People v. Winchell

• Decision Date: 16 February 1967
• Docket Number: Cr. 5274
• Citation: 56 Cal.Rptr. 782,248 Cal.App.2d 580
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Milton Emerson WINCHELL, Defendant and Appellant.

Page 782

56 Cal.Rptr. 782

248 Cal.App.2d 580

The PEOPLE of the State of California, Plaintiff and Respondent, v. Milton Emerson WINCHELL, Defendant and Appellant.

Cr. 5274.

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

Feb. 16, 1967.

David W. Brown, Millbrae, for appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Deputy Atty. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Defendant Winchell has appealed from a judgment in which he was convicted of possession by an ex-felon of a firearm capable of being concealed upon the person in violation of the provisions of section 12021 of the Penal Code, and was sentenced to state prison.

Defendant's sole contention on appeal is that his prosecution and punishment for this offense were barred, under the provisions of section 654 ¹ of the Penal Code, because of his prior conviction of, and sentence for, possession of burglar's tools in violation of the provisions of section 466 of that code.

The facts giving rise to the foregoing charges are as follows:

On April 8, 1965 at approximately 3 a.m., Officer George Celillo was on patrol near the intersection of Silvan and Green Avenues in the City of San Bruno. He heard a noise, and upon investigation noticed the brake lights from a parked vehicle going on and off. The officer left his patrol car and approached the vehicle. He observed three men in the car, all of whom were lying down. The officer returned to his car to call for assistance. At this time one of the men left the car and started to walk away. Officer Celillo called to him and ordered him to return. When asked for identification, the man produced an out-of-state driver's license which identified him as James Sadowski. The officer then called for a record check on Sadowski; while waiting for the results Celillo walked to the rear of Newell's Lounge near which the vehicle was parked. He noticed the door had been gouged and the wood torn in the vicinity of the lock. Celillo returned to the parked vehicle, arrested the three men, and searched the car. He observed a wrecking bar and a small blue bar on the floor of the back seat. By this time another officer had arrived; this officer noticed a .22 calibre automatic pistol, subsequently determined to be loaded, on the rear floor underneath the front seat. (Evidence at the preliminary examination showed that this pistol was stolen.)

The defendants were taken to the San Bruno jail for booking. At this time, while Winchell was being searched, a loaded .38 calibre revolver was found in a holster underneath his left arm.

The following day four complaints were filed in the municipal court. In action No. 25648 the three men were named as defendants and jointly charged with the felonies of attempted burglary (Pen.Code, §§ 459 and 664) and possession of stolen property, the .22 calibre pistol. (Pen.Code, § 496.) In action No. 25649, Winchell was charged with the felony of which he was ultimately convicted--possession by an ex-felon of a firearm, the .38 calibre revolver, capable of being concealed upon the person (Pen.Code, § 12021) ², and the felony of an ex-felon carrying a concealed weapon, the .38 calibre revolver, without a license (Pen.Code, § 12025). In action No. 25650 the three men were jointly charged with possession of burglary tools in violation of Penal Code, section 466, ³ a misdemeanor. In action No. 25651 his co-defendants were charged with the misdemeanor of carrying a concealed weapon without a license (Pen.Code, § 12025).

The full record of the municipal court proceedings is not before this court. The transcript of the preliminary hearing on the charges contained in the two felony complaints reflects that all of the defendants were held to answer on April 15, 1965, and ordered to appear for arraignment in the superior court on April 22nd.

The same record reflects that defendants had previously entered pleas of not guilty to the charges contained in the two misdemeanor complaints, and that the actions had been consolidated and set for jury trial on April 21st in the municipal court. Immediately following the preliminary hearing, Winchell and defendant Mayer, each withdrew his plea of not guilty and entered a plea of guilty to the charge of possession of burglary tools. The defendants both waived any delay in time for arraignment for judgment, and Winchell's counsel expressly requested that he be sentenced immediately or as soon as possible. The judge indicated that the matter should be referred to the probation department for investigation and report so that the case would 'be coordinated,' presumably, with the other charges. The matter was set for May 4th for report despite this defendant's plea that it be deferred no longer than two weeks.

