PEOPLE v. SEWELL (1977)

Defendant William Henry Sewell was convicted by a jury of three counts of murder in the first degree. Allegations that he used a firearm at the time of commission of the offenses were found to be true. Sentence as to the firearm use on two of the counts was suspended. Sentences as to all counts were ordered to run concurrently with each other and consecutively with a life sentence imposed in Maryland. Defendant was transmitted to Maryland who had first call on him. He appeals the judgment of conviction. We affirm.

The facts underlying the defendant's conviction are summarized only briefly since defendant does not attack the sufficiency of evidence to sustain the judgment of conviction.

During June 1973, the defendant who was an escapee from the Maryland State Prison departed by automobile from Atlantic City, New Jersey, en route to Los Angeles. He was accompanied by Reggie Gladden, Benny Stokes and Orieton (Ordy) Houston. They carried a cargo of stolen musical instruments which they intended to sell in order to buy narcotics for resale on the East Coast.

In Los Angeles they went to the home of Sylvanus Caswell who was to arrange the sale of the goods through a ‘fence.’ The plan fell through and the partners were forced to peddle their wares in smaller quantities and at a price below expectations.

After a week of indifferent success and having failed to make connections with narcotics dealers the group planned to return East with the exception of the defendant who was remaining in Los Angeles because he feared apprehension in Maryland.

During the early morning of July 8, 1973, the defendant shot and killed Caswell, Houston and Stokes while they lay asleep in Caswell's apartment. Defendant fled to Maryland that night and was later apprehended there during the commission of another crime.

DENIAL OF MOTION TO DISMISS UNDER PENAL CODE SECTION 995

Defendant's first contention is that the trial court should have granted his motion to dismiss pursuant to Penal Code section 995 on the grounds that at the preliminary hearing he was denied his right to self-representation and was improperly denied a continuance.

At the preliminary hearing defendant stated to the magistrate that he was having ‘differences' with the deputy public defender and requested that a private attorney be appointed. When this request was denied defendant asked to be and was permitted to appear in propria persona.

During a colloquy with the magistrate in connection with his request to be permitted to represent himself defendant asked that he be given ‘a certain amount of time to familiarize myself with the proper procedures . . ..’ The continuance was refused on the grounds that the case had previously been continued and that a further continuance for the purpose stated was counter to the magistrate's pronouncement that he would not extend special concessions to one who was determined to appear in propria persona.

Upon being relieved as counsel for defendant the deputy public defender turned over to the defendant numerous documents which had been obtained by way of discovery proceedings.

On the following day defendant formally moved to be granted in propria persona status (which the court had already given). When he asked for advisory counsel, which he termed co-counsel, the court refused, giving the defendant the alternative of using the appointed public defender or acting in propria persona.

The following colloquy then took place between the magistrate and defendant.

‘THE COURT: Call your first witness. THE DEFENDANT: Your Honor—THE COURT: Yes. THE DEFENDANT: I would like to make an application that you disqualify yourself because as you stated you know Mr. O'Brien [deputy public defender] to be a very competent witness—I mean an attorney; so like John Mitchell and President Nixon were competent, and they strayed. Like I said, I have proof that Mr. O'Brien was not acting in my best interest, and you refused to hear it and therefore, you know, I would like you to relieve yourself. I cannot receive justice in this courtroom, because my freedom is at stake. I am being tried, not Mr. O'Brien or anyone else. THE COURT: I realize that and you were granted pro per. No, your motion is denied. THE DEFENDANT: Well, I would like to be relieved of the courtroom then. THE COURT: No, Mr. Sewell. You are going to be tried regardless of your delaying tactics by you or any others. THE DEFENDANT: Because I don't—THE COURT: You were told yesterday—THE DEFENDANT: I am not familiar with the case. I don't know anything about it. I haven't had time to research on anything. THE COURT: In other words, you are telling me you cannot act as your own attorney? Is that what you are stating? THE DEFENDANT: That's right. THE COURT: All right. Bring in Mr. O'Brien. He will be your attorney. You cannot act as your own attorney. THE DEFENDANT: Mr. O'Brien cannot. THE COURT: He will be your attorney. THE DEFENDANT: I am sorry—THE COURT: Bring Mr. O'Brien. The defendant has stated he cannot be his own attorney. Call Mr. O'Brien.’

