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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Edward Lewis JENKINS, Defendant and Appellant.

Cr. 8881.

Decided: June 09, 1980

Appellate Defenders, Inc. and Barry D. Utsinger, San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and Yvonne H. Behart, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged in a four count information with receiving stolen property (Pen. Code, § 496, subd. (1); count 1), possessing controlled substances (Health & Saf. Code, § 11350; count 2), possessing articles from which the serial numbers had been removed (Pen. Code, § 537e; count 3) and possessing less than an ounce of marijuana (Health & Saf. Code, § 11357, subd. (b); count 4). Three prior felonies were also alleged: possessing marijuana (Health & Saf. Code, § 11530), forgery (Pen. Code, § 470) and receiving stolen property (Pen. Code, § 496.1).

Defendant pleaded not guilty to all counts and trial by jury started on January 15, 1976. He was convicted of all counts. The priors were found to be true pursuant to his admission. Criminal proceedings were suspended on June 22, 1976 (Welf. and Inst. Code, § 3051) and on September 20, 1977, Jenkins was committed to the California Rehabilitation Center (CRC). The commitment was revoked on December 21, 1977. On March 9, 1978, Jenkins was sentenced to prison. Counts 1 and 2 were to run consecutively to each other and concurrently with a six-month jail term on count 3. He was fined $100 on count 4. Notice of appeal was filed on March 23, 1978.

The foregoing is set out in some detail because of the question raised of the timeliness of his appeal. The order committing defendant to CRC became appealable as a criminal judgment 90 days after the order was made. (People v. Clayton (1970) 13 Cal.App.3d 335, 336-337, 91 Cal.Rptr. 494; Pen.Code, § 1237.) It became a final criminal judgment for purposes of appeal on December 19, 1977. The jurisdictional time limit of 60 days to file a notice of appeal from that judgment expired on February 17, 1978. (See In re Anderson (1971) 6 Cal.3d 288, 293-294, 98 Cal.Rptr. 825, 491 P.2d 409; California Rules of Court, rule 31(a).) Defendant's filing of his notice of appeal on March 23, 1978, is thus untimely regarding the appellate preservation of issues going to the validity of his convictions. It is timely, however, regarding the issues relating to his rejection from CRC and his sentencing in general. (People v. Munoz (1975) 51 Cal.App.3d 559, 563-564, 124 Cal.Rptr. 322; People v. Vest (1974) 43 Cal.App.3d 728, 731, 118 Cal.Rptr. 84.)

The record, however, discloses defendant was only informed of his right to appeal by the trial judge who sentenced him to prison. He filed his appeal two weeks later, well within the 60-day period in which he was told he had the right to appeal. Under such circumstances, rather than delaying this case further, we address the merits of his appeal.

Factual Background

On October 14, 1975, Officer Hannibal was told by a juvenile that the latter had taken a stolen television set to 5550 Olvera Street and had given it to an individual named Eddy. This information corroborated other information he had regarding the suspect's involvement in the receipt of stolen property. So, on that date, at about 11:00 p. m., the officer, with five others, went to the address, knocked on the front door, and met defendant who answered the door. Hannibal told defendant the police were conducting an investigation and would like to talk to him. The officer asked whether they could come in and defendant responded in the affirmative. He then told defendant they were looking for a stolen Admiral television and asked whether they could search the premises. Defendant consented, stated it was his place, he had no Admiral television set, and that everything in the residence belonged to him. The officers searched the residence, finding a stolen shotgun hanging on the wall, a stolen IBM typewriter, a stolen Astra pistol located under the bed, and a stolen stereo set from which the serial numbers had been removed. On a dresser in the bedroom, the officer found a clear plastic box containing pipes for smoking marijuana. After opening the box and removing part of a pipe, Hannibal discovered an opaque blue balloon, which he presumed contained cocaine or heroin.1 He also discovered a bag of marijuana in a black and yellow box halfway under a bed.

