People v. Wong

• Decision Date: 07 December 1973
• Docket Number: Cr. 10354
• Citation: 111 Cal.Rptr. 314,35 Cal.App.3d 812
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James WONG and Kent Louie, Defendant and Appellant.

Page 314

111 Cal.Rptr. 314

35 Cal.App.3d 812

PEOPLE of the State of California, Plaintiff and Respondent, v. James WONG and Kent Louie, Defendant and Appellant.

Cr. 10354.

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

Dec. 7, 1973.

Hearing Denied Feb. 21, 1974.

LeRue J. Grim, San Francisco, for appellant Wong (by appointment of the Court of Appeal).

Elfriede F. Sobiloff, San Francisco, for appellant Louie (by appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen., of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Robert R. Granucci, Thomas A. Brady, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Judge.

Defendants appeal from a judgment upon a jury verdict finding them guilty of involuntary manslaughter (Pen.Code, § 192, subd. 2) and contributing to the delinquency of a minor (Pen.Code, § 272). ¹

The Facts

The facts most favorable to the prosecution are as follows: Alton Wong testified that on June 5, 1970, he worked as a private investigator. (In order to avoid confusion in names, Alton Wong will hereafter be referred to as 'Alton'.) On that date he was approached by defendants in a bar on Grant Avenue in San Francisco. Defendant Kent Louie (hereinafter 'Louie'), whom Alton had met previously, asked if he could speak to him in private since he and defendant James Wong (hereinafter 'Wong') were in a 'little trouble.' The three men proceeded to Alton's office and arrived at approximately 8:30 or 9 p.m. Louie, who did most of the talking, explained that he and Wong had picked up two girls and brought them to a downtown hotel. He stated that one of the girls was dead and the other was sick. He expressed the belief that they had taken an overdose of narcotics. Both Louie and Wong denied giving the girls any narcotics. Alton did not inquire how the girls had obtained the narcotics. He stated he could not remember the exact conversation he had with Louie and Wong but believed they had stated to him that their purpose in picking up the girls and taking them to the hotel was to have good time and to 'turn the girls on.'

Alton advised defendants to consult an attorney and to then call the police. When defendants indicated that they could not find an attorney and had no money, Alton called attorney Bill Gintjee. Gintjee sent his associate Jack Wong to Alton's office, where he talked with both Louie and Wong. Alton was not present during this conversation. The attorney left, and Alton called the police and admitted them into his office.

Alton testified that he was a former federal narcotic agent; that he had asked to examine Wong's arm because Wong 'was a little high'; that his eyes were constricted; that when he examined Wong's left arm he observed a fresh needle mark 'about three or four days old'; and that Wong denied using narcotics. Alton stated that he did not observe any needle marks on Louie and that Louie appeared to be perfectly normal.

Inspector Coreris was told that Alton had information that a body or bodies might be in a hotel room in the 'South of Market area.' Coreris and his partner Fotinos proceeded to Alton's office. Alton told them that Louie and Wong had been to his office and related the conversation he had had with them. Alton also informed the inspectors that Louie and Wong had talked to an attorney, and that Louie had just left to go to his home. Alton then took the inspectors to the rear of his office, where he introduced them to Wong. Wond did not appear to the officers to be under the influence of a narcotic. He related the events of the prior evening and indicated that while he and Louie were in the hotel there had been some involvement with narcotics. Wong denied knowledge of where the narcotics had been obtained. He stated that he, Louie and two girls had spent the night in the hotel and that he and Louie had checked out after paying the rent for the next day. Wong stated that he believed one girl was dead and that he was not sure about the other. After the conversation he agreed to take the inspectors to the hotel. During this conversation Wong was not placed under arrest and was not advised of his Miranda rights. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

Wong and the inspectors proceeded to the Grand Southern Hotel at 7th and Mission Streets. They arrived at approximately midnight. Inspector Coreris examined the hotel register and found an entry for a 'MM James Wong' in room 202. He obtained a key and proceeded to the room. He received no response to his knock and was unable to open the door with the key. He pounded on the door and heard what he believed to be groans coming from within the room. He then forced open the door and found a girl identified as Josephine Geli in the bed, in a semi-conscious condition. Inside a closet he discovered the body of Virginia DeBarril. He made a cursory search of the room for narcotics and paraphernalia but found none. He observed that there were numerous needle marks on the dead girl's arms. Wong was then placed under arrest for violation of Penal Code section 272 (contributing to the delinquency of a minor). While the inspector did not examine Wong's arms, it appeared to him that Wong was not under the influence of narcotics at that time. Wong was advised of his Miranda rights and indicated that he understood them. Wong indicated that he would talk to the police. Wong spoke 'somewhat broken English' but Coreris had little difficulty in understanding him.

