People v. Stewart

• Citation: 86 Cal.Rptr. 153,6 Cal.App.3d 457
• Decision Date: 09 April 1970
• Docket Number: Cr. 7657
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert Earl STEWARD, Defendant and Appellant.
• Court: California Court of Appeals

Page 153

86 Cal.Rptr. 153

6 Cal.App.3d 457

PEOPLE of the State of California, Plaintiff and Respondent, v. Wilbert Earl STEWARD, Defendant and Appellant.

Cr. 7657.

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

April 9, 1970.

Rehearing Denied April 28, 1970.

Hearing Denied June 5, 1970.

Royal E. Peterson, Palo Alto, for appellant (By appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Phelan, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant Wilbert Earl Steward, by notice of appeal in the name of Wilbert Earl Stewart has appealed from a conviction, following a jury trial, of robbery in the second degree in violation of section 211 of the Penal Code, under which he was sentenced to state prison for the term prescribed by law. His sole contention on appeal is that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, and article I section 13 of the California Constitution, because he and a co-defendant, ¹ with allegedly conflicting interests, were represented by the same attorney at a joint trial. An examination of the record reveals that he never definitely and unambiguously sought separate counsel, that the record fails to show that it was erroneous to deny him separate counsel, and that in any event it is clear beyond a reasonable doubt from the evidence that any error in failing to appoint separate counsel did not contribute to his conviction. The judgment should be affirmed.

Statement of Facts

In order to evaluate the defendant's contention that there was a conflict in the positions of himself and his codefendant it is necessary to summarize the evidence.

The victim in this case was Finley John Bromberg, a 63 year-old resident of McAllister Street near Laguna Street, who is totally blind in the right eye and partially blind in the left. Around midnight or the early morning of July 11, 1968, he left his residence and walked to a nearby liquor store, where he purchased cigarettes, some beer and some soft drinks. He then began to walk home easterly on the south side of McAllister Street. It was his practice to walk near the curb, guiding himself with his cane; and he was about 50 or 60 yards from his home when he was attacked near the intersection of Laguna and McAllister Streets.

On his way home, Mr. Bromberg had heard what he thought were two men, saying, 'Let's take him, he's easy.' Upon hearing this, he walked to the middle of the street, believing that he would be safer there. The men followed him and commenced kicking and beating him. One of them took his wallet, which contained two dollars and some money orders. His assailants were in the process of dragging him to the south curb when the police arrived. Because of his blindness, the victim was unable to identify his assailants then or at the trial.

Clifton Bates, an airplane mechanic, employed at the Alameda Navl Air Station, was driving easterly on McAllister Street on the evening in question. Approaching the intersection of Laguna Street his headlights revealed what appeared to be three figures engaged in a fight or scuffle in the center of McAllister Street about 20 feet west of the intersection. He then observed two of the figures dragging the third to the south side of the street. As Bates stopped his car he saw a police patrol car approaching the intersection on Laguna Street from the north. At this point two of the three figures detached themselves from the group and ran off in different directions. Two police officers emerged from the patrol car, each pursuing one of the fleeing parties. Bates was able to keep one of the fleeing figures in sight as he fled west on McAllister Street, and saw him being apprehended by one of the policemen. This man proved to be the codefendant. He temporarily lost sight of the other figure as he fled easterly and southerly around the corner of Laguna Street, but the other policeman brought back another person (the defendant) a few minutes later. Bates could not say whether or not this person was the second figure who left the scene.

James Moore, an officer of the San Francisco Police Department, testified that during the early morning hours of July 11, 1968, he was on duty, driving a patrol car south on Laguna Street accompanied by Officer Hans Anderson. As they approached the intersection of Laguna and McAllister, he heard a person crying for help, he saw three people struggling on McAllister Street, and saw that one person was being beaten, while being dragged from the street to the curb. When they stopped in the intersection, Officer Moore noticed that two of the three people began running in different directions. He and Officer Anderson each chased one on foot, and Officer Moore apprehended the defendant after he fell when he turned the corner on McAllister to head south on Laguna. He claims that the defendant never left his sight from the moment he gave chase. As the defendant turned the corner, he slipped and fell, at the same time dropping Mr. Bromberg's wallet from his hand. Officer Anderson testified that he apprehended the codefendant, and that when the defendant was returned by Moore, he recognized him by his clothing as the other fugitive.

