People v. Wimberly

• Decision Date: 29 April 1963
• Docket Number: Cr. 8615,8616
• Citation: 30 Cal.Rptr. 421,215 Cal.App.2d 538
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl Damastis WIMBERLY, Defendant and Appellant.

Page 421

30 Cal.Rptr. 421

215 Cal.App.2d 538

The PEOPLE of the State of California, Plaintiff and Respondent, v. Earl Damastis WIMBERLY, Defendant and Appellant.

Cr. 8615, 8616.

District Court of Appeal, Second District, Division 2, California.

April 29, 1963.

Hearing Denied June 26, 1963.

Ellery E. Cuff, Public Defender, Los Angeles County, Charles A. Maple and James L. McCormick, Deputy Public Defenders, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

APPEAL NO. 8616

Defendant was charged with: (1) burglary, in that on April 21, 1962, he unlawfully entered the room occupied by Casenia Dixon with intent to commit theft; (2) a second count of burglary in that he unlawfully entered the apartment occupied by Iva B. Burkholder with intent to commit theft and rape; and (3) rape, in violation of section 261, subd. 3, Penal Code, committed on said Iva B. Burkholder. Defendant was found guilty on Count I of burglary in the first degree. The remaining counts were dismissed. Defendant was charged with, and admitted, a prior felony conviction. He was sentenced to state prison for the term prescribed by law, the sentence to run consecutively to that on the previous conviction. ¹ He has appealed from the judgment and order denying his motion for a new trial.

On April 21, 1962, Casenia Dixon, 18 years of age, was due to give birth to a child in a few weeks. She lived in room 16 on the second floor of 701 South New Hampshire Street in Los Angeles. It was a three story building with about 25 rooms. Casenia roomed with Joyann Harrington and another girl. Some time after midnight on April 21, Casenia and Joyann were in their room. Casenia went to sleep in approximately 30 minutes after she retired. There were no lights in the room. The windows had shades but she shades were up and the windows were open. Outside on the patio there were two big lights. One of them was shining through their window.

All of a sudden Casenia had a feeling there was someone standing over her bed. When she propped herself up on her elbows, a man 'was right in my face'--only about two feet away. He stared down at her and said, 'Don't scream, I'm not going to hurt you.' She was frightened and just lay there momentarily. He started to feel over her body under the covers. In one hand he held two purses. She called Joyann and said there was a man in there. When she did this he jumped off the bed and ran out of the room.

Casenia identified defendant as the man. She had no question about his identity at all because she got a good look at him when he stared in her face and again when he looked up and had the light from the window shining in his face. When Joyann jumped out of bed, the man turned around and looked at her. He went out of the room and shut the door. Then he came back, opened the door and stood there looking at the girls. The girls screamed. Casenia did not know where the man went. Her purse had five dollars in it but nothing else of any particular value. She had a picture of what defendant looked like because she wasn't able to sleep for two weeks.

Joyann Harrington, Casenia's roommate, was also expecting the birth of a child in a few days. During the early morning of April 21, she was in bed but was awakened by a slight cry, saying 'Joy, Joy.' She saw someone bending over Casenia's bed. She did not see the man's face but in respect to size and build defendant resembled the intruder. The man ran out the door but came back in and looked at the two girls. Joyann, however, could not see his face. She yelled and he ran again.

As the result of a somewhat similar escapade in the same vicinity at about one o'clock in the morning of April 25, which resulted in a telephone call to the Police Department defendant was picked up by the police. They found a pair of gloves in his possession though it wasn't a particularly cold night. Defendant explained that his hands chapped some times and that he wore the gloves to protect them. Later he said that he made this statement because he thought it was a better excuse than nothing at all. He said he lived at the YMCA and was out of work. He claimed that he had met a girl at 3rd and Vermont and had walked her home to 4th and Mariposa. She was a brunette and her name was Sue. He didn't know her exact address as he didn't go all the way home with her. He stated he had been in the general area several times before as he knew people who lived in the neighborhood. He also said that the Friday night before--the 20th--he had been to see a woman at 9th and Normandie. Although the officer asked the name of the woman, defendant refused to give it.

