Defendant has appealed from a judgment sentencing him to concurrent state prison sentences following his conviction, after trial by the court, of petty theft with a prior felony conviction (Pen. Code, §§ 667, 484, 486 and 488), and of conspiracy (Pen. Code, § 182) to violate the provisions of section 488 of the Penal Code (petty theft, see §§ 484, 486 and 488), with an admitted prior conviction for burglary in the second degree.
After entry of the defendant’s plea and before trial, the private counsel selected by defendant was permitted to withdraw, and the public defender, who already represented a codefendant, was then appointed to act for both defendants. Defendant contends that the court erred in permitting his private counsel to withdraw because it failed to make adequate inquiry into the circumstances; that the court erred in appointing the public defender to represent him because there was a failure to inquire into the possibility of a conflict of interest in the defenses of defendant and his codefendant, because the defendant never waived his right to a separate counsel, and because there was an actual conflict of interest; and that he was denied effective assistance of counsel because the public defender represented his codefendant as well as defendant. He further asserts that the information is prejudicially defective; that the evidence is insufficient to sustain his convictions; that the failure to charge and convict his codefendant, who was jointly charged and convicted on the conspiracy count, with the substantive charge of theft, necessitates the discharge of defendant; and that there was error in the failure to produce and receive certain demonstrative evidence. These contentions are examined and found wanting. It does appear, and the Attorney General concedes, that the defendant has been ordered to suffer multiple punishment for one act in violation of the provisions of section 654 of the Penal Code, and the judgment must be modified accordingly.
The Facts
On March 21, 1967, defendant William J. Prince and his co-defendant Robert Page entered a department store in San Francisco. A saleslady, who was employed in the men’s clothing section, approached the two men and asked if she could be of assistance. Defendant indicated he was looking for trousers, *402 and that he wanted to try on size 32. Although the saleslady stated that the size was too small, defendant persisted. Defendant continuously exited from and reentered the fitting room while trying on pants ranging among three sizes. During this time, the saleslady had to repeatedly return to the stockroom and the fitting room because she was out of certain sizes and styles requested by defendant. She could not see the customer area of the store from the stockroom. She did see Page in the vicinity of the men’s suits, but since he appeared to be in the right section for his size she ignored him and “mainly waited ’ ’ on defendant.
The two men remained in men’s clothing section for approximately 30 minutes. Prior to leaving, defendant purchased a pair of corduroy trousers. The saleslady indicated that she did not remember any one else being in the fitting rooms at the time. She stated that defendant was wearing a stadium jacket or three-quarter length coat when he entered the store. She noticed that Page left the clothing shop before defendant.
When the two men entered the store they were observed by the store’s special police officer, who was standing on the balcony of the second floor, in the men’s clothing section. The officer saw defendant and Page enter, go directly up the staircase and begin looking at men’s slacks. At the time there were about seven people on the floor. Defendant was wearing a black three-quarter length coat, which was a bulky type with large sleeves, and fit loosely. Underneath the coat he was wearing a turtleneck sweater. The officer noticed that the men were ‘ ‘ eyeballing the area. ’ 1 He concealed himself in a storeroom and observed the conduct of defendant and Page. He corroborated the saleslady’s story that defendant tried on numerous pairs of slacks. However, he also observed that while defendant was trying on the slacks, Page was placing suits on a display rack approximately three feet from the fitting room used by defendant. After Page had placed three suits on this rack defendant selected a fourth suit, and took the suits and a pair of slacks into the fitting room. Defendant remained in the fitting room for 5 or 10 minutes and when he exited, his coat “was more full in its fit upon his body. There was a lack of looseness.” Defendant proceeded to the cash register and paid for a pair of slacks. The two men then departed from the store. The officer left his observation point *403 and entered the fitting room area. He cheeked all of the fitting rooms, and found only four empty hangers and two clothespins. The officer then attempted to pursue the men. He left the store by the same exit they had taken, and saw them walking rapidly from the area. Page “turned around a number of times to look rearward, and for a period of time was running backwards.” The men entered a black Cadillac and drove out of the parking lot before the officer could apprehend them.
The defendant and Page were arrested ten days later when defendant attempted to return the slacks he had purchased.