Following the search, Hannibal arrested defendant and advised him of his rights. Defendant stated he understood them and would talk to the officer. As the items were seized and brought into the kitchen to be inventoried, defendant made spontaneous statements that all the articles in the house belonged to him. He further commented regarding some other items, “You might as well take those things, too, because they are stolen.”

The Admissibility of Defendant's 1970 Forgery Conviction For Impeachment

Defendant first contends the trial court erred in ruling his 1970 forgery conviction was admissible for impeachment purposes. His contention is without merit.

Before trial, defendant admitted a 1970 prior conviction for forgery, a 1970 conviction for receipt of stolen property, and a 1969 conviction for possession of marijuana. He then moved to have excluded for impeachment purposes these prior felonies should he choose to testify. The court ruled the forgery, but not the other convictions, was admissible for impeachment. Defendant then elected not to testify.

In admitting a prior conviction for impeachment pursuant to Evidence Code section 788, a trial court must, upon request, exercise its discretion under Evidence Code section 352 and determine whether the probative value relating to credibility of the prior is outweighed by the other considerations, such as the risk of undue prejudice. (People v. Spearman (1979) 25 Cal.3d 107, 113, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries (1979) 24 Cal.3d 222, 226, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Woodard (1979) 23 Cal.3d 329, 334-335, 152 Cal.Rptr. 536, 590 P.2d 391; People v. Rollo (1977) 20 Cal.3d 109, 115-116, 141 Cal.Rptr. 177, 569 P.2d 771; People v. Rist (1976) 16 Cal.3d 211, 218-219, 127 Cal.Rptr. 457, 545 P.2d 833; People v. Antick (1975) 15 Cal.3d 79, 97, 123 Cal.Rptr. 475, 539 P.2d 4.) In deciding whether to admit the prior conviction, the trial court must first determine whether it is relevant to one's veracity and thus its probative value. Secondly, it must consider the nearness or remoteness in time of the prior conviction. These considerations, which establish the probative value of the prior conviction, then must be weighed against the probability that its admission would cause undue prejudice and confusion of issues, as well as adversely affect the administration of justice if defendant elects not to testify in order to keep it from the jury. (People v. Spearman, supra, 25 Cal.3d at pp. 113-114, 157 Cal.Rptr. 883, 599 P.2d 74; People v. Fries, supra, 24 Cal.3d at pp. 226-227, 155 Cal.Rptr. 194, 594 P.2d 19; People v. Woodard, supra, 23 Cal.3d at pp. 335-337, 152 Cal.Rptr. 536, 590 P.2d 391.)

Balancing the foregoing considerations, we conclude the trial court did not abuse its discretion in ruling defendant's prior conviction was admissible for impeachment purposes.

First, a forgery conviction is both relevant to and probative of an individual's veracity. Second, it was not so remote in time as to diminish its probative value. (People v. Anjell (1979) 100 Cal.App.3d 189, 197, 160 Cal.Rptr. 669; People v. Roberts (1976) 57 Cal.App.3d 782, 790, 129 Cal.Rptr. 529, disapproved on other grounds by People v. Rollo, supra, 20 Cal.3d 109, 120, fn. 4, 141 Cal.Rptr. 177, 569 P.2d 771.) Balanced against these considerations is the fact the forgery conviction was dissimilar from the crimes for which defendant was being tried and, thus, not entitled to any greater weight in support of exclusion than the admission of any other prior conviction. (See People v. Rist, supra, 16 Cal.3d at p. 219, 127 Cal.Rptr. 457, 545 P.2d 833; cf. People v. Fries, supra, 24 Cal.3d at p. 230, 155 Cal.Rptr. 194, 594 P.2d 19.)

