People v. Pearson

• Decision Date: 14 May 1957
• Docket Number: Cr. 3272
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence M. PEARSON, Defendant and Appellant.

Page 142

311 P.2d 142

150 Cal.App.2d 811

The PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence M. PEARSON, Defendant and Appellant.

Cr. 3272.

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

May 14, 1957.

Clarence M. Pearson, appellant, in pro. per.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Convicted of violating sections 245 and 12021 of the Penal Code, assault with a deadly weapon and possession by a felon of a firearm capable of being concealed upon the person, defendant has appealed.

(1) Was defendant denied the right to defend, by being denied the right to prepare and by having counsel not of his own choosing forced upon him by the court? No.

He wished to represent himself. He states in his brief that he told the trial judge that he did not want the Public Defender and asked for an order permitting him to be taken to the law library for approximately 15 hours to prepare his defense. There is only one reference to the Public Defender in the transcript of the trial. In the absence of the jury, the court said, 'Now, the Public Defender has been making his services available to you up to this point, and I propose that he continue in the same capacity, but in the court room in the presence of the jury, do you want him to sit at counsel table, or would you rather he sit somewhere else in the court room where you can call on him if and when you need him?' The defendant answered, 'I guess at counsel table would be satisfactory, Your Honor.' That, it would appear, was done, but throughout the trial defendant conducted his case in person, asking all questions and making all motions and presenting all arguments.

We see in that no infringement of defendant's right to conduct his defense in person. The practice of making counsel from the Public Defender's office available to defendants acting in propria persona was approved in People v. Richardson, 95 Cal.App.2d 703, 707, 213 P.2d 734.

Concerning the request to be taken to the law library for 15 hours of research, the record is silent. Points that have no foundation in the record can not be considered by a reviewing court. People v. Ruiz, 103 Cal.App.2d 146, 150, 229 P.2d 73. Moreover, a defendant who chooses to conduct his defense in person does so subject to the disabilities normally attendant upon the status of prisoner. 'A defendant who intelligently refuses counsel and insists upon personally conducting and controlling his defense does not lose the status of prisoner and become entitled to extraordinary privileges not accorded defendants who are represented by counsel, nor does he become entitled to proceed in a manner different from that permitted to attorneys.' People v. Chessman, 38 Cal.2d 166, 174, 238 P.2d 1001, 1006.

(2) Was the gun which defendant used a 'deadly weapon' within the meaning of that term as used in section 245 of the Penal Code? Yes.

Defendant threatened to shoot, not to use the gun (a Colt automatic pistol) as a bludgeon. It had six shells in the clip, none in the firing magazine, but was in full firing order. The clip was in the gun, which could be fired by pulling a slide back and allowing it to go forward again; i. e., by holding the gun in one hand and pulling the slide back with the other hand.

Defendant contends that this was an unloaded gun and that its possession did not give him the requisite 'present ability' to commit the threatened act of shooting. The answer we find well expressed in People v. Simpson, 134 Cal.App. 646, 25 P.2d 1008. We need only to substitute 'pistol' for 'rifle' in the following statement made by the court in that case: 'An automatic repeating rifle may not be termed an unloaded gun when its magazine contains loaded cartridges which may be instantly transferred to the firing chamber by the mere operation of a lever. It is unreasonable to hold that a rifle is unloaded and that it is not susceptible of immediate discharge under such circumstances. * * * We are of the opinion an automatic repeating rifle which contains loaded cartridges in its magazine may constitute a deadly weapon with which one may have the present ability to commit violent injury upon another person, by firing the weapon at him, although it is first necessary to transfer a loaded shell to the firing chamber by operating a lever. The questions as to whether the accused person really intends to transfer the shell and fire the weapon are facts to be determined by the jury from the circumstances of the case.' 134 Cal.App. at page 651, 25 P.2d at page 1010. See also People v. Young, 105 Cal.App.2d 612, 614, 233 P.2d 155.

Defendant would distinguish the Simpson case on the ground of a conflict of evidence whether defendant made any effort to operate the lever. That, however, bears on the question of the defendant's intent, not the character of the weapon.