The two men testified in their own behalf. Defendant indicated his activities and those of Page had been as described by the saleslady, and that he had taken no merchandise from the store other than the slacks he had purchased. He testified that at the time he entered the store he was wearing a three-quarter length trench coat which had a little check. Underneath the coat he had on a brown Pendleton shirt. He stated there were eight or ten people on the floor at the time. He and Page returned to the store on March 31, 1967 to exchange the slacks because he wanted something better. On cross-examination, defendant admitted that he had previously been convicted of a felony.
Page also testified that he was innocent of any crime. He stated that he never removed a suit from one of the racks but merely looked at the suits. He testified that he was wearing a white turtleneck sweater on March 21, 1967, and that defendant was wearing a three-quarter length deep blue check jacket. He stated that there were some five boys on the floor on March 21st, and that one boy was in the fitting rooom during the time defendant was trying on the slacks. He stated that when defendant went to the cash register to pay for the slacks he started downstairs to look at other merchandise. He and defendant left the store and drove away in a 1958 blue Cadillac.
Withdrawal of Counsel
The defendant appeared four times with counsel of his selection. On the first two appearances continuances were requested. On the third occasion the defendant entered his plea of not guilty to both counts of the information and denied the alleged prior conviction. By consent the matter was continued to be set for trial. At the time fixed for setting, the following occurred: “Mr. Smith: At this time, your Honor, with respect to Mr. Prince, I would request permission to be *404 allowed to withdraw from Hr. Prince’s representation. I have been unable to secure his cooperation. I believe he has no objection. The Court: Do you have anything to say about that, Mr. Prince? Defendant Prince: Tour Honor, the only thing I have to say, sir, is I guess I will have to take the Public Defender, because I don't have any more funds. It’s not a matter of non-cooperation,- its because I don’t have any money. The Court: Well, that’s another word the lawyers use for money, Mr. Prince. Defendant Prince: Well, I just want to make sure. . . . The Court: All right, your motion is granted, Mr. Smith. ’ ’
Defendant’s allegations of error attack both the procedure followed and the substance of the court’s ruling. In
People
v.
Bouchard
(1957)
Defendant seeks to come within the ambit of
Kerfoot.
In that ease a separate private practicing attorney had been appointed to represent each of two joint defendants. Following the first trial which terminated with a jury disagreement, each attorney appeared and made a motion for dismissal on behalf of his client. Following the denial of those motions, each made a motion to be relieved as appointed counsel, and the court immediately granted each motion. Thereafter, the court appointed the public defender to represent both defendants. The court observed on this phase of the case, “Neither of the defendants was asked by the judge as to whether he consented to having his attorney withdraw from the case. It is obvious that Demes would not have consented to the withdrawal of Edwards as his attorney had he known that the judge was going to proceed as he did. In any event Demes did not give his consent to the withdrawal of Edwards as his attorney; he had received no notice that such a motion to withdraw was going to be made, and nothing was explained to him in advance with reference to the consequences of such a motion and the granting thereof. True it is that the matter of whether an attorney shall be relieved or not is within the sound discretion of a court but the appellant was entitled to notice, and in all fairness the matter should have been explained to him.” (
In the instant case the colloquy reveals that the attorney had discussed with the defendant, the question of his compensation and his prospective withdrawal because of the defendant’s inability to pay him. The court asked the defendant for comment. The defendant's remarks, although they may be interpreted as a qualified consent which was induced by the circumstances, clearly acknowledge that the defendant was aware that he could not have the counsel of his choice unless the court was going to order the attorney to represent him without any assurance that defendant would furnish the compensation for those services. As noted below, there was no such duty on the court. That the defendant was aware of the consequences is apparent from his statement “. . . I guess I will have to take the Public Defender, because I don’t have any more funds.” The minutes, however, do not reflect the consent of the defendant (see Code Civ. Proc., § 284, subd. 1). They merely recite, “Counsel for defendant Prince interposes a *406 motion to withdraw as counsel for this cause, which is granted by the court. ’'
The situation is similar to that in
People
v.
Donel
(1967)
“Having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will, nor for considerations personal to himself. (Bus. & Prof. Code, § 6068.)” (People v.
Massey
(1955)
No abuse of discretion is found in permitting the attorney to withdraw. Prejudice, if any, to the right of defendant to effective representation by counsel must be found in the subsequent acts or omissions of the court in furnishing defendant counsel.
