*1 Dist., No. 30303. Second Div. Five. July [Crim. 1978.] PEOPLE, Plaintiff and THE Respondent, CRUZ, Defendant HERNANDEZ
JAMES Appellant.
Counsel Halvonik, Defender, N. State. Public under
Paul appointment Sevilla, Public Court of Charles M. Chief Assistant State Appeal, Defender, Nelson, Richard A. Curtis and Patricia State Public Deputy Defenders, for Defendant and Appellant. General, Winkler,
Evelle J. Jack R. Chief Assistant Younger, Attorney General, Moore, General, S. Clark Assistant Norman Attorney Attorney General, H. Sokolow and C. Roy Preminger, Deputy Attorneys Plaintiff and Respondent.
Opinion
STEPHENS, J. III, In counts defendant James Hernandez through Cruz was information with violations of Penal Code1 charged by separate section subdivision with a Each of the (a) (assault deadly weapon). above counts included an that defendant used firearm within allegation of section 12022.5 in the commission of the assaults. In count meaning information, IV of the defendant was with a violation of section charged of a concealable a former felon). firearm Count IV (possession was based an conviction information upon alleged robbery. was later amended to include an additional conviction for prior robbery, which occurred in 1973. allegedly
Defendant was with the assistance of arraigned pleaded guilty *6 trial, defender. Prior to the selection deputy public jury under circumstances that will be discussed defendant to infra, requested referred to as After (hereinafter proceed propria persona pro. per.). defendant his him questioning concerning competency warning about the involved in the trial court dangers self-representation, granted trial, defendant’s to Prior defendant denied the request. alleged prior convictions. felony trial,
After a in the defendant was found jury charged guilty information. At the use of a the the trial court struck sentencing hearing firearm as to II was sentenced to counts and III. Defendant allegation I on counts state for the term law. The sentences prison prescribed by noted, 1 Unless all Code. references are to the Penal specifically statutory III other, were ordered to run with each through concurrently the sentence on count IV. Defendant consecutively imposed appeals from the judgment.
The evidence introduced the established that by prosecution shortly 5, 1976, after on defendant midnight September attempted gain doorman, entrance into a bar. The that defendant had thinking already drink, had too much to refused to let defendant in. Defendant without incident left later, the bar. three to five minutes defendant Approximately returned to the bar armed with a small Defendant fired five handgun. shots, each the doorman. Two of the bullets hitting passed through doorman and hit two inside the bar. Defendant then fled and was persons chased chase, of the bar. defendant turned by manager During and twice towards the Defendant did not pointed fire gun manager. at the A short time later defendant was gun manager. captured by officers. The used in the police thrown handgun shootings, apparently chase, defendant was recovered. during
Defendant relied the defense of unconsciousness due principally upon of L.S.D. and alcohol. The had in its involuntary ingestion prosecution defendant, case in chief evidence that intoxicat- presented though slightly ed, behalf, had acted as if conscious. in his own defendant Testifying stated that afternoon of he had visited the during September house of a friend. The claim was made friend, without LSD in defendant’s knowledge, placed beer. Defendant later consumed the beer. Defendant testified that shortly thereafter he to feel I “like was—all drawn began myself just being into inner as if it was don’t know. felt parts my body just being—I weird.” of such defendant went home really Upon inception feelings, to his wife. From that until he awoke in a the next point hospital day, defendant testified (with recollection of exception vague trying enter a he church) could not remember Defendant called anything. witnesses who to defendant’s abnormal conduct gave testimony relating 4-5: defendant watched television without during night September on; the sound defendant drove on the erratically freeway speeds up hour; car, miles and defendant abandoned the per saying something about a church. Witnesses also testified that defendant had finding *7 consumed a fifth of within a short of time approximately brandy period 4. during evening September
On defendant does not appeal, challenge sufficiency Instead, evidence defendant contends that supporting judgment. and errors committed the court reversal. prosecution Specifi- require as error the cally, assigns following: there was no effective waiver of his
(1) Self-representation: right counsel; the court denied motion to withdraw his improperly appointed his waiver of counsel. the master calendar and trial court abused Continuances:
(2) judges their discretion in defendant’s for continuances motions denying defense, witnesses, secure investigate prepare appoint an investigator. Prior Convictions: the trial court
(3) into erroneously permitted evidence and immaterial information contained in exhibits prejudicial convictions; used defendant’s the trial prosecution prove prior improperly jury concerning prior court instructed the convictions No. (CALJIC 17.25). Unconsciousness CALJIC (4) No. 4.31 (rev. 1972) given by Defense: court trial the burden of on the issue of uncon- concerning proof
sciousness was prejudicially confusing. Punishment: under section Multiple possession case,
a concealable under the facts of the constitutes one handgun, cannot transaction for which defendant be under sections 12021 punished 245; that the section 12021 violation as lesser offense must be stayed. conviction, Sentence: the 1968 as an element of
(6) Modification of IV, count cannot used to enhance the minimum sentences under counts I III. through
The numerous of error have merit us to which assignments require reverse defendant’s conviction. Self-representation
