People v. Norman

• Citation: 60 Cal.Rptr. 609,252 Cal.App.2d 381
• Decision Date: 07 July 1967
• Docket Number: Cr. 5367
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest NORMAN, Defendant and Appellant.

Page 609

60 Cal.Rptr. 609

252 Cal.App.2d 381

PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest NORMAN, Defendant and Appellant.

Cr. 5367.

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

July 7, 1967.

Rehearing Denied Aug. 1, 1967.

Hearing Denied Oct. 5, 1967.

Ernest Norman, in pro. per.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci and Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison following his conviction, after trial by the court, of burglary in the second degree (Pen.Code, §§ 459--460) ¹ with an admitted prior conviction of a violation of the Jones-Millr Narcotic Act by a federal court.

In his notice of appeal he specified 'Excessive Bail,' 'Appointment of Counsel' and 'Illegal Search and Seizure' as grounds for appeal. Thereafter he applied to the trial court, and repeatedly to this court for an order fixing bail on appeal. All of his motions were denied. He seeks review of these post-judgment orders in addition to alleged errors which led to his conviction.

Following the filing of the record with this court, and in response to defendant's prior and subsequent applications therefor, counsel was appointed to represent defendant on this appeal on receipt of counsel's complaint that defendant refused to furnish him the typewritten record, defendant was advised of the complaint, and was warned that if he failed to cooperate with counsel, counsel would be relieved. Defendant advised the court: 'I am not a lawyer But I will present my case myself and I will do it to the best of my ability, having developed a basic distrust for court designated counsels and Being unable to employ one I will remain in pro per as I was at my trial.' Counsel was thereupon relieved. A subsequent inquiry from defendant concerning appointment of an attorney to argue his case, elicited an offer by the court to entertain such a request, but defendant remained adamant in his distrust of appointed attorneys.

Thereafter this court granted defendant's 'Application for an Order Directing the Furnishing of Additional Records on Appeal,' action on which had been deferred pending review by appointed counsel.

On January 17, 1966, defendant filed with the court a 39-page 'Petition for a Writ of Supersedeas.' This instrument, in the form of a brief, contains defendant's statement of the case, presents 31 questions involving defendant's original three points, and reference to additional constitutional principles which he alleges were violated in the proceedings leading to his conviction. It is supported by reference to 35 decisions of the United States Supreme Court, 18 decisions of the courts of this state, and numerous constitutional, statutory and regulatory provisions. The relief sought in the petition was summarily denied, but it was ordered filed as an opening brief. It was augmented, following the filing of the additional record, by a lengthy 'Supplement to Appellant's Opening Brief' which presented seven points supported by citation of 91 cases and numerous miscellaneous authorities. The various contentions advanced by defendant have for convenience been grouped and considered as set forth below. Although he has displayed acumen and some erudition in fashioning a protective armor of constitutional principles, the facts upon which he must rely do not fit within its shelter. No reversible error has been found, and the judgment must be affirmed.

Statement of Facts

On Sunday, June 20, 1965, at about 5 a.m., Peter Daubenspeck, an employee of the Plaza Hotel on Post Street, heard the sound of breaking glass. From his position in front of the hotel, a half block from the Roberts Brothers Fur Store, at 272 Post Street, he observed a Negro male carrying furs from Roberts Brothers to a car parked nearby. He saw the man get into the car and drive west on Post Street past where he was standing. The witness observed the car and its occupants more closely when the car stopped for a red light at Post and Stockton Streets. He saw that the same man was driving, and that a Negro female was sitting next to him. Daubenspeck got the license number, went down to look at the fur store, and then telephoned the police to report what he had observed. He described the vehicle to the police as a black Cadillac convertible with a white top, having a license number that he thought was LEU with some sixes in it.

