Opinion
Hearing Granted and Cause Retransferred to Court of Appeal March 29, 1967.
Victor Albert Curcio, in pro. per., and William G. Bailey, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
FINLEY, Associate Justice pro tem.
Assigned by the Chairman of the Judicial Council.
This is an appeal from the judgment entered upon a jury verdict of first degree burglary (Pen.Code, § 459). Defendant admitted four prior felony convictions.
On November 10, 1965, Victor Albert Curcio, appellant, entered the R.C.A. Distributing Company's San Diego warehouse carrying a cardboard carton and walked up-stairs to the second floor display area. After about three minutes he came back downstairs still carrying the carton and left the building. The warehouse manager, Jack Wiseman, followed appellant out of the building and stopped him. Appellant handed the carton to Wiseman, saying: 'Take your damn radios'. The carton contained four radios, the serial numbers and identification marks of which matched those Wiseman discovered missing upon his return to the warehouse.
After handing the carton to Wiseman, appellant hurriedly walked away. Wiseman followed. When Wiseman reached a point within 3 or 4 feet of appellant, appellant stopped, turned toward Wiseman, reached into his right coat pocket and said: 'Get away from me, (vulgarity). I am going to cut you.' Wiseman backed off, but still pursued appellant who turned into a parking lot. At this point a police officer arrived, searched appellant and found, among other things, small pieces of paper on which appellant had written the addresses of four radio and television wholesale distributorships. Also in his right pocket were a beer can type of can opener for making 'V' shape openings in the top of a can, and a long handled can opener characterized by Wiseman as the type that you would insert into the can and work around it: on each, the part to be inserted in the can was sharp and pointed. The officer testified that he advised defendant, 'he did not have to make any statements concerning the case, anything he said could be held against him, and he was entitled to an attorney.--I informed him that he was under arrest.'
The can openers were introduced in evidence; are a part of the record on appeal; and have been examined by us.
Allowed into evidence was testimony that on January 28, 1964, appellant entered the Admiral Warehouse in San Diego and after 4 or 5 minutes spent in the display area went out the door and left the building carrying a carton with him. Mr. O'Neal, an employee, checked the display area and discovered 5 or 6 radios were missing. He and the manager then drove around the area in an automobile, but were unsuccessful in finding appellant. Another witness, a Mr. Chrest testified that appellant met him on a downtown street; appellant was carrying a carton; he asked Chrest to help him carry the carton and said upon inquiry that the radios were 'slightly warm'. They went into a card room and then across the street for coffee. In the carton Chrest saw 5 new radios with the price tags on them. About this time O'Neal and a Mr. Reed, while driving on Fourth Street in San Diego, saw appellant holding the carton and talking to another man. Reed got out while O'Neal went to park the car. Reed The record shows that throughout the trial appellant was represented by two attorneys. The jury returned a verdict of guilty of burglary in the first degree. Coupled with the four prior felony convictions judgment was entered thereon.
The notice of appeal was filed by appellant in Propria Persona. Thereafter, the attorney who represented appellant as his chief counsel during the trial was appointed by this court as his counsel on appeal. Appellant moved, without success, to relieve court-appointed counsel, but was allowed by this court to file opening and closing briefs in Propria Persona. In his opening brief appellant states the issues as follows:
'1) Was appellant denied due process and a fair and impartial trial by the admission into evidence--testimony of three witnesses relating to a theft occurring in 1964, for which the appellant had not been charged and/or convicted of.
'2) Did appellant receive 'effective' assistance of counsel as guaranteed under the Sixth Amendment to the United States Constitution, when the record establishes that:
'a) counsel failed to object to leading question;
'b) counsel's failure to cross-examine witnesses on relevant points brought out during direct examination;
'c) counsel's failure to object to and/or motion for a new trial at the time the trial court erred in its admonition to the jury;
'd) counsel's failure to submit jury instructions on lesser offenses;
'e) counsel's failure to impeach a prosecution witness when he had personal knowledge of this witnesses [sic] fabricated and perjured testimony;
'f) counsel's failure to object to the admission in evidence of the exhibits after the prosecution failed to lay the requisite foundation.
'3) Was the appellant denied due process and a fair trial by the trial court's error in giving the jury instructions.
'4) Was the appellant denied a fair trial and protections under the Fifth Amendment by the Admission in evidence the results of a police line-up which was conducted after appellant was in police custody and where the investigation had ceased to be a general inquiry into an unsolved crime and had focused on the appellant.
'5) Was the evidence taken from the property envelope the 'fruits' of an illegal search and seizure.
