PEOPLE v. BROWN (1980)

Appellant James Clyde Brown (Brown) appeals from a jury trial conviction of robbery (Pen. Code, § 211), rape (Pen. Code § 261, subds. 2, 3), and forcible oral copulation (Pen. Code, § 288a).   Allegations that Brown personally used a firearm within the meaning of Penal Code section 12022.5 in the commission of each of the offenses were also found to be true.

Brown's motion for a new trial was denied, and he was sentenced to state prison.

CONTENTIONS

Brown contends that (1) the trial court erred in failing to accept the Code of Civil Procedure section 170.6 affidavit of prejudice;  (2) the trial court improperly ruled inadmissible an alleged declaration against interest made by Helm and evidence of a prior sexual assault involving Helm;  (3) the search of the vehicle at the scene of the arrest was unlawful;  and (4) he was denied effective assistance of counsel.

We find these contentions to be without merit for the reasons set forth below.

FACTS 1

On November 1, 1977, Garth A. (Garth) and his neighbor, Pamela W. (Pamela), drove to a lake near Templin Highway in the vicinity of Frenchman's Flats and Pyramid Lake.   They arrived in the area between 2:15 and 3:30 p. m., parked the car, removed a sleeping bag, beer and orange juice from the vehicle, and proceeded to the end of the lake.   They observed Brown and Glen Helm (Helm) in a parked van as they passed it.

When they arrived at the lake, Garth and Pamela sat on the sleeping bag.   After approximately one hour, Brown walked over and sat on the sleeping bag as they were preparing to leave.   After some conversation, Brown drew a gun from behind his back and said, “I don't want you to holler or scream or try to signal anybody.   I want you to be quiet or so help me God I will kill you.”   Helm arrived a minute or two later.   Brown ordered Garth and Pamela to walk 10 to 15 feet, after which he told them to lie on their stomachs with their hands behind them.   When they were on the ground, Brown announced, “This is a robbery.”   Garth removed his wallet and gave Brown three or four dollars.   Brown placed the money in his pocket.

Immediately thereafter, Brown handcuffed Garth and tied Pamela's hands behind her back with some wire.   Pursuant to Brown's order, Garth and Pamela got up and proceeded approximately 100 yards down the trail toward the back of the lake.   At this point Brown told Garth to again lie down on the sleeping bag.   Pamela's hands were untied and the wire was used to tie Garths' feet.   Brown then informed them that his real intention was rape, not robbery.   While Helm remained with Garth, Brown took Pamela behind some bushes located approximately 30 to 40 feet away and ordered her to disrobe and lie on her clothing.

Pamela removed her clothing and sat on it, informing Brown that she was having her menstrual period.   Brown responded that it did not matter.   Brown forced Pamela to engage in oral copulation and then had sexual intercourse with her.   Although penetration did occur, Pamela did not know if Brown achieved a climax.   Helm eventually walked over, but did not engage in any sexual activity with Pamela.

Brown and Helm took the keys to Garth's vehicle and the label off the back of his driver's license and instructed Garth and Pamela to remain in the area for 45 minutes and not to go to the police thereafter.   They were told that the car keys would be 100 feet in front or behind their vehicle.

Brown and Helm then left the location.   After about five minutes, Garth left the area and observed that the van was gone.   Pamela joined him and they located the keys.   While driving toward home, they flagged down a police officer and reported the incident.

DISCUSSION

Brown first contends that the trial court erred in failing to accept his Code of Civil Procedure section 170.6 affidavit of prejudice.   We disagree.

“Code of Civil Procedure section 170.6 provides in substance that any party or attorney to a civil or criminal action may make an oral or written motion to disqualify the assigned judge, supported by an affidavit that the judge is prejudiced against such party or attorney or the interest thereof so that the affiant cannot or believes he cannot have an impartial trial.  [T]here are strict limits on the timing and number of such motions ․”  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 187, 137 Cal.Rptr. 460, 561 P.2d 1148;  Buchanan v. Buchanan (1979) 99 Cal.App.3d 587, 594, 160 Cal.Rptr. 577.)   Each side is entitled to only one such motion in any one action.  (Code Civ.Proc., § 170.6, subd. (3);  Solberg v. Superior Court, supra, at p. 197, 137 Cal.Rptr. 460, 561 P.2d 1148;  People v. Eaker (1980) 100 Cal.App.3d 1007, 1016, 161 Cal.Rptr. 417.)

