People v. Prince

• Decision Date: 23 December 1968
• Docket Number: Cr. 6657
• Citation: 268 Cal.App.2d 398,74 Cal.Rptr. 197
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William J. PRINCE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 197

74 Cal.Rptr. 197

268 Cal.App.2d 398

PEOPLE of the State of California, Plaintiff and Respondent, v. William J. PRINCE, Defendant and Appellant.

Cr. 6657.

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

Dec. 23, 1968.

Patricia A. Coleman, Los Altos, by appointment of the Court of Appeal for defendant-appellant.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Jerome C. Utz, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to concurrent state prison sentences following his conviction, after trial by the court, of petty theft with a prior felony conviction (Pen.Code, §§ 667, 484, 486 and 488), and of conspiracy (Pen.Code, § 182) to violate the provisions of section 488 of the Penal Code (petty theft, see §§ 484, 486 and 488), with an admitted prior conviction for burglary in the second degree.

After entry of the defendant's plea and before trial, the private counsel selected by defendant was permitted to withdraw, and the public defender, who already represented a codefendant, was then appointed to act for both defendants. Defendant contends that the court erred in permitting his private counsel to withdraw because it failed to make adequate inquiry into the circumstances; that the court erred in appointing the public defender to represent him because there was a failure to inquire into the possibility of a conflict of interest in the defenses of defendant and his codefendant, because the defendant never waived his right to a separate counsel, and because there was an actual conflict of interest; and that he was denied effective assistance of counsel because the public defender represented his codefendant as well as defendant. He further asserts that the information is prejudicially defective; that the evidence is insufficient to sustain his convictions; that the failure to charge and convict his codefendant, who was jointly charged and convicted on the conspiracy count, with the substantive charge of theft, necessitates the discharge of defendant; and that there was error in the failure to produce and receive certain demonstrative evidence. These contentions are examined and found wanting. It does appear, and the Attorney General concedes, that the defendant has been ordered to suffer multiple punishment for one act in violation of the provisions of section 654 of the Penal Code, and the judgment must be modified accordingly.

The Facts

On March 21, 1967, defendant William J. Prince and his codefendant Robert Page entered a department store in San Francisco. A saleslady, who was employed in the men's clothing section, approached the two men and asked if she could be of assistance. Defendant indicated he was looking for trousers, and that he wanted to try on size 32. Although the saleslady stated that the size was too small, defendant persisted. Defendant continuously exited from and reentered the fitting room while trying on pants ranging among three sizes. During this time, the saleslady had to repeatedly return to the stockroom and the fitting room because she was out of certain sizes and styles requested by defendant. She could not see the customer area of the store from the stockroom. She did see Page in the vicinity of the men's suits, but since he appeared to be in the right section for his size she ignored him and 'mainly waited' on defendant.

The two men remained in men's clothing section for approximately thirty minutes. Prior to leaving, defendant purchased a pair of corduroy trousers. The saleslady indicated that she did not remember anyone else being in the fitting rooms at the time. She stated that defendant was wearing a stadium jacket or three-quarter length coat when he entered the store. She noticed that Page left the clothing shop before defendant.

When the two men entered the store they were observed by the store's special police officer, who was standing on the balcony of the second floor, in the men's clothing section. The officer saw defendant and Page enter, go directly up the staircase and begin looking at men's slacks. At the time there were about seven people on the floor. Defendant was wearing a black three-quarter length coat, which was a bulky type with large sleeves, and fit loosely. Underneath the coat he was wearing a turtleneck sweater. The officer noticed that the men were 'eyeballing the area.' ¹ He concealed himself in a storeroom and observed the conduct of defendant and Page. He corroborated the saleslady's story that defendant tried on numerous pairs of slacks. However, he also observed that while defendant was trying on the slacks, Page was placing suits on a display rack approximately three feet from the fitting room used by defendant. After Page had placed three suits on this rack defendant selected a fourth suit, and took the suits and a pair of slacks into the fitting room. Defendant remained in the fitting room for five or ten minutes and when he exited, his coat 'was more full in its fit upon his body. There was a lack of looseness.' Defendant proceeded to the cash register and paid for a pair of slacks. The two men then departed from the store. The officer left his observation point and entered the fitting room area. He checked all of the fitting rooms, and found only four empty hangers and two clothespins. The officer then attempted to pursue the men. He left the store by the same exit they had taken, and saw them walking rapidly from the area. Page 'turned around a number of times to look rearward, and for a period of time was running backwards.' The men entered a black Cadillac and drove out of the parking lot before the officer could apprehend them.

