People v. Silva

• Decision Date: 27 September 1968
• Docket Number: Cr. 10194
• Citation: People v. Silva, 266 Cal.App.2d 165, 72 Cal.Rptr. 38 (Cal. App. 1968)
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Gonzelo SILVA, Defendant and Appellant.
• Court: California Court of Appeals

Page 38

72 Cal.Rptr. 38

266 Cal.App.2d 165

The PEOPLE of the State of California, Plaintiff and Respondent, v.Charles Gonzelo SILVA, Defendant and Appellant.

Cr. 10194.

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

Sept. 27, 1968.

Rehearing Denied Oct. 21, 1968.

Hearing Denied Nov. 20, 1968.

Dahlstrum, Walton, Butts & Bergman, Richard A. Walton and G. Merel Bergman, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

The trial court found defendant guilty on three counts (I, II, III) of selling and one count (IV) of furnishing marijuana in violation of section 11531, Health and Safety Code, and two prior (1951, 1952) felony narcotic (marijuana) convictions (§ 11500,Health & Saf. Code) to be true.Timely appeal was filed.On May 6, 1965, this court filed its opinion affirming the judgment; petition for rehearing and petition for hearing by the Supreme Court were denied.Two years later appellant filed motion to recallremittitur denied by this courtNovember 24, 1967.Thereafter, treating appellant's petition for writ of habeas corpus as an application to recallremittitur, the Supreme Court directed this court to recall its remittitur, vacate its judgment and proceed in accord with Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493andPeople v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419, 432 P.2d 21; pursuant to the foregoing directions the appeal has been reinstated.Subsequently appellant filed herein notice of motion for leave to produce additional evidence attached to which was 'Declaration of Charles Gonzelo Silva'; the motion was denied.(The declaration of appellant, not a part of the record below, is not part of the record on appeal (People v. Shaffer, 182 Cal.App.2d 39, 45--46, 5 Cal.Rptr. 844).)

The following evidence was adduced at the preliminary hearing.Count I--Joe (Jose) Gonzales told State Narcotic Agent Edward Noriega that he could make a purchase of marijuana at defendant's address in Canoga Park; on June 3, 1963, around 8 p.m. Gonzales took him to defendant's residence; the agent went there for the purpose of buying marijuana; he paid $30 to defendant in return for which defendant gave him two bags of marijuana (Exh. 1); this was the first time the agent had met defendant.Count II--Around 6:15 p.m. on June 14, 1965, State AgentPaul Edward Pulliam met defendant near the intersection of Winnetka and Saticoy in Canoga Park; he paid defendant $30 for which defendant gave him two wax paper bags containing marijuana (Exh. 2).Count III--Agent Noriega again saw defendant on July 2, 1963; around 6 p.m. he met defendant in a liquor store parking lot near the intersection of Saticoy and Winnetka in Canoga Park where he gave defendant $160 for which defendant gave him a grocery bag containing a brick of marijuana (Exh. 3).Count IV--Around 9 p.m. on September 23, 1963, Agent Noriega went to defendant's residence in Canoga Park, at which time defendant gave him a bag of marijuana (Exh. 4) for which he paid nothing.

On October 31, 1963, Robert Stanley, who represented defendant at the preliminary hearing, was in superior court for arraignment but defendant failed to appear necessitating order forfeiting bail and directing the issuance of a bench warrant; on defendant's late appearance, the orders were vacated and bail reinstated.On November 5, 1963, defendant entered a plea of not guilty and denied the priors.The trial was set for December 17, 1963, at which time defendant, with his counselR. Stanley by J.White appeared, but the trial was continued to the next day to enable defense counsel to be present.On December 18, 1963, defendant appeared with his counselR. Stanley by K. Foley.At the outset Mr. Foley stated: 'My name is Kenneth Foley.May the record show I am appearing here for Robert Stanley in this matter and it is to be submitted if the court please?'Thereafter, defendant personally waived his right to a trial by jury of the case-in-chief and the matter of the priors; defense counsel and the People joined in the waivers.The prosecutor then offered the stipulation that the case-in-chief be determined on the testimony taken at the preliminary hearing, and on the 1951 prior offered in evidence as Exhibit 5, by reference, the superior court file in People v. Silva, No. 136814(microfilm) with the request that the court order the microfilm, which it did, and on the 1952 prior, as Exhibit 6, abstract of judgment in the superior court case, People v. Silva, No. 142598, and certified copy of records of Department of Corrections pertaining to defendant and his prison record.At the request of Mr. Foley, further trial was continued to January 14, 1964.