In the instant case, the trial court first indicated that it would honor the affidavit of prejudice brought by defense counsel under Code of Civil Procedure section 170.6.   However, later the same day the court indicated:

“The record will show an affidavit under 170.6 of the Penal Code [sic ] was filed with this Court and dated November 6 which, I guess, is today's date.

“Initially I thought I should honor it and the matter sent down to Northwest ‘S', but on reconsideration, it will not be honored for two reasons, number one is that the matter, there were factual issues tried by this Court in this case previously without affidavit being filed.

“I believe that would make this untimely and secondly, in the same action in the Municipal Court a previous affidavit under the same code section was filed as against the Honorable Jack Clark in Newhall Judicial District.

“So, that would have used up the one affidavit in any particular action as prescribed by the code.”

 While the motion may well have been timely,² it was properly refused on the ground that only one such motion may be made in any one action.   Brown's argument that the preliminary hearing constitutes an action separate from the resultant trial of the same matter is unpersuasive.³

 Penal Code section 683 provides that “[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.”   Thus, the preliminary hearing is clearly a part of this “criminal action” for purposes of Code of Civil Procedure section 170.6.  (See People v. Drake (1977) 19 Cal.3d 749, 757, fn. 9, 139 Cal.Rptr. 720, 566 P.2d 622;  Pappa v. Superior Court (1960) 54 Cal.2d 350, 353, 5 Cal.Rptr. 703, 353 P.2d 311.)   In Solberg v. Superior Court, supra, 19 Cal.3d at pages 197–198, 137 Cal.Rptr. 460, 561 P.2d 1148, our Supreme Court observed:  “The limitation of the statute to ‘one motion for each side’ (subd. (3)) ․ ‘reduces the quality and quantity of the injury caused by the section.’   We enunciated a test for invoking this restriction in Johnson [v. Superior Court] (50 Cal.2d [693] at p. 700 [, 329 P.2d 5]), and applied it in a criminal context in Pappa v. Superior Court (1960) 54 Cal.2d 350, 353–356, [5 Cal.Rptr. 703, 353 P.2d 311].  In the same case we construed the limitation of one motion ‘in any one action’ (subd. (3)) to bar a second motion made on retrial.  (Id., at p. 353, [5 Cal.Rptr. 703, 353 P.2d 311].)  And we construed the requirement that the motion be filed before ‘trial of the cause has ․ commenced’ (subd. (2)) to prohibit making a motion for the first time in post–trial matters which are essentially a ‘continuation’ of the main proceeding, such as hearings on orders to modify (Jacobs v. Superior Court (1959) 53 Cal.2d 187, [1 Cal.Rptr. 9, 347 P.2d 9]) or enforce (McClenny v. Superior Court (1964) 60 Cal.2d 677, [36 Cal.Rptr. 459, 388 P.2d 691] the original judgment.   In the latter case we warned that ‘We cannot ignore ․ the potentiality for abuse of section 170.6.   We cannot permit a device intended for spare and protective use to be converted into a weapon of offense and thereby to become an obstruction to efficient judicial administration.’  (Id., at p. 689 [, 36 Cal.Rptr. 459, 388 P.2d 691.])  [Fn. omitted.]”

We conclude that the trial court properly refused to accept the Code of Civil Procedure section 170.6 affidavit of prejudice.

Brown next contends that the trial court improperly ruled inadmissible a declaration by Helm that Helm, Garth and Pamela had conspired to falsely implicate him in criminal activity for the purpose of obtaining money and drugs.   He further avers that the trial court erred in ruling that evidence of an incident involving Helm in San Diego was inadmissible.   We find both of these arguments unpersuasive.

Brown made an offer of proof ⁴ in which he recounted a conversation he had had with Helm.   He asserted that during this conversation, Helm made several statements against his own penal interest.   Later, Brown made an additional offer of proof ⁵ concerning a prior sexual assault involving Helm in San Diego which he alleges was admissible to show that Helm was attempting to set him up in yet another assault.