The defendant and Page were arrested ten days later when defendant attempted to return the slacks he had purchased.

The two men testified in their own behalf. Defendant indicated his activities and those of Page had been as described by the saleslady, and that he had taken no merchandise from the store other than the slacks he had purchased. He testified that at the time he entered the store he was wearing a three-quarter length trench coat which had a little check. Underneath the coat he had on a brown Pendleton shirt. He stated there were eight or ten people on the floor at the time. He and Page returned to the store on March 31, 1967 to exchange the slacks because he wanted something better. On cross-examination, defendant admitted that he had previously been convicted of a felony.

Page also testified that he was innocent of any crime. He stated that he never removed a suit from one of the racks but merely looked at the suits. He testified that he was wearing a white turtleneck sweater on March 21, 1967, and that defendant was wearing a three-quarter length deep blue check jacket. He stated that there were some five boys on the floor on March 21st, and that one boy was in the fitting room during the time defendant was trying on the slacks. He stated that when defendant went to the cash register to pay for the slacks he started downstairs to look at other merchandise. He and defendant left the store and drove away in a 1958 blue Cadillac.

Withdrawal of Counsel

The defendant appeared four times with counsel of his selection. On the first two appearances continuances were requested. On the third occasion the defendant entered his plea of not guilty to both counts of the information and denied the alleged prior conviction. By consent the matter was continued to be set for trial. At the time fixed for setting, the following occurred: 'Mr. Smith: At this time, your Honor, with respect to Mr. Prince, I would request permission to be allowed to withdraw from Mr. Prince's representation. I have been unable to secure his cooperation. I believe he has no objection. The Court: Do you have anything to say about that, Mr. Prince? Defendant Prince: Your Honor, the only thing I have to say, sir, is I guess I will have to take the Public Defender, because I don't have any more funds. It's not a matter of non-cooperation; its because I don't have any money. The Court: Well, that's another word of the lawyers use for money, Mr. Prince. Defendant Prince: Well, I just want to make sure. * * * The Court: All right, your motion is granted, Mr. Smith.'

Defendant's allegations of error attack both the procedure followed and the substance of the court's ruling. In People v. Bouchard (1957) 49 Cal.2d 438, 317 P.2d 971, it was established that the procedural requirements of sections 284 and 285 ² of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding. In Bouchard the court, because of an admitted failure to comply with those sections, denied the defendant's attorney's motion to quash service of the People's brief in an appeal from an order granting the defendant's motion to set aside an information. In other cases applying the statute the courts have recognized the right of an attorney of record, and his client, the defendant, to be protected against improvident proceedings by the latter in person without the consent of or notice to the attorney (In re Martinez (1959) 52 Cal.2d 808, 812, 345 P.2d 449), the right of the court to require the defendant to proceed with the attorney he originally selected when an attempted substitution of the defendant in Propria persona was not served upon the prosecution until the day of trial, and the defendant was unwilling at that time to proceed without counsel (People v. Garabito (1966) 244 Cal.App.2d 549, 552--553, 53 Cal.Rptr. 152), and the right of the defendant to have notice and an opportunity to object before the court grants the attorney's motion to be discharged (People v. Kerfoot (1960) 184 Cal.App.2d 622, 634--636, 7 Cal.Rptr. 674).

Defendant seeks to come within the ambit of Kerfoot. In that case a separate private practicing attorney had been appointed to represent each of two joint defendants. Following the first...