1. A. did not waive the to counsel effectively right Defendant The duties of a trial faced with a motion for substitution of an judge an defendant have been attorney by indigent expand- appointed While or denial of a defendant’s motion is still ed. granting *8 316 court, vested in the the
matter discretion of 2 (1970) v. Marsden People 156, Cal.3d 118 465 P.2d to a trial listen 44], requires Cal.Rptr. judge [84 to a defendant’s offer to relate instances misconduct specific attorney Marsden, In or the Court found it error for a trial inadequacy. Supreme court to have denied a defendant’s motion for substitution of attorneys observations, on the basis of courtroom where it the solely prevented defendant from his reasons for the Marsden articulating desiring change. 62 was followed v. Munoz (1974) by People Cal.App.3d Cal.Rptr. [115 stated, in The court at 66: mandate of Munoz page [the 726]. “[T]he decision is not limited to a case where the trial necessarily judge Marsden] refuses to the be heard as the give opportunity Attorney General On the the ratio decidendi court’s suggests. contrary, high us tells that to listen to an opinion judge’s obligation indigent defendant’s reasons for court- claiming inadequate representation counsel is not a forma function. It us also tells that under appointed pro some circumstances a court’s for a substitution ruling denying request without a careful into defendant’s reasons for attorneys inquiry the substitution ‘is in all attributes of a requesting lacking judicial Munoz, determination.’ of the trial According duty [Citations.]” court “an includes into the state of mind of the inquiry court-appointed and an “to ascertain in what attorney” attempt particulars attorney not with a (41 defense.” providing appellant competent Cal.App.3d Munoz 66.) has been cited with p. apparent approval Supreme Court v. Lewis 20 Cal.3d People Cal.Rptr. [143 P.2d 40],
It has been Molina (1977) suggested 533], the trial court’s is duty inquiry triggered when the nature and of defendant’s dissatisfaction amounts only degree counsel’s an directly by implication perform- “assertion] ance has so been as to him his constitutional inadequate deny right effective counsel.”
In the instant case defendant charged, particular deputy him, but the office represent defender as a appointed public whole with conduct. Defendant made his improper charge early 4, 1976, on October where the occurred: proceedings, following Gallagher Well, Public Mr. Cruz now [Deputy “Mr. Defender]: me, Honor, indicates to Your that he has—the reason he wants to go pro is that he has a conflict of interest with the defender’s per general public office. *9 I think it’s far more than
“The Defendant: general. a want to elaborate on what conflict of “The Court: Do general you interest is? What’s your problem? interest, definite conflict of Your In It’s a Honor.
“The Defendant: I have been defender’s office and each represented by public past will show there’s never been time record any investigation eveiy had, as I’ve into the cases I’ve there’s been far asked anything nothing do, said, no, there is no such And them to certain things they thing. I we a definite conflict. wrote a letter to the defender’s just got public [U] well, shouldn’t, know, I I office and letter back look got stating, you in ’73.” them more assistance and so forth. That was any The court then defendant as to other matters. questioned The defendant’s himself was regarding proceeding request represent continued until October 1976. At the session defendant morning stated: “Because of what has taken since this [¿v'c] place proceedings started, Court, this matter cannot do beginning Municipal Public Defender as counsel. accept
“The own Court: So want to be you your lawyer? Yes, sir.
“The Defendant: to this after- All we will the matter over “The Court: right, put noon. ...” session, to test the court
In the afternoon immediately proceeded of self- and warn him of pitfalls competency However, the court did not again question representation. with counsel. his dissatisfaction
concerning appointed At satisfied the of Marsden. no The court clearly requirements did the cut off defendant or him from time court offering prevent However, reasons for his dissatisfaction. the court should have inquired Further, further into the of defendant’s claim. the court failed particulars to ask the from the office of the completely deputy, representative defender, to v. Arkansas charges. (Holloway public respond court failed its S.Ct. 1173].) 435 U.S. L.Ed.2d true, he would have were If defendant’s surely duty inquiry. allegations action; been denied effective in the denial of a representation present he is The court’s failure to make the constitutionally right guaranteed. *10 resulted in a silent record necessary inquiry making intelligent appellate of review defendant’s charges impossible.
Further,
the record that is before us
indicates that defendant’s
clearly
decision
was not based on trial tactics that he could better
go pro. per.
was based on a
of
The
but
lack
viable alternatives.
trial
persuade
jury,
failure
court’s
of a
of
substitution
inquire precluded
possibility
counsel.
was left with the choice
Defendant
between counsel who he
mistrusted or
in
Yet
is basic that
proceeding
pro. per.
“[i]t
and
trust
mutual
attorney-client relationship contemplates
cooperation,
when the
is
the client’s
v.
particularly
attorney
defending
liberty.” (People
Munoz,
62,
Defendant,
41
66.)
the alterna-
supra,
Cal.App.3d
perceiving
court,
tives as
and
limited
chose
imposed
by
self-representation.
The
and
waiver of counsel
envisions
election
knowing
intelligent
between viable alternatives. Defendant’s decision to
in
proceed
pro. per.
belief,
was
not,
his
mistaken or
that he could not
predicated upon
expect
effective
from the
defender’s office.
belief
This
representation
public
reinforced
the court’s failure to
effectively
defendant’s
by
fully explore
circumstances,
Under the
defendant
cannot
said to have been
charges.
of his
to counsel and therefore did not
fully apprised
right
effectively
waive that
666,
(Cf.
v. Carter
66
(1967)
Cal.2d
670
right.2
People
[58
427 P.2d
In re
54
214];
Turrieta
Cal.2d
820
Cal.Rptr.
