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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Alfonso HICKS, Defendant and Appellant.

Cr. 17685.

Decided: August 31, 1970

Kathleen J. Kirkland, Alhambra, under appointment by the Court of Appeal, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence P. Scherb, II, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged by information with violation of Penal Code section 211 (robbery), and was charged with being armed with a deadly weapon at the time he committed the offense. Defendant pleaded not guilty, and his motions under Penal Code sections 995 and 1538.5 were denied. His pretrial motion to preclude in-court identification by the prosecution's witness was denied, the court finding that the identification procedure was not unfair. After a jury trial, defendant was found guilty of robbery in the first degree, and was found to have been armed at the time of the offense. His motions for a new trial and for probation were denied, and defendant was sentenced to state prison for the term prescribed by law, the sentence to run concurrently with another sentence defendant was serving. Pursuant to Penal Code section 1202(b), the court fixed the minimum term at six months. Defendant appeals from the judgment.1

The victim, a cab driver for the Yellow Cab Company, testified that on July 14, 1968 he was parked in his cab, outside the Carolina Pines Jr. Restaurant at Sunset and La Brea in Los Angeles. The lighting conditions were adequate. Defendant and codefendant Heedley came out of the restaurant and requested the victim to drive them to the Highland Park area. During the drive, the victim turned around and had a conversation with the two men, while they were stopped at the intersection of First and Broadway; at this time, it was between 4:30 and 4:45 a. m. When they reached Cypress Avenue in Highland Park, the victim stopped the cab and asked the men to pay the fare. Heedley put a gun against the victim's ribs and said, ‘This is a holdup.’ Defendant reached over in the front seat, took the keys out of the ignition, and started going through the victim's coat, which was lying on the front seat. Defendant took a Universal Geneve wristwatch that was in the coat at the time. Subsequently, Heedley made the victim get out of the cab, and took approximately $101 in cash and a class ring from him. During these events, the victim was facing both men; it was already light, and visibility was good. Heedley told the victim to turn around, and placed the gun against his back. Both men said, ‘Start running.’ The victim ran about half a block when he heard a shot go off to his left, and he ran faster. Later that day, he reported the robbery to the police. On July 18, 1968, the victim was shown some mug-shots at the Highland Park Police Station. After looking at the pictures for 10 minutes or less, he selected two photographs, one of defendant and one of Heedley.

On appeal, defendant first argues that he was denied due process of law because the photographic identification procedure was unduly suggestive. He claims that the two photographs which the victim picked out had darker backgrounds than the other six photographs, and that they also had the date ‘7–16–68’ written thereon, whereas the other six bore either the date ‘6–27–68’ or ‘3–14–68.’ The victim testified that he did not notice that the photographs he selected had darker hackgrounds than the other photographs, and that he did not notice that they had different dates.

Officer Glenn E. Bordeman, called as a witness by defendant, testified that he showed the victim the mug-shots from which defendant's and Heedley's photographs were selected. Officer Bordemen did not recall noticing that there were differences in the backgrounds or dates of the pictures. He estimated that the victim looked at the photographs for only a minute or less. The victim said nothing about the dates on any of the pictures.

Since the victim had ample opportunity to observe his assailants, and since any dissimilarities between the photographs were insignificant and not obvious to the observer, we cannot say that the photographic identification process was so unduly suggestive as to deny defendant due process of law. (See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247; Cf. People v. Pedercine, 256 Cal.App.2d 328, 335, 63 Cal.Rptr. 873.)

Defendant also contends that his conviction should be reversed because he was denied effective aid of counsel. He does not challenge the adequacy of his representation at the trial which led to the present conviction. However, he argues that he was deprived of his right to effective aid of counsel because, afteer a previous conviction of possession of a concealed weapon, his then attorney did not advise him that if he wrote a letter to the judge as requested by the probation officer, the letter could be used against him in subsequent proceedings. Before evidence was taken in the instant case, the district attorney made the following statement: ‘If the defendant chooses to testify I am going to cross-examine him. I dont's know what statements he's made. I would introduce, if the defendant elects to testify that he did not have the gun the night before—There's a case in which he was convicted of possession of the gun and in which he wrote a letter to the judge, saying, ‘I obtained the gun on that night,’ and I would plan to impeach him by that statement made by him at the time he was represented by a counsel in a letter written to the judge, which is in the court file.'2 Defense counsel moved for an order prohibiting use of defendant's letter in the trial for any purpose. After testimony by defendant was taken relative to the motion, the motion was denied, ostensibly on the authority of People v. Alesi, 67 Cal.2d 856, 64 Cal.Rptr. 104, 434 P.2d 360. Defendant thereafter failed to take the stand in his own defense.

