People v. Wade

• Decision Date: 29 October 1968
• Docket Number: Cr. 12983
• Citation: 266 Cal.App.2d 918,72 Cal.Rptr. 538
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Cohoda William WADE, Defendant and Appellant.

Page 538

72 Cal.Rptr. 538

266 Cal.App.2d 918

The PEOPLE of the State of California, Plaintiff and Respondent, v. Cohoda William WADE, Defendant and Appellant.

Cr. 12983.

Court of Appeal, Second District, Division 3, California.

Oct. 29, 1968.

Rehearing Denied Nov. 11, 1968.

Hearing Denied Dec. 24, 1968.

Charles M. Berg, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Nelson P. Kempsky and Elliott D. McCarty, Deputy Attys. Gen., for plaintiff and respondent.

FRAMPTON, Associate Justice pro tem. ^*

Statement of the Case

The defendant was charged by information with the crime of burglary, a felony, in violation of section 459, Penal Code. He was also charged with having suffered three prior convictions of felony. ¹ Prior to the trial the defendant admitted the truth of the allegations of the prior convictions of felony. Upon the trial the jury returned its verdict finding the defendant guilty as charged and fixed the crime as burglary of the second degree. Defendant's motion for a new trial and motion in arrest of judgment were denied. After hearing, the defendant's application for probation was denied and sentence to state prison followed. The appeal is from the judgment.

The Facts

Alfred S. Smith, a police officer for the City of Compton, testified that at 4:53 a.m. on February 4, 1966, while on patrol duty, he received a call, 'a 459 alarm,' that the silent burglar alarm system had been set off at the Enterprise Junior High School. At approximately 4:54 a.m. he arrived at the school and noticed an unattended 1957 Plymouth automobile with its lights and motor off in the parking lot close to the administration building.

No one was near the vehicle as Officer Smith approached it with the lights on the police vehicle turned off. Officer Smith then observed the defendant coming out of the west gate adjacent to the administration building 'walking fast and looking back, * * * He was looking behind him in the direction of the Administration Building.' The defendant was carrying a black radio and wore a rubber glove on his left hand and a brown or tan leather glove on his right hand; he was unaware of the officer's presence until he had reached a point within about 15 feet of where Officer Smith was standing, at which time he ceased looking backward and turned his head and looked forward; the moment he observed Officer Smith he launched upon an explanation as to why he had gone into the building; he continued explaining as he walked toward the Plymouth automobile; as he talked, looking the officer directly in the face, he carefully placed his hand in his right front pocket, pulled out a pry bar and threw it behind the driver's seat of the Plymouth. Officer Smith got a good look at the object and recognized it as a pry tool.

Officer Smith then told the defendant not to get into the Plymouth or place anything in it. The defendant continued talking and while doing so, reached into his right rear pocket, took an unidentified object out, and threw it into the back of the vehicle.

At about 4:55 a.m., Officer Melvin Parker arrived at the scene and went directly to the administration building to search for the point of entry. Officer Smith remained with the defendant who had not been formally placed under arrest at that time. Officer Sutton then arrived and stayed with the defendant while Officer Smith took the pry bar and joined Officer Parker in the search for the point of entry.

Officers Smith and Parker found a window in the administration building which appeared to be the point of entry. The width of the pry bar was compared with the indentation on the metal frame of the window and they were found to match. Paint adhering to the pry bar appeared to match the color of the paint on the window frame. They then returned to the Plymouth automobile, placed the defendant under arrest, and advised him of his constitutional rights.

At trial the gloves, radio and pry bar were received in evidence. The defendant, on the witness stand, admitted possession of these articles when the police arrived at the scene of the burglary. The radio was identified by the head counselor of Enterprise Junior High School as one he had previously taken from a student and placed in a filing cabinet in his office located in the administration building. An expert forensic chemist identified paint particles adhering to the pry bar as identical to the paint clips removed from the point of entry.