(1960)
[8
737,
The reliance on v. (1977) People’s Cal.App.3d People Wright is therefore In stated at court 98], Cal.Rptr. misplaced. Wright, [140 340: “The of can Marsden Munoz have page principles application if the trial court rules who defendant claims only against inadequate his and seeks a new or to lawyer represent representation attorney himself.” The court found that in defendant’s election to proceed Wright his error claim of under Marsden and Munoz. The pro. per. precluded However, on that defendant is barred. in argue appeal similarly there claim was no of ineffective waiver of counsel. The defendant Wright there stated that “he was risk his freedom on his own willing ability contention, to defendant’s he 2Contrary otherwise waived effectively counsel. The court’s mental into its on the inquiry warnings self- competence, dangers on Dale instruction were sufficient. (People representation, punishment possible 338].) asserted type inquiry etc., defendant as to test for could on a defendant’s necessary competence, impinge right of an on that basis. proceed pro. per. provide grounds appeal rather than on the at counsel.” (Id., 340.) ability experienced p. Further, court the fact that the defendant Wright emphasized failed to of counsel. (Id, 340.) Both of request reappointment p. factors absent are in the instant case. We have ruled Wright present Further, that defendant did not waive counsel. effectively made a for the of counsel. The denial of the request reappointment basis of forms the his next of error. request assignment B. The court abused its discretion in denying request withdraw waiver counsel counsel. reappointment andfor *11 trial, the case trailed
On date set for November 1976 (the originally until Nov. defendant moved to withdraw his waiver of counsel 29), and the of the defender sought reappointment deputy public previously to his case. Defendant’s motion followed the assigned immediately court’s refusal to continue the case for two to three The court then weeks. called a recess to secure the of the attendance defender. deputy public court, With the defender in the him public deputy judge questioned his to readiness to trial. The concerning availability proceed deputy counsel, defender answered that relieved of the case public upon being went files,” into the “closed that the defender’s office indicating public had ceased Further, its involvement in the case on October 22. the deputy defender indicated that his court public had assignment superior ended, not, event, and that he could in handle the case. In any personally estimation, his stated defender that it would take in deputy public excess of three weeks for another to the case. The court deputy prepare “Well, then concluded: it to Court seems that the defendant’s request now to be to case is not and we’ll assigned lawyer try timely require the case to when to trial a court is available.” go
The decision whether to counsel after a of that waiver reappoint right to be a matter within the discretion of the trial court. re (In appears Connor 16 Cal.2d P.2d 263 (1940) 10]; v. Ruiz (1968) People [108 court, 473].) Cal.App.2d Cal.Rptr. [69 Elliot the criteria (1977) 205], Cal.App.3d suggested to used court of a trial be an appellate reviewing propriety court’s denial to withdraw his waiver of counsel: of a defendant’s request others, include, should (1) “Relevant factors following: among defendant’s in the substitution of counsel and the desire prior history (2) from change self-representation counsel-representation, for the reasons set forth (3) length stage request, which (4) proceedings, disruption delay reasonably might expected to ensue motion, from the of such the likelihood of granting defendant’s effectiveness in if defending against charges required continue to act as his own (70 at 993-994.) attorney.” pp. Further, the Elliot court stated that it is the of the trial court to duty establish a record based the above factors. (Ibid.) upon bench,
Under similar facts to those in the case at remarkably present court in found that the Elliot trial abused his discretion in judge motion to defendant’s withdraw his waiver counsel. denying Here, too, we find the court its discretion. abused The reasons set In Elliot request: immediately prior forth for offered to make a request, prosecution showing proof as to it in its (so statement) defendant had committed argue opening an offense. Defendant and then uncharged objected, proceeded counsel, that he “could request reappointment stating with the The court in successfully (Id., 994) compete prosecutor.” p. *12 (Id., Elliot declared the reason to be valid. as 997.) valid given p. Equally was the defendant’s statement in the case that he felt given present to Further, further in it does that incompetent proceed pro. per. appear defendant’s motion was made in faith and not for the good purposes and obstruction. delay Elliot,
The the trial In defendant made length proceedings: stage of his motion after a had been selected and to the jury just prior Further, statement. the in court Elliot found the prosecution’s opening motion, case, trial not to have been a one. The in the lengthy present before the made master calendar to of a judge, prior assignment Thus, courtroom. defendant earlier notice of his motion. Prior provided motion, to the court’s on defendant’s the estimated ruling prosecution that the case would two or three In trial. require only days actuality, the trial took five to days complete. or which be to ensue Disruption delay reasonably might expected from such motion: The continuance entailed in the substitution
granting of in Elliot would a defendant have requested by required 10-day delay. case, In the defender in estimated a present deputy public period However, excess of three weeks would been have it is noted that required. here, Elliot, to the continuance was not opposed requested by who would have handled the A case. truer estimate of attorney actually the court in a obtained could have been the time through calling required to handle who had defender authority capability public deputy the case. was made case, no Elliot and the showing both
In present in cause would a continuances that the disruption requested prosecution to the courts, would detrimental that it be prosecution the calendar Due the interests cases, or that it would contrary justice. failure, the continuance it must be requested this presumed caused would not have in the case instant disruption in a involved normally court beyond prosecution prejudice three-week delay. likelihood defending against effectiveness of defendant’s It act as can be said that continue to his own attorney: required
charges if defense will be better able a cases trained in most present attorney Thus, factor, effective- this the likelihood of the defendant himself. than defense, cases in favor of will in most ness of weigh pro. per. This added when of counsel. factor gains weight reappointment unconsciousness, asserted is The defense of defense asserted complex. case, is such a defense. the present The reason denial enumerated request: Although specifically forth, list of Elliot
within the factors set the court was strongly *13 the for the trial denial of influenced reason court’s the defendant’s by motion, After the in motion. defendant Elliot had made his the trial court the called in defender to who had been deputy public assigned previously case. The the was asked the court whether he could deputy After to trial. the stated that a immediately proceed 10-day deputy needed, would continuance be trial court denied motion. Upon concluded, facts the “[fjrom these court in Elliot the trial court’s statements, it is the trial would obvious that consider only granting judge defendant’s if the defender to was request deputy public prepared once, and with the that had been selected to the case.” proceed jury tiy case, In the instant there is absent 996.) (70 admittedly Nonetheless, we can infer from statements made court. explicit denial defendant’s the record that reason for this court’s principal to was defender’s lack motion capacity proceed public deputy to factor should irrelevant the consideration trial. This be immediately of a defendant’s motion.