'6) Does the evidence sustain a conviction of first degree burglary'.
POINT 1: The rule respecting evidence of other crimes is set forth in People v. Lopez, 60 Cal.2d 223, 249-250, 32 Cal.Rptr. 424, 439, 384 P.2d 16, 31:
"It is settled in this state * * * that except when it shows merely criminal disposition [citations], evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. 'The general tests of the admissibility of evidence a criminal case are: * * * does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be a part of a single design or not." (People v. Peete (1946) 28 Cal.2d 306, 314-315, 169 P.2d 924.)'
Appellant contends the inference of criminal disposition arising from evidence of the Admiral burglary 'was prejudicial to the instant case, and any statute authorizing same is unconstitutional.' The People v. Henderson,
'Although evidence of prior offenses carries with it the risk that its probative value may be outweighed by its possible prejudicial effect, evaluation of this risk rests in the sound discretion of the trial court. (People v. McCaughan, 49 Cal.2d 409, 421-422, 317 P.2d 974.)'
In the present case counsel for appellant and the trial judge discussed this point at some length out of the presence of the jury. Counsel's objection to admissibility of the evidence was overruled. We cannot say the trial court abused its discretion. It has long been settled in this state that evidence of other criminal acts may be introduced into evidence if it shows a common scheme or plan. (People v. Roy, 203 Cal.App.2d 613, 621-622, 21 Cal.Rptr. 620. Evidence of similar acts by a defendant is admissible to show either guilty knowledge, intent, motive, or design (People v. Adamson, 225 Cal.App.2d 74, 76, 36 Cal.Rptr. 894). In People v. Wade, 53 Cal.2d 322, 330, 1 Cal.Rptr. 683, 689, 348 P.2d 116, 122, we find the following language:
'It is the general rule that evidence of a collateral crime is inadmissible in a criminal prosecution for the asserted reason that its tendency to inflame and prejudice the jury outweighs its evidentiary value. [Citation.] An exception to this rule is found, however, where the evidence of the prior or collateral criminal act is relevant to prove a specific and ascertainable feature of the crime on which the prosecution is founded, such as lack of mistake, motive or intent. The connection of the accused with the collateral offense put into evidence must, however, be clear and convincing. [Citation.]'
In the instant case the slips of paper with radio warehouse addresses and evidence relating to the Admiral episode were admitted for the legitimate purpose of indicating a common scheme or design of criminal operation. In addition to a proper exercise of discretion under the circumstances in admitting this evidence the court instructed the jury orally at the time the evidence was admitted that evidence of the Admiral incident was admitted:
'* * * solely for a limited purpose only, not to prove distinct offenses or continual criminality, but for such bearing, if any, as it might have on the question of whether the defendant is innocent or guilty of the crime charged against him in this case.'
At the time of final instruction the court gave a full, specific and accurate instruction on this point. We find that under the circumstances appellant's objection to evidence concerning the Admiral episode is without merit.
POINT 2: Two attorneys were associated together in representing appellant at the trial. There is nothing before us to indicate that they were appointed by the court rather than employed by defendant. This consideration is important, but not conclusive (In re Rose, 62 Cal.2d 384, 42 Cal.Rptr. 236, 398 P.2d 428). The rule is well established that an accused can complain to the trial court and object to the competency of his counsel at any time during the trial, but failing to do so he cannot, in the absence of some extraordinary circumstance amounting to a valid excuse, complain for the first time on appeal from an adverse judgment. (People v. Monk, 56 Cal.2d 288, 299, 14 Cal.Rptr. 633, 363 P.2d 865; People v. Darmiento, 243 A.C.A. 401, 52 Cal.Rptr. 428; People v. Prado, 190 Cal.App.2d 374, 377, 12 Cal.Rptr. 141; People v. Hood, 141 Cal.App.2d 585, 589-590, 297 P.2d 52.) In People v. Kirchner, 233 Cal.App.2d 83 at 86, 43 Cal.Rptr. 218 at 221 the court said:
'Competency and effectiveness of counsel has been generally divided by the courts into two areas. Competence in the sense of strategy, tactics and judgment exercised In the latter instance an appellant might well be unaware of such a shortcoming of counsel though a review of the record might make it apparent to a reviewing court. In such case his failure to object would not bar raising the point in a subsequent appeal since during the trial he conceivably would not know or appreciate the lack of competent representation. Even so, as was further said in People v. Kirchner, supra, 233 Cal.App.2d 83 at page 86, 43 Cal.Rptr. 218, at page 221:
'Thus it is clearly not enough that appellant alleges omissions of counsel indicating lack of preparation and general incompetence. Appellant must show that such acts or omissions resulted in the withdrawal of a crucial defense from the case.'