The resolution of these issues involves the effect and interrelation of Evidence Code sections 210, 352, 403, 405 and 1230.⁶

“Evidence Code section 1230, in removing the hearsay objection to declarations against penal interest, requires that the witness be unavailable ․ and that the declaration be one that when made so far subjected the declarant to the risk of ‘criminal liability ․ that a reasonable man in his position would not have made the statement unless he believed it to be true.’ ” (Italics in original.)  (People v. Chapman (1975) 50 Cal.App.3d 872, 878, 123 Cal.Rptr. 862;  see People v. Bullard (1977) 75 Cal.App.3d 764, 769, 142 Cal.Rptr. 473.)

 A witness who properly claims a privilege against self–incrimination falls within the section 1230 definition of unavailability.   (People v. Chapman, supra, 50 Cal.App.3d at p. 878, 123 Cal.Rptr. 862;  People v. Bullard, supra, 75 Cal.App.3d at p. 769, 142 Cal.Rptr. 473.)   However, in the instant case there was no showing that Helm was not available as a witness.   Additionally, he was not called to the stand where he might have claimed his privilege against self–incrimination and thereby have been unavailable.   Defense counsel merely stated:  “․ we could certainly call as a witness Mr. Helm, but Mr. Helm could also certainly–and we would expect him to take the Fifth Amendment at that point ․”

To satisfy the second provision of Evidence Code section 1230, “[t]he declaration against penal interest must be clothed with sufficient indicia of reliability to warrant its admission.”  (People v. Shipe (1975) 49 Cal.App.3d 343, 352–353, 122 Cal.Rptr. 701;  People v. Love (1977) 75 Cal.App.3d 928, 937, 142 Cal.Rptr. 532.)   In light of this reliability requirement a judge must undertake a preliminary factual determination as defined by Evidence Code section 405.⁷

“A preliminary fact is one upon ‘the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.’  (Evid.Code, § 400.)  Evidence Code section 405 vests the court with the authority to make certain determinations as to the existence or nonexistence of preliminary facts and admit or exclude proffered evidence on the basis of those determinations.   In such situations, the judge's determination is final and where the ruling is to exclude the evidence, it does not go to the jury.”

(People v. Chapman, supra, 50 Cal.App.3d at p. 879, 123 Cal.Rptr. 862, fn. omitted;  Evid.Code, § 405.)

 Pursuant to section 405, the trustworthiness of Brown's proffered hearsay declaration posed a preliminary factual question to be decided by the court.   In determining whether or not such a declaration is trustworthy, the court may consider the words uttered, the circumstances under which the declaration was made, the possible motivation of the declarant and his relationship to the defendant.  (People v. Chapman, supra, 50 Cal.App.3d at p. 879, 123 Cal.Rptr. 862;  see People v. Bullard, supra, 75 Cal.App.3d at p. 769, 142 Cal.Rptr. 473.)   In the instant case, the record reflects that Helm's declaration against penal interest was vague.   The court found the proffered evidence inadmissible in light of the fact that Brown had not produced evidence sufficient to sustain a finding of trustworthiness with regard to the alleged declaration.   Additionally, we find there was insufficient showing of Helm's “unavailability.”   The trial court's findings are supported by the evidence and we will not disturb them on appeal.

 In reference to Brown's offer of proof regarding the San Diego incident, the trial court properly excluded this proffered evidence on the grounds of irrelevancy.  (Evid.Code, § 210;  People v. Cordova (1979) 97 Cal.App.3d 665, 669, 158 Cal.Rptr. 852.)   Furthermore, it is always within the court's discretion to exclude even relevant evidence if its prejudicial character would outweigh its probative value.  (Evid.Code, § 352;  People v. Guillebeau (1980) 107 Cal.App.3d 531, 549–550, 166 Cal.Rptr. 45.)   The trial court in weighing “probative value” could properly consider the credibility of Brown, who testified as to the proffered evidence, in applying Evidence Code section 352.

For these reasons we find the trial court properly excluded this evidence.   Moreover, in either of the aforementioned instances the court could have excluded the evidence because the danger of prejudice outweighed its probative value.