Here, Elliot, its in in the trial court abused discretion as denying for withdraw his waiver counsel and defendant’s motion to of counsel. reappointment Prepare and
2. Continuance Investigate Defense in which defendant was occurred for charged shootings after the hours of 1976. Immediately shooting, morning September on was held until his release bail defendant was taken into and custody, in was set November November 19. The trial the matter but on 29, when until November trial commenced. trailed trial, case conclusion of was From time of until arraignment from October 4 to October in order consider continued once only the case defendant’s motion representation. During period regarding trailed, defendant, as his own was to remain acting attorney, required the case called. court so as to be if ready the master motion to Prior to proceed pro. per., granting warned that no continuances would calendar judge repeatedly was the following colloquy; Typical warnings given granted. fact I understand that am “The Court: You cognizant fully are in and am a lawsuit when it is difficult to you custody very prepare that, must be aware of are not? sure you you Yes, sir. “The Defendant: fact, own
“The But if Court: your despite you proceed will be to be for trial on November per, expected ready lawyer pro you had 23rd and me at that time or the Court that have some telling you are in are because trial custody you ready go problems you been in haven’t able to because have been you custody you prepare *14 lawsuit will not be considered cause a a for good properly Do understand what I have continuance. said to you you? [If] Yes, “The sir. Defendant:
“The want to Court: You still be own lawyer? your Yes, sir. “The Defendant: will see on the 23rd.” Court: All We
“The right. you On November defendant filed a formal written motion for a continuance with the master calendar Defendant’s judge. principal his was lack of to motion time ground supporting adequately prepare his a case. Defendant continuance of two months. At oral requested motion, on on November defendant argument occurring continuance, disclosed an additional for the that of ground securing witness. material of an attendance allegedly
At the November (who defender proceeding, deputy public court, in called been defendant’s motion to present having concerning withdraw waiver of in behalf of counsel) is, defendant: “There to argued Cruz, recollection and to discussion with Mr. a witness my my present who will material relevant and the very majority rests with him and other who are position people present this to, time that we’re about. It will be point talking necessary Mr. is, him, Cruz knows where he to interview him although subpoena and determine what his will be with exactly position regard testimony. It is that this witness will witness, not be an it probable just unfriendly involve the witness in court that will be might taking position detrimental thereafter, his interests.” penal Shortly deputy public defender continued: “Mr. Cruz has had a contact with this personal made, claims, witness since released on he He’s numerous being Friday. has, efforts contact him. He reason other mutual acquaintances, not, however, determined now where he He is. has been able to a obtain him, face-to-face confrontation purpose subpoenaing serving him with a for the On his subpoena purpose discussing position.” November before the court renewed his arguing personally motion for a continuance. Defendant’s motions were denied.