As to the first counterbalancing factor, the risk of undue prejudice is present to some degree in every case in which the prior felony is used for impeachment purposes. The extent of the prejudice here, however, does not warrant the exclusion of the dissimilar conviction of forgery. The more difficult question to resolve is defendant's claim that his failure to take the stand was due to the court's ruling on the admissibility of the prior. He argues “The crux of [his] defense was his unawareness of the illegal character or presence of the seized goods and contraband. It is a defense which hinges entirely on whether the defendant can credibly explain how the items innocently came under his dominion and control. The most illuminating testimony regarding subjective intent is best obtained from [defendant] himself.”

Whether his testimony is the “most illuminating” is certainly open to question. In any event, his argument is correct to the extent the jury was deprived of his testimony. Unlike People v. Fries, supra, 24 Cal.3d 222, 155 Cal.Rptr. 194, 594 P.2d 19, however, where no other witness testified to the defense version of the facts, defendant presented three witnesses to testify on his behalf. His brother-in-law testified he had accepted the shotgun and typewriter as security for a $75 loan to Billy Shaw. Although he first placed the items in his apartment, he later took them to defendant's home before his arrest. Shaw could not be located. Second, Cheryl Smith testified she was holding the stereo for a Roger Jennings while he was looking for a place to stay. Later, she took it to defendant's house and placed it in the den. Jennings also gave her a box in which she hid a balloon of cocaine. She testified she had another box containing marijuana which she hid under a bed in defendant's home so he would not find it. Finally, defendant's brother testified he had accepted the Astra pistol as collateral for a $20 loan to Leon Davis. Without defendant's knowledge, he also put the gun under a bed in defendant's home. The jury heard, albeit indirectly, defendant's version of the case. Under all the circumstances we decide the court did not abuse its discretion in admitting the prior felony.

The Admissibility of Defendant's Post-Miranda Warning Statements

Defendant asserts his post-Miranda warning statements were involuntary because he was not told his pre-warning statements were inadmissible.

Before being advised of his Miranda rights, defendant made several unsolicited, incriminating statements to the effect it was his residence; all the items within the residence belonged to him; the other individuals in his house were merely visiting; and he did not have an Admiral television set. After twenty minutes of searching, defendant was given his Miranda rights. He then substantially repeated the import of his earlier statements. In addition, while seized items were placed in front of him, he said, “You might as well take those things too because they are stolen.” At trial defendant objected to all the statements made by him to the police. The trial court ruled that since the investigation had focused on defendant when the officers arrived at his residence, any admissions given before he was Mirandaized must be excluded. However, the court further ruled that Officer Hannibal had properly admonished defendant and that any statements made by defendant after the admonishment were admissible.

The trial court properly admitted the post-Miranda warning statements, since the foregoing factual scenario is devoid of any actual coercion. The pre-Miranda warning statements were excluded technically for the officers' failure to comply with the procedural safeguards of Miranda, not because they were the product of coercion-in-fact. Granted,

“The rule has been long and well settled in this state that where a defendant, subjected to threats, violence or other improper influences, makes a confession or other incriminating statement in such a coercive atmosphere and shortly thereafter again incriminates himself under circumstances not manifestly coercive ‘there is a presumption that the influence of the prior improper treatment continues to operate on the mind of the defendant and that the subsequent confession is the result of the same influence which rendered the prior confession inadmissible, and the burden is upon the prosecution to clearly establish the contrary. [Citations.]”’ (People v. Sanchez (1969) 70 Cal.2d 562, 574, 75 Cal.Rptr. 642, 650, 451 P.2d 74, 82.)