We feel that the trial court's reliance upon Alesi was misplaced, and the real issue in this case is not whether defendant received ineffective aid of counsel, but whether the letter was obtained from defendant in violation of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In Alesi, defendant pleaded guilty on the advice of counsel, so that prompt commitment to the California Rehabilitation Center could be arranged. At an oral interview following his plea, defendant told his probation officer that he was using heroin and that a marijuana cigarette discovered by the arresting officers was his. Defendant also submitted a statement in his own handwriting in which he confessed to marijuana possession, and also admitted heroin use, although he did not admit the sales charged in the in dictment. At the second trial, he denied the marijuana possession, and his written statement was introduced for impeachment purposes. On cross-examination, he testified that his admissions to the probation officer were made on the advice of his then attorney. The court stated (67 Cal.2d at pp. 861–862, 64 Cal.Rptr. at p. 107, 434 P.2d at p. 363):

‘* * * Thus, in a later trial the People may introduce admissions made to a probation officer, either directly or for impeachment purposes, where it affirmatively appears in the record that the defendant made those admissions under the guiding hand of counsel, unless the defendant can establish that his attorney in concert with the court or the People misrepresented his eligibility for or likelihood of admission to the state narcotics treatment facility. * * *’

‘* * * The critical element is that the defendant is represented by counsel, and counsel has the opportunity to fully inform him of the risks he takes by full or false disclosures to his probation officer.

‘Although under these circumstances we find no reason to hold defendant's statements to his probation officer inadmissible, it is not difficult to contemplate circumstances in which the use of such testimony would be tainted. Thus, unless it clearly appeared from the record that a defendant, like Alesi, was acting under the advice of counsel or that he waived his right to counsel and was advised of his right to remain silent (see People v. Stewart (1965) 62 Cal.2d 571, 43 Cal.Rptr. 201, 400 P.2d 97, affd. sub nom. Miranda v. State of Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, 695, 10 A.L.R.3d 974,) the People could not use the statements, even for impeachment purposes, because as the court recognized in People v. Garcia (1966) 240 Cal.App.2d 9, 13, 49 Cal.Rptr. 146, 148, 15 A.L.R.3d 1352: ‘in order [for the probation officer] to get full cooperation from a defendant he should be advised that any statement he makes will be used only for the information of the court in a probationary hearing. We do not doubt that defendants have that belief and that if they knew their damaging admissions could be used against them in another trial they would not talk freely and the purpose of the interview would be frustrated.’' (Emphasis added.)

Although defendant in the instant case had an attorney, the record does not affirmatively indicate that he wroter the letter ‘under the guiding hand of counsel.’ While the possibility of coercion does not appear to be as strong in the instant case as it was in People v. Quinn, 61 Cal.2d 551, 39 Cal.Rptr. 393, 393 P.2d 705, distinguished in Alesti, the record does reflect that defendant did not have the advice of counsel and was not advised of his rights when he wrote the letter. The only relevant testimony in this regard was from defendant, but if the prosecution had conflicting evidence, it had the duty to present it. The following testimpony was elicited on the defendant's motion:

[Questions by defense counsel; answers by defendant.]

‘Q You recall talking to the probation officer in the possession of a gun case before writing a letter, do you?

‘A Yes.

‘Q What did he say to you about writing a letter, concerning the events in that case and your situation, to the judge?

‘A He told me to write a letter to the judge and relate the circumstances of how I was arrested and how I came about the gun and how I felt about the arrest and my status at home.

‘Q Were there any other words that he spoke in connection with your then responding with a letter?

‘A No.

‘Q Did you ask him any questions about it?

‘A I asked him what good would it do me.

‘Q What did he say, if anything?

‘A He didn't know but that it might—he didn't know; that it might help.

‘Q Did he say anything to you about your constitutional right to remain silent?

‘A No.

‘Q Did he say anything to you about your right to have an attorney present concerning any statements that you might make?

‘A No.

‘Q Did he say anything to you about the fact that any statement that you might make could, and if there were a proceeding in which they were pertinent, would be used against you?

‘A No.

‘Q Did you, at the time you made the statement, or before the time you made the statement, have in your mind the possibility that someday what you said might be used against you?

‘MR. LIEBERMAN [District Attorney]: Objection as irrelevant and immaterial, your Honor.

‘THE COURT: I will permit the question. The objection is overruled.

‘Do you remember the question, sir?


‘THE COURT: The reporter will please read the pending question.

‘(Pending question read.)


