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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Alvin HARRIS and Cleveland Peart, Defendants and Appellants.

Cr. 2585.

Decided: August 10, 1967

Chapman & Sprague, by Richard Beswick, San Bernardino, by appointment of Court of Appeal, for defendant and appellant Cleveland Peart. Joseph V. Mazziotta, San Bernardino, by appointment of Court of Appeal, for defendant and appellant Alvin Harris. Thomas C. Lynch, Atty. Gen., by Elizabeth Miller and Mark W. Jordan, Deputy Attys. Gen., for plaintiff and respondent.


Appeal from judgments of conviction of defendants on an information charging a violation of sec. 211, Penal Code, in two counts.

Count I charged defendants with robbing one Eva Bearden of lawful money of the United States on November 1, 1965. Count II charged defendants with robbing William Block and John Hauschild of lawful money of the United States on November 17, 1965. Count II charged that defendant Harris was armed with a deadly weapon. Defendant Harris was charged with three prior felony convictions. The third charged prior conviction was dismissed. Defendant Harris denied the remaining two prior felony convictions (robbery, first degree, and robbery, second degree). The jury found defendants guilty; found Harris was armed with a deadly weapon and found the two prior felony convictions of Harris to be true.

On this appeal we have appointed a different counsel for each of the defendants.

Defendant Peart asserts illegal search and seizure of certain of his clothing and possessions which we decide for the reasons hereinafter stated is without merit. Additionally, and by a ‘Supplemental Opening Brief’ filed by defendant Peart, independent of his duly appointed counsel, defendant asserts inadequacy of counsel; since he is an atheist there should be atheists on the jury; evidence of prior convictions charged against defendant Harris should not have been admitted into the record and there was an illegal pronouncement of sentence. None of the asserted and self-asserted contentions have merit as we will indicate.

Defendant Harris contends he was denied due process of law in that he was denied the benefit of counsel at the preliminary hearing. We have concluded his contention is meritorious and requires reversal thus obviating the necessity of consideration of the other points raised by this defendant.

Neither defendant questions sufficiency of the evidence to sustain the judgment on either count. It becomes unnecessary to recite the events at the time of the respective robberies except those occurring after the last robbery. Both robberies occurred in the County of San Bernardino. On November 17, and immediately after the defendants left the scene, the victim called the City of San Bernardino Police Department, reported the robbery, gave a description of defendants and of their vehicle. A patrol car police officer received a broadcast and description. Upon receipt of this information, he proceeded to the area of the robbery and observed an automobile fitting the description given him which car was traveling in an opposite direction. The officer turned his car around to pursue defendants' vehicle. Defendants' vehicle had turned off the street and was parked in a service station where it was seen by the officer. The officer drove up to defendants' vehicle, got out of his police unit, and proceeded to defendants' vehicle. No one was in or near the defendants' vehicle but since it had recently rained, the officer discovered footprints of two persons going from the vehicle into a field. He followed the footprints for some distance and then abandoned the pursuit. The officer returned to the vehicle, found it was unlocked and inspected the registration which reflected the car was registered to defendant Harris. In plain view from outside the vehicle, the officer saw two hats, a suit coat, and a raincoat and a paper sack. He secured the articles and the vehicle was towed away. Later defendants were apprehended.

Both defendants rely upon the pronouncement in People v. Burke, 61 Cal.2d 575, 39 Cal.Rptr. 531, 394 P.2d 67, to support their postulation that there was an unlawful search and seizure of the clothing later introduced into evidence to link them with the commission of the robberies. Their postulation is not supported by the Burke, supra, case for that pronouncement rested upon the remoteness of time and place. These factors are not present for the officer was in pursuit, found the vehicle, could see the articles by merely looking into the vehicle. The officer did not have to blind himself to that which was in plain sight, People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721, nor fail to observe that which is open and patent. (People v. Lindogan, 212 Cal.App.2d 466, 471–472, 27 Cal.Rptr. 905; People v. Carr, 244 Cal.App.2d 99, 104, 52 Cal.Rptr. 813.)