Defense

The defendant took the witness stand and testified at the trial. He testified that he stopped on the school grounds to investigate a 'grinding noise' coming from the rear end of the vehicle he was driving; he put on the gloves and used the pry bar to remove a hub cap from the car; he was just sitting there looking at the wheel with the hub cap removed when Officer Smith approached him; he denied going into the administration building or the fenced area next to the building. He admitted prior convictions of attempted grand larceny, a felony (New York, 1951), receiving stolen property, a felony (Los Angeles County, 1954), and petty theft with prior conviction of felony in violation of section 667, Penal Code, a felony (Los Angeles County, 1956).

The Contentions and the Law

The defendant contends (1) that he was improperly denied the assistance of counsel at the second preliminary hearing on the charge and that he did not make a knowing and intelligent waiver of counsel upon his arraignment for plea in the superior court; (2) the denial of appellant's motion to allow the jury to view the scene of the burglary constituted reversible error; (3) the prior convictions were improperly admitted in evidence; (4) the prosecutor committed prejudicial misconduct; (5) the trial court improperly instructed the jury, and (6) the indeterminate sentence law is unconstitutional.

The reporter's transcript of the first preliminary hearing discloses that such hearing was held in the Municipal Court of the Compton Judicial District on March 7, 1966. The defendant was represented at this hearing by a deputy public defender of Los Angeles County. As a result of this hearing the defendant was bound over for trial in the superior court. The superior court file shows that on March 25, 1966, the defendant appeared in propria persona and successfully argued a motion to dismiss the information pursuant to the provisions of section 995, Penal Code. This motion was heard by Judge Arthur L. Alarcon. Upon dismissal of the information, the district attorney refiled in the Municipal Court of the Compton Judicial District and a second preliminary hearing was held on the charge on April 11, 1966. At this time the defendant moved the court for permission to proceed in properia persona with the request that the public defender be appointed to sit in the proceedings in an advisory capacity. The deputy public defender present objected to being held in the proceedings in an advisory capacity only. The deputy public defender stated to the court that he had explored the case with the defendant over a period of time and he was of the opinion that the defendant was able to 'make a fairly intelligent waiver' of counsel. The defendant also brought to the court's attention that he had personally and successfully argued the 995 motion in the superior court which had resulted in the dismissal of the first information. The defendant stated that he understood fully that he would be held to the same standards and rules of evidence as though he had counsel. The court then discharged the deputy public defender from further duties in the case and permitted the defendant to conduct the preliminary hearing in propria persona.

At the conclusion of the second preliminary hearing the defendant was again bound over for trial in the superior court.

On the date set for his arraignment for plea upon the second information, he again appeared before Judge Alarcon who had heard the 995 motion on the first information. At this time the defendant moved the trial court to allow him to proceed in propria persona. The trial judge recognized the defendant and remembered that he had been successful in obtaining a dismissal of the first information upon motion under section 995, Penal Code. At this time the following colloquy occurred between the defendant and the judge: 'THE COURT: * * * Just for the record in this case, what education have you had?

'THE DEFENDANT: I finished one year of college, and I had schooling in the Army, and I worked for the Provost Marshal, and I worked for a lawyer.

'THE COURT: And you have also represented yourself in other matters before the Court?

'THE DEFENDANT: Yes.

'THE COURT: In one case, in a matter successfully before this Judge?

'THE DEFENDANT: Yes.

'THE COURT: The court finds you are competent to represent yourself.' ²

At this time, April 25, 1966, the defendant moved to set the second information aside under section 995, Penal Code. The motion was heard and denied on April 27, 1966.

The probation report shows that the defendant was born on September 11, 1923, which would place his age at approximately 42 years and 5 months at the time the initial proceedings were commenced which ultimately culminated in his conviction. He had a comparatively good education and had worked in positions which would lend aid to him in representing himself on a criminal charge. He had been exposed to criminal prosecutions on numerous occasions. He had successfully defended himself in the superior court upon the within charge by obtaining a dismissal of the first information upon motion under section 995 of the Penal Code. In this state of the record we are of the opinion that the magistrate, at the second preliminary examination, did not abuse his discretion in denying the defendant's motion to have a deputy public defender appointed to sit with the defendant in an advisory capacity only during the course of such...