People v. Penrod

• Decision Date: 26 November 1980
• Docket Number: Cr. 4057
• Citation: 112 Cal.App.3d 738,169 Cal.Rptr. 533
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Verner PENROD, Defendant and Appellant.

Page 533

169 Cal.Rptr. 533

112 Cal.App.3d 738

The PEOPLE, Plaintiff and Respondent, v. John Verner PENROD, Defendant and Appellant.

Cr. 4057.

Court of Appeal, Fifth District, California.

Nov. 26, 1980.

As Modified Dec. 9, 1980.

Quin Denvir, State Public Defender, Ezra Hendon, Chief Asst. State Public Defender, Laurance S. Smith, Deputy State Public Defender, Sacramento, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Willard F. Jones and William George Prahl, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

This is an appeal from a judgment of conviction, after a jury trial, of robbery (Pen.Code, § 211), being armed with a firearm (Pen.Code, § 12022, subd. (a)), and auto theft (Veh.Code, § 10851).

The only argument presented is that the trial court abused its discretion by denying a pretrial motion to relieve the public defender as counsel on the basis of inadequate representation and to appoint private counsel. Appellant contends that the trial court did not examine the merits of (1) a change of venue motion, (2) a request to be relocated for the purpose of interviewing witnesses, and (3) a complaint of counsel's inadequate preparation.

At about 10:30 a. m. on July 5, 1978, Suzanne Love parked her dark blue Mustang in a parking lot located about a block away from the Modesto Coin Center; she reported her car missing at 2:30 p. m.

At approximately 2:45 p. m. on July 5, two men with handkerchiefs over their faces robbed the Modesto Coin Center. Sales clerk Stanley Doub, who was in the store's back room, heard one of the men say, "This is it"; Doub pushed the alarm button and walked to the front counter. The older of the two men held a gun on Doub and demanded cash. Although the store safe was empty because the money had been taken to the bank, Doub open the cash drawer, which was emptied by the older man. Doub was instructed to lie on the floor while the younger man sorted through coins in the back room. Connie Swain, an owner, returned from the bank and saw two men in the back room and then observed Doub lying on the floor. Swain repushed the alarm, and the older man attempted to coax her into the back room. She managed to get away from the area and the two men fled to a dark blue Mustang parked outside the store. Swain's son arrived and she shouted for him to watch the Mustang.

As the two men entered the Mustang, Swain heard someone yell, "Police" and instruct the two men not to move. One of the arriving police officers said that four or five shots were then fired from the passenger side of the Mustang. Fire was returned by the officers. Swain's son drove his car in back of the Mustang, which backed into it, lurched forward, and then hit a parked car. After the Mustang stopped, appellant, who had been driving and was wounded, rolled out of the car and said, "I've had enough." Appellant and a passenger, Forest Tucker, were subsequently arrested.

An examination of the Mustang showed that it had been hot-wired. Connie Swain identified bags of coin found in the Mustang as belonging to the Modesto Coin Center. Suzanne Love identified the Mustang found at the store as her car, although she denied hot-wiring it or leaving coins in it. The windows were shattered and riddled with bullet holes when she retrieved the car at the police station.

Forest Tucker was the principal witness for the defense. Tucker testified that he lent $1,000 to appellant in May 1978 and that on July 2 or 3, Tucker met with appellant, informing him that he would return in a few days. Tucker picked up appellant on July 5, and did not tell appellant of the decision to commit a robbery. While driving, Tucker saw the coin shop and decided to rob it.

Tucker entered a nearby parking lot, told appellant he was looking for friends and that one of his friends had a car in the lot which would not start. Tucker left appellant in his car and proceeded to hot-wire the Mustang. Upon Tucker's request, appellant drove Tucker's car to the coin-store shopping center. Appellant then followed Tucker's instructions to drive the Mustang while Tucker, sitting as a passenger in the stolen car, looked for his friends. Tucker finally told appellant to park in front of the coin store and informed him of his intention to rob it. He showed a gun to appellant and threatened appellant that he and his girlfriend would get hurt unless appellant complied with his request.

In rebuttal, the prosecution presented a tape-recorded conversation between Tucker and his girlfriend wherein Tucker claimed the gun belonged to appellant. In response to this tape, Tucker said that he lied in order to minimize his responsibility for the crime in front of his girlfriend to "gain (a) better relationship with her."