Brown next contends that the search of the 1966 white Chevrolet in which he and Helm were riding at the time of his arrest was unlawful and that the trial court erred in failing to suppress the handcuffs found inside the car and the knife found inside a fishing tackle box in the trunk of the car.⁸

The search was made at the scene of the arrest and incident thereto.   (Mestas v. Superior Court (1972) 7 Cal.3d 537, 541, 102 Cal.Rptr. 729, 498 P.2d 977;  see People v. Stafford (1973) 29 Cal.App.3d 940, 946, 106 Cal.Rptr. 72.)   Moreover, the United States Supreme Court has held that because of its mobility, an automobile that is stopped on the streets may be searched without a warrant when police officers have probable cause to believe it contains contraband or evidence of a crime.  (Chambers v. Maroney (1970) 399 U.S. 42, 48–49, 90 S.Ct. 1975, 1979–1980, 26 L.Ed.2d 419;  People v. Diaz (1980) 101 Cal.App.3d 440, 445, 161 Cal.Rptr. 645;  People v. Superior Court (Sanders) (1979) 99 Cal.App.3d 130, 134, 160 Cal.Rptr. 188.)

 In the case at bar, the police had been given the license number of the van believed to be involved in the crime.   Additionally, the residence of Brown, the van's registered owner, was under police surveillance and Brown and Helm matched the physical descriptions given by the victims.   Under these circumstances, the arresting officers clearly had probable cause to search the Chevrolet.

“In Arkansas v. Sanders, [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235] the United States Supreme Court held that, absent exigent circumstances, a warrant is generally required to search closed containers removed from an automobile properly stopped in the field and searched for contraband.  (Accord, People v. Dalton (1979) 24 Cal.3d 850, [157 Cal.Rptr. 497, 598 P.2d 467], cert. applied, [445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781] (1979).   The court declared, however, that ‘[n]ot 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 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.   Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant.’  (442 U.S. at p. 764, fn. 13, 99 S.Ct. at p. 2593, 61 L.Ed.2d at p. 245.)”  (Emphasis added;  fn. omitted.)  (People v. Robbins (1980) 103 Cal.App.3d 34, 39, 162 Cal.Rptr. 780.)

The handcuffs were removed from a plastic bag found inside the vehicle.   The outline, weight and feel would clearly indicate to a searching police officer that the plastic bag contained a set of handcuffs.   This container, just as the above mentioned kit of burglar tools or gun case, by its very nature could not support any reasonable expectation of privacy because its contents could be inferred from their outward appearance.

We find the search of the vehicle and the subsequent seizure of the handcuffs were proper under the circumstances herein.

Finally, Brown contends that his trial attorney's failure to investigate and present the defenses of diminished capacity and unconsciousness deprived him of his constitutional right to effective assistance of counsel.   Again we disagree.

“[T]he burden of proving a claim of inadequate trial assistance is on the appellant.  [Citation.]  Thus, appellant must show that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.   In addition, appellant must establish that counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.”  (People v. Pope (1979), 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859;  People v. Pinsky (1979) 95 Cal.App.3d 194, 200, 157 Cal.Rptr. 13.)

When Brown initially entered a plea of not guilty by reason of insanity, Dr. Seymore Pollack of the University of Southern California and Dr. Alex Lieberman were appointed to examine Brown pursuant to Evidence Code section 1026.   Each report indicated that under the M'Naghten rule Brown was sane at the time of the commission of the offense.   The University of Southern California, Department of Psychiatry report included the following:

“The question of his ‘temporal lobe epilepsy’ has been given due consideration.   Some psychomotor equivalents can produce violent and uncharacteristic behavior.   But it is rarely so goal–directed, so complex, so efficient, and so prolonged as the crime in question.   The last seizure reported was in 1975.   Even though the patient himself has said, ‘If I did it, I must have been unconscious,’ we conclude after weighing the facts, that this crime was probably not committed during an epileptic attack or during a post–ictal state.

“Although Mr. Brown's offenses, past and present, are related to his mental illness, he does not qualify as ‘insane’ under the M'Naghten Rule.   He understands precisely the nature, quality, and consequences of the acts with which he is charged.   If it was he who committed the crime, he then clearly made an effort to avoid detection.   The whole style of the offense displays awareness of its meaning and possible consequences.   The patient himself rejects the idea of mental incapacity and seeks instead ‘complete vindication.’ ”

Dr. Lieberman's report included the following:

“Conclusions :

“1) In view of the fact that the suspects warned their victims, and I would imagine that this would include suspect Brown, not to move for 45 minutes after the defendant had left, I would imagine that the defendant wanted to make sure their direction of exit would not be observed and thereby they showed a wish to hide their wrongful behavior and this would demonstrate that they were able to distinguish right from wrong, and therefore, that they were both sane at the time of the commission of the alleged offenses.   Suspect Brown, wiping the $1.00 bills carefully to remove any finger prints and dropping them to the ground also demonstrates a wish not to be discovered and therefore, again proved an ability to distinguish right from wrong and to understand the nature and quality of his acts, and therefore, proves sanity on his part, and I have therefore, to conclude that at the time of the commission of the alleged offense defendant Brown was sane.