The United States Supreme Court stated in Faretta v. California, 422 U.S. 806, at p. 835, 95 S.Ct. 2525, at p. 2541, 45 L.Ed.2d 562: ‘When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458], at 464–465, 58 S.Ct. [1019] at 1023, 82 L.Ed. 1461, 146 A.L.R. 357. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723–724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. [269], at 279, 63 S.Ct. [236] at 242, [87 L.Ed. 268], [143 A.L.R. 435].' (Emphasis added.)

In the case at bench the defendant quite obviously chose pro per status only because he had no other alternative to the services of the public defender. The magistrate properly refused to appoint a private attorney in the absence of any disqualification of the public defender. (Drumgo v. Superior Court, 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007.) Refusal to appoint an advisory or co-counsel was also a proper exercise of discretion. (People v. Harris, 65 Cal.App.3d 930, 135 Cal.Rptr. 668.)

In rejecting the named public defender at the preliminary hearing because of ‘differences' and in asking that any other attorney be appointed the defendant made it clear that he did not unequivocally desire to appear as his own attorney in spite of his request to do so.

The magistrate had only granted the defendant pro per status because of the compulsion of Faretta. In reversing that decision the magistrate accurately assessed the defendant's posture as being obstructive as well as arising from a genuine desire for assistance of counsel, albeit assistance from other than the public defender. The magistrate was entitled to believe that the defendant's statement that he did not wish to act as his own attorney sprang perhaps less from his dismay upon being given the numerous documents comprising the defense discovery than it did from his conviction that he had too much at stake to dispense with the aid of trained counsel.

Furthermore the defendant's request for self-representation was untimely. The request came only after the preliminary hearing had been pending for six months and after proceedings had begun. A request to change attorneys must be made at a reasonable time prior to a trial or hearing. That question is a matter for the discretion of the court. (People v. Windham, 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) No abuse of that discretion is perceived here.

MOTION FOR CONTINUANCE

After the jury was selected and sworn the prosecution delivered to defense counsel a substantial number of documents pursuant to the discovery order. Defense counsel claimed that the late delivery of these documents rendered him unable to prepare for trial. He requested a thirty day continuance. The trial court denied that request but did grant a continuance for one week.

Defendant contends that the late compliance with the discovery order amounted to suppression of evidence and that the denial of the request for a continuance was prejudicial. We disagree.

First it appears that much of the documentation had previously been submitted by the prosecution to defense counsel's predecessor and that there was perhaps a failure of communication between deputy public defenders. In any event at the close of the week when the parties resumed trial the defense was unable to point to a single document or witness which required further investigation or interview in order to be ready for trial. Additionally the defense utterly failed to show which documents were the subject of belated production and what, if any, effect their delayed production would have upon the defense of the case.

A careful review of this complicated record which was made more complicated by defense assertion of excessive discovery rights reveals no evidence of prejudice from the non-production of any properly discoverable information.

So long as counsel is afforded reasonable opportunity to prepare for trial, the question as to whether a continuance should be granted is within the sound discretion of the trial court. (Jennings v. Superior Court, 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304.) Where there is no showing of abuse of discretion or any resulting prejudice the denial of the continuance does not call for reversal of a judgment of conviction. (People v. Laursen, 8 Cal.3d 192, 204, 104 Cal.Rptr. 425, 501 P.2d 1145; People v. Ketchel, 59 Cal.2d 503, 546, 30 Cal.Rptr. 538, 381 P.2d 394; People v. Johnson, 5 Cal.App.3d 851, 859, 85 Cal.Rptr. 485; People v. Martinez, 264 Cal.App.2d 906, 913, 70 Cal.Rptr. 918.)

PROSECUTORIAL MISCONDUCT

Defendant contends that the prosecutor's direct examination of one of the investigating officers amounted to prejudicial misconduct. Prior to trial the court had ordered that certain portions of the defendant's statement to the officer were inadmissible. After the officer testified as to the admissible portion, the following transpired. ‘Q. BY MR. TRAPP: [deputy district attorney] Now, what you've just indicated to the Court and Counsel is that the entire conversation you had with Mr. Sewell? A. No, it is not. Q. Is that just a very small portion of the conversation? A. Yes, it is.’

Defense counsel moved for a mistrial claiming that the prosecution had intentionally asked a question designed to bring before the jury inadmissible evidence. Defendant contends that the jury was left with an inference that matters unfavorable to the defendant were not being brought before the jury. The People on the other hand, contend that reference to the additional conversation was merely to acquaint the jury with the fact that the detective and defendant had had a lengthy conversation rather than the very brief exchange which wad presented to the jury.

