Opinion
Opinion on pages 565 to 575 omitted.
HEARING GRANTED.
COUNSEL
[93 Cal.Rptr. 304] John J. Schimmenti, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Glenn D. Taylor, Deputy Atty. Gen., for plaintiff and respondent.
OPINION
THOMPSON, Associate Justice.
This is an appeal from a conviction of burglary in violation of Penal Code section 459. We affirm the conviction.
Facts
Stated in the light most favorable to the judgment of the trial court, the record reveals the following. On October 23, 1969, at 2:45 a. m. Officers Butler and Castagnola of the Los Angeles Police Department were stopped in their marked police vehicle at the intersection of Vanowen and Tujunga waiting for a green light from the signal at the intersection. Butler, while looking to his left, observed three men walking in an easterly direction. They looked in the direction of the police car and then started to run. The officers had no information concerning any specific crime committed in the neighborhood but were aware that the area was a commercial one in which there had been many business burglaries. They determined to pursue the three running men. As Butler followed them, he saw a black object ‘ leave’ their vicinity. He determined that the object was a large business type checkbook and a checkwriter.
Butler and Castagnola continued the chase and apprehended and detained the three men, appellant and his two codefendants. All were handcuffed. A subsequent examination of the checkbook revealed that it bore the name of Ideal Brush Company and an address approximately a block and [93 Cal.Rptr. 305] one-half distant. Another police unit investigated the address of Ideal Brush Company and reported that the premises appeared to have been burglarized.
Appellant was arrested. While he was being booked, a cancelled check in the name of Ideal Brush Company was removed from his shirt pocket. During booking, one of the investigating officers asked another if a vehicle was involved in the crime. Before the other officer could reply, appellant volunteered, ‘ You will never find my car.’ The officer told appellant, ‘ We are not asking about your car, and besides you don't have any car keys.’ Appellant stated, ‘ Yes, I do. I threw the keys when I threw the checkbook.’
Ideal Brush Company was in fact burglarized. The loot included the checkbook and checkwriter found by Officer Butler and the cancelled check taken from appellant's pocket.
Proceedings in the Trial Court
At his arraignment, appellant was permitted to proceed in pro. per. The judge informed him, however, ‘ I am going to watch this case very carefully and if I don't think you are handling your case in your own best interests, I am going to remove that pro. per. status and assign an attorney to you.’ Approximately one month later, the case was called for trial. A different judge noted that the manner in which appellant had completed his written request for pro. per. status raised doubt as to the competency of his waiver of counsel. When given a ‘ mini bar exam’ on his knowledge of the nature of the proceedings against him, appellant passed with flying colors. The trial judge continued his inquiry, querying appellant, the prosecutor, and the public defendant who was conducting the defense of appellant's two codefendants. The prosecutor stated that while a principal issue in the case was the admissibility of evidence obtained as a result of a search, appellant had not noticed a motion pursuant to Penal Code section 1583.5. He also noted that appellant in court had charged a conspiracy between the prosecutor and public defender directed against his interest. The prosecuting attorney expressed his opinion that appellant was not competent to conduct his own defense. The public defender, representing the codefendants, joined in that opinion.
The trial judge revoked appellant's permission to appear in pro. per. and appointed counsel to represent him. He said to appellant: ‘ The issue is not necessarily your knowledge of all of the factors of the law which you can't be expected to have, but the question is whether you have an intelligent conception of the consequences of appearing without an attorney. I make this statement very clearly that from your appearance before me, from the documents before the Court in your application to proceed in pro. per., from the manner in which you have answered questions, I simply find very clearly that you do not have an intelligent conception of the consequences of appearing without an attorney.’
Issues on Appeal
Appellant contends: (1) the checkbook, checkwriter, cancelled check, and appellant's statement that he threw his car keys and the checkbook are the product of an illegal arrest and should have been suppressed by the trial court; (2) his statement should have been excluded because he was not warned of his Miranda rights; and (3) he was improperly denied his ‘ constitutional’ right to appear pro. per., and conduct his own defense. We conclude that appellant's contentions must be rejected.