At the hearing of the pretrial motion to relieve the public defender appointed as counsel, appellant and another member of the public defender's office were present. The following grounds for the substitution motion were specified by appellant:

"My reason for asking for other counsel is that Mr. Hollingsworth and I do not agree on the defense of my case. And I have no confidence in his or the Public Defender's office to see that I get a fair trial.

"In support of my motion for the appointment of private counsel to represent me, I would like to bring to the Court's attention the following:

"Number one: The case has received an extraordinary amount of publicity in the news media, including an editorial and letters to the editor. And I have asked my attorney, Mr. Hollingsworth, to make a motion for change of venue to some other county for trial. And he has refused to do so.

"I have asked him that he make a motion to the Court that he and I be allowed to talk to my witnesses at some place that's not monitored, neither the County Jail or the courthouse; that by testimony of such witnesses could be determined that said-

"THE COURT: I didn't understand. What was that last one?

"THE DEFENDANT: That testimony of such witnesses could be determined. You understand what that is?

"THE COURT: Do you want to explain it to me?

"THE DEFENDANT: Let me finish reading this. I'll explain it.

"That said witnesses live in Sacramento, California. And it has been impossible for me to privately confer with prospective witnesses in the jail because every avenue of communication is censored, including the removal of parts or all of my letters. And I have tried to write to prospective witnesses, which the jail censors, this in spite of the fact that I have not authorized the jail to censor my mail.

"Number three: That Mr. Hollingsworth, in acting as my counsel, in the employment of the Public Defender's office, has so may other cases assigned to him that he has not adequately prepared my defense. In fact, my counsel is now on vacation with my trial date only a week away.

"For the above-stated reasons, I ask that the Public Defender's office, Mr. Hollingsworth, Assistant Public Defender, be discharged and that the Court appoint private counsel and that a continuance of one month be granted to prepare my defense."

The court allowed Mr. Cole, public defender appearing at the hearing, to respond to appellant's allegations:

"THE COURT: Mr. Cole?

"MR. COLE: Yes, Your Honor. I'm familiar with his file. I've discussed it with Mr. Hollingsworth at various stages of the proceedings.

"We did consider filing a change of venue motion and discarded that as not meritorious under the facts of this case.

"Mr. Hollingsworth discussed the fact of filing a motion to require the jail to provide a place so that the Defendant and Mr. Hollingsworth and all the witnesses could be alone to discuss their testimony. I told him I was not aware of the authority for any such motion being made. As long as the Defendant was in custody, I did not feel it was an appropriate motion to make.

"And as to the last point, Mr. Hollingsworth has had adequate time to spend with this case. And although he is busy, he is a trained lawyer, well experienced and extremely capable.

"THE COURT: One would hope that all of the lawyers in your office are busy. If that is not the case, one would wonder how you can justify having the number of attorneys you have in your office if they're not all busy.

"However, the question is as to whether or not Mr. Hollingsworth is so busy that he would neglect this particular case because of being so busy in other cases that he couldn't devote the proper amount of time and energy and effort and legal skill to the defense of Mr. Penrod.

"MR. COLE: That is not the case, Your Honor. Mr. Hollingsworth has not been that busy. We are always busy. And we stay busy."

The court then made its ruling, as follows:

"THE COURT: All right. Anything further to present, Mr. Penrod?

"THE DEFENDANT: No, not at this time.

"THE COURT: All right. The Court has carefully considered your motion to discharge Mr. Hollingsworth and to appoint other counsel to represent you. The Court feels that there has not been a sufficient showing to warrant that order being made by the Court.

"Mr. Hollingsworth is a competent trial lawyer and an experienced trial lawyer. And the Court notes from the file in this case that there's been a number of motions made. Overall, Mr. Hollingsworth, no showing that he is not devoting the time and effort and legal skill which is proper and necessary in the defense of your case.

"Your motion is denied. Defendant is remanded to the custody of the Sheriff."

Appellant contends that the trial court abused its discretion in denying appellant's motion to substitute an attorney without asking the reasons for appellant's request. (People v. Chavez (1980) 26 Cal.3d 334, 347, 161 Cal.Rptr. 762, 605 P.2d 401; People v. Marsden (1970) 2 Cal.3d 118, 123-124, 84 Cal.Rptr. 156, 465 P.2d 44.) Under the Marsden case the court, in order to make a judicial...