Defendant has failed to show that any prejudice occurred as a result of the questions and answers. Misconduct is prejudicial only if it is probable that a result more favorable to the defendant would have occurred but for the impropriety. (People v. Strickland, 11 Cal.3d 946, 955, 114 Cal.Rptr. 632, 523 P.2d 672; People v. Beivelman, 70 Cal.2d 60, 75, 73 Cal.Rptr. 521, 447 P.2d 913.)

The jury was instructed that its verdict must be based on the evidence admitted and that it was not permitted to speculate or conjecture as to matters not before it. It is presumed that the jury heeded the instructions. Defendant was fairly tried and no miscarriage of justice has occurred. (Cal.Const., art. I, § 13.)

FINDINGS PURSUANT TO PENAL CODE SEOTION 12022.5

Defendant contends that the judgment must be modified by striking from the sentence the punishment imposed pursuant to section 12022.5 of the Penal Code. The People have conceded that under People v. Walker, 18 Cal.3d 232, 234, 133 Cal.Rptr. 520, 555 P.2d 306, no effect can be given to the jury's finding on use of a firearm.

In People v. Walker, supra, the defendant was sentenced for first degree murder and use of a firearm. Our Supreme Court struck the ‘use’ finding on the theory that it is impossible to impose a consecutive sentence for the use of a firearm when the defendant is already serving a life term. We agree that People v. Walker requires a modification of the judgment.

THE ORDER THAT THE SENTECE RUN CONSECUTIVELY WITH THE TERM IN MARYLAND

‘When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or [consecutively] . . . provided, however, if the punishment for any of said crimes is expressly prescribed to be life imprisonment, whether with or without possibility of parole, then the terms of imprisonment on the other convictions, whether prior or subsequent, shall be merged and run concurrently with such life term.’ (Pen.Code, § 669; also see People v. Tucker, 127 Cal.App.2d 436, 273 P.2d 934; In re Ward, 64 Cal.2d 672, 51 Cal.Rptr. 272, 414 P.2d 400; cf. People v. Walker, 18 Cal.3d 232, 133 Cal.Rptr. 520, 555 P.2d 306.) (Emphasis added.)

At the time that the defendant was sentenced in the instant case he was already under a life sentence in the State of Maryland and as noted has since begun serving that sentence in Maryland. Defendant contends that Penal Code section 669 requires that the California sentence be merged and run concurrently with the Maryland sentence. In effect defendant urges that California must give him credit against the sentence imposed here in California for the time served in Maryland.

It seems self-evident that the Legislature in enacting Penal Code section 669 had in mind the merger of lesser terms of imprisonment into a life term and did not address the issue of merger of two life sentences. Furthermore for reasons which we will discuss infra, it seems equally clear that the Legislature intended a merger of these lesser sentences with a sentence of life imprisonment being served in California. In other words we do not believe the Legislature intended that a sentencing judge in California be prohibited from ordering a sentence for a crime in California to be served consecutively to a life sentence being served in another jurisdiction.

Since an individual has but one life it necessarily follows that the portion of that life which defendant serves in a prison in another jurisdiction reduces the amount of time in which California can confine him in its prison and to that portion there is a merger of the sentences. Thus if defendant here is confined in Maryland until his death a complete de facto merger of the sentences will result.

In Maryland as well as California, however, a life sentence does not mean confinement for the period of a person's natural life. Both states have a system of parole. (Maryland Const., Art. III, § 60; Ann. Code of Maryland, Art. 41, § 122(b).) In California a person receiving a life sentence may be paroled after 7 calendar years. (Pen.Code, § 3046.)¹ The number of years to be served in confinement beyond that minimum is determined by the California Adult Authority according to its established criteria.

This statutory limitation on the prerogative of the Adult Authority indicates that the Legislature was of the belief that the seriousness of crimes which carry a life sentence in California requires service of a fixed minimum period of confinement regardless of the prospect of earlier rehabilitation in any individual case.

On the other hand Penal Code section 669 in providing for a merger of other sentences with any life sentence was a recognition that these other sentences would flow from less serious crimes. As to those charges the Legislature obviously believed that the seven years minimum and the expertise of the Adult Authority were generally adequate safeguards and that the Adult Authority's prerogative should not be further circumscribed by sentencing judges.