The case of Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782, is dispositive of defendants' objection to the admissibility of the clothing because it was not contraband or instrumentality or fruits of the crime. The Warden, supra, case disposes of the distinction between mere evidence and seized evidence of contraband, instrumentality, or fruits of the crime. The clothing was properly introduced for identification of the defendants.


In admitting evidence of prior felony convictions charged against defendant Harris, the court carefully and fully advised the jury the evidence was admitted as to defendant Harris and was not to be considered as to defendant Peart. Defendant Peart urges this admission of evidence to prior felony convictions of defendant Harris places him, i. e. defendant Peart, twice in jeopardy, citing United States v. Coolidge, 25 Fed.Cas. p. 622, No. 14,858; United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300. Patently, the cases do not support defendant's argument. Proof of a codefendant's prior felony conviction when properly admitted and limited by proper instructions given to the jury is not inherently prejudicial to defendant Peart.

The contention of defendant Peart regarding exclusion of people of no religious faith or of certain faith is equally devoid of merit. California Constitution, Article I, Section 4, provides no juror is disqualified because of his religious beliefs. The oath administered to a juror or witness is an individual action and the juror or witness may swear or affirm in accordance with his belief or lack of it. The burden of proving a violation of any of his rights is upon defendant Peart. He has failed to sustain this burden of proof.

Defendant Peart has failed to sustain the burden of proof, as he must, that his trial counsel was inadequate. The sole basis for his assertion is that his counsel failed to object to an oath being administered to a witness on the ground that defendant Peart did not believe in God. There can be no question that regardless of a person's religious faith or lack of it, he may be charged with a crime and if the evidence sustains the charge, be convicted of it. It is equally true that though the defendant has no religious faith, a witness, prior to testifying, may be administered an oath. The witness is free to take an oath or give affirmation. Defendant is without standing to object to the witness taking an oath or giving an affirmation in accordance with established and traditional court procedure.


An error of constitutional proportion occurred in the Magistrate's Court which was not waived and which as we have stated requires a reversal of the judgment as to defendant Harris for reasons hereinafter set forth.

From the records before us on this appeal, it appears that defendant Harris alone had been charged in a separate criminal complaint with a violation of sec. 211, Penal Code, occurring on October 20. However, on January 28, 1966, a proceeding took place in the Justice Court of Redlands Judicial District. The record of the arraignment proceedings in that court is merely a formal docket sheet which reflects only that defendant Harris was charged with two counts of a violation of sec. 211, Penal Code, occurring on November 1; that he was ‘duly arraigned and informed of all legal rights * * * Defendant requests counsel be appointed to represent him-her. * * * ’

In fact the charged offenses actually occurred on November 1 and November 17, 1965. In any event, on January 3, 1966, the preliminary hearing was set for January 28, 1966, but continued to February 4, 1966, ‘at request of defendant.’

The formal record, contained in the ‘Felony Docket Sheet’ of the Justice Court of Redlands Judicial District, does not comport with the requirements enunciated in the recent Supreme Court decision of In re Smiley, 66 Cal.2d 6061, 58 Cal.Rptr. 579, 427 P.2d 179. The record of January 3 or January 28, 1966, is silent as to the defendant being advised of his right to counsel. The printed record apparently reflects the defendant requested the appointment of counsel, but there is no record of counsel being appointed. Upon this silent record, we cannot presume that there was an effective appraisal of defendant's rights. Nor from this record may the presumption arise of a knowing and intelligent waiver of those rights by the defendant. (Miranda v. State of Arizona, 384 U.S. 436, 498–499, 86 S.Ct. 1602, 16 L.Ed.2d 694; People v. Stewart, 62 Cal.2d 571, 581, 43 Cal.Rptr. 201, 400 P.2d 97, affm. sub nom. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.)

