*294 Opinion
Defendant has appealed from his conviction for violation of Penal Code section 187, first degree murder, and Penal Code section 211, robbery. It was alleged in the information filed by the Los Angeles County District Attorney that appellant personally used a firearm within the meaning of Penal Code section 12022.5 in the commission of the foregoing crimes. The jury was unable to reach a verdict on the firearm allegations, and a mistrial was declared as to that allegation. Appellant was sentenced to state prison for life. Appellant was given credit for 126 days in custody.
Appellant raises the following contentions on appeal:
1. The trial court made inadequate inquiry concerning the grounds for appellant’s motion to substitute counsel.
2. The search of appellant’s home was not conducted pursuant to free and voluntary consent.
3. Appellant was denied his constitutional right to a jury determination of whether he acted with the requisite malice sufficient to sustain a verdict of murder.
4. Appellant is entitled to an additional 63 days’ credit in determining the length of his sentence.
Summary of the Facts
Peter Anton Drazin testified that on July 19, 1978, he and his father, Peter John Drazin, were at the Hollywood Park Race Track. In midafternoon, they left the race track and walked to their car. They had parked their car at 104th and Doty Streets in Inglewood. When they were about 20 feet from the car, the witness felt a gun being pressed into his right side. The gun was a very small black revolver. The man holding the gun demanded money, and the witness reached into his pocket and pulled out a $10 bill. He held it in front of him and the man with the gun took it. At this time the witness’ father was approximately 10 feet ahead of him on the sidewalk. The witness testified that another man was standing on the witness’ immediate left. His father turned around and said, “That’s my son. What are you doing to my son?” The son said, “Dad, he’s got a gun.” At that time his father came toward *295 them with folded racing forms in his hand. He raised his arm and tried to hit the man on the witness’ left side with the papers. The armed man on the witness’ right side shot the father. The two men, accompanied by a third man, ran away together in the direction of the race track. Mr. Drazin, Sr., died of a gunshot wound through the heart and aorta. A .22 caliber slug was removed from his body.
Byron Reese testified that on July 19, 1978, he saw Peter Drazin and his father walking toward their car. Mr. Reese was across the street from the Drazins, standing outside of his house talking to a friend. He testified that he saw four young men come up behind the son and his father; he identified each by name, and explained that the one he identified as “Joseph” was the defendant. He had known defendant at that time for about a year and a half. He saw the four young men gather around the father and son; they appeared to be searching them or asking them for money. He saw that Joseph was armed with a gun. He saw the defendant shoot the victim.
Raymond Reese testified that he is the older brother of Byron. On July 19, 1978, as he came out of his house, he noticed three young men running from across the street. He recognized only one of them (not the defendant). One or two days after that incident, he had a conversation with defendant. Defendant called him over and asked him if he knew what had happened the day before. Defendant asked him if Reese was planning to “tell on him” or “put him in it.” Reese told him he couldn’t put him in it, because he had not seen him there.
Michael Reese testified that he is Raymond and Byron’s brother. On the date in question, he saw four persons he recognized, including defendant, walking on the other side of the street. He saw what appeared to be a struggle among the four young men and two white men. He saw that “Joe” (the defendant) and Gary had their hands inside the man’s pocket and then “Joe came out with the gun, and shot the man.” He saw defendant and the other man run away immediately after the shooting. As they were running away, he again saw the gun in defendant’s hand. The next day Mr. Reese saw the defendant who asked him if he, Reese, was going to say anything. Reese said yes, and defendant began to threaten him. Defendant said the Reeses would get their “butts kicked” and their house blown up.
Gary Robinson testified that on July 19, he had met the defendant and some other men, and had agreed to act as a lookout during the *296 planned robbery of the victims. He saw defendant shoot the victim. He, defendant, and one other man went to defendant’s house immediately after the shooting. When they got to defendant’s house, defendant hid the gun under a mattress in his bedroom.
