People v. Solomos

• Decision Date: 17 August 1978
• Docket Number: Cr. 16397
• Citation: 83 Cal.App.3d 945,148 Cal.Rptr. 248
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Paul SOLOMOS, Jr., Defendant and Appellant.

Page 248

148 Cal.Rptr. 248

83 Cal.App.3d 945

The PEOPLE of the State of California, Plaintiff and Respondent, v. Louis Paul SOLOMOS, Jr., Defendant and Appellant.

Cr. 16397.

Court of Appeal, First District, Division 4, California.

Aug. 17, 1978.

Hearing Denied Oct. 25, 1978.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman, Deputy State Public Defender, San Francisco, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Nathan D. Mihara, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

PAIK, ^* Associate Justice (Assigned).

Defendant-appellant Louis Paul Solomos (hereafter appellant) appeals from a judgment of conviction following a jury verdict finding him guilty of violating Penal Code section 484 (grand theft auto). Issues involve the validity of appellant's waiver of counsel, the propriety of certain jury instructions, the failure of the court to advise appellant of his constitutional privilege not to testify at his own trial and irregularities in the sentencing procedure in violation of Penal Code sections 1200 and 1203, subdivision (b).

On January 5, 1976, a man identified by two witnesses as appellant, walked onto the lot of Bob Schiro Motors in Santa Clara, California. Robert Frost, a salesman at Bob Schiro, testified that appellant asked to be shown a 1966 maroon Corvette. Frost allowed appellant to inspect the vehicle, after which appellant thanked him and walked away. About twenty minutes later, appellant returned and asked another salesman, Howard Higgins, to show him the same car. Higgins testified that appellant asked if he could hear the engine run. Higgins said "Sure, go ahead and start it up" and gave him the keys. Just then Higgins was summoned into the office to receive a phone call. As he was speaking on the phone, Higgins noticed the car start to pull out. He hung up the phone and ran outside, yelling to appellant to "hold on," but appellant drove away. Frost attempted to follow the maroon Corvette in another car, but abandoned the chase when he noticed that his car was nearly out of gas.

Three days later John Sherrard, a trooper for the Washington State Highway Patrol, stopped appellant for speeding on Interstate 5 northbound. Appellant was driving a maroon Corvette with Texas license plates. At Sherrard's request, appellant showed him a Texas registration which matched the license plates. Sherrard then approached the passenger side of the vehicle in order to observe the public vehicle identification (hereafter also "VIN") number located underneath the glove compartment. Noticing that the number was not readily readible, Sherrard rubbed the I.D plate and observed fresh black paint come off on his thumb. Sherrard thereupon obtained appellant's consent to impound the vehicle for purposes of positive identification. Sherrard checked the secondary VIN number and found it to be different from the public VIN number. A computer check of the secondary number revealed that it corresponded to a 1966 Corvette that had been reported stolen in Santa Clara. Appellant was placed under arrest for possession of a stolen vehicle. A search of the car revealed, among other things, a can of black enamel spray paint, some sandpaper, and two books listing the prices and values of various vehicles.

Appellant was extradited to California in early March, 1976. An information charging him with one count of grand theft auto and one count of unlawful taking or driving of a vehicle was filed on March 30, 1976.

At the arraignment, the deputy public defender moved to withdraw as attorney of record because appellant was financially ineligible. When asked by the court if he had money to hire a lawyer, appellant explained that he did not wish to hire an attorney, but rather to "represent myself and stand mute on the charge." When appellant persisted in his desire to represent himself, the court appointed a psychiatrist to examine appellant to determine if he was mentally competent to do so. The psychiatrist's report concluded that appellant was "emotionally and intellectually capable" of presenting his own defense.

On May 11, 1976, appellant appeared before the trial judge and was again queried on his decision to act as his own attorney. Appellant explained that he was dissatisfied with the representation he received by the deputy public defender at the preliminary hearing. Appellant was unmoved by warnings that he faced serious charges and should receive the assistance of an attorney, stating "I'm going to have to get my feet wet sometime, Your Honor. I've got to try."