On November defendant moved for a continuance before the trial two or three weeks order to judge, requesting period prepare defense and secure witnesses. In relevant “I defendant stated: was part, 22nd, status on October I granted pro access per gained law in the on 25th, October and from that date library until county jail November the 19th I was confined I had no access to custody. [If] me, for a that I visitor had to see and that outside—except coming up whatsoever, visitor no had car no form so she would transportation; take the bus to see me. Since I’ve been out [f| on jail up county 19th, there on the 23rd came to court. That awas immediately following and—last and I’ve been in court ever since in the Tuesday, Tuesday, *15 324 I I haven’t had a chance to the motions that
court next door. prepare [H] time, Honor, I wanted to at this Your reenter would my prepare, I for a continuance on the that am not motion grounds ready proceed, I feel—I haven’t been a and I haven’t been what really given given amount of time to for the defense.” reasonable prepare and the defendant to describe the witnesses needed Then proceeded claim, the he used to secure their attendance. Based on defendant’s efforts of the trial court conducted an in outside camera session presence court, in the trial court denied defendant’s Again open prosecution. motion, stating:
“Now, time, were in at that that’s true. Let’s you custody particular assume for the moment that still here It’s you’re custody today. if were still in would be better unlikely, you custody, you any are, than able to out prepared custody you apparently, prepare being custody. Apparently you [11] are in no worse position now being on bail know than would have been if had remained in I don’t you you custody. how could have done more than have done you any you apparently up until in time. this point a
“I don’t think that I’m inclined to want to this motion for grant just of time continuance for two weeks or three weeks or any period future, as to the because it’s too just availability any speculative that, future, in the and when consider with what these witnesses together clear, statement me to have been a you unequivocal appears set, for now had to be for trial on the date all of that ready speaks you to trial.” going rests within continuance decision deny normally grant (1951) of the trial court. v. Buckowski
the sound discretion (People defendant, 629, 631 P.2d While it is true that a 912].) Cal.2d [233 to conduct his defense in does so who chooses subject pro. per. attendant the status as a v. disabilities normally upon prisoner (People 166, 172-174 P.2d se 1001]), Chessman 38 Cal.2d (1951) pro [238 a defense. must be a reasonable prepare given opportunity 647, 371, 67 Cal.2d 433 P.2d v. Maddox (1967) Cal.Rptr. (People [63 v. 251-253 Moss 163]; (1967) People on other v. 2 Cal.3d Williams (1970) [disapproved grounds—People 107] 471 P.2d Mendez 1008]; (88 Cal.Rptr. *16 302, 306-307 The denial of 31].) a Cal.App.2d proper [67 a continuance to a for defense constitutes an abuse of request prepare a Moss, discretion and denial of due v. process. (People supra, 248, 253.) a defendant is entitled to Although self-represented special and v. Mattson Cal.2d privileges indulgences (People P.2d certain 937]), realities status must be taken into pro. per. account in a continuance order to a deciding grant deny prepare case, defense. In the instant defendant was in from the time of his custody fact, arrest until four date set for trial. This while not up days prior did hinder making preparation investigation impossible,3 seriously Mendez, defendant’s efforts. (See Defendant’s 307.) supra, p. was defense unconsciousness due to intoxication. principal involuntary Personal was essential to the of the defense. investigation preparation Such could not be conducted while in preparation, obviously, custody. defendant could whereabouts, his reconstruct Only the events which Further, before and after of his wife. transpired leaving presence it that defendant was one who knew the appears only personally individual who defendant’s beer. allegedly spiked Third-person efforts to secure his attendance at trial had failed. The friend’s testi- secured, if (he never would mony, testified), have been material efforts, defense. Defendant’s once released from were personal custody, the fact that he had a hampered by spend great portion daytime hours his own case. Defendant’s difficulties were trailing further com- the denial of his pounded of an by request assignment that, It is also noted with the investigator. exception period involved in status, his determination of received defendant pro. per. no continuances. made to the master Essentially, requests calendar and trial were his first. In of defendant’s ineffective judges light waiver of counsel and the denial of to withdraw that improper request waiver, the involved in status not be should period resolving per. pro. to defendant. Whatever benefit was time he charged gained during counsel was lost those errors. represented counsel, the At defendant to withdraw his waiver of the time moved that, as it would defender stated of that require deputy public point, if he different in excess of three weeks to prepare deputy, appointed, was, effect, the case. As released from custody, just starting defender, skilled, his case. “If the trained prepare public needed time to how much so did more lawyer, experienced prepare, to the “Pro Per Policy 3 Defendant was granted jail privileges pursuant county the Los Court. Memorandum” Angeles Superior *17 622, 646 . v. 184 need . . appellant (People Kerfoot it, time to must be if he as much 674].) given, requires [7 “[H]e continuance is for trial as an and if a reasonable attorney; prepare be To for this it must granted timely request. necessary purpose, upon render his to him that would be to right appear deny opportunity him the to an and effect right propria persona empty formality, deny Maddox, contained in v. 67 Cal.2d As 653.) counsel.” (People supra, motion, continuance. his written defendant a two-month requested that However, the master calendar was not bound figure. judge of the and in the discretion it was within his discretion Notwithstanding, 654, fn. In3.) (Id., trial court to a reasonable continuance. any p. grant event, his to two or three weeks. defendant later lowered request case, defendant made a the circumstances of the
Under timely request of it was an the denial a continuance. It should have been for granted, not a reasonable Defendant was abuse discretion. given opportunity must administration The concern for his defense. orderly judicial prepare a full and fair trial. means used to a defendant not deny 3. Prior Convictions the introduction A. The trial court erroneously permitted record and and immaterial evidence criminal prejudicial of defendant’s personal history. defense, On cross-
In defendant testified in his own behalf. exhibits, Nos. examination, into evidence two introduced prosecution convictions. Prior 5 of defendant’s two and robbery proof prior Exhibit No. 5 contained certified had denied the trial defendant priors. 1972 to defendant’s court record of five from the relating pages copies of four of certified Exhibit No. 6 was conviction. copies pages comprised asked conviction. of defendant’s 1968 the record prosecution from exhibits. Defen- identified in the was the whether he defendant person court, in chambers on an the trial but dant relying object, attempted exhibits, dismissed the introduction of objec- ruling permitting so identified. he was the Defendant answered tion.4 person (1932) 126 777 McFarlan Cal.App. contention (People People’s 4 Contrary the exhibits. entire contents of Initially, 1066]), defendant adequately objected P.2d court records from each conviction. the complete to introduce sought the prosecution initiative, bulk of the court’s own great defendant and on from Based on objections of the portions and materiality excised. The issue prejudice records were In exhibits Nos. receiving before the court. exhibits was clearly records comprising certified, evidence, have been they probative stated: all the court “They’ve into convictions, Due to defendant’s denial of the prior prosecution a reasonable had doubt suffered required prove beyond convictions, in order to convict defendant conviction) (using IV and count of enhancement of the minimum sentences purposes for counts III. Defendant that the erred court through argues from evidence certain Nos. 5 exhibits excluding portions *18 to his criminal record and This contention pertaining personal history. has merit. conviction, No. 5
Exhibit to defendant’s 1972 consisted five relating first The contains an amended information defen- pages. page charging dant two with counts: first count of in violation of section robbery and the second count of with assault intent to commit great bodily injury, in violation of section subdivision second and third (a). The pages reveal exhibit that defendant to the first count and that pleaded guilty the second count was dismissed in the The interests third justice. page also contains a list of defendant’s conditions of probation, including: “Not drink alcoholic out of where are any beverages stay places they the chief item of sale. with officer in to control Cooperate probation plan abuse of alcohol. narcotics, Not use or other controlled substances possess or associated .. . Submit to . . . Submit to skin paraphernalia. urinalysis.
