Opinion
Nat A. Agliano, Salinas (appointed by the Court), for appellant.
Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Edward A. Hinz, Jr., Deputy Atty. Gen., Sacramento, for respondent.
CONLEY, Presiding Justice.
Jim Franklin Robinson, also known as Raymond McCullum, was convicted by a jury of three counts of forgery and was sentenced to state's prison. Count I accused defendant of making and uttering a check on March 10, 1963, to defraud Chester Barth, Thrifty Drug Store, and the Live Oak Branch of the Bank of America in the amount of $72.50. The second count of the information accused defendant of making and uttering a check on March 1, 1963, in the amount of $72.50 with the intent to defraud Chester Barth, Kelley's Market, and the Live Oak Branch of the Bank of America. The third count accused defendant of making and uttering on March 11, 1963, a check with intent to cheat and defraud C & J Auto Sales, Cal-Chester Drug Store, and the Oildale Office of the Crocker-Anglo National Bank in the amount of $67.50.
Before the trial, defendant repeatedly expressed the desire to represent himself, and he was a party to the relief of his court-appointed attorney, Victor Parry. The court repeatedly advised the defendant that, while he had the right to represent himself, it might be better to have counsel, and the court also made it clear to the defendant that if he represented himself he should not have any exceptional consideration, but he There is no question but that the evidence was amply sufficient to warrant the conviction on all three counts; the defendant was specifically identified by victims of his criminal activities in the Bakersfield area, and a competent handwriting expert confirmed the fact that the defendant himself had prepared the fraudulent checks.
The record shows that the defendant entered the Thrifty Drug Store at 2001 Chester Street in Bakersfield on a Sunday morning in March, 1963, purchased a $16.88 camera, paid for it from the proceeds of one of the false checks for $72.50; it was purportedly signed by 'Chester Barth,' maker, and endorsed by 'Raymond McCullum,' payee. The defendant also went to Kelley's Market in Oildale in the month of March, 1963, on a week day and cashed a fraudulent check for $72.50. The maker was 'Chester Barth' and the payee was 'Raymond McCullum.' The above two checks were drawn on the Live Oak Branch of the Bank of America and were check forms used in the business of the Barth Tractor Company located in Gridley, California. Charles W. Barth, one of two persons authorized to draw checks for that business had not authorized the making of these particular checks; he did not know anyone by the name of Chester Barth or Raymond McCullum.
The defendant attempted to cash a check at the Cal-Chester Drug Store in Bakersfield on March 11, 1963, but upon becoming alarmed left the store before the check was cashed; he left the check and a false service discharge paper behind. The check was the kind used in the business of C & J Auto Sales in Oildale; the maker's name was illegible, but it was not the signature of James P. Cleary or of his partner, who were the only persons authorized to issue checks for the business; James Cleary did not know anyone named Raymond McCullum. The check was one of a series missing from the middle of the C & J Auto Sales' check book.
The appellant does not question the fact in his brief that the evidence is sufficient to warrant his conviction, but he takes exception to two items of evidence. First, it is contended that certain evidence obtained from the automobile used by him shortly after the crimes was taken by police officers of Needles without sufficient warrant, and that it should not have been admitted in evidence; and, secondly, that the court improperly permitted testimony as to what was said by the defendant to a Bakersfield police officer, which, according to the prosecution, was a legitimate admission of guilt. We shall consider these two contentions in sequence.
First, let us consider the contention that the evidence obtained from the automobile in Needles was improperly secured and that it should not have been introduced in evidence. On March 14, 1963, officers Robert Rathbone and Jerry Lewis of the Needles Police Department were riding in a patrol car when they received a radio call that a vehicle containing drunk persons was at a service station; when they arrived at the service station they noticed a vehicle pulling on to the highway; the officers followed for about 8 blocks; the automobile made a few wabbles indicating the driver may have been drinking; they stopped the vehicle.