“2) Defendant Brown still does not admit his guilt and when he speaks there is a certain amount of circumstanciality [sic ] to his talk which he recognizes himself, and he frequently asks for permission ‘to digress' and he then gets involved in subjects far afield from the original subject discussed․”

During the hearing on Brown's motion for a new trial, George McClure (McClure), Brown's trial counsel, responded to questioning by Larry Fidler (Fidler), substituted counsel for Brown, as to why he did not investigate further or present a defense of diminished capacity and/or psychomotor epilepsy, as follows:

“Q. [by Fidler]  Basically, so we have a clear understanding, it is your testimony that if you thought you had the power or it was your duty to present the defenses that you felt were the strongest, you would have presented a defense based on diminished capacity and the psychomotor epilepsy?

“A. [by McClure]  That is correct.

“Q. And you did not do so because you thought if Mr. Brown didn't want you to, you could not?

“A. I think it is a two–fold thing.   If Mr. Brown didn't want me to do that, he is my client and I certainly want to consider what my client has to say and what he wants to do, and on top of that, I think the client along with the attorney should make that decision because it is the client's life you are dealing with, not the attorney's life you are dealing with in these sorts of cases.

“So, even though the case law is different, I still feel at this time that the client's wishes should certainly be considered.

“․

“Q. BY MR. [FIDLER]:  Mr. McClure, after Drew was decided and you had already received the original reports, am I correct in understanding you did not consider at that time having new reports made for the purpose of entering an NGI plea?

“A. That is correct, for that and one other reason, the other reason being after reading those SC [University of Southern California] reports, the psychiatrist didn't make any sense so I didn't feel at that point that it was worthwhile to go after any more reports.”

 When a defendant chooses to have counsel manage and present his case, law and tradition permit trial counsel to make binding decisions of trial strategy in many areas.  (People v. Robles (1970) 2 Cal.3d 205, 214, 85 Cal.Rptr. 166, 466 P.2d 710;  People v. Floyd (1970) 1 Cal.3d 694, 704, 83 Cal.Rptr. 608, 464 P.2d 64, disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36, 148 Cal.Rptr. 890, 583 P.2d 748.)   However, defense counsel may not adopt trial strategy that significantly affects the constitutional rights of the defendant against the defendant's wishes or without adequate consultation with his client.   (Faretta v. California (1975) 422 U.S. 806, 848, 95 S.Ct. 2525, 2547, 45 L.Ed.2d 562;  Brookhart v. Janis (1966) 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314;  Henry v. Mississippi (1965) 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408;  Fay v. Noia (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837;  People v. Robles, supra, at p. 205, 85 Cal.Rptr. 166, 466 P.2d 710;  People v. Martin (1972) 28 Cal.App.3d 956, 105 Cal.Rptr. 40;  In re Pickett (1972) 25 Cal.App.3d 1158, 102 Cal.Rptr. 487.)

 In discussing the Sixth Amendment, the United States Supreme Court recently stated:  “[The amendment] speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant.   The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant․”  (Faretta v. California, supra, 422 U.S. at p. 820, 95 S.Ct. at p. 2533.)   It is therefore clear that counsel is not an unrestrained master, free to force any defense upon an unwilling or uninformed client.