Failure to Appoint Separate Counsel
Immediately following the foregoing preeeedings, the clerk interjected, “Is the Public Defender appointed, your Honor?” Thereupon the following ensued: “The Court: The Public Defender will be appointed. Is there any conflict here, Mr. Magee? Mr. Magee: I couldn’t see any here as I looked through the transcript. I haven’t talked to Mr. Prince yet. I don’t know if any conflict will appear after I speak to him. Mr. Maurer: Have they both entered pleas, Mr. Halkens? The Clerk: It was on to be set today. Mr. Maurer: How about June 19th, Mr. Magee? (Discussion between Mr. Magee and Mr. Prince and Mr. Page.) Mr. Magee: Your Honor, both defendants are prepared to waive their rights to a trial before a jury and have it heard before the Court. Mr. Page is on bail, but Mr. Prince is in custody, so possibly we could get a date set today and if a case opens up or some afternoon opens up we could advance it. . . . The Court: Mr. Page and Mr. Prince, Mr. Magee has indicated that each of you are willing to waive your rights to trial by jury, and you understand what that is? Mr. Prince: Yes, your Honor. Mr. Page: Yes. The Court: In a trial by jury you have twelve people sitting in the jury box who listen to all the evidence, listen to the People’s witnesses and your witnesses, and they decide from the evidence your guilt or innocence. Mr. Prince: Yes. Mr. Page: (Nods head affirmatively.) The Court: And you are willing to waive that privilege and that right? Mr. Prince: Yes, sir. Mr. Page: (Nods head affirmatively.) The Court: And you understand that the matter will be tried as a court case and that I will listen to all the testimony and I will decide your guilt or innocence from the testimony that is presented. Mr. Prince: Yes, your Honor. ’ ’
The case came on for trial eleven days later, on the date as *408 signed at the preceding hearing. At that time the court made no further inquiry concerning possbile conflict of interest, but the public defender acknowledged in open court that he was representing both defendants, and that both defendants were prepared to proceed. Before proceeding the defendant Prince, both personally and through counsel, withdrew his earlier denial of the prior conviction, and admitted the allegations of the complaint which charged the previous offense.
The right to separate counsel recently has been reviewed by the highest court of this state, and it has promulgated the following principles: “The right to counsel at trial guaranteed by the Sixth Amendment of the United States Constitution [citation] and article 1, section 13 of the California Constitution does not include an automatic right to separate counsel for each codefendant. One counsel may represent more than one defendant so long as the representation is effective. [Citations.] Effective assistance of counsel is assistance ‘untrammelled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.’
(Glasser
v.
United States
(1942)
“If defendants were denied the right to effective representation of counsel, we cannot presume that the right .was waived by a failure to request separate counsel. The court did not advise them of their right to separate counsel if a conflict was present, and we cannot imply from their silence a waiver of that right. [Citations.] ”
(People
v.
Chacon
(1968)
In Chacon the court observed, “Conflicts of interest necessarily exist when the jury must fix the penalty for more than one defendant. . . . Moreover, the conflict is not limited to the trial on the issue of penalty, for normally the same jury determines both the issue of guilt and the issue of penalty.” {Id. p.775.)
In
People
v.
Watkins
(1967)
Tested by these criteria the present case presents no conflict which deprived this defendant of effective representation by counsel. Each ‘ defendant denied any knowledge of or participation in the offenses charged. The state of the evidence was such that if the jury believed the prosecution witnesses, both were guilty; if not, both were innocent. There was no material inconsistency between the stories of [codefendant] and defendant and no significant conflict in their separate denials.”
(People
v.
George
(1968)
Defendant suggests that the fact that he had a prior conviction, whereas his eodefendant did not, created a conflict of interest. It has been recognized that the first offender may he prejudiced when he is required to accept common counsel with a codefendant with a prior record, particularly where there is more persuasive evidence of the culpability of the latter than of the former. (See
People
v.
Douglas, supra,
In this ease the testimony of defendant and that of his co-defendant were complementary. If separate counsel had elected to keep defendant off the stand, his codefendant’s testimony would have been uncorroborated. It may also be noted that under the aegis of separate counsel the codefendant’s testimony might have been developed to be more favorable to himself and less favorable to defendant. It is true that when defendant took the stand he subjected himself to impeachment on the grounds of his prior conviction. It is conceivable that by requesting a jury trial and by not taking the stand the defendant could have avoided the stigma of the prior conviction (see discussion, infra), but this course would have involved the risk of failing to deny the overwhelming evidence against him.