In an instance involving strategy, tactics and the judgment exercised by counsel during his conduct of the case a different rationale applies. Simply because conviction follows a trial where defense counsel might have employed different strategy or could have used other tactics in instances throughout the trial is not proof per se of incompetence or lack of proper representation by counsel. Any failure of cognizable magnitude in this field would ordinarily be sufficiently manifest during the trial to be recognized and an objection made. Appellant, in Propria Persona, prepared opening and closing briefs herein which are impressed with a degree of articulation and legal perception which belies his belief in the statement appearing in his opening brief that he is '* * * threshing about in unfamiliar conceptual waters * * *;' and in language of his closing brief where he says:
'Further it is elementary that the courts will not permit defendants to speak when with counsel, and appellant could not have objected if he knew what he was objecting to, without running the hazard of being muzzled in court.'
It is generally true that when a client is represented by counsel he will not be heard in making objections to evidence and may not participate in other routine matters of trial. But the statement by appellant that he could not have voiced objection concerning his counsel or his counsel's conduct of the trial is pure speculation. Inasmuch as he made no attempt to object he cannot now be heard to say that he would not have been heard had he made the attempt. On appeal, where no objection was made in the trial court, the burden of demonstrating from the record a claim of incompetency of his counsel is upon appellant. Moreover, this burden extends to the establishment of his allegation of inadequate representation, not as a matter of speculation but of demonstrable reality. (People v. Reeves, 64 Cal.2d 766, 774, 51 Cal.Rptr. 691, 415 P.2d 35.)
A review of the incidents complained of, enumerated by appellant under his Point 2 for reversal, fails to demonstrate that his counsel were unaware of any rule of law basic to the case which deprived him of any valuable defense, or that counsel lacked knowledge of a point which reasonable preparation would have revealed, or that the trial bore any resemblance to farce or sham. (People v. Ibarra, 60 Cal.2d 460, 464, 34 Cal.Rptr. 863, 386 P.2d 487.) Appellant's only registered criticism of his counsels' conduct lies in the field of tactics or trial strategy.
In People v. Brooks, 64 Cal.2d 130, 140, 48 Cal.Rptr. 879, 885, 410 P.2d 383, 389, the court said:
'In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of th jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. (United States v. Stoecker, 7 Cir., 216 F.2d 51, People v. Martin
We find appellant's Point 2 to be not well taken.
POINT 3: Appellant complains of the following instruction:
"* * * neither the prosecution nor the defense is required to call as witnesses all persons who are shown to have been present at any of the events involved in the evidence or who may appear to have some knowledge of the matters in question in this trial. Nor is the prosecution or defense required to produce as exhibits all objects or documents that have been referred to in the testimony or the existence of which may have been suggested by the evidence."
His argument is that inasmuch as no evidence was presented on defense the instruction could only lead the jurors to infer that the prosecution had even more evidence through witnesses or exhibits to support the charge against appellant and that he had none in defense. We deem this to be mere speculation giving rise to an unwarranted inference. It is a matter upon which there is widespread knowledge among lawyers and judges that this is a stock instruction widely used over a considerable period of time. Appellant has cited no decision wherein this or any similar instruction has been found wanting as a correct statement of the law or where such an inference as that posed by appellant has been held attributable to it.
Appellant's remaining complaint in this field is that even though no instruction on the point was offered by defendant the court, of its own motion, should have instructed the jury concerning lesser offenses which he claims are included within the charge of burglary. In support appellant cites People v. Lewis, 186 Cal.App.2d 585, 9 Cal.Rptr. 263. That case does not stand for the proposition that such an instruction must be given, even though requested, in the absence of any evidence to support it. In the Lewis opinion at page 598, 9 Cal.Rptr. at page 269, we find this language:
'The rule as stated in People v. Wade, supra, [53 Cal.2d 322, 1 Cal.Rptr. 683, 348 P.2d 116] is that the trial court must instruct on the 'general principles of law governing the case,' even though not requested to do so, but need not instruct on specific points developed at the trial unless requested.'
The 'general principles of law governing the case,' are those principles of law commonly or closely and openly connected with the facts of the case before the court. (People v. Wade, supra, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116; People v. Warren, 16 Cal.2d 103, 117, 104 P.2d 1024.)