checks. . . . Not have in his any dangerous deadly weapon possession nor remain in or vehicle where has such any building any person nor remain in the armed weapon presence any person.” The fourth of the exhibit consists of defendant’s for page application release on his own Included in the is recognizance. application personal information his common law with the woman concerning relationship with he whom was then and the number of children at residing residence form (the does not indicate the The children). parentage last of the exhibit is the front of defendant’s page page probation report. The has reference to the fact defendant was report repeated charged in the second count with with assault intent to commit great bodily injury. addition, In has reference to indirect probation report juvenile offenses. states that defendant was sent to report juvenile probation California Youth camp Authority.
Exhibit No. contains a document conditions of relating probation his 1968 conviction. These conditions include one on use and possession of narcotics. Also contained in the exhibit is a which probation report value, defendant, contain granted, material that but they might prejudicial value probative outweighs effect.” prejudicial and a
relates defendant’s reference that defendant was family history committed to an institution. unspecified In v. Richardson 536-537 P.2d
44], court reversed a defendant’s conviction on the ground of an exhibit used to portions convictions contained prove prior references offenses, arrests and misdemeanor uncharged convictions. The court held that those of his criminal record should have portions been from the otherwise admissible separated the exhibit. The portions exhibits, in case, the instant information containing regarding charged but dismissed count for assault with intent to commit harm and bodily offenses was also error. The juvenile references should have been deleted Of obvious was the dismissed assault prejudicial. count of prejudice the same crime as in counts I III in the action. charged through present Such reference for violent conduct. Of suggested propensity *19 similar effect was defendant’s conditions of probation relating deadly Further, the effect was not weapons. lessened the court’s prejudicial by instruction that the was not to consider evidence of convictions jury prior as evidence of on the substantive The instruction relates guilt charges. convictions and not to other only of defendant’s prior criminal portions Richardson, record. (People 536-537.) supra, pp. erroneous and were the references made to
Equally prejudicial narcotics, defendant’s conditions of controlled sub- probation involving stances and alcohol. The assert on that was appeal “[defendant] not since his alcoholism and use of narcotics would tend to prejudiced substantiate the defense which was in the instant case.” Quite to pursued the such use have created the inference in the minds contrary, past might of the that the substances consumed jury allegedly prior the were intoxication would shootings voluntarily ingested. Voluntary claim have defeated defendant’s of unconsciousness as a complete defense. The was instructed that intoxication is not a jury voluntary 4.20, defense. Nos. (CALJIC 4.22.)
Further, contention, the references to defen- contrary People’s dant’s were not as in facts personal history probative identify helping the the defendant as who suffered convictions. The person specifics convicted, conviction, the crimes dates and of relating places the relative of defendant’s name v. Luckett uniqueness (People 248, 253 were sufficient that 539]), purpose. noted that defendant did not an it is make issue. identity Additionally, However, references were personal history surplusage. assuming value, that evidence some the value was such had probative arguendo, Code, of (Evid. substantially probability prejudice. outweighed 352.) §
B. The the trial court to read CALJIC No. 17.25 in its entirety failure of either error or was immaterial to the resolution this appeal. The trial court in instructing jury concerning prior convictions No. (CALJIC failed to 17.25) read last four paragraphs the instruction. The court read the “In addition to the following portion: crimes four counts Information it is also charged alleged before the commission such crimes the defendant was convicted of certain felonies. The defendant has denied the truth the alleged [H] convictions at the outset of the In trial. this case first prior must you [U] decide the of whether not the or defendant is of the crimes question guilty in the four counts of the Information. You shall not charged consider [H] thereof, of such convictions or evidence if allegation prior any, that the defendant committed crimes four counts proof charged of the Information. [11] However, fact that defendant has been fact, convicted of a such if be a for the considered felony, may purpose the defendant’s aas witness determining credibility concerning crimes The fact of such a conviction does not charged. necessarily destroy the defendant’s but it is one of the circumstances impair credibility, take into consideration you may weighing testimony.”
