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

The PEOPLE, Plaintiff and Respondent, v. Kinnon WILKS, Defendant and Appellant.

Cr. No. 28566.

Decided: November 10, 1976

Henry P. Crabtree, Lakewood, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Juliet H. Swoboda and David R. Chaffee, Deputy Attys. Gen., for plaintiff and respondent.

Defendant, charged with possession of heroin for sale (count I), being a convicted felon in possession of a firearm (count II), and with four prior felony convictions, was acquitted by a jury of the charge of count I but found guilty of the lesser included offense of possession of heroin. The jury found defendant guilty as charged in count II and further found the priors to be true. Defendant's motion for a new trial was denied. On this appeal, he contends: (1) the trial court erred in denying his motion to suppress pursuant to Penal Code section 1538.5; (2) the trial court abused its discretion in permitting defendant to represent himself at trial; (3) his motion to disqualify the trial judge pursuant to section 170.6 of the Code of Civil Procedure was wrongfully decided; (4) error occurred from the prosecution's failure to disclose the identity of an informer; and (5) assuming the convictions are valid, the judgment should be modified to reflect the fact that defendant had suffered two, rather than four, prior felony convictions.

Concluding that the record does not sustain defendant's contentions of prejudicial error and that the judgment as entered is correct under the circumstances of this case, we affirm the judgment.


Defendant's contentions, based on alleged error at the 1538.5 hearing and on procedural issues unrelated to the substantive case against him, eliminate the need for a full recitation of facts. The following summary, however, although limited to evidence adduced at the hearing on the 1538.5 motion, is detailed to the degree necessary to appropriately consider defendant's contention that consent to search his apartment was obtained by direct and/or indirect duress.

Following stipulations that the police had neither search nor arrest warrants, the prosecution presented the following evidence at the hearing on the 1538.5 motion. On June 14, 1975, Long Beach Police Officer James Scholtz was told by a person then in custody at the police department that a male and a female, both Negro, were residing in apartment No. 5 of the Ho-Hum Motel, and from that location were dealing in narcotics. The informant stated the man and woman were both using heroin ‘heavily’ and that their supply was stored in a Band-Aid can in the motel room. Officer Scholtz was also told by the informant that the couple's supplier was a male Negro, 40 to 45 years of age, ‘balding, and that he drove a cream or tan-colored Cadillac.’ Scholtz made a note of the information and related it to other officers in the narcotics division, one of whom was Officer Donald Smith.

On June 17, 1975, Officer Michael Morgan received a complaint from the manager of the Ho-Hum Motel. Describing ‘excessive’ amounts of traffic to and from apartment No. 5, the manager told Morgan he believed the occupants of the room were engaged in narcotic activity. Each visitor stayed for ‘just a short time’ and then left. Officer Morgan relayed this information to Officers Scholtz and Smith.

On June 18, 1975, Officer Smith, in the company of Officer Gary Johnston, conducted a surveillance of the Ho-Hum Motel. Both officers observed four or five people enter apartment No. 5, stay for a short time and leave. Based upon his expertise as a narcotics officer, Smith formed the opinion that the occupants of apartment No. 5 were trafficking in narcotics. Smith and Johnston, having observed defendant enter the apartment, also saw him leave. Concluding that defendant fit the description of the ‘supplier’ identified to Scholtz, Johnston, on Smith's instructions, radioed for assistance. With the hope of later substantiating his suspicions, Johnston requested that a patrol unit contact defendant, determine his identity and complete a field interrogation card.

Officer David Barbee and his partner, Officer Brough, responded to Johnston's request. A full description of defendant was provided. Barbee subsequently observed defendant walking into the parking lot of the Alamo Motel. As Barbee drove the police car into the lot, defendant turned, looked at the police, and began running. Defendant ran into apartment No. 6 at the Alamo. As Barbee parked the car, defendant exited the apartment and approached the officer. They stood at the side of the police car. Defendant produced identification. Observing defendant's demeanor, Barbee noted that his body swayed, his eyelids drooped, and that his speech was slow, deliberate, and incoherent at times. Defendant appeared to have ‘some type of impairment’ in one eye. Since he did not detect the odor of alcohol, Barbee concluded defendant was under the influence of an opiate.

As Barbee conversed with defendant, Barbee observed a white woman at the door of apartment No. 6. When the woman saw Barbee, she went back inside. Barbee asked defendant if anyone else was in the apartment. Defendant replied, ‘No.’ Brough, Barbee's partner, asked defendant for permission to enter the apartment. Defendant replied, ‘Go ahead.’ Asking defendant to accompany him, Brough then entered apartment No. 6. Barbee took advantage of the darkness within the apartment to examine defendant's eyes with his flashlight. Noting that the pupil in defendant's ‘good eye’ was constricted, Barbee confirmed his original conclusion that defendant was under the influence of a narcotic.