Validity of Arrest
Appellant contends that he was arrested without probable cause. He argues that, therefore, all evidence which flowed from his arrest was illegally obtained. We conclude that the arrest legal. Penal Code section 836 provides in pertinent part: ‘ A peace officer may make an arrest * * * without a warrant * * * whenever he has reasonable cause to believe [93 Cal.Rptr. 306] that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.’ In the case at bench, the arresting officers, at 2:45 a. m., while in a commercial area known to be one in which business burglaries were prevalent, saw three men suddenly flee when they appeared to notice the presence of a stationary police car. They observed one of them away a checkbook and checkwriter. The totality of circumstances was such as to raise in a reasonable objective observer the strong suspicion that the three men were the recent perpetrators of a felony, burglary. That totality of circumstances thus constitutes probable cause to detain the suspects for further investigation and possibly to arrest them. The restraint of the suspects while the matter was investigated further was reasonable in view of their fight. The discovery that the premises identified by the address on the checkbook appeared to have been burglarized removed any conceivable question of lack of probable cause. (See Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 20 L.Ed.2d 917.)
Appellant relies upon Cunha v. Superior Court, 2 Cal.3d 352, 85 Cal.Rptr. 160, 466 P.2d 704, which holds that mere nervousness of persons present in a high crime area at the approach of police does not constitute probable cause. Cunha is distinguishable from the case at bench. Here there was not mere nervousness but actual flight. Here, also, the throwing of the checkbook and checkwriter raise a strong suspicion that the purpose of the flight was not innocent but was to avoid apprehension for a crime.
As noted in appellant's brief, it is significant that at the time appellant was apprehended the officers had no knowledge that a particular burglary had occurred. We conclude, however, that probable cause to detain exists where the facts objectively establish a strong suspicion that the person detained has committed a felony although the victim of the felony may be unknown or the commission of crime has not yet been reported. No constitutional right is violated where, as here, the scope of the detention is no more than that reasonably necessary while the strong suspicion is verified or dispelled. Here the suspicion was verified by discovery of the apparent burglary of the premises of Ideal Brush. At that point, it is unquestioned that probable cause to arrest existed. Prior to that time, the detention of appellant satisfied the rule of reason.
Since appellant was validly arrested, the fruits of the arrest, including those obtained by a search of appellant and his statements made in response to the arrest, were not illegally obtained. The evidence which appellant claims should have been suppressed was thus properly admitted.
Appellant's Statement
Appellant contends that his statement was improperly received in evidence because it was not preceded by a Miranda warning. The contention is contrary to controlling authority. The Miranda rule applies only to statements of a suspect given in response to interrogation; it does not apply to volunteered statements. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694.) Appellant's statement was volunteered by him while two police officers were talking to each other. It was not the result of interrogation.
Denial of Pro. Per. Status
Appellant contends that the trial court prejudicially erred in terminating his right of self-representation over his objection and in forcing him to be represented by counsel. We conclude that the contention must be rejected. A defendant in a criminal proceeding may waive counsel and represent himself only if the trial court properly determines that he has an intelligent conception of the consequences of his act. (People v. Floyd, 1 Cal.3d 694, 703, 83 Cal.Rptr. 608, 464 P.2d 64.) The determination of a lack of intelligent waiver of counsel is a matter of discretion for the trial court ([93 Cal.Rptr. 307]People v. Floyd, supra, 1 Cal.3d 694, 702, 83 Cal.Rptr. 608, 464 P.2d 64) which will not be overturned on appeal unless the record establishes that the trial court applied an improper standard or that there is no basis in fact for the exercise of the discretion. (People v. Glaser, 265 Cal.App.2d 849, 853, n. 2, 71 Cal.Rptr. 706.) Here the trial judge based his determination upon his conclusion that appellant lacked an ‘ intelligent conception of the consequences of appearing without an attorney.’ He thus applied the proper standard. (People v. Floyd, supra, 1 Cal.3d 694, 703, 83 Cal.Rptr. 608, 464 P.2d 64.) The record also discloses a basis in fact for his conclusion. The demeanor of the defendant is a fact of great significance weighing upon his apparent capacity to conceive of the consequences of his waiver of counsel or the lack of that capacity. (People v. Glaser, supra, 265 Cal.App.2d 849, 853, n. 2, 71 Cal.Rptr. 706.) Here the trial judge based his determination in significant part upon appellant's demeanor in court. Since there is no way that we can determine that demeanor from the record on appeal, the exercise of discretion by the trial judge must be upheld.