Defendant was arraigned on May 17 and then declared his desire to conduct his own defense. The court's offer to appoint the public defender was declined by him.

When the case was called for trial on June 8, defendant appeared in propria persona. He declined the appointment of counsel, and, although the court explained to him the difficulties and hazards of representing himself, he insisted upon trying the case himself. Defendant asked the court for an order to permit him to use the law library in the county jail. Such an order was made. The case was continued one week to June 15. When the case was called again on June 15 for trial, defendant made a motion for a continuance for the purpose of enabling him 'to properly prepare' himself for his defense. He represented that he had only had an opportunity to use the law library for a total of four hours. The court denied the continuance. After the prospective jurors had been sworn and the court had explained the nature of the case ² and had asked them certain preliminary questions, defendant then stated to the court that he 'would like to ask the court to appoint me a public defender to represent me in the remainder of this case.' The trial judge indicated that he would appoint the public defender but stated that he would insist on proceeding with the trial because 'there are two girls, principal witnesses, that are expecting delivery in a few days * * *' The public defender objected to being appointed to represent defendant on the ground that there was inadequate time and opportunity to prepare a defense. His objection was overruled and he was appointed. In making the appointment, the court noted that this was Friday, that he had a week-end ahead and that he would give counsel additional time if such were needed.

On Monday, June 18, the impanelment of the jury was concluded and four witnesses were heard. Trial was resumed on Tuesday, June 19, at which time an additional witness was heard. Whereupon the People rested at 11:30 a. m. The public defender told the court that defendant had advised him of certain facts that tended to show that he may have an alibi and that he needed time to investigate this matter The deputy district attorney offered no objection to a reasonable continuance but stated he wanted the case to go to the jury because the expectant mothers were going to put their children out for adoption and were planning to leave the state when that occurred. The public defender wanted the case put over for a day or two. Thereupon the court continued the trial from Tuesday to Thursday (the 21st).

When the trial was resumed on Thursday, June 21, defendant submitted an affidavit by the acting assistant chief investigator of the public defender's office in support of a motion for a continuance or mistrial. The burden of the affidavit was to the effect that by reason of the shortness of time, the lack of investigating personnel in the public defender's office and the heavy work load, it was not possible to complete the investigation of this matter until July 10. Apparently little or nothing was done in the interim to investigate due to the fact that there were other matters pending in the office. After argument, the motion for a continuance was denied as was also the motion for mistrial. The public defender then also moved to strike the testimony of the People's witnesses on the ground that he had insufficient opportunity to cross-examine them. This motion, too, was denied. Defendant did not take the stand and did not present any evidence.

Defendant first argues that he was denied his constitutional right to due process and a fair trial because the court allowed him an insufficient amount of time in the law library and therefore his motion for a continuance should have been granted. Our Supreme Court has held that a defendant who intelligently refuses counsel and insists upon acting as his own counsel does not lose the status of prisoner and become entitled to extraordinary privileges not accorded defendants who are defended by counsel nor is he entitled to proceed in a manner different than that permitted to attorneys. (People v. Chessman, 38 Cal.2d 166, 172-174, 238 P.2d 1001.) In People v. Pearson, 150 Cal.App.2d 811, 815, 311 P.2d 142, 144, the court discussed a request by defendant to be taken to the law library for some 15 hours and stated, quoting the language of the Chessman case, 'Moreover, a defendant who chooses to conduct his defense in person does so subject to the disabilities normally attendant upon the status of a prisoner.' It has been held many times that the right to counsel can only be exercised in the course of an orderly procedure. (People v. Thomas, 58 Cal.2d 121, 131, 23 Cal.Rptr. 161, 373 P.2d 97.)

From the factual picture before the court, the trial judge could reasonably draw the inference that defendant was not alone interested in access to the law library and time to use the law books in preparation of his defense, but that he was perhaps more interested in using this technique as a means of delaying the trial. He probably figured that if he could succeed in delaying the trial until these expectant mothers, who were the principal witnesses against him, had given birth to...