Once the jury trial was waived, a tactical move in which defendant joined, any prejudice to defendant from the fact of his prior conviction was inherent in the charge which he faced and could not be avoided by the strategy of counsel. His prior conviction was in the case whether he testified or not. The major prejudice or conflict that can be precipitated from the record is that which might have affected the codefendant because he was stigmatized as the accomplice of an acknowledged felon, and may have been deprived of an opportunity to shift the entire responsibility to defendant in view of their relative participation in the events giving rise to the charges. He, however, has not appealed from his conviction. No conflict is found which prejudiced defendant or rendered the public defender’s joint representation of him, with his codefendant, ineffective.
Defendant’s complaints that the court failed to make adequate inquiry into the question of possible conflict, or secure an adequate waiver of his right to separate counsel (see
People
v.
Chacon, supra,
Defendant seeks to being before this court extrinsic matter concerning the workload in the public defender’s office
3
in order to support his claim that he did not receive adequate and effective assistance of counsel. The record in this case does not indicate that there actually was any inadequate or ineffective representation by counsel, so it is unnecessary to pursue at this stage of the proceedings, defendant’s right, or the procedure to be followed, to bring such matters before this court. Defendant has failed to point out any ‘ circumstances from which it might be inferred that his trial was reduced by his counsel’s lack of diligence [whether from overwork or other causes] to a farce or a sham. ...”
[People
v.
Tomita, supra,
No error has been demonstrated in appointing the public defender to represent defendant as well as his codefendant.
Validity of the Information and Reference to Prior Conviction
The first .count of the information reads as follows: William J. Prince is accused by the District Attorney of *412 the City and County of San Francisco, State of California, by this information, of the crime of felony, to wit: Violating Section 667 of the Penal Code of the State of California (Petty theft with prior conviction of a felony) committed as follows: The said defendant on or about the 21st day of March, 1967, at the City and County of San Francisco, State of California, did unlawfully take the personal property of Poos Atkins, of a value of less than $200, having been previously convicted, on or about the 2nd day of January, 1964, in the Superior Court of the State of California, in and for the County of Orange, of the crime of Burglary, 2nd Degree, a felony, and having served a term of imprisonment therefor in the State Prison. ’ ’
Section 667 of the Penal Code reads: “Every person who, having been convicted of any felony either in this State or elsewhere, and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for such offense, commits petty theft after such conviction, is punishable therefor by imprisonment in the county jail not exeeding one year or in the state prison not exceeding five years. ’ ’
Defendant contends that section 667 merely provides foFthe punishment of a crime where there is a prior conviction, and does not define an offense. (See
People
v.
Stoddard
(1948)
Defendant’s objection is frivolous. It is unnecessary to determine whether a charge in the language of section 667 would be sufficient. (See Pen. Code, § 952;
People
v.
Brown
(1942)
Defendant further contends that in any event it is improper to charge and consider the prior offense until after the elements of the current offense have been established, because the knowledge of the prior conviction prejudices him in the trial on the merits. (See
Spencer
v.
Texas
(1967)
Defendant originally plead not guilty to both counts in the information and denied a separately alleged prior conviction of the same offense that was incorporated in the first count. At the time set for trial, and before the trial commenced, he admitted the prior conviction.
When the offense is elevated from a misdemeanor to a felony, or the punishment is aggravated by reason of a prior conviction, an unqualified denial of the offense or the denial of the prior conviction requires the prosecution to come forward with proof of the prior offense. (Pen. Code, §§ 1025 and 1158;
People
v.
Hickok,
(1964)
Defendant, in effect, claims prejudice because his admitted prior was known to the judge who heard the evidence relating to the current offense and decided, that issue. It must be presumed that the court followed the law, and disregarded the prior conviction in determining the issue of guilt -of the new offense. Moreover, the record in this case shows that defendant proceeded to trial without objection before the same judge who received his admission concerning the prior conviction. Finally, he cannot show prejudice, because the prior felony conviction was admissible and in fact was admitted to impeach the defendant when he took the stand to testify .on his own behalf.
A record of the prior conviction was in fact introduced in evidence before defendant took the stand, but at that time no objection was interposed by defendant. He may be deemed to have consented to the admission of such evidence- for the purpose of establishing that element of the substantive offense even though it had been previously admitted. (See
People
v.