However, the record substantially supports the trial court's implied finding of the absence of coercion. Even though a prior confession irretrievably “lets the cat out of the bag,” the courts have not established an inflexible rule that once a defendant makes a confession under circumstances which preclude its use, he is perpetually disabled from making a usable one after those conditions have been removed. (United States v. Bayer (1947) 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654; People v. Johnson (1969) 70 Cal.2d 541, 547, 75 Cal.Rptr. 401, 450 P.2d 865; People v. Spencer (1967) 66 Cal.2d 158, 167, 57 Cal.Rptr. 163, 424 P.2d 715.) “Therefore, the proper inquiry is whether the conditions that rendered the pre-warning admissions inadmissible carried over to invalidate appellant's subsequent confession.” (United States v. Toral (9th Cir. 1976) 536 F.2d 893, 896.) In the present case, defendant's initial statements were rendered involuntary exclusively because of the officers' failure to give him the Miranda warnings. The officers' tactics were not inherently coercive, as all the statements took place in the security of defendant's own home. (Ibid.) Simply stated, “the record before us reveals no coercive atmosphere that was carried over after the Miranda warnings were given.” (Id., at pp. 896-897.)

The Admissibility of the Blue Balloon of Cocaine

Defendant contends the trial court erred in admitting the cocaine since it was not in plain view, but rather in an opaque blue balloon. He further argues the officer did not have probable cause to seize the balloon, until after he had seized, smelled and opened it.

After consenting to the search, defendant led the officers from room to room in his house. Having seen four items with serial numbers removed, Hannibal told defendant he was under arrest for receiving stolen property. He then saw some marijuana in an open box protruding from the bed. When he looked under the bed, he saw a knife and two pistols. On the top of a dresser, he saw a clear plastic box containing a pipe commonly used for smoking marijuana or hash. When the officer picked up the pipe, he discovered underneath it within the box a blue balloon. He then told defendant he was also under arrest for narcotics. In light of his experience gained during a five-year assignment with the narcotics division, he was aware that balloons were commonly used as containers for packaging heroin and cocaine and thus concluded it contained contraband. He then examined the balloon, noted it had an odor and contents resembling cocaine, and deduced it was in fact cocaine.

It is undisputed the officers' warrantless search of the residence was valid in light of defendant's consent. (See gen. People v. James (1977) 19 Cal.3d 99, 106, 137 Cal.Rptr. 447, 561 P.2d 1135.) Pursuant to such a search in the manner conducted here, “[n]either the observation of contraband in plain view from a position where an officer has a right to be nor the seizure of such contraband is constitutionally prohibited.” (People v. Rios (1976) 16 Cal.3d 351, 357, 128 Cal.Rptr. 5, 8, 546 P.2d 293, 296.) Officer Hannibal had probable cause to believe the balloon contained contraband. He testified that based on his experience in the narcotics division he suspected the balloon contained contraband, since balloons are commonly used for packaging heroin and cocaine. Reasonable grounds for believing a package contains contraband may be adequately afforded by the package's shape and design. (People v. Lilienthal (1978) 22 Cal.3d 891, 898-899, 150 Cal.Rptr. 910, 587 P.2d 706.) Consequently, Officer Hannibal had reasonable grounds as a result of his experience and the location he discovered the balloon to believe it contained contraband and therefore justified in making the plain view seizure of it.

Further, a balloon does not constitute in any non-criminal manner a container within which an individual would hold any material (other than air, helium or water) to which a reasonable expectation of privacy would attach. Nevertheless, the United States Supreme Court in Arkansas v. Sanders (1979) 442 U.S. 753, 99 S.Ct. 2586, 2593, fn. 13, 61 L.Ed.2d 235, held in pertinent part:

“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar's tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”

Here, in light of his five years' experience in the narcotics division, Officer Hannibal could have reasonably inferred from the outward appearance of a balloon in the location discovered that its contents could not have been anything other than contraband. Consequently, the balloon does not support a reasonable expectation of privacy and was not individually protected by the Fourth Amendment.

