People v. Pearson, Cr. 3272

CourtCalifornia Court of Appeals
Writing for the CourtFRED B. WOOD; PETERS, P. J., and BRAY
Citation150 Cal.App.2d 811,311 P.2d 142
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Clarence M. PEARSON, Defendant and Appellant.
Decision Date14 May 1957
Docket NumberCr. 3272

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.

Page 144

[150 Cal.App.2d 814] 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.

[150 Cal.App.2d 815] 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

Page 145

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.

[150 Cal.App.2d 816] (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 [150 Cal.App.2d 817] 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

Page 146

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.

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37 practice notes
  • People of the State of California, Plaintiff and Respondent v. Conser Lee Shaw, Defendant and Appellant, Cr. 4703
    • United States
    • California Court of Appeals
    • August 9, 1965
    ...a conviction would require the court to impose a life sentence without any discretion to reduce the term. In People v. Pearson (1957) 150 Cal.App.2d 811, 311 P.2d 142, this court in construing Page 223 the provisions of section 669 of the Penal Code, which have been referred to above, concl......
  • State v. Brocuglio, (SC 16590)
    • United States
    • Supreme Court of Connecticut
    • July 22, 2003
    ...Bailey, 691 F.2d 1009, 1013-14 (11th Cir.), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); People v. Pearson, 150 Cal. App. 2d 811, 817, 311 P.2d 142 (1957); Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000); State v. White, 642 So. 2d 842, 844 (Fla. App. 1994);......
  • People v. Washington, A095924.
    • United States
    • California Court of Appeals
    • July 28, 2003
    ...e.g., People v. Neese (1969) 272 Cal. App. 2d 235, 77 Cal. Rptr. 314) or his personal effects (see, e.g., People v. Pearson (1957) 150 Cal. App. 2d 811, 311 P.2d The trial court in the present case gave the standard instruction on constructive possession, CALJIC No. 12.44: "'Constructi......
  • U.S. v. Waupekenay, No. 91-2239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 1992
    ...States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.), cert. denied, 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261 (1971); People v. Pearson, 150 Cal.App.2d 811, 815-19, 311 P.2d 142, 145-46 (1957); People v. Klimek, 101 Ill.App.3d 1, 6, 56 Ill.Dec. 403, 408, 427 N.E.2d 598, 603 (1981); Commonwealth......
  • Request a trial to view additional results
37 cases
  • People of the State of California, Plaintiff and Respondent v. Conser Lee Shaw, Defendant and Appellant, Cr. 4703
    • United States
    • California Court of Appeals
    • August 9, 1965
    ...a conviction would require the court to impose a life sentence without any discretion to reduce the term. In People v. Pearson (1957) 150 Cal.App.2d 811, 311 P.2d 142, this court in construing Page 223 the provisions of section 669 of the Penal Code, which have been referred to above, concl......
  • State v. Brocuglio, (SC 16590)
    • United States
    • Supreme Court of Connecticut
    • July 22, 2003
    ...Bailey, 691 F.2d 1009, 1013-14 (11th Cir.), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); People v. Pearson, 150 Cal. App. 2d 811, 817, 311 P.2d 142 (1957); Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000); State v. White, 642 So. 2d 842, 844 (Fla. App. 1994);......
  • People v. Washington, A095924.
    • United States
    • California Court of Appeals
    • July 28, 2003
    ...e.g., People v. Neese (1969) 272 Cal. App. 2d 235, 77 Cal. Rptr. 314) or his personal effects (see, e.g., People v. Pearson (1957) 150 Cal. App. 2d 811, 311 P.2d The trial court in the present case gave the standard instruction on constructive possession, CALJIC No. 12.44: "'Constructi......
  • U.S. v. Waupekenay, No. 91-2239
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 1992
    ...States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.), cert. denied, 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261 (1971); People v. Pearson, 150 Cal.App.2d 811, 815-19, 311 P.2d 142, 145-46 (1957); People v. Klimek, 101 Ill.App.3d 1, 6, 56 Ill.Dec. 403, 408, 427 N.E.2d 598, 603 (1981); Commonwealth......
  • Request a trial to view additional results

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