Pitts, supra,
Defendant further suggests .that the charge as framed under section 667 in some manner operates as an ex post facto law (See
People
v.
Ward
(1958)
Sufficiency of the Evidence
Defendant points to some discrepancies in the testimony elicited from each of the prosecution’s two witnesses. He claims that as a result the evidence of guilt is no more than a strong suspicion. (See
People
v.
Briggs
(1967)
The alleged inconsistencies upon which defendant relies are of a minor nature and to some extent are explained by the testimony. The evidence, among other things, shows that defendant took possession of four suits and carried them into a fitting room from which they disappeared contemporaneously with the departure of defendant
from
the store. No such facts were adduced in the cases upon which defendant relies. The matter is governed by the followingThe determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed, and second, that it was perpetrated by the person or persons accused thereof. ... We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from- the evidence, and then determine whether such facts are sufficient to support the verdict. ’ If the- circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. [Citations.]”
(People
v.
Newland
(1940)
The Conspiracy Count
Defendant was charged with violation of section 667, as outlined above, and with conspiracy to commit petty theft. His eodefendant was charged only with the conspiracy. (Since no prior conviction was alleged with respect to the codefendant, it may be inferred that the conspiracy charge was used to create superior court jurisdiction over the codefendant so that a joint trial could be held.) Defendant relies on a combination of principles one of which is expressed in
People
v.
Collins, supra,
This house of cards falls down when one removes the ace. There is no principle of law which requires that all alleged conspirators be charged with a substantive crime. Consequently, the failure to charge the codefendant with any offense other than conspiracy cannot be deemed an acquittal of the substantive offense. Here the codefendant was in fact convicted of the conspiracy, but it is possible to have a conspiracy with persons who are not apprehended and tried
(People
v.
Sagehorn
(1956)
The form the prosecution took in this case is governed by the following observation: “Appellant argues that it was unfair to elevate a petty theft to the status of felony by charging conspiracy, even if two persons were involved. The selection of the appropriate offense to be charged is the function of the district attorney.”
(People
v.
Ulibarri
(1965)
*417 Failure to Receive Evidence
The saleslady, the special police officer, the defendant and his codefendant all. testified concerning the coat worn by the defendant at the time the suits were taken. Defendant testified that the coat he was wearing was with his effects at the jail. At the conclusion of the testimony of all the witnesses, the following occurred: “ [Defendant’s Atty.] : That is all I have, Your Honor. I do know, if Your Honor desires, that Mr. Prince’s coat which he was arrested with is in his property, and he tells me this was the coat that he had on on both occasions. I don’t know if the Court would care to see him with the coat, but I make that offer of proof just for the purpose of demonstration. The Court: Do you have any other evidence [prosecutor] ? [Prosecutor] : No, Your Honor. The Court: Is the matter submitted? [Defendant’s Atty.] : Yes. The Court: There will be a finding of guilty to the charge. ’ ’
Defendant now asserts that the court erred in failing to rule upon an offer of proof and that the public defender was remiss in failing to press for a ruling. He concedes, however, that the duty is on the offering party to press for a ruling when the court withholds a decision as to the admissibility of evidence.
(People
v.
Moore
(1954)
Double Punishment
It is conceded that to sentence the defendant for conspiracy to commit petty theft, in violation of section 182, and for the aggravated petty theft in violation of section 667, when the conspiracy had no objective apart from that crime violates the prohibition in section 654 against multiple punishment. (
In re Cruz
(1966)
The judgment is reversed insofar as it imposes a sentence for conspiracy, and in all other respects it is affirmed.
Molinari, P. J., and Elkington, J., concurred.
Notes
The officer defined ‘ eyeballing ’ ’ as a perusal of the area with eyes and head looking around quite heavily at the people in the area and at the merchandise.
These sections provide and provided, insofar as is pertinent to the ease: "284. The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other [the remaining part of the section, which was not pertinent to this ease was deleted by Stats. 1967, eh. 161, § 1, p. 1246].” "285. When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney. ’ ’
Referenee is made to a newspaper article, ‘1 Turnstyle J ustiee, ’ ’ San Francisco Examiner, November 1, 1967; to the Annual Report, Public Defender, City of San Francisco, July 1, 1966-June 30, 1967; and to a letter from the public defender to the mayor, dated September 5, 1967 requesting additional attorneys.