People v. Palacios

• Decision Date: 25 April 1968
• Docket Number: Cr. 2925
• Citation: 68 Cal.Rptr. 137,261 Cal.App.2d 566
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Roberto Ponce PALACIOS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 137

68 Cal.Rptr. 137

261 Cal.App.2d 566

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roberto Ponce PALACIOS, Defendant and Appellant.

Cr. 2925.

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

April 25, 1968.

Rehearing Denied May 14, 1968.

Hearing Denied June 19, 1968.

[261 Cal.App.2d 568] Jonathan C. Gibson, San Diego, under appointment by Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Los Angeles, William E. James, Asst. Atty. Gen., and Ronald F. Russo, Deputy Atty Gen., for respondent.

OPINION

WHELAN, Associate Justice.

Defendant appeals from a judgment imposing sentence after he had been found guilty in a non-jury trial of theft from the person and of having suffered a previous felony conviction. A co-defendant, Flores, also found guilty of theft from the person, has not appealed.

At about 10:30 a.m. on Sunday, March 5, 1967, one Fowler, already suffering from having looked too long upon the wine when it was red, and probably sweet, sat on a bench in Horton's Plaza in downtown San Diego. While Fowler sat there a young man identified as Flores sat beside him; another young man, the defendant, came up and sat on a bench on the other side of a sidewalk that separated the two benches; shortly thereafter Fowler stood up, walked a short distance and lay or fell down 'bottom up.' Flores and Palacios went to the recumbent man where Flores, in Spanish, told Palacios the wallet was in Fowler's rear left pocket. Palacios extracted a wallet from Fowler's pocket, placed it in a white cap that had been taken from Fowler's head; left the Plaza with Flores; crossed Plaza Street, which runs along the south side of the Plaza; ran south down the west side of Fourth Avenue, a north-south street adjoining the Plaza on the east; crossed E Street, the next east-west street to the south; continued south along Fourth Avenue and entered the Barbet bar about half-way along the block between E and F Streets.

All of the foregoing was seen and heard by Scott, who was seated on the same bench as Fowler and Flores and who spoke and understood the Spanish language. When he heard the conversation in Spanish, Scott walked over to Plaza Street and spoke to Lawrence Shanley, a San Diego policeman seated in a car parked on Plaza Street, to whom he reported that a man was being robbed. It was while he was at the car with Shanley that Scott saw the wallet being taken from Fowler's pocket; Scott then went after the defendant while Shanley apprehended Flores.

Scott waited outside the Barbet until Shanley arrived; also there was Frostad, a U.S. Marine Corps private, whose testimony will be mentioned.

Inside the Barbet bar, besides the bartender, were defendant and two middleaged men dressed in working-men's clothes. Scott had noticed earlier that defendant wore a plaid sport jacket and a necktie and was neatly dressed. He recognized defendant as the man who took the wallet, and pointed out defendant to Shanley, as did Frostad. Defendant was arrested and searched. No wallet was found on him; Fowler's wallet in the cap was found in a trash can on the sidewalk outside and north of the Barbet; it was on top of all the other contents of the can.

Frostad had been standing in one of two telephone booths that stood in the Plaza and through the glass side of the booth had seen two men kneeling alongside a third man, who was prostrate; one of the kneeling men was near the head of the prone figure, the other nearer his feet; one of them put a hand in the right rear pocket of the fallen man and pulled out a wallet; the two kneeling men stood up; one of them, Palacios, had a wallet in his hand which he put into a white hat, then went out of the Plaza to the corner and down Fourth Avenue. Frostad took after defendant, who, when Frostad saw him next, was about midway in the block between E and F Streets and who entered a bar about there. Frostad went to that point and waited until the police arrived, entered the bar with the police, saw defendant inside, whom he recognized as the man who had put the wallet into the hat. Frostad made no attempt to identify Flores as the second man.

Flores testified that he had been in the Plaza that morning; had had a conversation with Palacios while both sat on a bench; saw Palacios walk away from the bench; saw also another person, a Mexican in appearance, having like himself a moustache and of about the same height but of heavier build, and who was described as being in the general area in which the theft occurred.

Frostad's testimony at trial was given by the reading of the transcript of his testimony at the preliminary hearing.