Michael Melsh testified that he is a police officer for the City of Inglewood. He arrested defendant on July 27, and conducted a search of his residence. The search revealed one expended .22 caliber cartridge and one live .22 caliber round. The expended .22 caliber cartridge was found under defendant’s bed.
Defendant and his two sisters testified that he spent almost all of the day, July 19, 1978, at home listening to music. He denied involvement in the incident in question.
Appellant’s Motion for Substitution of Counsel
On October 22, 1978, eight days before commencement of trial, appellant filed a handwritten motion to have his public defender relieved and new counsel appointed. The motion, in the form of a letter, read as follows: “Dear Honorable Judge. I am writing you in concern of my case and my purpose is Mr. Michael Clark the Deputy Public Defender ho is suppose to defening me in this case. His intention from the beginning was to send me to the pen. He has been up here to see me two times the first time he came he told me that he was going to talk to the District Attorney about the case and see if he can up with a deal for ‘12’ year to told him that I was not going to take nothing for something I did’nt do. So my intention was to fire him when we came to superior court. Thanking that my family would have me a lawyer. Befor I went back to court but they are having a money problem and cannot get me a lawyer. I fill that Mr. Clark is not showing any concern in my case. And fill that he is not doing the best to his ability to help me. The second time he came up here, he told me that he, talked, to the D.A., and said he came up with ‘15’ year and that I should take it, because they are going to fine me guilty anyway. So I on know that his intention is to hang me. So I thought I would write you and let you no that I am going to fire him when I go back to court, on the grounds that I just told you. And would like to request to be defendant by a state attorney I am with 187,211. P.C. and go back to court on the 30th of this month for trial and no that I cannot go with Mr. Clark noin what his intention of doing to me. So I thought I would write you just to let you no why I’m going *297 to fire him. I have to many problems myself and do not need anymore. My name is Joseph S. Terrill. And I’m suppose to be going to trial on the 30th of this month. Thank you U’Honor I would like to recieve a letter back so I will no that you gotten this one.’
On October 30, 1978, the date set for trial, the court, in the presence of defendant and both counsel, made reference to having received and read the letter from Mr. Terrill. He inquired of Mr. Clark, the deputy public defender assigned to the case, whether he had had a chance to see the letter. Mr. Clark responded that he had not and then stated, “Well, I would think, Your Honor, that the letter would require you to inquire of Mr. Terrill any specifics concerning my representation of him.” The court responded:
“The Court: Mr. Terrill, I do have your letter here. I did read it when I received it last Thursday. And I do want to say this: That I know from the very beginning after your arraignment a very few days after the arraignment I asked Mr. Clark what the situation was as far as going to trial. And Mr. Clark informed me that this is a case that would have to go to trial and would have to be tried. Now, that would have been some time right after August 24th. I did tell Mr. Clark that I would appreciate it if he would make an effort to contact the district attorney to see if there was a possibility of any disposition. He would be remiss, it would be wrong of him as an attorney when you are faced with such serious charges, as you are, not to explore the possibility of a disposition to see that if there is anything in that type of endeavor could be of benefit to you. It would be terrible where you’re charged as you are with the type of crime you are that if your attorney didn’t try to do something like that.
“The Defendant: (The defendant nods his head up and down.)
“The Court: Now, your letter indicates that he had, I guess, mentioned to you that what the possibilities of disposition would be, and they are unsatisfactory to you, because you personally believe in your innocence, which is fine. But also you have to know that the People have presented evidence at a preliminary hearing which if accepted by a jury would be powerful evidence and very well could be evidence that if the jury accepted it, would find you guilty.
“The Defendant: (The defendant nods his head up and down.)
*298 “The Court: So, having that in mind, and that background in light of what you’ve sent me, Mr. Clark is an experienced attorney. He tells me he’s ready to proceed to trial today. Is there anything else you’d like to say?
“The Defendant: No, no, Your Honor.
“The Court: All right, sir. Anything further, Mr. Clark?
“Mr. Clark: No, Your Honor. I am ready.”
Appellant contends that the court erred in that it failed to make adequate inquiry as to the reasons for appellant’s desire to substitute counsel, citing
People
v.