Further comment is required. Appellant's contention that the case at bench should be reversed because he was erroneously denied a right of self-representation properly should be rejected on the basis that if there was any error in the court's ruling on appellant's motion to proceed in pro. per., that error was harmless within the meaning of California Constitution, article VI, section 13. A review of the record discloses no reasonable possibility that a result more favorable to appellant might have himself. To the contrary, the records discloses an emotional posture of appellant that in all probability would have harmed his defense had he proceeded as his own lawyer.
The Court of Appeal held, in People v. Ruiz, 263 Cal.App. 2d 216, 69 Cal.Rptr. 473, that the harmless error rule of California Constitution, article VI, section 13, is not applicable to situations in which a trial court erroneously denies a defendant his right of self-representation. In our judgment, persuasive precedent leads inescapably to the contrary conclusion that the harmless error rule is applicable. The Fourteenth Amendment to the United Stated Constitution has never been held to incorporate an obligation upon the states to permit a defendant to proceed in pro. per. that is the precise equivalent of the right to counsel guaranteed by the Sixth Amendment. While the federal Court of Appeals for the Second Circuit has found a federal constitutional right of self-representation (United States v. Plattner, 2 Cir., 330 F.2d 271) which applies in state court proceedings (United States ex rel. Maldonado v. Denno, 2 Cir., 348 F.2d 12), that same court has held that a denial of the right is not reversible error where no prejudice is shown. (United States v. Abbamonte, 2 Cir., 348 F.2d 700, 704; but cf. language of the earlier decision in United States v. Plattner, supra, 330 F.2d 271.) The federal Courts of Appeals of the Eighth, Tenth, and District of Columbia Circuits refer to the right of self-representation as the creature of statute and not of the Constitution. (Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, ‘ We find nothing in the Constitution which confers [the right to proceed in pro. per.], or from which a guaranty of such right may be inferred. The truth is that the right [in the federal court] is statutory in character, and does not rise to the dignity of one conferred and guaranteed by the Constitution.’ at p. 365; Butler v. United States, 317 F.2d 249, 258 (8th Cir.); Van Nattan v. United States, 357 F.2d 161, 164 (10th Cir.).) Under the view of those circuits, also, the denial of self-representation ‘ will not support reversal unless there is a showing that the denial was prejudicial to defendant.’ (Butler v. United States, supra, 317 F.2d 249, 258; see also Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363, 366.)
We deem the approach of the Eighth, Tenth, and District of Columbia Circuits to be the persuasive view. It is, after all, [93 Cal.Rptr. 308] difficult to follow the reasoning of the Second Circuit which first implies a right of self-representation from the phraseology of the Sixth Amendment stating, ‘ In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence’ and then imposes the implied right as a limitation on state procedure. (See Grano, ‘ The Right to counsel,’ (1970) 54 Minn.L.Rev. 1175, 1203; see also Benton v. Maryland, 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, holding that the test of incorporation of a Bill of Rights guarantee as a limitation upon state criminal proceedings is whether the particular right is ‘ fundamental to the American scheme of justice.’) Whether we adopt the view which we deem the sounder one or the approach of the Second Circuit, however, there seems no federal constitutional impediment to the application of California's harmless error rule to a denial of the right of self-representation.
The Supreme Court of the United States has recently held that denial of the absolute right to counsel in a vital stage of a criminal prosecution may nevertheless be subject to the more restrictive Chapman rule of harmless error. (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. In the situation of the case at bench, the California rather than the Chapman rule of harmless error is dictated by the nature of the right denied.
Neither People v. Crovedi, 65 Cal.2d 199, 53 Cal.Rptr. 284, 417 P.2d 868, nor People v. Elliot, 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225, which constitute the precedential basis of Ruiz , is contrary to the determination which we here suggest. Crovedi deals with the failure of a trial court to grant a continuance to a defendant to permit him to obtain counsel of his choice when his initially retained counsel was stricken with an unexpected illness. The holding in Crovedi that a denial of counsel is error of a dimension which precludes application of the harmless error rule is not persuasive that the same proposition should be applied where the error is the appointment of counsel over objection. Elliot is similarly inapposite. That case holds that the failure of a magistrate conducting a preliminary examination to exclude witnesses on request as required by Penal Code section 868 requires reversal of a conviction irrespective of the rule of harmless error. Elliot differs from the case at bench in two significant respects. The lack of compliance with section 868 rendered the commitment of the defendant invalid and hence the trial court was without jurisdiction to proceed. Equally important, our Supreme Court in Elliot rationalizes its decision in part by construing section 868 as a device to insure the defendant an unbiased and impartial jury. The defect present in Elliot equates with that present in prejudicial pretrial publicity where a defendant is entitled to relief without a showing of actual harm. (Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.) The distinction of Elliot from the case at bench is highlighted by the recent decision in People v. Johnson, 13 Cal.App.3d 1, 91 Cal.Rptr. 203, which also deals with error at a preliminary examination but holds that error there in not permitting a defendant to proceed in pro. per. is governed by the harmless error rule.
