People v. Smith

• Citation: 702 P.2d 180,216 Cal.Rptr. 98,38 Cal.3d 945
• Court: United States State Supreme Court (California)
• Decision Date: 22 July 1985
• Parties: , 702 P.2d 180 The PEOPLE, Plaintiff and Respondent, v. Robert Gregory SMITH, Defendant and Appellant. Crim. 23714.

Page 98

216 Cal.Rptr. 98

38 Cal.3d 945, 702 P.2d 180

The PEOPLE, Plaintiff and Respondent, v. Robert Gregory SMITH, Defendant and Appellant.

Crim. 23714.

Supreme Court of California In Bank.

July 22, 1985.

Robert Viefhaus, Fountain Valley, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Robert M. Foster, Keith I. Motley and Robert B. Shaw, Deputy Attys. Gen., for plaintiff and respondent.

LUCAS, Justice.

The principal issues presented by this case are whether the trial judge improperly denied defendant's motions for continuance. Defendant asserts that (1) he had insufficient time to examine California Jury Instructions, Criminal (CALJIC), and (2) he had not had the opportunity for eight hours of sleep the night before trial.

I. FACTS

On January 17, 1982, at approximately 8 p.m., Gregory Leverich was playing cards in his home in Fullerton when he heard the sound of breaking glass. He opened his front door and saw a man enter through a window of the Smart & Final store across the street. While Leverich's wife telephoned the police, Leverich watched the man crawl out of the window, grab a bundle from inside the building, run across the street, and drive off in a six- or seven-year-old red Camaro. Although Leverich did not see the man's face, he was able to describe his clothes and car to the police. In a matter of minutes, an officer of the Fullerton Police Department stopped defendant, who was driving a red Camaro matching Leverich's description, five or six blocks from the Smart & Final store. Leverich identified the car and driver at the scene of defendant's arrest. During the few minutes that passed between the time the police stopped defendant and Leverich's field identification, the police officers engaged defendant in general conversation. Defendant carried no identification and gave an improbable explanation for his presence. He then stated, "You got me. What more do you want?" In plain view in the car was a box containing 30 cartons of cigarettes later determined to have been stolen from the Smart & Final store. Defendant had been released on parole less than two weeks earlier.

II. PROCEDURE

What ought to have been a simple prosecution for burglary (a violation of Pen.Code, § 459) tested the patience of a number of superior court judges before a verdict was finally returned. To fully appreciate the heroic responses of these trial judges to defendant's tactics, it is necessary to detail the procedural aspects of this case.

Defendant appeared in court three times represented by the public defender, but two weeks before trial, and two-and-a-half months after his first court appearance, he requested that the entire public defender's office be relieved. After inquiring as to the reasons for that request, Judge Dickey denied the motion. Defendant then requested that his trial be postponed for several months while he attempted to obtain money from his father to retain private counsel. He explained his delay in requesting such action by saying that he did not realize the seriousness of the charges pending against him. Judge Dickey, after a long colloquy with defendant, put the request over for several days and asked the public defender to contact both defendant's parents to determine whether retaining private counsel would be possible.

At the next hearing, defendant again requested more time to obtain private counsel or to represent himself and Judge Dickey again continued the matter for one week, until June 1, 1982. At the June 1 hearing, one week before the scheduled trial, the public defender filed an affidavit under Code of Civil Procedure section 170.6 disqualifying Judge Dickey. The case was reassigned to Judge Fitzgerald who first faced defendant on June 7, 1982, the date scheduled for trial. By this time, defendant admitted that his chances for obtaining private counsel were small and the court trailed the matter for a day to allow defendant even more time to reflect upon his request for in propria persona (pro. per.) status.

At the hearing on June 8, 1982, when defendant renewed his request to proceed in pro. per., Judge Fitzgerald entered into an extended colloquy with defendant aimed at discovering whether defendant appreciated the seriousness of the crime charged against him, whether he understood the consequences of appearing in pro. per., and whether his decision was voluntary. Upon being satisfied, Judge Fitzgerald granted defendant's motion as required under Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, and reset the trial date. The public defender, in open court, gave defendant his case files, discovery motion, and a "pro. per. package."