Barbee asked defendant if he was armed or if there were any weapons in the apartment.. Defendant replied, ‘There is a gun underneath the bed.’ Brough retrieved a loaded .38 special revolver. At about that time, Officers Smith and Johnston arrived at apartment No. 6. A warrant check was made and the woman occupant of apartment No. 6 was taken to the police station. Smith asked defendant for permission to search apartment No. 6, explaining to him that permission could be refused but that if it was a warrant would be sought. Defendant gave permission to search. At that time, in addition to Officer Smith, Officers Scholtz, Morgan, Brough, Barbee, and Johnston were ‘on the scene.’ Smith advised the other officers that consent had been obtained and a search was conducted. In a cabinet under the sink, Scholtz found a plastic bag containing a funnel, four measuring spoons with a ‘grayish powdery residue,’ three strainers, and ‘numerous' packages of balloons. Johnston found, under some clothing on top of a dresser, nine balloons and a balloon bag. For purposes of the hearing, it was stipulated the balloons contained four grams of heroin.

Defendant was taken to the Long Beach Police Department. Upon arrival and after informing defendant of his Miranda rights, Johnston examined defendant's eyes, testing his pupil reaction to different intensities of light. After also examining defendant's arms for puncture wounds and asking several questions, Johnston formed the opinion that defendant, although not then under the influence of an opiate, showed signs of recent use.

Defendant, by his own testimony and that of Cassandra Gully and Susan Shields, sought to establish that he did not consent to the search and had no connection with apartment No. 5 or No. 6.

The 1538.5 Motion

Contending the trial court should have suppressed all evidence seized at defendant's Alamo Motel apartment, defendant argues that the consent to search, if given at all, was the product of police harassment and duress, and thus involuntary. The contention lacks merit.

Where, as here, ‘government officials rely on consent to justify the lawfulness of a search, the burden is on them to show by clear and positive evidence that the consent was freely, voluntarily and knowledgeably given.’ (Blair v. Pitchess (1971) 5 Cal.3d 258, 274, 96 Cal.Rptr. 42, 53, 486 P.2d 1242, 1253.) ‘Clear and positive evidence’ to justify a warrantless search where consent is claimed requires proof by the ‘clearand-convincing-proof’ burden of proof standard. (People v. Reynolds (1976) 55 Cal.App.3d 357, 367, 127 Cal.Rptr. 561.)1 Whether, however, in a particular case ‘an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.’ (Castaneda v. Superior Court (1963) 59 Cal.2d 439, 442, 30 Cal.Rptr. 1, 3, 380 P.2d 641, 643.) Nevertheless, on appeal from denial of a 1538.5 motion, all presumptions favor proper exercise of the trial court's power and the trial court's findings, express or implied, must be upheld if supported by substantial evidence. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

Defendant concedes the trial court correctly accepted the credibility of the police officers ‘that defendant . . . consented to the search.’ He seeks to avoid affirmance of the trial court's decision by emphasizing his prior police contacts and arguing that it is incredulous to believe that he would voluntarily and freely cooperate with the police knowing that if they searched the apartment they would find narcotics and related paraphernalia. The argument misses the point. Accepting defendant's concession that the officers were credible witnesses, we conclude that substantial evidence supports the trial court's implied finding that clear and convincing proof establishes defendant's voluntary consent to the search. Belief of the officers' testimony necessarily entails disbelief of defendant's totally contrary version of the circumstances surrounding the consent. Clear and positive evidence establishes that defendant, in spite of being warned of his right to refuse consent, freely granted permission to the officers to search the apartment. Defendant does not contend and the record does not support a claim that the officers had drawn guns or otherwise intimidated him. Defendant's familiarity with police and police procedures precludes a conclusion that the mere presence of six officers was enough to cause his involuntary submission to a show of authority. Moreover, at the time consent was given to seize the gun, only two officers were present. (See Castaneda v. Superior Court, supra, 59 Cal.2d 439, 30 Cal.Rptr. 1, 380 P.2d 641; People v. Martin (1955) 45 Cal.2d 755, 290 P.2d 855.) We thus conclude that his consent was voluntary.

As an ancillary argument, defendant contends his consent was involuntary as a matter of law because the consent was obtained prior to the time he was warned of his Miranda rights. Compelling authority demands rejection of this argument. ‘[R]equest for permission to search . . . [is] . . . not custodial interrogation violative of Miranda. . . . The request for a consent to search is designed to elicit physical and not testimonial evidence. [Citation.] Accordingly, the fact that a search leads to incriminating evidence does not make the consent testimonial.’ (People v. Strawder (1973) 34 Cal.App.3d 370, 379–380, 108 Cal.Rptr. 901, 906.)