The case was tried with appellant representing himself before the jury. Appellant took the stand and denied stealing the Corvette, claiming that the car was obtained lawfully from a private party in San Antonio, Texas for $1,500. He flatly denied ever having been to Bob Schiro Motors and claimed to have been just west of Denver on the date of the theft. He stated that the discrepancy in the VIN numbers was explainable, since in the State of Texas, when an inoperable car is taken to a junkyard, the dealer is given a "Certificate of Salvage Title" with only a brief description of the car and the identification numbers. Appellant explained that the car could have been in an accident, repaired in a junkyard and the identification numbers legally altered or removed, for in Texas the VIN numbers do not have to be the original numbers issued to the vehicle at the time of production. In rebuttal, Officer Sherrard was called to the stand and testified that while such a "salvage" vehicle could receive a different VIN number, the number assigned would have to be a new number and not the number of another existing vehicle.

The jury found appellant guilty of grand theft of the automobile. At the post-trial hearing, a private attorney appeared to argue a motion for new trial on appellant's behalf. However, appellant stated that this procedure was against his wishes, and the attorney was relieved. Appellant stated that he did not want an attorney and did not want to represent himself, but would do "nothing." He was then sentenced to state prison for the term prescribed by law.

Appellant's first contention is that he did not "voluntarily and unequivocally" waive his right to counsel, since he expressed confusion and made certain statements indicating a desire for the assistance of an attorney; hence, that the trial court improperly allowed him to represent himself at trial, depriving him of his Sixth Amendment rights.

In Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the United States Supreme Court held that a defendant in a criminal case has the constitutional right to represent himself at trial. The California Supreme Court, interpreting Faretta, has held that when a demand for self-representation is timely interposed, the trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so. (People v. Windham (1977) 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) These principles were scrupulously followed by the trial court. Upon learning that appellant wished to represent himself, the judge at the arraignment warned the defendant that he was facing charges that could send him to prison for 10 or 15 years; the judge also told appellant that he needed a lawyer, and that if appellant did not have sufficient funds, the court would appoint one. When appellant repeated his desire for self-representation, the judge ascertained that appellant was literate, and appointed a psychiatrist to report on his mental competence. The psychiatrist submitted a favorable report and appellant was permitted to proceed without counsel. Prior to trial, the court asked appellant if he was sure he wished to represent himself. The prosecutor added that if appellant chose to represent himself, he would be subject to the same rules as an attorney and would receive no special treatment. Appellant indicated that he nonetheless wished to act as his own attorney, and he was allowed to do so.

Appellant contends that his statements show he was confused, and perhaps disposed to representation by a competent attorney. He then argues that the case of People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44, mandates that the trial judge should have conducted a more thorough inquiry into the source of appellant's dissatisfaction with appointed counsel, rather than "abruptly" concluding that he would represent himself. In Marsden, supra, the California Supreme Court ruled that a trial court committed reversible error by refusing to permit a defendant to explain his reasons for a motion to Discharge his appointed counsel. (2 Cal.3d at p. 123, 84 Cal.Rptr. 156, 465 P.2d 44.) In the instant case, appellant did not seek to discharge his attorney. When the deputy public defender moved to withdraw from the case because appellant was financially ineligible, appellant was asked if he wished to hire a lawyer. He responded: "I don't wish to hire an attorney." After warning him of the dangers and asking appellant whether he wished the court to provide him with a lawyer, appellant responded, "Not at this time." The court then directly asked, "Do you want to represent yourself?" and appellant answered "Yes."

At that point the sole issue to be determined by the court was whether appellant had the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and consequences of his action. (Curry v. Superior Court (1977) 75 Cal.App.3d 221, 226-227, 141 Cal.Rptr. 884.) The court was under no duty to explore appellant's underlying reasons for his action, although in fact appellant did later explain that he was dissatisfied...