Defendant testified in his own behalf. He admitted having been in the vicinity of Laguna and McAllister on the night and at the time in question. He was walking along Laguna toward McAllister, he said, when someone ran around the corner and bumped into him, knocking him down. He was picking up his cap, which had fallen from his head, when a police officer came around the corner with a gun in his hand, and told him to raise his hands. The officer told him to 'shut up' when he asked what he had done, and bent down to pick up an object later identified as the wallet belonging to the victim. When taken to the police station, the defendant refused to sign any statement. He also asserted at the trial that at no time was he advised of his constitutional rights or of the grounds for his arrest, and he claimed that he had never seen his codefendant prior to their arrest. On cross-examination, the defendant revealed that on the night in question, he was dressed in a green fatigue jacket and khaki trousers, a description matching the one given by the police officer who had apprehended him, but said that he did not see any fight at the corner of Laguna and McAllister. On cross-examination he admitted that he had suffered prior felony convictions for attempted burglary and second degree burglary. ²

Officer Moore, on being recalled to the stand, again stated that from the first time he saw appellant in the intersection, to the time he apprehended him, he never let him out of his sight.

The codefendant did not testify.

Request for Separate Counsel

The information charging the defendants was filed in the trial court on August 6, 1968. The record does not reveal in what manner the defendants were represented at proceedings giving rise to the filing of the information. Each defendant was before the court with the public defender on August 9th and secured a continuance to August 16th for plea. On that date each defendant appeared with the public defender, entered his plea of not guilty, and by consent the matter was continued to the 20th to be set for trial. On August 20th the information was amended to show the prior convictions (see fn. 2 above) and each defendant again appearing with the public defender, denied the priors. On August 26th the public defender appeared for both defendants and the case was set for trial on September 10th. It ultimately came on for trial on September 25th. Both defendants appeared at that time with the public defender, and a jury was selected and advised of the principal charge and the defendants' pleas, all without any comment from either defendant or their mutual attorney.

At the commencement of the afternoon session, apparently before the prosecution made its opening statement or presented any evidence, the defendants' attorney advised the court that his clients were insisting on an "A' jury'--'A jury composed of persons selected from each county'--and wanted to appeal from the court's denial of selection of a jury in that manner. Defendant Steward personally reiterated a request 'for the Court to entertain the motion of an 'A' jury panel.' In the following colloquy the judge professed that he, as well as the public defender, had never heard of such a panel. At the conclusion of this discussion, the court inquired, 'Anything else?' and the exchange set forth in the margin transpired. ³ On the public defender's suggestion that the codefendant had a question the latter personally requested a separate trial which was denied by the court. ⁴

On appeal this defendant refers to his request as a personal motion for the appointment of a separate attorney because of 'conflict of interest.' Emphasis on the quoted phrase fails to give any weight to defendants' other remarks which indicate that he was speaking for both defendants and seeking a new and different attorney and not necessarily separate counsel for himself (see fn. 3 above). The conflict of interest was revealed as the two defendants' joint disagreement with counsel on the type of defense to be presented (see People v. Sanchez (1969) 2 Cal.App.3d 467, 476, 82 Cal.Rptr. 582).

If his request, as it appears in context, was for new and different counsel, it would indicate that he was not seeking separate counsel or objecting, as did his codefendant, to the joint trial. (See People v. Winkelspecht) (1965) 237 Cal.App.2d 227, 230, 46 Cal.Rptr. 697, (disapproved on other grounds People v. Chacon (1968) 69 Cal.2d 765, 774, 73 Cal.Rptr. 10, 447 P.2d 106).) The court properly denied his request to have new and different counsel insofar as it was predicated upon any disagreement with the public defender as to...