CONTENTIONS ON APPEAL

Defendant bases his appeal upon the following contentions:

1. That defendant was denied the right to effective counsel in the municipal court because he and Flores were represented by the same counsel until after the preliminary hearing, although the joint counsel had, before the preliminary hearing, requested the appointment of separate counsel for one or the other of the defendants.

2. That because defendant did not have separate counsel at the preliminary hearing, he was denied the right to confront and cross-examine the witness Frostad whose preliminary hearing testimony was received in evidence in the superior court in the absence of the witness.

3. The trial court erred in finding that defendant had suffered a prior felony conviction.

Those contentions are made against the following factual background:

Mr. Webb, who represented both defendants at the preliminary hearing, was first appointed as their counsel on March 8; on March 15 he moved to have separate counsel appointed; on March 16 the matter was discussed with the presiding judge of the municipal court in the following exchange:

'MR. WEBB: Your Honor, this is a motion on my behalf to have another attorney appointed. I feel it would be in the best interest to have another attorney appointed for one of the Defendants.

'THE COURT: You feel that there is a conflict of interest?

'MR. WEBB: Well, your Honor, not at this time but due to the fact that there may be a possibility later on of a conflict, I felt it would be best at this time.

'THE COURT: I am afraid I don't quite understand your motion. It is not unusual to ask to appoint an attorney for another defendant but if you are not prepared to say there is a conflict of interest, why should I appoint another attorney?

'MR. WEBB: Well, your Honor, from interviewing both of them, that is the feeling that I have, that it would be in the best interest for them. There seems to be no conflict at this point but I think that they do not know.

'THE COURT: You are appointed on both of them?

'MR. WEBB: Yes.

'THE COURT: You see no conflict, what conflict is going to arise? If you don't see one--

'MR. WEBB: I don't know, your Honor.

'THE COURT: Motion denied. You will continue to represent both of them.'

When the case was called for preliminary hearing on April 4, Mr. Webb announced himself ready to represent both defendants, without bringing to the attention of the magistrate any claimed conflict of interest.

Before the taking of any testimony at the preliminary hearing, the district attorney moved to file an amended complaint charging Palacios with a robbery allegedly committed on February 23, 1967. Mr. Webb and Palacios both had been advised previously that such motion would be made. Palacios was arraigned on the additional charge and the hearing proceeded on the amended complaint, with cross-examination by Mr. Webb of the witnesses who testified as to each of the charged offenses.

After both defendants had been ordered bound over for trial, the following occurred before the committing magistrate:

'MR. WEBB: I think there has been a conflict of interest here, and I would request the Court to appoint an attorney--another attorney to represent one of the Defendants. I think--I know there will be a conflict of interest.

'THE COURT: What would be the conflict of interest?

'* * *

'MR. WEBB: Well, the nature of the conflict is that one may be trying to put the blame on the other.

'* * *

'MR. WEBB: Would you like me to make the motion in the Superior Court, your Honor?

'THE COURT: Well, that might involve further delays up there. I think we will reopen the case in this Court for the purpose of appointing Counsel.

'Which Defendant do you expect to continue representing?

'MR WEBB: It makes no difference to me, your Honor.'

Thereafter each defendant was represented by separate counsel.

At the trial, when the district attorney laid a foundation for the use of Frostad's preliminary hearing testimony, defendant's trial counsel objected on the ground now urged for reversal, and offered to show by the testimony of Webb the making and denial of his motion for the appointment of separate counsel on March 15 and 16. The offer of proof was rejected.

There were no proceedings in the superior court under section 995, Penal Code to test the regularity of the preliminary proceedings leading to the binding-over for trial in superior court.

FIRST CONTENTION

It is held in People v. Harris, 67 A.C. 893 64 Cal.Rptr. 313, 434 P.2d 609 that attack upon the preliminary proceedings on the ground of failure to provide counsel for defendant at the preliminary hearing must be made under section 995, Penal Code, or it is waived. The lack of adequate representation, therefore, in itself, may not now be successfully urged.

We may observe that if there had been a conflict of interest between defendant and Flores, it could hardly have been determined before the committing magistrate had heard the evidence. Even then, no conflict appeared; neither defendant testified at the preliminary hearing.

In fact, the conflict of interest between Flores and defendant did not appear until Flores took the stand to interject the theory of a third man of Mexican appearance with the suggestion that the third man may have paired off with defendant...