He would distinguish the Yound case on the ground that the meaning of 'deadly weapon' as used in section 1203 of the Penal Code was involved and the fact that there the defendant had been convicted of robbery and section 211a, dealing with robbery, uses the term 'dangerous or deadly weapon' not 'deadly weapon.' In some situations that conceivably would make a difference, but not here. The gun involved in the Young case, similar to that involved in the instant case, 'contained cartridges in the magazine. These cartridges could be chambered and fired almost instantly. It therefore constituted a deadly weapon.' At page 614 of 105 Cal.App.2d, at page 157 of 233 P.2d.

(3) Was the gun obtained as the result of an illegal search and therefore inadmissible as evidence? No.

Four officers, suspecting that defendant had issued some fictitious checks, went to his home (with neither a search warrant nor a warrant for defendant's arrest) and knocked on the door. Defendant's wife opened it. Officer Williams told her his name and asked to see the defendant, Clarence. He also told her the house was surrounded and to tell the defendant not to leave by the back door. She made a gesture and pointed to the kitchen. The defendant was seated on the kitchen floor. The officers told the defendant they wanted to talk to him 'down town.' Williams suggested he put his coat on.

Defendant went into the back bedroom and got a coat. Williams followed him into the front room. The other officers were in the front room. Inspector Harper started to frisk the defendant. When Harper got to defendant's hips, the defendant stepped off, reached in his coat, pulled out a .32 Colt, and said, 'This is it, line up against the wall, all of you.' He pointed the gun at all the officers in the room. He was then disarmed and taken into custody.

It well may be that the officers visited defendant to make an arrest and lacked authority to arrest him. If so and if their discovery of the gun was a natural result or product of such endeavor on their part the seizure would be illegal. In Badillo v. Superior Court, 46 Cal.2d 269, 273, 294 P.2d 23, 25, the 'defendant's flight out the front door and attempted disposal of the evidence was the direct result of * * * [a police officer's], illegal entry.' But in our case the defendant's pointing the gun at the officers and threatening them was no mere gesture of disposal of contraband, which might be viewed as 'the direct result' of the officers' conduct. They were not threatening him with bodily harm. Instead, he was threatening them, voluntarily producing the gun in aid of his assault upon them. What really happened was that in the very act of unlawfully assaulting the officers the defendant voluntarily exposed the gun to their view. That was not the direct or any result of a search, legal or illegal. Such a view of the incident is supported by the officers' testimony. The fact, if it be a fact, that defendant's testimony may be somewhat inconsistent therewith produced at most a conflict which the triers of the facts resolved against him.

(4) Was the evidence sufficient to prove ownership or possession of a concealable weapon? Yes.

An ex-convict 'who owns or has in his possession or under his custody or control' a pistol 'capable of being concealed upon the person' is guilty of the offense proscribed by section 12021 of the Penal Code. The gun had been reposing in a pocket of his overcoat. He testified he did not know a gun was in the pocket, not until he had donned the coat upon this occasion. His wife testified that it was her gun and as far as she knew the defendant did not know of its existence. However, the jury could have inferred from the whole sequence of events that defendant did know of the gun's existence, that he deliberately put on the coat so as to have access to the gun when he returned to the room where the other officers were standing, and that his wife was testifying untruthfully in his behalf.

(5) Was it error to allow proof of out of court inconsistent statements of defendant's wife? No.

Defendant's wife testified that the gun was hers and that to her knowledge he knew nothing about it. On cross-examination, she denied making a statement to the police shortly after defendant's arrest that he had it when she and he were on a fishing trip. Inspector Harper testified that on this occasion defendant's wife told them that defendant had the gun in the glove compartment of the car on a fishing trip the previous fall. No objection was made to this testimony at the trial.

This was proper cross-examination. People v. Brazil, 53 Cal.App.2d 596, 599-601, 128 P.2d 204. See also People v. McCoy, 25 Cal.2d 177, 186, 153 P.2d 315; People v. Crow, 48 Cal.App.2d 666, 671, 120 P.2d 686.

(6) Was it prejudicial error to take defendant's fingerprints against defendant's will and use them as evidence of a prior conviction, in proof of a violation of section 12021? No.

Whether the police had authority to take defendant's fingerprints...