Penal Code section 669 cannot be read as a declaration by the California Legislature that under no circumstances shall any sentence ever be imposed to run consecutively to a life sentence. The Legislature itself provided in Penal Code section 4500 for a mandatory consecutive sentence for a charge of escape from the state prison. That statute being enacted later in time than Penal Code section 669 prevails over the latter and is applicable to a prisoner serving a life sentence who escapes the second term commencing whenever for any reason the life sentence is terminated. (In re McManus, 123 Cal.App.2d 395, 266 P.2d 929.)

Penal Code section 669 gives sentencing judges in California broad powers to direct that sentences imposed in California be served either consecutively or concurrently with sentences imposed in other jurisdictions. A defendant is not entitled as a matter of right to receive credit against a California sentence for time served elsewhere. (See In re Stoliker, 49 Cal.2d 75, 315 P.2d 12; In re Gullatt, 69 Cal.2d 395, 71 Cal.Rptr. 676, 445 P.2d 292; People v. Cato, 13 Cal.App.2d 391, 56 P.2d 1245; People v. Martin, 128 Cal.App.2d 361, 275 P.2d 635.)

The question before us is whether the merger provision contained in section 669 restricts the power of a California judge to order that a California sentence be served consecutive to sentences served in other jurisdictions when the sentence in the other jurisdiction is a life sentence. We are of the opinion that it does not limit the California judge's authority in that regard but in fact, where the sentence imposed in California is itself a life sentence, the trial judge lacks the authority because of Penal Code section 3046 to do other than order that it be served consecutively to the life sentence in another jurisdiction.

By force of nature any time served in confinement in another jurisdiction is merged or served concurrently with the California sentence. But for the operation of Penal Code section 3046, of course, that merger could be made even more complete by the actions of the Adult Authority who would have the power to provide that all or a major portion of defendant's life sentence could be served out of confinement and in making that decision the Adult Authority could consider the amount of time served in other jurisdictions and could even permit the prisoner to be paroled and supervised in another state. (Pen.Code, § 11175, et seq.) Thus the issue is reduced to the simple one of the effect of California's parole policy as enunciated in Penal Code section 3046 requiring that a prisoner under a life sentence serve at least sevden calendar years before being eligible for parole.

The provision for merger in Penal Code section 669 was added to that statute by amendment in 1941. Penal Code section 3046 was enacted that same year. Under the rationale of In re McManus, supra, section 3046 must be viewed as controlling Penal Code section 669. Section 3046 is contained in Chapter 8 of Part III of the Penal Code which chapter is entitled ‘LENGTH OF TERM OF IMPRISONMENT AND PAROLES.’ The sections of that chapter (Pen.Code, §§ 3000–3116) refer to imprisonment in California prisons. Hence the reference in section 3046 to service of seven calendar years by a person ‘imprisoned’ under a life sentence necessarily means a service of seven years in a California prison.

Since a defendant sentenced to life in California may not receive credit against the seven year term required by section 3046 for any time served in another jurisdiction it follows that a life sentence imposed in California will always be consecutive to time served in other jurisdictions. As a practical matter, of course, the consecutive effect of such a sentence will only come into play when, for one reason or another, a prisoner is released from confinement in the foreign jurisdiction.

It can be foreseen that in individual cases an argument will be made that this procedure will result in an inordinately long period of confinement. A defendant after serving a long term in another jurisdiction while under a life sentence in California may be returned to California to face an additional minimum seven years for release.

The answer to such argument, of course, is that this is what the Legislature has provided. Furthermore a prisoner serving a life sentence does not have a vested right to parole. It must be remembered that a life sentence is imposed only for the most serious of offenses. Finally, the Governor's power of pardon and commutation serves as a mechanism for correcting any manifest injustice.

The judgment is modified to strike therefrom that portion of the sentence providing for additional punishment under Penal Code section 12022.5.

As modified, the judgment is affirmed.

FOOTNOTES

1.  Penal Code section 3046 provides:‘No prisoner imprisoned under a life sentence may be paroled until he has served at least seven calendar years. The Adult Authority shall, in considering a parole for such prisoner, consider all statements and recommendations which may have been submitted by the judge, district attorney, and sheriff, pursuant to Section 1203.01, or in response to notices given under Sections 3022 and 3042, and recommendations of other persons interested in the granting or denying of such parole. The authority shall enter on its order granting or denying parole to such prisoners, the fact that such statements and recommendations have been considered by it. Such statements and recommendations shall, however, be and remain confidential.’

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.