Wong made the following statement to Coreris: Wong and Louis had met the girls in Chinatown at approximately 9 p.m. the previous evening and they drove around the area for some time in Louie's car. At one point Miss DeBarril had bragged about how good heroin felt. They then registered at the hotel in Wong's name and shortly after entering the room the two girls injected themselves. Wong stated that Miss DeBarril probably had the heroin on her person when they registered at the hotel. He denied injecting narcotics into himself or either of the girls, and said that he did not know where the narcotics came from. Louie, Wong and the two girls then went to bed together and accomplished acts of sexual intercourse. Wong left the room the next morning, ran an errand, and then returned to the hotel at approximately 11:30 a.m. At that time he attempted to awaken Miss DeBarril, but was unsuccessful. He awakened Louie and they went to Chinatown to borrow money for another day's rent so that the body would not be discovered. They succeeded in borrowing the money, paid the room rent, and then returned to Chinatown where they contacted Alton. Wong felt that the girls had disposed of the narcotic paraphernalia in the hotel toilet.

Coreris checked the bathroom and did not find any narcotics paraphernalia. He also searched Miss Geli's clothing for narcotics and paraphernalia and found none. He did not search her person.

Coreris interviewed Louie at his home at approximately 2:30 a.m. on June 6, 1970. He gave Louie the Miranda warnings. Louie then stated that he and Wong had met the two girls in Chinatown at approximately 9 p.m. on June 4. They drove around in his car for awhile, and then the girls requested that they get something to 'get high on.' Miss DeBarril gave Louie five or ten dollars to purchase a vial of heroin. Louie and Wong purchased the vial of heroin and some paraphernalia. They registered at the hotel, the girls injected themselves, and acts of intercourse were attempted. The remainder of Louie's statement to Coreris was nearly identical to Wong's. During the conversation, Coreris did not observe any needle marks on Louie's body or that Louie was undergoing any withdrawal symptoms.

Julius Pera, the desk clerk at the hotel, testified that Wong registered at the hotel on June 5, 1970. He was accompanied by Louie and two women. All of them went up to the room. Pera placed the notation 'MM' before Wong's signature and testified that none of the four had left the hotel through the lobby during his duty that day.

Dr. Robert Wright testified that he performed an autopsy on the body of Miss DeBarril and found that her death was caused by an overdose of a morphine-type drug. Examination of the decedent's right arm disclosed two needle puncture wounds of recent origin, made within 72 hours of death. There was also a needle puncture on decedent's left arm, whih was also made within 72 hours of death. In addition, there were a number of older needle marks on both arms. Toxicologist Charles Hine testified that there was a sufficient quantity of a morphine-type drug present in the body of Miss DeBarril to cause death.

It was stipulated that Miss DeBarril's date of birth was November 8, 1952.

The Miranda Warning and Competency of Counsel

We first consider Wong's contention that his admissions were obtained in violation of Miranda. Conjunctively he asserts that he was deprived of effective assistance of counsel. The thrust of his contention is that he was given incompetent advice by the attorney he consulted and that as a result of such advice he gave the subsequent statements to the police. In this context he urges that the statements were unintelligent and involuntary.

,2] Attorney Wong had apparently told defendant Wong to 'cooperate fully with the police, take them to the area and just tell them the truth.' There is little basis upon which to conclude that this advice demonstrated incompetence on the part of Wong's attorney. The knowledge or information upon which the attorney based his advice is not provided this court. Accordingly, we may not say that such advice was incompetent per se. A defendant has the burden of establishing his allegation of inadequate representation, not as a matter of speculation, but as a demonstrable reality. (People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35, cert. den. 385 U.S. 952, ...