Defendant's Self-representation

Defendant contends the trial court committed prejudicial error by permitting defendant to represent himself at trial. We conclude that under the mandate of Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the opposite is true: had the trial court denied defendant pro. per. status, reversible error would have occurred. Having granted it, there is no error.

Defendant was originally represented by the Public Defender's office. Defendant, unwilling to accept the services of the deputy public defender assigned to his case or of any other attorney from that office, requested appointment of private counsel. Neither the deputy public defender originally of record nor defendant himself were able to represent to the court that a legal conflict of interest existed. The court therefore properly denied appointment of private counsel. Upon defendant's continued refusal to accept the services of any member of the Public Defender's office, the court, after a lengthy and patient explanation of the adversary nature of the proceeding and the risks to be run in self-representation, permitted defendant to proceed in propria persona.

‘Notwithstanding the prejudice which an accused may suffer upon self-representation, the right to so penalize himself was deemed by the majority [in Faretta] to be grounded on other considerations directed more to the assertion of personal liberties than to the assertion of an effective defense. . . . ‘To force a lawyer on a defendant can only lead him to believe that the law contrives against him. . . . The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the life blood of the law.’'' (People v. McDaniel (1976) 16 Cal.3d 156, 165, 127 Cal.Rptr. 467, 472, 545 P.2d 843, 848, quoting from Faretta v. California, supra, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562.)

Defendant's ignorance of the law is not an issue in determining his right to self-representation. Here, as in Faretta, the ‘record affirmatively shows that [defendant] was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. . . . We need make no assessment of how well or poorly [defendant] had mastered the intricacies of [rules of law] . . .. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.’ (Farteea v. Califormnia, supra, 422 U.S. 806, 835–836, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, as quoted in People v. McDaniel, supra, 16 Cal.3d 156, 168, fn. 6, 127 Cal.Rptr. 467, 545 P.2d 843.)

Defendant having unequivocally elected to proceed without counsel, Faretta mandated the trial court to honor the election. The court's action following the mandate is not error.

The Motion to Disqualify the Trial Judge

Defendant contends reversal is required by the trial court's refusal to accept his affidavit filed pursuant to section 170.6 of the Code of Civil Procedure. The contention lacks merit.2

After several preliminary motions and continuances before Judge Mullendore and Judge Beam, defendant's motion pursuant to Penal Code section 1538.5 was heard and denied by Judge Mullendore on October 10, 1975. At the time that hearing was held, trial was set in Judge Mullendore's court. By minute order dated October 14, 1975, Judge Mullendore granted a motion of the People to continue the trial date and at the same time transferred the trial to Judge Beam's court. Several additional pretrial motions and continuances were heard and determined by Judge Beam. On January 5, 1976, Judge Beam transferred the cause back to Judge Mullendore's court for trial. Defendant appeared before Judge Mullendore that afternoon, and although Judge Mullendore's minute order reflects the ‘cause [was] called for trial,’ the afternoon was consumed with discussion of defendant's pro. per. status. At 3;30 p.m. that afternoon, defendant filed, in Judge Mullendore's court, a ‘Declaration under C.C.P. section 170.6’ seeking to disqualify Judge Mullendore from sitting at trial. The following morning, January 6, Judge Mullendore denied the affidavit, not having been presented in the ‘master calendar’ court, as ‘not timely filed.’

Defendant correctly asserts that the master calendar or non-master calendar nature of the particular trial court is irrelevant under the circumstances of this case. The trial court minutes show that the case at bench was assigned to Judge Beam ‘for trial’ and not for the purpose of further assignment. The affidavit was nevertheless not timely.

The ‘fact that a judge . . . has presided at or acted in connection with a pretrial conference or other hearing, proceeding or motion prior to trial and not involving a determination of contested fact issues relating to the merits shall not preclude the later making of the motion . . ..’ (Code Civ.Proc., § 170.6, subd. (2).) The concomitant rule is, however, here applicable. Where a judge has presided over a hearing or motion prior to trial which does involve a determination of contested fact issues relating to the merits, the time within which a 170.6 affidavit may be filed has passed. (Cf. Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 430–431, 48 Cal.Rptr. 832.)

‘A proceeding under section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. [Citations.] The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.’ (People v. Superior Court (Keithley), supra, 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 619, 530 P.2d 585, 587.) The facts contested at a 1538.5 hearing relate to the merits. In many a criminal proceeding, the 1538.5 motion is the ball game. In those cases, guilt or innocence is irrelevant to the ultimate adjudication. As at a hearing on a motion for a preliminary injunction, the judge's resolution of factual conflicts in a motion to suppress goes to the metits of the case. (Kohn v. Superior Court, supra, 239 Cal.App.2d at p. 430, 48 Cal.Rptr. 832.)