 In the case at bar, trial counsel discussed the possible psychomotor epilepsy, unconsciousness and diminished capacity defenses with Brown and Brown rejected these defenses.⁹  It should be noted that Brown was a registered nurse and on the basis of his medical experience did not believe that “․ [epilepsy] had anything to do with it.”   Moreover, Brown never informed the doctors or the trial attorney that he had suffered any type of psychomotor epilepsy where he had “blacked out” or could not recall any of the events that had taken place during the period of time in question.¹⁰  Brown's position was that the alleged crimes did not take place and, as previously noted, the University of Southern California, Department of Psychiatry report stated that “the patient himself rejects the idea of mental incapacity and seeks instead ‘complete vindication.’ ”

It is often necessary in criminal matters to choose between conflicting and inconsistent defenses.   In the instant case, trial counsel properly informed Brown of all the possible defenses and counsel and client jointly chose which defense would be presented.   We find no support in the record for Brown's assertion that he was thereby denied the effective assistance of counsel.   (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)

FOOTNOTES

FOOTNOTE.  

1.   Pursuant to rule 12(a) of the California Rules of Court, we have made the superior court file a part of the record on appeal.

2.   Prior to the filing of the affidavit of prejudice, the court had heard and ruled on a motion to sever, a discovery motion, and a motion pursuant to Ballard v. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838.   We conclude that these motions do not necessarily involve a determination of factual issues related to the merits of the case.  (See Parnell v. Superior Court (1976) 61 Cal.App.3d 430, 132 Cal.Rptr. 535;  Fraijo v. Superior Court (1973) 34 Cal.App.3d 222, 109 Cal.Rptr. 909;  Kohn v. Superior Court (1966) 239 Cal.App.2d 428, 48 Cal.Rptr. 832.)   However, when an incorrect reason is given for a correct ruling, the ruling will not be reversed.  (People v. Ranson (1974) 40 Cal.App.3d 317, 322, 114 Cal.Rptr. 874;  People v. Evans (1967) 249 Cal.App.2d 254, 257, 57 Cal.Rptr. 276.)

3.   Brown also argues that once the trial court transferred the instant matter to another department, it no longer had any jurisdiction over the case.“It is settled law that once a motion to disqualify is made, the court has no jurisdiction to hold further proceedings in the matter except to determine compliance with the statutory requirements of timeliness and sufficiency.  [Citation.]”(People v. Hall (1978) 86 Cal.App.3d 753, 756, 150 Cal.Rptr. 412;  Solberg v. Superior Court, supra, 19 Cal.3d at p. 190, 137 Cal.Rptr. 460, 561 P.2d 1148.)   In the case at bar, the trial court's subsequent refusal of the affidavit was made as a result of its determination that the affidavit failed to meet the requirements of the statute.

4.   Brown's offer of proof included the following:“THE COURT:  All right, gentlemen, no jury present.“You are gong to proffer some evidence to test there is no hearsay objection to it concerning statements made by Mr. Helm.“MR. McCLURE [Brown's counsel]:  That is correct.“I think it would be easiest and best if Mr. Brown just stated what he would respond to my question.“THE COURT:  Come back on the stand.“Reask the question.“MR. McCLURE:  I will rephrase it some way, too.“Q. Mr. Brown, since sometime after November 1, 1977, have you had any discussions with Mr. Helm where he discussed the possibility of getting you off this case?“A. Yes, we have.“Q. Do you recall approximately when that would be?“A. It was the evening after the hearing, the motion hearing that resulted in the kidnapping charges being thrown out in this case on myself and on him as well.“Q. Can you tell me what was the sum and substance of that conversation?“A. He inquired as to whether or not I was still working or whether I would be going back to work at a hospital.“He first–well, before he asked me that he asked me if I could tell him how to manufacture speed, was his word, ‘speed,’ or amphetamines and if I could tell him where he could get the chemical substances to manufacture them, speed, and also, after that he asked me–he was already aware that I work for a registry which is a nursing agency which sends nurses to various hospitals on an as needed basis.“I suppose he thought that would give me a broader access to drugs, several hospitals.“In fact, it wouldn't have and he did ask me if I could get him drugs, primarily his interest at that time was Quaaludes and speed.“He mentioned a few others but those two stand out in my mind.“He wanted to know if–I told him that I didn't broader access since I had only worked one hospital at one time, was in charge of only one unit, one ward at a time, had the keys to only one drug locker at a time, however, there was at one point in time–well, in the past, and he knows–“Q. Well, what I want to know is what that conversation is, right now.“A. Okay.“He inquired as to whether or not I was still working and whether or not I could get him Quaaludes and speed and I told him that I couldn't, wouldn't.“He told me that if I did that he would leave, he wouldn't be around to testify against me in this matter and that further, he would–that if he told the witnesses Wright and Adams not to testify in this matter, that they would either not be available or that they would not testify.“At that time he said that he knew them.“I remember asking him a question at the time, too, as to when they put this whole thing together and he stated at that time that at the Halloween party at Vicky Campbell's house, Vicky Campbell being a girl friend of his, the night of the 31st of October, 1977, and I forget his exact words, but as I recall, he very definitely was saying that at least portions of a setup was put together at that time for the specific purpose of gaining money as well as access to drugs through me.“Now, he made specific references to burglaries that he felt I could set up, that he wanted me to set up and those demands have since been dropped, but the drug demands has been as current as three weeks ago.“Q. Three weeks ago you talked to him again?“A. That was the last time i spoke to him.“Q. At that time he demanded some drugs again?“A. Yes.“He made a statement also that I told him that I was confident that I would beat this case because I felt that the evidence which I had been able to put together would be sufficient and he told me he didn't care if I did beat the case, that it could happen again and again and I told him that in fact he was going to end up getting himself in trouble, and he said, ‘What goes around, comes around.’“We argued and he hung up.”