The Wade case was an appeal from a conviction of first degree murder. The defendant complained without success of failure by the court to instruct on second degree murder. The court said, at page 333, 1 Cal.Rptr. at page 691, 348 P.2d at page 124:
'At the trial an instruction on second degree murder was requested by defendant's attorney but refused by the court. Defendant did not then advance any plausible theory of the facts of the case to support a verdict of murder in the second degree though he was requested to do so by the court.'
In the instant case appellant presented no defense at the trial other than by cross-examination of prosecution witnesses. He advanced no 'plausible theory of the facts' to support a verdict of guilty of any offense other than burglary. The court instructed the jury as to the degrees of burglary. Under these instructions the jury could have brought in a verdict of burglary in the second degree. Under the facts appellant, if found guilty, was entitled to no more. The jury passed over the possibility of second degree burglary and found appellant guilty of burglary in the POINT 4: Appellant contends that when he was placed in a police line-up without his consent and in the absence of counsel, he was deprived of his liberty without due process as required by the principles established in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.
There is unrefuted testimony in the record that appellant was advised of his constitutional rights at the time of his arrest. The privilege against self-incrimination treated in Escobedo-Dorado relates to admissions or confessions under compulsion or elicited without a clear showing that an accused has been properly advised of his constitutional rights. It does not extend to a means of identification such as a police line-up or permitting an accused to be otherwise properly viewed for that purpose.
In People v. Lopez, supra, 60 Cal.2d 223, 244, 32 Cal.Rptr. 424, 435, 384 P.2d 16, 27, the court said:
'There is no indication, on the record before us, that defendants made or were asked to make any statements that would tend to incriminate them. The privilege extends only to testimonial compulsion; requiring defendants to assume a certain pose for purposes of identification, or to speak for voice identification, is not within the privilege.' [Citing case.]
See also People v. Ellis, 65 A.C. 571, 55 Cal.Rptr. 385, 421 P.2d 393.
POINT 5: Appellant contends that the arrest was unlawful, that his search was unlawful, that consequently when certain property taken from him and placed in a property envelope was later removed therefrom and introduced into evidence by the prosecution, his rights were thereby violated.
No objection was made at the trial when objects taken from appellant were offered into evidence. Such an objection cannot be raised for the first time on appeal. (In re Lessard, 62 Cal.2d 497, 503, 42 Cal.Rptr. 583, 399 P.2d 39; People v. Hyde, 51 Cal.2d 152, 157, 331 P.2d 42.
As to the legality of the search; a police officer may make a lawful arrest without a warrant when he has reasonable cause to believe that the person arrested has committed a felony. (Pen.Code, § 836; People v. Smith, 50 Cal.2d 149, 151, 323 P.2d 435; People v. McVey, 243 A.C.A. 215, 219-221, 52 Cal.Rptr. 269; People v. Evans, 175 Cal.App.2d 274, 276-277, 345 P.2d 947; People v. Williams, 174 Cal.App.2d 175, 179-180, 344 P.2d 45; People v. Poole, 174 Cal.App.2d 57, 60, 344 P.2d 30; People v. Cisneros, 166 Cal.App.2d 100, 102, 332 P.2d 376.) Whether there is reasonable cause depends upon the circumstances of each individual case. A test is: Would the circumstances lead a person of ordinary care and prudence to believe or entertain an honest, strong suspicion that the person whose arrest is being contemplated is guilty of a crime? (People v. Williams, supra, 174 Cal.App.2d 175, 180, 344 P.2d 45; People v. Evans, supra, 175 Cal.App.2d 274, 276-277, 345 P.2d 947; People v. McVey, supra, 243 A.C.A. 215, 221, 52 Cal.Rptr. 269.)