Sometime after 5 a.m., Officer William Roberts saw a black Cadillac proceeding west on Post Street. He recognized the car as belonging to Felmon Castleberry, and he recognized the driver as Ernest Norman, the defendant. Roberts testified he had known the defendant since 1958 or late 1957, and that he was positive of his identification of the defendant as well as his identification of the female in the car, and the license number of the car, which he had previously memorized. Shortly thereafter, when the police radio broadcast the information telephoned in by Daubenspeck, Roberts contacted communications and notified them that he had just seen the car. Because of his familiarity with the car, Officer Roberts informed communications of the proper license number, IEU 466, the name of the owner of the car, and that the car was headed for the Fillmore area. He did not, however, then report his identification of the occupants. Robert's communication was also broadcast.

Shortly after 5 a.m., Officer Robert McDonnell, who had heard the first police communication, saw the Cadillac parked on Fillmore Street. He observed the defendant standing, slightly bent, next to the car. He saw two other people sitting in the front seat of the automobile, a female sitting on the passenger side (later identified as Willie Sanders), and a male sitting in the middle of the seat (later identified as Ulysses Todd).

He notified communications of his observations, and asked for assistance. He noticed the defendant starting to walk away very quickly, and he ordered the defendant to stop. McDonnell had a police dog in the rear of his vehicle, and, as the defendant walked away, the dog came to the rear window and growled and barked at the defendant. The defendant then came over to the police car. The policeman explained that the Cadillac was wanted in connection with a crime, and asked the defendant to sit in the police car.

McDonnell approached the Cadillac and observed what appeared to be a bundle of furs, wrapped in a light cloth, in the back seat of the vehicle. He questioned the occupants of the car, and they informed him that the defendant had been driving the car. The officer placed the defendant and the Cadillac's two occupants under arrest. He asked the defendant if he had the keys to the automobile. The defendant replied that he did not. Further examination of the bundle in the back seat revealed the stolen furs. The car was impounded. An examination of the car for fingerprints, on June 21, 1965, revealed defendant's fingerprints on the steering wheel spoke, the rear view mirror, and the frame of the left vent window. Fingerprints of Wilie Sanders were also found, but no other usable prints appeared.

At trial, Eva Battle, mother of Felmon Castleberry, testified that she lent the Cadillac to the defendant on June 16, 1965. She testified that the defendant was supposed to keep the car for one day. When he had not returned the car, Mrs. Battle phoned the defendant's aunt and told her that she would report the Cadillac as stolen if it were not returned that Sunday. Mrs. Battle later received a call that the car had been wrecked. She went to the Fillmore area to look for the car, but did not find it. When she next went to look for the car, she heard about the defendant's arrest and the impounding of the car. Mrs. Battle testified that she had not actually reported the car as stolen.

Willie Sanders testified. She said that the defendant had requested that she go for a ride with him. After the defendant received permission from her boyfriend, Ulysses Todd, to take her on a ride, she accompanied the defendant. Mrs. Sanders testified that on that evening she was very tired, she had been drinking, and she had been up for a couple of nights. She testified that she sometimes got 'under the spells * * * and this was one of my times.' She testified that, at the beginning of the ride, she was dozing fitfully. She remembered that the defendant parked the car and said he would be right back. She then heard a crash. She testified that she 'went to scream,' but the defendant, who had returned to the car with some objects in his hands, including a fur coat, told her not to scream. She testified that she remained awake and saw the defendant return to the store a second time to get more furs. The defendant then, according to Mrs. Sanders, drove back to the Fillmore area and parked the car.

She testified that until they returned to the Fillmore area, she and the defendant were the only occupants of the Cadillac. Ulysses Todd got in the Cadillac at that time, since the defendant was going to drive Mrs. Sanders and Todd home. Mrs. Sanders testified the defendant then left the car for about five minutes. As he was returning to the car, the police arrived.

The defendant attempted to impeach Mrs. Sanders' testimony by questioning her on her prior convictions. A search of the witness' record indicated she had not been convicted of a felony.

Ulysses Todd was brought from prison at the defendant's request to testify in his behalf. Todd invoked the protection of the Fifth Amendment.

The defendant testified in his own behalf. He declared he had borrowed the Cadillac from Mrs. Battle. He testified that Mrs. Sanders had requested that he drive her downtown so that she could make some money, but he refused. Defendant declared that since he believed that the car had been reported stolen, he had abandoned the car with the keys under the visor...