Officer Lewis testified that they received the call from the desk sergeant informing them that when a customer asked a station attendant if he had a 'hot sheet' on credit cards and the attendant said he did, the customer paid in cash for his purchase even though he had a credit card. The officer stopped the car in front of the Needles police department; immediately after the police flashed a red right requiring the automobile to stop, the passenger in the car who later proved to be the defendant stooped over as if to hide something; the automobile was registered to one of appellant's relatives; both occupants appeared to have been drinking and they were taken into the police station for examination; the driver was given an intoximater test and arrested and appellant was booked for drunkenness in public; Officer Rathbone was assigned to search the vehicle.
When the officer got into the vehicle to search it, he noticed that the floor mat in front on the passenger side was turned back 'a small amount.' He raised the mat and under it found an AFL-CIO union book in which there were a Los Angeles County Medical Card No. 193825, a blood donator's card, and a Bank of America blue check No. 0822 for the amount of $157.00, stamped on by a check protector and apparently issued by the Barth Tractor Company in Gridley, California; all were in the name of Raymond McCullum. Officer Rathbone also noticed that the back seat on the right hand side was not put completely down; it stuck up just a little bit; he found under the back seat a paymaster check protector, which the record later showed was used in preparing the forged checks. The officer took the check protector and the items of identification into the police station. The drunken defendant was locked up; he was questioned the next morning by Police Chief Jones, Officer Rathbone and another officer. Mr. Rathbone testified that the defendant told them that he had bought the check protector, the check, and the identification cards for $50.00 from a 'Blackie', whom he had met at the K C Club in Oildale; he also testified that defendant stated that Blackie had told him that he was not to use this equipment in the Bakersfield area, and that he was going to take it to Oklahoma and there do extensive check passing. The officer testified that the defendant told him he was aware the check was a forgery, that it was too hot to cash in the Bakersfield area, and that defendant said he had not passed any checks up to that time.
To start with, it should be noted that, generally speaking, if there is no objection to offered evidence at the time of the trial, the evidence cannot be objected to on appeal for the first time. (People v. Lyons, 204 Cal.App.2d 364, 367-368, 22 Cal.Rptr. 327; People v. Richardson, 51 Cal.2d 445, 334 P.2d 573; People v. Reece, 201 Cal.App.2d 585, 20 Cal.Rptr. 104; and People v. McNeal, 212 Cal.App.2d 731, 28 Cal.Rptr. 173.) That was the situation in this case.
The defendant, since he chose to represent himself despite the paternal warnings of the trial court that he would be bound by the same rule as if he did have an attorney, cannot now take the position that he is entitled to any greater consideration than if he did have a lawyer representing him. (People v. Harmon, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 351 P.2d 329; People v. Linden, 52 Cal.2d 1, 18, 338 P.2d 397; People v. Green, 191 Cal.App.2d 280, 284-285, 12 Cal.Rptr. 591; PEOPLE V. COLLINS, 220 Cal.App.2d 563, 33 CAL.RPTR. 638.)
Advance Report Citation: 220 A.C.A. 568, 580.
Appellant concedes that he made no formal objection to the evidence at the trial, but he argues fallaciously that he did raise the question of the propriety of the search in his cross-examination of the arresting officers when he asked if it was a normal procedure for an automobile to be stripped, torn, the front floor mat torn half out of it, when a car was stopped. The trial court pointed out, upon objection of the prosecution, that no such evidence had been received and that he might ask whether those facts were correct if he wished; the defendant did not carry on the examination further. The appellant further urges that as he is not a lawyer the appellate court should treat him with more than usual consideration with respect to the lack of objections below, citing People People v. Chapman,
People v. Martin,'It is true that defendant is not entitled to relief merely because, in representing himself, he may have suffered some disadvantage due to his ignorance of the law. (People v. McBride, 122 Cal.App.2d 409, 264 P.2d 991; Frey v. Superior Court, 5 Cal.App.2d 534, 536, 43 P.2d 342.)'