In the instant case, the arresting officer observed what appeared to him as one man chasing another down a street. The officer talked to a group of three men who also observed this and was told by them that some radios had been left with them by the man doing the chasing and that they had been asked by him to call the police. When the officer overtook appellant he was immediately told by appellant that Wiseman (the man doing the chasing) was the one who stole the radios. This statement by appellant provided further evidence that a crime had been committed. The comparative attitudes and conduct of Wiseman and appellant, both then being present together with the officer provided additional evidence of which was the guilty party. As an incident to lawful arrest, a police officer has the right, without a warrant, to search the arrested person. This right extends to objects under the immediate control of the person arrested in order to prevent an assault or destruction of evidence. (People v. Grubb, 63 Cal.2d 614, 618, 47 Cal.Rptr. 772, 408 P.2d 100; People v. Burke, 61 Cal.2d 575, 578-580, 39 Cal.Rptr. 531, 394 P.2d 67; People v. Cisneros, supra, 166 Cal.App.2d 100, 102, 332 P.2d 376.) An arresting officer can seize articles which there is reasonable cause to believe were being used by the arrested person in commission of the crime for which he was arrested. (In re Dixon, 41 Cal.2d 756, 761-762, 264 P.2d 513; People v. Terpenning, 229 Cal.App.2d 215, 220, 40 Cal.Rptr. 214; People v. Lindogan, 212 Cal.App.2d 466-471, 27 Cal.Rptr. 905; People v. Wickliff, 144 Cal.App.2d 207, 213, 300 P.2d 749.) Such evidence taken from the party arrested, where material, is properly admitted. (People v. Winthrop, 118 Cal. 85, 91, 50 P. 390; People v. Curtis, 232 Cal.App.2d 859-860, 43 Cal.Rptr. 286.)
POINT 6: Appellant argues that the evidence will not sustain a conviction of first degree burglary because: (1) He was not armed with a deadly weapon; (2) he did not commit an assault while in the commission of the burglary, and (3) because there was absent the requisite intent.
There is no denial that appellant had two can openers in his right hand pocket, into which he thrust his hand when he turned and threatened to cut Wiseman who was pursuing him. Such a threat coupled with present ability to execute it constituted an assault. Penal Code, section 460, provides in part:
'Every burglary * * * committed by a person armed with a deadly weapon, or who while in the commission of such burglary assaults any person, is burglary of the first degree.'
There is no statutory definition of a deadly weapon. In using this broad generic term the Legislature cannot be deemed to have excluded any object which could, in capable hands, and under the particular threat involved, produce death or great bodily injury resulting in death. An instrument not inherently a deadly weapon in character or as commonly used may become so by reason of its threatened, intended, possible or actual use. (People v. White, 212 Cal.App.2d 464, 28 Cal.Rptr. 67.) Its threatened use would be indicative of its nature under the circumstances attending any threat if it could reasonably be used as threatened. (People v. Claborn, 224 Cal.App.2d 38, 36 Cal.Rptr. 132.) A specific overt act to execute the threat or commit the offense is not required (People v. Griffin, 90 Cal.App.2d 116, 202 P.2d 573.)
'When an instrument is capable of being used in a dangerous or deadly manner and it may fairly be inferred from the evidence in a specific case that the defendant intended to so use it, its character as such a weapon is established. (People v. Cook, 15 Cal.2d 507, 517, 102 P.2d 752.)' (People v. Claborn, 224 Cal.App.2d 38, 42, 36 Cal.Rptr. 132, 134.)
In People v. White, supra, 212 Cal.App.2d 464, 28 Cal.Rptr. 67, a rock used by the defendant to strike his wife on the head was held to be a deadly weapon. The beer can opener has a sharp claw-like point. The other can opener also has a sharp point and a short knife-like blade. Under the circumstances of this case either one of the can openers or both were capable of inflicting death or great bodily harm resulting in death. The circumstances of the assault fixed the character of the can openers as viewed by appellant and discloses his state of mind as to their purpose and intended use.
'The test on appeal is whether there is substantial evidence to support the conclusion People v. Daugherty,
See also People v. Poindexter, 51 Cal.2d 142, 148, 330 P.2d 763; People v. Rush, 180 Cal.App.2d 885, 887, 4 Cal.Rptr. 853.
Here appellant was in flight in an attempt to escape. The chain of events and reactions resulting from his entry in the building with intent to commit theft was still being forged. Appellant turned on Wiseman and with his hand in the pocket where the can openers were found by the arresting officer, threatened to cut Wiseman. His possession of the can openers endowed him with present capability to execute his threat. Appellant was so armed when he entered the building, concealed the radios in the carton and left the building with them. The court fully and accurately instructed the jury concerning the definition of burglary and its degrees; gave the required definition of assault and properly explained the implication of the term 'deadly weapon'. The evidence of the Admiral episode, possession of the list of radio and TV distributorships, the fact that appellant carried a carton into the warehouse into which he placed the radios for concealment and transportation, and his possession of the radios after leaving the building is sufficient to show that at the time appellant entered the building he intended to commit theft.
The record discloses a fair trial with appellant represented by counsel whose tactics, strategy and conduct present no issue calling for remedy on appeal. We find no error in the court's instructions or failure to instruct on any issue raised by or founded upon the evidence.
The judgment is affirmed.
GERALD BROWN, P. J., and COUGHLIN, J., concur.