Marsden
(1970)
In
People
v.
Lewis
(1978)
Appellant here urges that the allegations made in his letter required that the court conduct a full hearing into the reasons for his dissatisfac *299 tion with the public defender. We disagree. The letter did not state vague general dissatisfaction, but specifically alleged that his attorney had been attempting to negotiate a disposition with the prosecutor and had recommended that defendant plead guilty and accept a 15-year imprisonment punishment. Thus, at the beginning of the hearing on the motion, the court was fully apprised of the specific allegations leveled against defense counsel.
Appellant relies on
People
v.
Munoz
(1974)
A similar result was reached in
People
v.
Groce
(1971)
We do not find in
Marsden
or in any subsequent Supreme Court decisions on this subject a requirement that the court make inquiry of
counsel
when a motion for substitution has been lodged. We agree rather with the reasoning of
People
v.
Jacobs
(1972)
In
People
v.
Groce, supra,
In the instant case, the allegations in the letter from defendant are that defense counsel was not showing concern for defendant, not doing his best to help him, had recommended that defendant accept a plea bargain, and that defense counsel wanted to “hang” the defendant. If these allegations raise an inference that defense counsel has not prepared for trial, then any obligation on the court to investigate that contention was satisfied in this case. The defense counsel stated twice on the morning of the hearing that he was ready to begin trial.
Appellant contends that the contents of the letter reflect a breakdown in the attorney-client relationship. We disagree. In
People
v.
Williams
(1970)
In
People
v.
Huffman
(1977)
In the instant case, the defendant in his letter presented his specific charges. In addition, the court asked defendant: “Is there anything else you’d like to say?” Defendant responded, “No, no, Your Honor.” Under these circumstances, we find that the court did conduct an adequate inquiry into the reasons for defendant’s motion, and there was no violation of Marsden.
In his reply brief, appellant argues that even if the inquiry were adequate, the court abused its discretion in denying the motion in the face of these charges. This contention is not well taken. The
Marsden
court explained at
The Supreme Court recently reiterated the rule in
People
v.
Walker
(1976)
In the instant case the defendant did not make a sufficient showing that his right to counsel would be substantially impaired if new counsel were not substituted in. The court explained that defense counsel would have been remiss in his duty to defendant had he not attempted to negotiate a disposition of the charges. At the time of the negotiations, defense counsel undoubtedly knew that defendant would be identified by three eyewitnesses as having committed first degree murder. The recommendation that defendant enter a plea with a maximum possible punishment of 15 years in prison under such circumstances cannot be deemed inadequate representation.
“The circumstances in this case substantially differ from those in
Marsden.
Here, the trial court asked for defendant’s reasons for substitution and whether he had any other reasons. We cannot find that the trial court’s denial of the motion was an abuse of discretion or that defendant’s right to the assistance of counsel was substantially impaired by the denial.”
(People
v.
Carr
(1972)
The denial of defendant’s motion for substitution of counsel was not an abuse of discretion.
The Consent to Search Appellant’s Home
Officer Melsh testified that on the morning that defendant was arrested, several officers went to his home on 102d Street in Inglewood, armed with an arrest warrant and a search warrant. Defendant was arrested at approximately 6 a.m., and the search was conducted a few moments later. The search warrant in question was one which permitted a search only between the hours of 7 a.m. and 10 p.m., pursuant to Penal Code section 1533. During the hearing on the motion to suppress *303 evidence, the court found that the search warrant was executed in violation of that section and was therefore invalid. Evidence was then presented in support of the People’s position that the search was conducted, not pursuant to warrant, but by virtue of consent. The following evidence was presented: Officer Melsh testified that when the officers arrived at defendant’s home, “We had the house contained front and rear,...” The officers telephoned the house, advised them that officers were outside with a search warrant, and requested that the defendant step outside. The officers at the front of the house also announced themselves as police officers with a search warrant. The front door then opened; defendant and his mother stepped out onto the porch. Defendant was immediately arrested and taken into custody. The officer testified: “I then asked permission from Mrs. Terrill to make a search of the residence. And she gave us permission prior to us showing her a search warrant.” On further questioning concerning the manner in which consent was obtained, the officer stated: “To the best of my recollection, we asked her for permission to search. And she didn’t hesitate. She told us, ‘come on in and search.’”