Defendant's Motion for Substitution of Counsel

Defendant finally contends the court erred in refusing his request for substitution of counsel. Three hours before the trial began, although somewhat inartfully, he indicated his anxieties with the adequacy of his court-appointed lawyer. We have set out below the entire colloquy between the court and defendant.2

The granting or denial of a defendant's pretrial motion for substitution of appointed counsel is a matter vested within the sound discretion of the trial court. (People v. Cruz (1978) 83 Cal.App.3d 308, 315-316, 147 Cal.Rptr. 740.) This discretion can only be exercised, however, when defendant has been given full opportunity to articulate the specific grounds for his dissatisfaction. (People v. Hidalgo (1978) 22 Cal.3d 826, 827, 150 Cal.Rptr. 788, 587 P.2d 230; People v. Lewis (1978) 20 Cal.3d 496, 497, 143 Cal.Rptr. 138, 573 P.2d 40; People v. Marsden (1970) 2 Cal.3d 118, 124, 84 Cal.Rptr. 156, 465 P.2d 44.) When defendant's complaints are only of a general nature, the court must pursue the matter further to determine in what particulars the attorney is unsatisfactory. (See People v. Munoz (1974) 41 Cal.App.3d 62, 66, 115 Cal.Rptr. 726.)

We have set out all the dialogue between the trial judge and the defendant to get the full flavor of the proceedings. This is not a case where defendant was cut off in explaining his dissatisfaction. To the contrary, the tenor of the discussion reflects a patient judge who was thoroughly concerned with defendant's rights. Defendant made it quite clear that the reason he was unhappy with his lawyer related to the “vibration of the human integrity that there was not going to be a fight here.” His lawyer had asked him to plead guilty when in fact he was innocent.

We do not wish to minimize the importance of what is frequently and colloquially referred to as “vibes”—the subjective, but yet comfortable feeling of confidence and trust in another. There must be legitimate reasons for new counsel, however, in addition to this state of mind. This case is unlike Harris v. Superior Court (1977) 19 Cal.3d 786, 140 Cal.Rptr. 318, 567 P.2d 750, in which the court permitted substitution of counsel not only because of subjective reasons, but because of the objective considerations relating to preferred counsel's knowledge and level of familiarity with the facts and issues involved in the charges against defendants. We refuse to accept defendant's retrospective characterization of the judge's thoughtful assurances as stifling his response. We see those statements as they were meant to be—sincere representations by the trial judge to bolster the confidence and ease the discomfort of a nervous defendant.

Defendant's argument has merit, however, to the extent that the record does not reveal the basis for the court's exercise of discretion. Here, defendant communicated an objective fact to the court—his lawyer wanted him to plead guilty when in fact he was innocent—a fact which warranted further inquiry. The court should have answered that specific question on the record by finding out why counsel wished to have her client plead guilty. If the request to enter the plea was motivated from lethargy or absence of concern as defendant seemed to assume, then a new lawyer certainly should have been appointed. If, however, the request for the plea was a result of plea negotiations between counsel and the District Attorney's Office to get the best deal for a defendant who otherwise had a woefully weak case, then a contrary inference was appropriate. In all likelihood, the latter situation was present for we are well aware that frequently, if not invariably, the trial judge inquires as to the extent of earlier negotiations and whether it is possible to dispose of the case without trial.

We may not speculate, however, and we will not guess what information the judge had at the time he ruled on the motion. In light of our concern on this point, we have made an independent inquiry from counsel. We have asked whether there were any negotiations to determine for ourselves if there is an objective basis for the actions of defendant's counsel. We have been told by letter there were extensive plea negotiations before trial. It thus appears there is a legitimate basis for counsel to have acted in the manner she did.

We have also examined the entire record to see if there is a further request for different counsel or any reference to defendant's earlier request. The record is devoid of any additional suggestion that defendant was not fully satisfied with his lawyer. We do not have a case here in which because of concern with counsel defendant decided to represent himself such as in People v. Cruz, supra, 83 Cal.App.3d 308, 318, 147 Cal.Rptr. 740. Even the thorough brief by defendant's appellate counsel does not hint that defendant's trial counsel was ineffective or in any way incompetent. After our independent review of the entire record, we conclude beyond a reasonable doubt, the error of the trial court in not pursuing defendant's request for substitution of counsel to determine the facts underlying this request did not contribute to defendant's conviction. (Chapman v. State of California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)


The judgment is affirmed.


