He could not recollect Jurado doing any driving. Morga did some of the driving, but he could not recall who was...