On February 4, 1966, in the same court a reported preliminary hearing was held without participation by defendant Harris in which the appointed counsel stated he did not represent defendant Harris but only defendant Peart and he understood defendant Harris appeared in propria persona. The judge stated he so understood, and that defendant Harris had ‘divested’ himself of counsel on January 28, 1966.

Any record as to defendant Harris' legal position under the criminal complaint charging him, alone, with a violation of sec. 211, Penal Code, cannot be helpful to us on this appeal from a criminal conviction of different offenses with jointly charged defendants. Whatever the court may have meant by the stating defendant Harris in the jointly charged offense had ‘divested’ himself of counsel would not lend itself to determining defendant's rights under that charge. We will not indulge in speculation that defendant Harris had been fully advised of his right to counsel at all critical stages of the criminal proceedings, or these advisements, if given, were understood or, if understood, there was an intelligent waiver or an advisement by the court of the possible consequences in the subsequent proceedings to be had under the criminal charges. The record being silent as to these matters, no presumption arises that defendant's constitutional rights were protected. (In re Smiley, supra, 66 Cal.2d 6062, 58 Cal.Rptr. 579, 427 P.2d 179; Miranda v. State of Arizona, supra, 86 S.Ct. 1602, 1628; Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70; In re Woods, 64 Cal.2d 3, 7, 48 Cal.Rptr. 689, 409 P.2d 913; People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; In re Johnson, 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420; People v. Perez, [July 19, 1967, App.Dept. Ventura County Superior Court], Cal.App.Supp.)

In California it has long since been established that the preliminary hearing is a critical stage in the criminal process. (Article I, Section 13, California Constitution; Bogart v. Superior Court, 60 Cal.2d 436, 438, 34 Cal.Rptr. 850, 386 P.2d 474.) To hold otherwise would presage a decision of our highest appellate courts that defendant, unadvised of his constitutional rights to be represented by counsel, can adequately represent himself at a preliminary hearing. The adumbration of other cases in various phases of criminal law requires presence of counsel at certain stages of the proceeding despite the fact that the attorney cannot prevent or participate in the proceeding but must be present to protect against events in the criminal proceedings which may and probably will follow. (See Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.) Since advisement, presence of counsel or waiver are required at these less formal stages of criminal proceedings, the mandated advisement, presence of counsel, or waiver must be clearly presented by the record at a vital and critical stage of the proceedings such as a preliminary hearing. No legal counsel can forecast the future events of the case occurring after the preliminary hearing proceedings. Certainly, a defendant, an unadvised defendant, cannot conjure up all events in the future of his case or the use which may be made of the recorded preliminary hearing proceedings.

There is no showing in the record that defendant Harris was so intelligently oriented that he could cope with the acumen of a legally trained mind. By permitting him to proceed without a lawyer and without determining waiver, the court and prosecution violated the Federal Constitution proscription.

The record is silent as to any intellectual capacity or post advisement on the part of defendant Harris to allow this court to find an implied waiver. (In re Woods, supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Smiley, supra, 66 A.C. at p. 651, 58 Cal.Rptr. 579, 427 P.2d 179.)

Although insisted upon to the contrary by the People, no showing of prejudice is required when the error is of the constitutional dimension of denial of counsel at a critical stage of the criminal proceedings. (Hamilton v. State of Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 158–159, 7 L.Ed.2d 114; Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680; In re Smiley, supra, 66 A.C. at pp. 652–653, 58 Cal.Rptr. 579, 427 P.2d 179; see also Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

Other points raised by defendant on this appeal need not be considered by us since a reversal is required on the issue above decided.

Judgment affirmed as to defendant Peart and judgment reversed as to defendant Harris.


FN1. 66 A.C. 634, 643–645..  FN1. 66 A.C. 634, 643–645.

FN2. 66 A.C. 634, 649..  FN2. 66 A.C. 634, 649.

McCABE, Presiding Justice.

KERRIGAN, J., and THOMPSON, J. pro tem*, concur.

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