1.  Following analysis, it was determined that the balloon contained .45 grams of cocaine, a usable quantity.

2.  “THE DEFENDANT: Thank you, your Honor. It was just my opinion, your Honor, that Mrs. Ahern—she had came to me two or three times since the charges have been alleged against me, filed against me, and there has been a certain amount of shenanigans between our communications. And I know that putting the Court through the time, and these efforts, the People proving their case, and the defendant establishing that he is innocent, she has come to me two or three times with the fact of wanting me to plead guilty to this. And I am innocent as of now. And I didn't feel that this was the proper thing to come to me, after me explaining to her. So I felt she wasn't working in my behalf then. I kind of get the vibration of the human integrity that there is not going to be a real fight here. And I am facing the amount of time that you have read to me. And I have understood this. I am faced with a lot, you know. Right now I was hired at Campbells, it just would be three weeks today. I have missed a week-and-a-half of work. I explained to Miss Ahern about it, and she can't put the court off just to convenience me, but I am making $7 an hour, you know, and if I have to pay for the court time, or pay for her time, I would be willing to do this. But I would like a little time—you know, I would be willing to pay an attorney, or to pay the court costs, you know. I figure at $7 an hour, $300 a week, it is not bad pay. But as of right now, today, I am not really certain if I still have the job.THE COURT: I understand. Do you have anything else you wish to say in this regard?THE DEFENDANT: It is only in that regard, your Honor, as I say, her being my attorney, I don't feel that she should approach me in that manner. But I am an innocent man. I am an innocent man, and I just couldn't grasp that one.THE COURT: I understand. I understand you are asking—well, are you making a request that Miss Ahern be relieved, and that you be appointed new counsel? Is that what you are asking me?THE DEFENDANT: Well, I think as the D.A. stated, I have been involved in these court proceedings before, and I have had court-appointed attorneys before. It just so happens that as of now I could possibly afford to hire an attorney, but then I know that time is well on its way, too. So this is why I am trying to submit to the Court, or make a note to the Court now of my dissatisfaction in the matter of my attorney in relation to what I can do now, and what I couldn't do a month ago when these charges were first brought against me.THE COURT: I understand.THE DEFENDANT: There is quite a bit of difference now.THE COURT: I understand. Well, I want you to say for the record, Mr. Jenkins,—well, first of all I want to promise you, sir, that you will receive a fair trial in this court. I want to promise you, and say that to you from the bottom of my heart. I will not permit any unfairness in this court. I will not permit you to be taken advantage of in any way with regard to any unfairness or any injustice. When I took the oath of office with regard to this job, my job, I meant that I was going to uphold the Constitution of our country, which entitles you to a fair trial all the way down the line.THE DEFENDANT: Yes, sir.THE COURT: And you are entitled to a trial in this court, in which the jury would have to find you guilty beyond any reasonable doubt before they could find you guilty. And at every phase of this trial I promise to do, to the very best of my ability, to see to it that you are treated fairly all the way down the line.THE DEFENDANT: Yes, sir.THE COURT: Now, with regard to Mrs. Ahern, I have known her as an attorney for some period of time. I have had discussions with her with regard to law, and I have observed her interest in the criminal justice system, and in justice. I know her to be a person with a high regard for justice, and is very intensely interested in seeing that justice is done. The fact she may have approached you with the possibility of plea bargaining, or plea negotiations does not detract in any way from her status as an attorney. It is sometimes the job of an attorney to see to it when an offer has been made by the District Attorney, to see to it whether the defendant wishes to accept that offer. It is the job and responsibility of counsel to do that. So, Mr. Jenkins, I will say that any motion to have her relieved is denied. We will proceed. Thank you very much.THE DEFENDANT: Thank you for your consideration, your Honor.”

WIENER, Associate Justice.

Hearing denied; BIRD, C. J. and MOSK, J., dissenting.