On April 20th an information, which included all the charges set forth in the first two complaints, was filed in the superior court. On April 22nd the defendants Winchell and Mayer were arraigned and at the request of each of those defendants the matter was continued to May 6th for plea.

On that date each defendant requested and secured a further continuance of one week. Winchell's attorney disclosed that the continuance was requested because the proceedings in the municipal court had not terminated on May 4th as anticipated. The deputy district attorney predicated a controversy over the effect of the conviction and sentence on the misdemeanor charge, and stated that he was in a dilemma as to what to do about it. ⁴

On May 13th, in the superior court, Winchell made and filed his written 'Motion to Dismiss Under Penal Code § 654 and In Bar of Further Prosecution,' supported by his declaration which reflects the entry of his plea of guilty to violation of Penal Code, section 466, possession of burglary tools, a misdemeanor, and his sentence therefor to serve time in the county jail. He further alleged: 'The possession of the burglary tools was a part of the transaction or course of conduct leading up to the filing of the charges now before the Court.' A similar motion and declaration was made and filed for co-defendant Mayer. (Meanwhile, the case had been set for trial on June 14th as to the third defendant on his plea of not guilty.)

Argument on the motion was set for May 20th, and held on that day, and on May 26th. During these proceedings it was brought out that the charge in the municipal court specified no particular object or objects which were the subject of other charges, but was couched in the language of the first clause of section 466 (see fn. 3, supra).

The defendants also brought out that, at the original arraignment, the prosecutor had admitted that the misdemeanor concealed weapons charge against Mayer and Sadowski did 'arise out of the same incident' as the charge of possession of burglary tools; and that subsequently, at Winchell's arraignment on the felony complaint involving the concealed weapons charges, the prosecutor similarly acknowledged that the other felony charges--attempted burglary and possession of stolen property--were 'the same transaction' and 'part of one incident' with the former.

The court denied the motions under section 654 of the Penal Code and motions contemporaneously presented under section 995, but reserved to the defendants the right to enter a plea of prior punishment for determination at the trial. Thereupon defendant Winchell entered his plea of not guilty, not guilty by reason of insanity, ⁵ and, pursuant to section 654 of the Penal Code, his plea of prior prosecution to each of the four counts with which he was charged. The matter was set for jury trial on June 14th.

At the time set for trial, the defendant, through counsel and personally, expressly waived the right to jury trial, the right to be confronted by witnesses against him, the right to take the stand and testify in his own behalf and to call witnesses on his behalf, and agreed that the issue of guilt or innocence on the count (Count III) charging him with violation of section 12021 of the Penal Code be submitted to the court on the evidence produced at the preliminary hearing as evidenced by the transcript therof.

In return the prosecution dismissed the charges of attempted burglary (Count I), receiving stolen property (Count II), and carrying a concealed weapon without a license (Count IV). (Counts I and II, which were the only felony counts against Mayer, were also dismissed as to him.) The parties further stipulated 'that the offense set forth in Count III being submitted to the Court, is an offense alleged to be part of the same act or course of conduct as alleged in Counts I, II and IV of the information.'

The transcript of the preliminary hearing was received in evidence and the matter was continued one week for decision. At that time the matter was submitted. The court found that the possession of burglary tools was independent from the charge of possession of a gun by an ex-felon, overruled the defendant's special plea, and found him guilty as charged. Thereafter, defendant's motion for probation was denied and the court rendered the judgment from which he has appealed.

Disposition of several collateral matters will serve to place the issues of this case in their proper perspective. The dismissal of the charges of attempted burglary, possession of stolen property, and carrying a concealed weapon without a license renders it unnecessary to determine the effect that the conviction of, and sentence on, the misdemeanor had on these charges. ⁶

Furthermore, it is clear that neither the offense proscribed by section 466, nor that proscribed by section 12021 is necessarily included within the other, either as defined in the statutes, or as found in the pleadings in this case. The words 'other instrument or tool' as found in section 466 (see fn. 3, supra) and as referred to in the pleading, are qualified by the reference to 'picklock,' 'crow,' and 'keybit' which precede them. (Civ.Code, § 3534; In re...