The omitted of the instruction state: portions “If find the defendant not as to the you the in guilty charged crime[s] information, it will not be to determine whether the necessary allega- of the true. prior tion^] conviction[s] [is] [are]
“If find the defendant of or the you more guilty [one of] crime[s] information, in then it will charged be to determine your duty whether or not the of the allegation^] true. If prior conviction[s] [is] [are] find such true, be be, true not you [any] or as the case allegation^] may will form of verdict. you sign appropriate
“If have a reasonable doubt as to whether the of such you allegation^] true, it is to find the not prior your allegation^] conviction[s] duty [is] [are] true.
“A form of verdict will be on for decision separate you supplied your of the alleged question prior conviction[s].”
330 contention, two the failure to read the first
Contrary CALJIC 17.25 did not omitted of No. jury permit paragraphs before on counts consider the evidence of convictions guilt prior IV, those as evidence. The was instructed on substantive through jury CALJIC 17.25 read the trial court. issues of No. portion were used in three as an element Defendant’s convictions prior ways: IV, of count for of enhancement of minimum sentences as purposes III, counts I and for of defendant’s credibility. through impeachment uses, With two first had the burden prosecution regard doubt. re Yurko convictions reasonable (In beyond prior proving 513, The 10 Cal.3d 862-863 519 P.2d 561].) Cal.Rptr. [112 17.25 failure trial court to read the reasonable of No. of the doubt portion in count IV resulted in no error. the use conviction prior The instructed on doubt reasonable regard jury properly of CALJIC doubt to the court’s No. 2.90 reading pursuant [reasonable enhancement, For the to substantive crimes relating charged]. purposes decision. of error is not of our overall consideration any necessary light as used reversal as to all counts convictions charged, prior Upon Moreover, are error would enhancement irrelevant. any resulting 620, 625 have v. Louis (1977) been Cal.App.3d prejudicial. (People use, on As for the third due to defendant’s admission 182].) [142 cross-examination that exhibits, he was identified person used as convictions could properly impeachment. (People prior 857]; 207 Cal. P. v. Hamm (1956) Carrow (1929) [278 the affect P.2d was instructed on 345].) jury 2.20, convictions as Nos. (CALJIC prior impeachment credibility. 17.25 2.23 It will be assumed that the trial court will read CALJIC No. .)5 retrial, in its on if it does occur. entirety contentions are relevant in case
Discussion of defendant’s remaining in this matter. retrial *21 No. 4.30 Does Not 4. CALJIC Adequately Regarding the Law the Burden Restate on Unconsciousness of Proof is as due to intoxication recognized Unconsciousness involuntary 32 v. (1973) defense to a criminal a (People Heffington charge. complete of has the burden 1, 8 859].) prosecution Cal.Rptr. [107 Cal.App.3d 2.23, it of No. 17.25 and No. court’s CALJIC reading contends that the 5 Defendant (See is merit. This contention without the convictions. excessive on emphasis prior placed 1.01.) CALJIC No. a that reasonable doubt a defendant conscious proving beyond of is a the commission the crime. The aided during prosecution is effect that a defendant who acts as if he conscious is presumption to be is It not conscious. This rebuttable. does presumed presumption the remove from the burden of a defendant’s prosecution proving doubt; defendant, a consciousness reasonable it a beyond places upon introduced, when evidence of are conscious acts of “merely duty forward with the and of evidence a reasonable doubt.” going raising v. Cal.2d P.2d (1948) 865].) (People Hardy [198 In case, the instant after that unconsciousness instructing jury caused intoxication is a defense No. (CALJIC by involuntary complete 4.30), the trial court read CALJIC No. (rev. 4.31 which as 1972), reads follows: “If the evidence a establishes doubt reasonable that beyond time of commission of the offense the defendant acted as alleged conscious, However, if he was should find that he was conscious. you [If] if, consciousness, notwithstanding appearance conscious, evidence raises a reasonable doubt whether he was fact you should find he was then unconscious.”