However, on January 14, 1964, defendant failed to appear; the court ordered bail forfeited, issuance of a bench warrant and the cause off calendar.Apprehended several months later, defendant, in custody, was present with his counselRobert Stanley on March 24, 1964, for further trial.The court advised that it had read the entire transcript and, no further evidence having been offered and the cause having been submitted without argument, found defendant guilty on all counts and 'the priors * * * to be true.'Defendant appeared with Robert Stanley for hearing on the probation officer's report and for judgment and sentence on April 14, 1964; after arraignment for judgment Mr. Stanley said: 'I just would point out to your Honor that I think that he has faced up to his responsibilities after he has realized that he was wrong.He ran away and then he turned himself in and he wants to get this matter over with.'The court responded: 'I know, but this amounts to a sale of a considerable amount of marijuana.This isn't child's play, you know,' to which Mr. Stanley said, 'I agree.'The Court denied probation and sentenced defendant to the state prison on all counts, the sentences to run concurrently with that imposed on Count I.

For reversal appellant relies on the claim of denial of due process at his trial 'in that representation by counsel was a sham and an ineffectual formality only.'We conclude this and his other contention to be without substance and that the judgment must be affirmed.

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 in the court below, 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.The evidence reflected in the preliminary transcript is simple, direct, clear and undisputed.The amount of marijuana sold, the price paid, the direct dealings with defendant, the number of sales, the period over which the transactions took place, the locations of the sales, and the use of an informer in making the original contact establish that defendant was engaged in the business of selling marijuana.Proof that twice he had been convicted (January 13, 1951, January 3, 1952) of violations of section 11500, Health and Safety Code(possession of marijuana) in the Superior Court of Los Angeles County, indicates that defendant was no stranger to either the narcotic traffic or local court procedure.His general attitude toward the court is reflected in his late appearance on arraignment and his complete failure to appear for trial necessitating the issuance of a second bench warrant on which several months later he was brought into court.Inasmuch as appellant indulges in an unbridled excoriation of trial counsel for his conduct of the case and for the sole purpose of establishing appellant's true portrait, hardly consistent with the premise of innocence and 'honest and upright life' on which he predicates his present claim, we refer to his statement to the probation officer and the recital of his past illegal activities set up in the probation report which is contained in the original superior court file brought up by this court on its own motion as part of the record on appeal (Rule 12(a),Rules of Court) and which is also contained in the appellate file having been attached by appellant to his notice of motion to recallremittitur filed in this court, as well as to his petition filed in the Supreme Court.The answer to his condemnation of counsel's decision to submit the cause on the transcript of the testimony taken at the preliminary hearing, is found in defendant's acknowledgment of guilt, ¹ extensive criminal narcotic record ² and subsequent arrest for possession for sale of marijuana (§ 11530.5,Health &amp Saf. Code)³ while on bail herein just 19 days before trial.There is nothing in the record to suggest the possibility that defendant did not make the same disclosure of guilt to trial counsel that he made to the probation officer which, nothing appearing to the contrary, we can only assume to be the truth.And inasmuch as one can expect effective legal representation only if he makes full disclosure of all facts to his attorney, we are also entitled to assume that defendant discharged his part of the obligation and fully disclosed to his counsel all facts pertinent to the charges including his marijuana transactions with the agents.This not only accounts for counsel's conduct of the case but points up the real reason defendant made no objection on the trial level to the manner...