5.   This offer of proof included the following:“THE COURT:  You want to take something up out of the presence of the jury? “MR. McCLURE:  Yes.“As we have previously discussed in chambers about the evidence of the San Diego case, I wanted to put that on the record as an offer of proof for 402 purposes and the Court rule on it.“My offer of proof would be that evidence would show two persons assaulted a female on November 16, 1977 in San Diego;  that pictures were sent down by Andreson or other persons in the same department Andreson is in of Mr. Helm and Mr. Brown to San Diego Police Department.“The victims in the San Diego case identified Helm and Brown as the defendants in the San Diego case;  that further, Helm knew from conversations Brown had had with him that Brown was to be in San Diego on 11–16–77, and Brown was not released from custody on this case until late in the afternoon of 11–16–77 and could not have been in San Diego at the time that the alleged crime in San Diego took place.“That would be the evidence I would try to elicit to put in on this case.”

6.   Evidence Code section 1230 provides:“Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.”

7.   Evidence Code section 405 provides:“(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises.   The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.“(b) If a preliminary fact is also a fact in issue in the action:“(1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact.“(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact.”

8.   Since the knife found inside the fishing tackle box was not introduced into evidence or commented upon during the trial we will make no finding as to the legality of its seizure.

9.   Brown's desire for his trial counsel not to present these defenses was established by testimony taken during the hearing on Brown's motion for a new trial:“Q. [by Fidler]  Having received those reports and studied those reports did you discuss the matter with Mr. Brown?“A. [by McClure]  Yes, I did.“Q. And was it your suggestion that a defense should be put forward based on either the psychomotor epilepsy or unconscious defense along with the diminished capacity defense?“A. Yes.“Q. What were Mr. Brown's feelings along those lines?“A. Well, in terms of the epilepsy he was very adamant that in no possible way were we ever going to bring out his epilepsy as a defense because he didn't feel because of his medical experience, he was an RN, that it had anything to do with it and I told him that would have been an excellent defense and he just said, ‘I don't want to use it and I don't want to use it in terms of a diminished capacity.’“He wasn't quite as adamant but it was still the same sort of, I don't want to use a mental type defense for me.”

10.   During the hearing on Brown's motion for a new trial, the following colloquy occurred between McClure and Jonas, the prosecutor:“Q. [by Jonas]  There was never any indication to either one of those doctors, the USC doctors and also Mr. Lieberman, that he had suffered some type of psychomotor epilepsy where he had blacked out or couldn't recall anything;  is that true?“A. [by McClure]  There was never any in the reports, that is correct.“Q. He never told you anything about that, he never told the doctors anything about it in the report?“A. That is correct.“Q. This business about psychomotor epilepsy is a result of some psychiatric testing, correct?“A. In his prior psychiatric problems, yes.“Q. But in relation to this case, Mr. Brown indicated to his doctors and to you the same thing?“A. That is correct.“Q. He remembered everything.   Nothing happened to him out there physically that prevented him from remembering anything.“What happened was that he didn't do it and then he related the defense to you and to the doctors that he related on the witness stand?“A. That is correct.”

RICKS,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

COBEY, Acting P. J., and POTTER, J., concur.