‘Q [By defense counsel]: Did Mr. Gottesman [defense counsel in the prior-case] say anything to you about whether you should give a statement, either orally to the probation officer, or in writing to the judge?

‘A No.

‘Q Was there any discussion between you and Mr. Gottesman about either oral or written statements to the probation officer, the judge or anyone else, after the finding of guilt in that case?

‘A All he said, someone from the probation office would come out and talk with me.

‘Q Did he say anything else about it?

‘A No, that's all.

‘Q Did you consider the possibility of talking to Mr. Gottesman before making any statement in writing, or orally, to the probation department or the judge?

‘A No.

‘[Defense counsel]: I have no further questions.

‘THE COURT [To District Attorneyt]: You may cross-examine.’

[Questions by District Attorney; answers by defendant]:

‘[By District Attorney]: I now have the file before me, People versus Alfonso Hicks, 23683; I have opened the file, your Honor, to the letter of Mr. Hicks, dated October 21, 1968 and would request that this be marked for purposes of identification by reference.

‘THE COURT: It will be marked People's 2 by reference.’

‘Q Mr. Hicks, showing you People's 2 by reference and calling your attention to the second page thereof, is that your signature?

‘A Yes.

‘Q This is your letter?

‘A Yes.

‘[District Attorney]: Thank you.

‘THE COURT: Anything further?

‘[District Attorney]: Yes, your Honor, I'm sorry.

‘Q Did the probation officer ever tell you that if you did not write a letter to the judge, that your failure to write such letter would influence the probation officer's decisions and recommendations in any manner whatsoever?

‘A All he told me was it might help.

‘[District Attorney]: It might help.

‘Nothing further, your Honor.’

It was therefore error to deny the defense motion for an order prohibiting the prosecution from using the letter.3 There is no certainty that defendant would have taken the stand in the absence of the court's erroneous ruling, and no certainty that if he had taken the stand he would have received a more favorable verdict. However, the court's error was of constitutional proportions, and must be tested by the ‘harmless beyond a reasonable doubt’ rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705. We feel that the error does not withstand that test. The victim testified that defendant was one of the robbers. Since defendant, unlike his codefendant, did not have an alibi witness, he could only rebut the victim's testimony by taking the stand and denying his involvement. If he did so, however, he would run the risk of being impeached by his own letter. It seems unconscionable to permit the use of the letter against defendant in the absence of an express waiver of his rights when at the time of its writing his photograph had been selected by the victim only two days after defendant's arrest for possession of a concealed weapon. Defendant had effectively been identified as one of the robbers of the cabbie on July 14, 1968, and was in custody at the time. Defendant's letter was dated October 21, 1968. Thus, although the complaint in the instant case was not filed until December 11, 1968, it is likely that the prosecution knew defendant would face charges of armed robbery long before he was asked to explain how he came into possession of the gun.

The judgment is reversed.


1.  The jury was unable to reach a verdict as to a codefendant, Heedley, and a mistrial was declared as to him.

2.  The text of the letter reads as follows (verbatim):‘I Alphonso Hicks, was found guilty on the fifteen of this month in your court room.‘I know it is against the law to carry a conceal weapon. But I couldn't walk around with it in my hand. My intention's were to turn the gun in thinking I would recived ten dollars. I know you'll find this hard to believe, but I miss understood a newsboardcast. This all took place in the later part of June, after Senataor Kennedy's death. I had the gun for about two hour's before my arrest. Outside of Caroline Pines Jr.‘Before I could carry out my intentions I was arrest. I got the gun down on the strip in exchange for a worn out too small leather coat.‘At the time of my arrest I was working for Sam's Liquor Store on South Central Avenue in South east Los Angeles. As a part time cashier and box boy. I haven't gotten into any real trouble since that car that I had stolen.‘I live at home with my mother and I help take care of all the bills.‘I've been trying to make the best of my probation since I've been on it. I'm looking forward to be re-instated of probation, it the court will allow this. I was planning on attending college but when time came to enroll I was confind in the old county jail. This is how I was arrested, in July for the gun.’

3.  (People v. Harrington, 88 Cal.Rptr. 161, 166, 471 P.2d 961, 966, dec. by the California Supreme Court on July 30, 1970: ‘Alesi should not be read as permitting the admission at a subsequent trial of the statements of a defendant to a probation statements of a defendant to a probation officer unless the statements are made under [the particular] circumstances [of Alesi].’(For an analytical statement relative to the purpose and use of a probation report, see People v. Smith, 259 Cal.App.2d 814, 821–825, 66 Cal.Rptr. 551.)

STEPHENS, Acting Presiding Justice.

AISO, and REPPY, JJ., concur.

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