People v. Ross
| Decision Date | 24 December 1968 |
| Docket Number | Cr. 15159 |
| Citation | 268 Cal.App.2d 525,74 Cal.Rptr. 99 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee ROSS, Defendant and Appellant. |
Richard H. Levin, Los Angeles, for appellant, by appointment of the Court of Appeal.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lola M. McAlpin, Deputy Atty. Gen., for respondent.
Defendant was charged with possession of heroin (§ 11500, Health & Saf. Code) and four prior felony convictions--two violations, Marijuana Tax Act, possession (1953) and two failure to register as narcotic cotic violator (1957, 1961), all federal narcotic violations. The cause was submitted on the transcript of the testimony taken at the preliminary hearing. The court found him guilty as charged and two prior felony convictions to be true--violation, Marijuana Tax Act, possession (1953) and failure to register as narcotic violator (1957). He appeals from the judgment.
Investigating a grand theft committed on October 7, 1961, Officer Smith obtained information that the goods stolen had been sold to Newman's Junk Yard; he went there and talked with Mr. Cohen who told him that he had purchased them as metal from two male Negroes using a 1959 Chevrolet, license number JDF 672, describing one (defendant) as a male Negro, 35 to 40, 5 feet 5 to 5 feet 7, 115 pounds, a large mustache, a goatee and wearing glasses. Officer Smith followed up the information and traced the car to an address on East 35th Street where he determined it was parked. He had additional information from another person that defendant had been using the vehicle and that he fit the description of one of the suspects given by Cohen. Officer Smith and his partner went to the 35th Street address around 2:50 a.m. on November 3, 1967; they observed defendant walk down the street and into the residence; Smith immediately went to the back door while his partner went to the front; in a short time his partner brought defendant out of the building into a driveway area. Officer Smith started a patdown search for weapons. He felt something in defendant's right front pocket and started to put his hand in it; defendant had also started for the same pocket. He told defendant to take his hand away and he did. The officer tried again and put his hand in defendant's right front pocket as defendant also attempted to do so. Finally, Officer Smith handcuffed him. As he went back into the right front pocket again defendant reached around and put his left hand into his left front pocket; defendant withdrew his hand in a clenched fist and Officer Smith ordered, 'Drop what you have in your hand.' Defendant opened it and two small balloons containing heroin dropped to the driveway; he was then arrested and advised of his constitutional rights; he was asked if he understood them and he said that he did. Upon a search of 'defendant's room that he was occupying in the house,' the officers found hypodermic needles and two eyedroppers. In the police car defendant was asked by Smith what was in the ballons; defendant said, 'Shit'; the officer asked what he meant by that and defendant answered 'Heroin'; asked how long he had been using, defendant replied, 'Twenty-five.'
The sole issue relates to the representation given to defendant by his trial counsel. Appellant contends that it was improper for his counsel to submit the cause on the preliminary hearing transcript because any objections he might have had to the admission of evidence were waived by his failure to raise them at the trial; and the transcript reflected the actual or potential existence of several legal defenses. He speculates that trial counsel 'could' have objected to the introduction of any evidence on the ground of unlawful search and seizure, to the information received from Cohen as merely information from an unreliable informant not sufficient upon which to base probable cause for his arrest, to the introduction of evidence on the ground that it was obtained in violation of section 844, Penal Code, and he 'could' have subpoenaed Officer Smith and questioned him further about the entry, and to his admission that the balloons contained heroin and he had been using heroin for some time on the ground that he was not properly advised of his constitutional rights.
In retrospect it is easy, especially where the cause has been submitted to the trial court on the transcript of the testimony taken at the preliminary hearing, to level criticism at defense counsel by speculating what he 'could' have done during a trial. What appellant's counsel conveniently ignores is the situation with which trial counsel was faced at the time of the submission. He was confronted not only with what defendant had told him about his involvement in the case (inasmuch as one can expect effective legal representation only if he makes full disclosure of all the facts to his attorney, we are entitled to assume that defendant discharged his part of the obligation and fully disclosed the truth to his counsel) but the damaging testimony of Officer Smith clearly establishing his possession of heroin and four alleged prior felony convictions involving narcotics.
'' (People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 695, 415 P.2d 35, 39.) Appellant has not sustained his burden. Further, the record fails to show as it did in People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, relied upon by appellant, that he did not have diligent and reasonably competent representation by trial counsel nor does it show that he availed himself of the privilege of complaining at the trial level that his counsel was not adequately representing him. (People v. Monk, 56 Cal.2d 288, 299, 14 Cal.Rptr. 633, 363 P.2d 865.) The explanation for this is found in the factual complexion of the case which demonstrates that counsel was in a position to exercise his professional judgment, did so and adopted such strategy and tactics as he deemed to be in the best interest of his client, and that defendant's dissatisfaction with his conduct of the case did not develop until on appeal.
Actually appellant's complaint that his counsel should not have stipulated to submission of the cause on the preliminary hearing transcript consists of an attack on the competency and effectiveness of trial counsel in the sense of strategy, tactics and judgment exercised by him during his conduct and control of the case. He claims that because of the submission he was deprived of defenses that his counsel 'could' have raised on a trial. Defendant was represented at the trial by a deputy public defender. His counsel was the 'manager of the lawsuit' (Wilson v Gray, 9 Cir., 345 F.2d 282, 290) in control of the case and had the authority and duty to determine all questions of strategy and trial tactics; and it was within the scope of his authority and he had the right to submit the cause on the preliminary transcript. (People v. Foster, 67 Cal.2d 604, 606, 63 Cal.Rptr. 288, 432 P.2d 976.) The choice of whether to submit the cause is inherently a matter of trial strategy. At the preliminary hearing defense counsel was also a public defender. He had the opportunity to and did extensively cross-examine Officer Smith, make various pertinent objections and move to strike the statements made by defendant to the police; (People v. Foster, ...
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People v. Gallegos
...unable to furnish counsel with any grounds for contesting the veracity of what was set forth in the reports. (See People v. Ross (1968) 268 Cal.App.2d 525, 529, 74 Cal.Rptr. 99; and People v. Silva (1968) 266 Cal.App.2d 165, 72 Cal.Rptr. 38.) The concessions obtained as to the other charges......
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People v. Chasco, Cr. 15183
...Without intending to question the authority of Foster, the cases on which it relied and those which have followed it (e.g. People v. Ross, 268 Cal.App.2d ---, --- ****, 74 Cal.Rptr. 99), we think that the problem whether constitutional rights can be effectively waived by counsel without the......