We are aware of the recent per curiam opinion of the Third District of the Court of Appeal in Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535 (hg. den. in Supreme Court), which holds that a trial court's determination of a 1538.5 motion to suppress does not relate to the merits of the criminal action. Parnell's support for that proposition consists of citations to Zdonek v. Superior Court (1975) 38 Cal.App.3d 849, 113 Cal.Rptr. 669; Kohn v. Superior Court, supra, 239 Cal.App.2d 428, 48 Cal.Rptr. 832; and People v. Kennedy (1967) 256 Cal.App.2d 755, 64 Cal.Rptr. 345, all of which deal with trial court determinations of pure questions of law and not of fact, together with a citation Fraijo v. Superior Court (1973) 34 Cal.App.2d 222, 109 Cal.Rptr. 909 which considers trial court activity involving neither a question of law nor one of contested fact.

Analysis of the authority in support of the Parnell result impels us to the conclusion that the case is not persuasive on its face. There may be something in the memorandum prepared by the Third District research staff which induced three judges of the district to file the per curiam opinion. We have refrained from requesting a copy of that memorandum believing that it would be manifestly unfair for this court to base its decision upon material that is not available to the parties and their counsel.

We therefore conclude that defendant lost his opportunity to disqualify Judge Mullendore when he consented to Judge Mullendore's presiding at the 1538.5 hearing. Although trial was subsequently transferred to Judge Beam, defendant, at the time the 1538.5 hearing began, had no way of knowing that rransfer would follow. The subsequent transfer may have given defendant a right to the peremptory disqualification of Judge Beam, but it did not affect the initial waiver by defendant of his right to file a 170.6 affidavit against Judge Mullendore.

Failure to Disclose Informant's Identity

Defendant contends the trial court erred in denying his motion to disclose the identity of the informant who originally told Officer Scholtz of the two persons dealing at the Ho-Hum Motel who were supplied with heroin by a man fitting defendant's description. The contention is without merit.

‘In order to establish that an informant's identity is essential to his right to a fair trial, a defendant need only demonstrate a reasonable possibility that the informant could give evidence on the issue of guilt which might result in his exoneration. [Citations.]’ (People v. Long (1974) 42 Cal.App.3d 751, 755, 117 Cal.Rptr. 200, 202.) Here defendant contends the informant could give evidence which might impeach the credibility of the police officers, the theory being the informant might testify he never provided the information testified to by Officer Scholtz. The argument misses the point.

Here the informant was neither a participant nor an eyewitness. Thus the possibility that he could give evidence which might exonerate defendant is purely speculative. (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 420–421, 112 Cal.Rptr. 485.) Here neither the arresting officers nor the prosecutor relied upon the communication from the informant for probable cause for defendant's arrest. The informant was used only as a lead to information independently verified by the officers' observations. Thus the materiality of the informant's identity ceased and the rule requiring disclosure became inapplicable when reasonable cause for arrest and search came into existence independent of the informant's communication. (People v. Williams (1967) 255 Cal.App.2d 653, 661, 63 Cal.Rptr. 501.) Thus the trial court properly denied defendant's motion for disclosure of the identity of the informant.

Prior Felony Convictions

The information alleged, and the jury found, that defendant had suffered four prior felony convictions. Conceding that it is irrelevant insofar as punishment is concerned, defendant nevertheless contends the judgment should be modified because there were in fact only two prior convictions—one involving one count and one involving three counts. The contention lacks merit.

Defendant correctly asserts that the judgment, as entered, does not affect his punishment. Accordingly, his reliance on People v. Gump (1936) 17 Cal.App.2d 221, 223–224, 61 P.2d 970, which in turn relies on Penal Code section 644, is misplaced. Section 644 of the Penal Code and Gump are concerned with segregation of charges where their combination may cause the accused to be classified as an habitual criminal. No such issue is present here.

We need not determine whether the three felony counts of the one prior conviction constituted separate priors. Defendant has failed to allege any adverse affect caused by the judgment's reflection of four, rather than two, prior convictions. Accordingly, error, if any, is harmless.


The judgment is affirmed.


1.  Defendant's brief calls to our attention a case entitled ‘People v. Graham, 57 Cal.App.3d 258’ purportedly holding that where duress is claimed as a ‘defense’ to consent, the existence of duress need only be established by ‘something less than a preponderance of the evidence . . ..’ The case cited does not appear in the volume cited. We note, however, that assuming the rule to be as stated, our conclusion would be the same.

2.  Because we conclude that the affidavit was not timely filed and was therefore properly rejected, we need not be concerned with the fact that the constitutionality of the use of 170.6 affidavits in criminal proceedings is presently before our Supreme Court. (Solburg v. Superior Court, SF 23449.)

THOMPSON, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.

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