Ruiz accepts the argument that the harmless error rule, if applied, would render a defendant's right to proceed in pro. per. meaningless because prejudice can never be established. That reasoning reckons not with the ingenuity of the pro. per. and his ability to articulate his grievance. If in fact a defendant is prejudiced by the denial of his request for self-representation, he can, at the time of his request, make a record of the reasons why he may be prejudiced; he can make a similar record on a motion for new trial or in an application for an extraordinary writ. (For an example of a record establishing prejudice, see United States v. Plattner, 330 F.2d 271.)
As there is no federal constitutional inhibition to the application of the harmless error rule to a denial of the right of self- [93 Cal.Rptr. 309] representation, there is no California constitutional inhibition. There is a California constitutional right of self-representation (People v. Mattson, 51 Cal.2d 777, 336 P.2d 937; People v. Maddox, 67 Cal.2d 647, 651, 63 Cal.Rptr. 371, 433 P.2d 163; People v. Carter, 66 Cal.2d 666, 672, 58 Cal.Rptr. 614, 427 P.2d 214) but the same California Constitution which grants that right contains the harmless error rule in article VI, section 13. The document which grants the right may, and here does, limit the circumstances under which a denial of the right will be reversible error.
As there is no federal constitutional inhibition to the application of the harmless error rule here and as the California Constitution fairly construed dictates application of the rule, so also does reason compel that application. The harmless error rule serves two purposes. In its most common application, the rule is a procedural device which prevents the inconvenience to the litigants and the court system of retrials where the result is a foregone conclusion. In its subtler but equally important aspect, the rule acts to preserve public confidence in the rule of law by preventing the reversal on insignificant and technical grounds of the conviction of a person fairly tried and clearly guilty. Justice Cardozo speaking for the United States Supreme Court, stated: ‘ There is danger that the criminal law will be brought into contempt— that discredit will even touch the great immunities assured by the Fourteenth Amendment— if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.’ (Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, quoted in Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213, 227.)
With his customary prescience, Justice Cardozo recognized that the Bill of Rights may be killed just as dead by an overindulgent kindness as by malice— that there is a danger that a society which depends upon law for its security and safety will choose to surrender its collective constitutional guarantees rather than to submit to decisional law which, for purely technical and insignificant reasons, sets the guilty free at a time when the public safety and security is threatened by burgeoning criminal conduct.
In our judgment, reversal of a conviction for failure to permit the right of self-representation where the defendant is not prejudiced fits within the category of action which risks the result feared by Justice Cardozo. The dilemma of the trial judge faced with a request to go pro. per. who may be reversed on the same facts whether he grants or denies the request has been recognized in prior decisions of the California court. It has been aptly stated that ‘ Cunning criminals consistently take advantage of it and all too often the demand for self-representation becomes a ‘ heads I win tails you lose’ proposition.' (People v. Addison, 256 Cal.App.2d 18, 23, 63 Cal.Rptr. 626, 629.) With equal aptness, it has been noted: ‘ The game of ‘ waive the lawyer’ is one in which the accused has little to lose and the People nothing to gain. Among sophisticated defendants, an attempt to waive the right to counsel at some stage of the proceeding has become a routine ploy,' (People v. Weston, 9 Cal.App.3d 330, 334, 87 Cal.Rptr. 992, 924.)
Application of the harmless error rule to the problem raised by the denial of the right of self-representation tends to dissipate the danger of disparagement of the Bill of Rights while preserving the rights of a defendant who in fact is prejudiced by the denial. We thus conclude that both federal precedent and reason dictate application of the rule of California Constitution article VI, section 13, to the issue of determining the effect, if any, of error in denying a right of self-representation.
Disposition
The judgment is affirmed.
WOOD, P. J., and LILLIE, J., concur.