A former version of No. 4.31 was found to be misleading confusing in the cases of v. Williams (1971) 55-57 Cal.App.3d [99 199-200 Cal.Rptr. People Maxey 103] The former version of No. 4.31 is identical 466]. case, read instruction in the instant the former version not did except contain the the defendant’s phrase, “notwithstanding appearance consciousness.” The was added 1972 revision phrase instruction. Defendant contends that the 1972 revision of No. 4.31 did cure the defects in the instruction. version, to the former the court in stated: “The first
Referring Maxey, instruction, alone, would paragraph standing require jury find a conscious, if were convinced a reasonable they beyond doubt he acted Thus, he were conscious. would be jury if from a defendant unconscious in a where case his overt precluded finding acts were those of a conscious person regardless any expert other evidence of unconsciousness. The testimony second paragraph instruction, however, concludes that ‘. if . . the evidence properly raises reasonable doubt that conscious, he was in fact find should you he was unconscious.’ the second is somewhat Although [that] paragraph *22 we Williams, 55, nevertheless with court in at saving, agree page the first is and that the total is instruction paragraph misleading confusing at the least.” at (28 200. Italics in very Cal.App.3d p. original.) Williams,
The court in v. stated that: citing People Hardy, supra, “[the should have an instruction that informed the trial composed jurors court] that if found a reasonable doubt that defendant acted as if beyond they conscious, conscious, he were a rebuttable that he was arose presumption as to which defendant had the burden of a reasonable doubt.” (22 raising revised, As No. 4.31 do 57.) fails to this. The instruction Cal.App.3d p. still does not inform of the of burdens clearly jury respective and defendant. No. 4.31 does not instruct the prosecution adequately jury of the of the rebuttable as it relates to reasonable operation presumption doubt on the issue of acts that demonstrate consciousness. The addition the defendant’s of conscious- phrase “notwithstanding appearance ness” does not cure this defect. It was error for the trial court to give CALJIC occur, No. 4.31. If retrial does an instruction on burden of on the defense of unconsciousness should be drafted in accordance proof with the views herein. expressed Multiple
5. Punishment: Pursuant to Section 654, Defendant’s Possession a Concealable of Case, Handgun, Under Facts Constitutes One Transaction for Which Defendant Cannot 12021 and Be Punished Under Both Sections III with a Defendant was convicted in counts I for assault through and in count IV for of a concealable 245) (§ deadly weapon possession firearm At oral 12021). former felon (§ judg- by pronouncement ment,6 on count IV the trial court committed defendant to state prison with the and ordered the sentence on that count to run consecutively on Based on section sentences counts III. through imposed defendant asserts that he cannot be punished possession used in the under both sections 245 and 12021. shootings handgun Section 654 “An act or omission which is provides pertinent part: made different different this Code punishable ways by provisions under either of such but in no case can it be may punished provisions, under more than one.” punished standard for section where one of applying suffered a defendant a violation of 12021 was
convictions section IV. minute order of does not mention count 6 The clerk’s the sentencing proceeding over clerk’s record for made the court at oral pronouncement prevail Statements the actual sentence Hartsell imposed. (People determining purposes Further, 627].) are as to agreement parties sentence orally imposed. *23 333 814, 821 10 established in v. (1970) Venegas Cal.App.3d [89 People 12021, of “Whether a violation section forbidding persons Cal.Rptr. 103]: felonies firearms concealable convicted of from upon possessing in which a transaction the offense he constitutes divisible from person, of each the facts and evidence weapon upon employs depends a individual case. Thus where the evidence shows possession [Citation.] offense, antecedent and from the distinctly punishment separate primary hand, on both crimes has been On the other where approved. [Citations.] the evidence shows a with only conjunction primary possession offense, then for of the firearm has punishment illegal possession been held to be it is the offense. where lesser improper [Citations.]”
The failed that defendant’s of prosecution prove possession was “antecedent from his use in the assaults. handgun separate” Instead, The this concede on People impliedly point appeal. People contend that defendant’s possession handgun during flight from the scene removes from him shootings application However, section 654. possession during flight only incidental to the the assaults. As summarized in primary objective, v. 25 Jurado (1972) 498], “the Cal.Rptr. [102 modern rule that a defendant not be both for may [is] punished of a and for another offense which the is possession weapon weapon used, where the evidence does not show for other possession any retrial, if evidence is same introduced purpose.” Accordingly, upon to this and defendant is all counts convicted relating point any firearm, assault and of count of of a he concealable possession may offense, for the more serious not both but offenses. punished only 6. Defendant’s Can Conviction Serve to Imposed Enhance the Minimum Sentence on Deadly Weapon, Convictions of Assault With A
Notwithstanding Its Use as an Element in a Possessing Count a Concealable Firearm
a Former Felon Edwards Cal.3d Citing People conviction, P.2d 995], defendant asserts that his 1968 if used as prior
an element in a count for a concealable firearm former possessing felon, cannot then be used enhance the minimum on sentence an assault with a We count. All that Edwards stands deadly weapon disagree. for is the that a conviction which an constitutes element proposition prior of an offense which would not otherwise be criminal 12021) (example—§ cannot be used to enhance the minimum of that offense. rule in
Edwards bar does not enhancement use of convictions for prior Thus, offenses do not have which as an element the conviction. prior retrial, occur, if it does defendant’s 1968 could be used to conviction prior enhance the minimum sentences on assault charges notwithstanding its use as an element in a of a concealable firearm count. possession Edwards would the enhancement of concealable firearm count preclude due to the of the 1968 conviction. proof prior
The combination errors in instant case reversal requires ordered, defendant’s conviction. If a is retrial therein proceedings shall conform the views this opinion. expressed
Reversed. KAUS, P. J. concur. While I do not with all the I reluctantly agree deficiencies in the trial court to the alleged procedures relating appoint ment and relief of counsel and the ultimate decision defendant permit himself, it does seem me that the trial court represent erred somewhere the line. If I had to on along put my finger turning point, 22, 1976, announced, it came on October when “I cannot and do not Public Defender as counsel. . . .” When the court failed accept initiate a Marsden at that well type inquiry point, game pretty lost. to, I refer as a because am riot purposely proceedings “game”
blind to what is on: defendants are to their going system manipulating various real or on basing advantage, ploys gambits imagined contradictions in Court Potter applicable Supreme opinions. Stephen manual to all who can write a counter these moves has yet appeared on the scene. defective, CALJIC it even if No. 4.31 is not is confusing
Finally, fatally on a retrial this should not contradictory given jury case. J., concurred.
Ashby,