In the five months that elapsed between that June 8 hearing and trial, defendant appeared before Judge Fitzgerald ten times. During these appearances defendant moved (1) for the appointment of a private investigator, (2) to submit handwritten motions, (3) for additional pretrial discovery, (4) for more pencils, (5) to have a legal research firm appointed, (6) for the appointment of a "runner," and (7) to continue the trial date for 91 days. Judge Fitzgerald denied the motions for additional discovery and for the appointment of a legal research firm and refused, after having continued the trial date twice, to continue it for an additional 91 days. Otherwise, the court granted defendant's motions. The court also held, at defendant's request, an in camera proceeding and a full length evidentiary hearing both aimed at resolving defendant's claim that he was being denied access to law books.

At last, defendant was brought to trial on November 8, 1982. At trial, defendant requested continuances on the grounds that he was too tired to proceed and that he had not had the opportunity to examine CALJIC. The trial judge, Judge Lee, after lengthy discussions with defendant and the prosecutor, denied those motions. Voir dire consumed about half a day, the trial itself took a day, and the jury returned a guilty verdict in less than an hour and a half.

At defendant's sentencing hearing, he moved to continue the proceedings until he had studied the probation report, and moved to call as a witness the probation officer who had prepared the report. Both motions were denied and defendant was sentenced to the upper base term of three years with a one-year enhancement for a prior felony.

III. MAJOR CONTENTIONS

Defendant raises two issues for our consideration.

A. Access to Legal Materials. About three weeks before trial, defendant moved to continue the trial date on the ground that he had not had adequate access to law books. He had first raised the question of access to legal materials a month earlier when the court denied his motion for the appointment of a legal research firm. Defendant claims that his lack of access to law books prevented him from preparing a defense and denied him due process. As the record makes markedly clear, however, defendant had access to a law library, including CALJIC; due process does not require more.

We note that defendant had been using the jail law library and the Orange County law library almost daily for three months before raising this issue. During those three months, defendant appeared in court at least five times. Defendant's actions suggest that he delayed raising this issue until it appeared that his trial was at hand.

After defendant moved to continue the trial date, Judge Fitzgerald, in an admirable display of concern for the possible limitations placed on defendant, held an evidentiary hearing and an in camera proceeding to determine defendant's access to legal materials.

Those hearings, reflected in some 46 pages of transcript, featured the testimony of 3 sheriff's deputies called by defendant and numerous exhibits such as lists of books and book request slips. The stack of defendant's request slips for books he actually received was approximately three inches high. The testimony showed that books circulated from the jail library several times a day and that a deputy made a daily run to the Orange County law library. Defendant requested approximately two or three books per day, five days a week from the time he first assumed pro. per. status. Defendant could copy any non-circulating book through his "runner."

Defendant, in camera, requested the judge to subpoena certain inmates who resided near defendant's cell to testify as to the availability of books. He also sought the testimony of lawyers: "The Defendant: I plan to call a couple of attorneys, any attorney, that's in the building that day and a couple of district attorneys, any district attorneys that are in the building that day and the reason why I want two of each of them is because I want one that specializes in trial and I want one that specializes in research on both attorneys for defense and district attorneys. And I'm going to ask them if they could pursue their cases with diligence and competency without the assets of ... a CALJIC fourth edition with supplements." Defendant also stated that he would need CALJIC "for at least 30 days before I went to trial, access to it for three or four hours a day ...," to which the judge responded that the average attorney "probably doesn't spend more than 15 minutes on jury instructions." Finally, defendant requested the court to convene in the jail library to view the conditions there. The judge denied those requests.

At the conclusion of the hearing and in camera proceeding, the judge specifically found that the library facilities were fully available to defendant either through the daily runs or his runner and, more particularly, that defendant had access to all law books necessary to any defense.

Faretta simply requires that a pro. per. defendant be given the same treatment as an attorney. The judge here made that clear at defendant's Faretta hearing:

'The Court: You understand that during the course of a trial,...