Appellant contends that the search was illegal, not a result of voluntary consent, citing
Burrows
v.
Superior Court
(1974)
An important distinction between the instant case and
Burrows, supra,
is that
Burrows
relates to a finding of innate coercion where a
defendant,
who has just been illegally arrested, consents to a search. In
People
v.
James
(1977)
It necessarily follows that if consent given by a defendant under arrest is not deemed involuntary per se but is subject to evaluation, then the consent in this case must be analyzed in light of the facts. Although it is likely that defendant’s mother knew of the existence of the search warrant before her consent was given, that factor alone would not render the consent involuntary, even though technically the warrant could not have been served for approximately 55 more minutes.
In People v. James, supra, at page 112, the court observed: “Thus an apparent consent has been deemed involuntary when given in response to... an officer’s false claim or implication that he was in possession of a search warrant for the premises.” The court then explains at footnote 11: “In the latter context it is the element of deception which negates the voluntariness of the consent. That deception appears, for example, when the officer falsely claims he either has or can obtain a warrant to search the premises. But the rule is otherwise if the officer actually has probable cause to obtain a warrant and merely advises the defendant of the fact.” (Italics added.)
In the instant case, the officers did not inform Mrs. Terrill that if she did not consent to the search, they would conduct an immediate search pursuant to the warrant. It may well be that absent her consent they would have waited until 7 o’clock. In any event, the trial court found that the consent given was voluntary. “The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’
(People
v.
Michael, supra,
In reviewing the issue of voluntariness, the James court said: “Our role in reviewing the resolution of this issue is limited. The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evi *305 dence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings—whether express or implied—must be upheld if supported by substantial evidence.’ [Citations.]” (Id. at p. 107.)
The court did not err in finding that the search was conducted pursuant to consent freely and voluntarily given.
The Constitutionality of the Felony Murder Rule
Appellant contends; “California law has fostered the outmoded fiction of felony-murder since 1872; as such, a reinterpretation of the doctrine is necessary to insure a more direct relationship between the concept of mens rea and homicide.” Whether such a reevaluation is called for, it cannot be made by an intermediate appellate court. Appellant’s main attack upon the felony-murder doctrine here is that it deprives defendant of his right to a jury trial on the issue of whether he acted with the requisite malice sufficient to sustain a verdict of murder in the first degree.
As recently as 1975, the California Supreme Court reiterated the rule that, “‘the felony-murder doctrine ascribes malice... to the felon who kills in the perpetration of an inherently dangerous felony.’”
(People
v.
Antick
(1975)
Good Time and Work Time Credit for Time Spent in Presentence Custody
Appellant was credited with 126 days served, which reflects the time spent in county jail between the date of appellant’s arrest and the date of sentencing. On appeal appellant contends that he should have been given additional good time and work time credits for that period. Appellant contends that Penal Code section 4019 mandates that appellant be credited with one-third of his jail term for good behavior and willingness to work.
*306 The issue of entitlement to such presentence credits is presently before the California Supreme Court in People v. Sage (Crim. 20997) * ; People v. Brown (Crim. 20998); In re Davis (Crim. 20999); and People v. Galloway (Crim. 32982). The record in this matter does not contain sufficient facts to enable this court to determine whether, if such credits were available, defendant is entitled to them. We do not resolve the question of defendant’s right to presentence credits in this matter. After the Supreme Court’s decision is rendered in the pending cases, defendant will be free to seek any relief to which he is entitled, by way of writ proceedings.
The judgment is affirmed.
Files, P. J., and Kingsley, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied November 29, 1979. Mosk, J., was of the opinion that the petition should be granted.
Notes
Reporter’s Note: For Supreme Court opinion in
People
v.
Sage
see