The opinion in People v. Harmon, supra, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 164, 351 P.2d 329, 332, observes:
'* * * having competently elected to represent himself, defendant 'assumes for all purposes connected with his case, and must be prepared to be treated as having, the qualifications and responsibilities concomitant with the role he has undertaken' (People v. Mattson (1959), supra, 51 Cal.2d 777, 794, 336 P.2d 937).'
It is our conclusion, in view of the record, that the appellant is not entitled to urge this point upon the appeal. However, for good measure, we point out that the search was entirely justified and that if the record had been in good order through proper objections urged in the trial court, the effort to reverse the case on the ground specified would be fruitless.
We have in mind the holding in People v. Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 50 A.L.R.2d 513, that evidence which is obtained by violating constitutional guarantees against unreasonable search and seizure cannot be admitted and that this rule has been applied to the search of a motor vehicle (People v. Gale, 46 Cal.2d 253, 294 P.2d 13). However, it is clearly the law that a reasonable search which is incidental to a lawful arrest (People v. Miller, 176 Cal.App.2d 571, 1 Cal.Rptr. 656) or when there is reasonable cause to believe that the automobile is carrying contraband (People v. Brajevich, 174 Cal.App.2d 438, 344 P.2d 815) is entirely proper when made without a warrant. It is true that, under those circumstances, the burden is upon the prosecution to show that the search is reasonable (PEOPLE V. DEMES, 220 Cal.App.2d 423, 33 CAL.RPTR. 896).
Advance Report Citation: 220 A.C.A. 430, 444.
In the instant case, the two occupants of the automobile were under the influence of intoxicating liquor; that the arrests were entirely justified in view of the breach of the law in the presence of the officers is apparent. (Veh.Code, § 23102; Pen.Code, § 647, subd. f; Pen.Code, § 836, subd. 1.)
The officer testified that he was attempting to locate alcoholic beverage containers in the automobile. The arrest of two drunken men furnished a reasonable ground for the possibility of finding liquor containers. The possession of such partly used bottles or cans would have been proper evidence of a breach of the law (Veh.Code, §§ 23122 and 23123).
It should be observed further that the actions of the defendant at the time he was stopped in leaning down in front of the car as though placing something in hiding would indicate further grounds for the search (People v. Blodgett, 46 Cal.2d 114, 117, 293 P.2d 57; People v. Jiminez, 143 Cal.App.2d 671, 300 P.2d 68; People v. Sanson, 156 Cal.App.2d 250, 319 P.2d 422; People v. Lujan, 141 Cal.App.2d 143, 296 P.2d 93).
There is nothing in the record which would indicate a general search without cause, as in People v. Schaumloffel, 53 Cal.2d 96, 346 P.2d 393; People v. Brown, 45 Cal.2d 640, 290 P.2d 528; People v. Amos, 181 Cal.App.2d 506, 5 Cal.Rptr. 451. Once the search is justified as it was in this case, the officers are not required to close their eyes to additional evidence which may be found. (People v. Littlejohn, 148 People v. Roberts,
In People v. Sanson, supra, 156 Cal.App.2d 250, 319 P.2d 422, the driver of the car could have been given a citation for illegal lights but that would not have justified a search of the car for it had no relation to the traffic violation; however, the illegal lights justified the officers in stopping the car; the defendants made movements which led the police to believe they were hiding something under the front seat; the court held under these circumstances when the defendants got out of the automobile, it was entirely reasonable for the officer to look under the front seat. Upon discovering a dirty paper bag there, it was proper for him to examine its contents and the court held that marijuana in the bag was discovered as the result of a reasonable search based upon reasonable cause. (See also People v. Jiminez, supra, 143 Cal.App.2d 671, 673, 300 P.2d 68.)
The second contention of appellant has to do with testimony of Officer Thomas L. Comer when during the trial the district attorney asked him if the defendant had made extrajudicial statements concerning the participation of other persons in the writing of the checks. The following conversation took place:
'Q. Was this question ever brought up to him by anyone other than yourself?
'A. It was brought up. I am not sure of the words, but on the way back from Needles, Mr. Robinson volunteered the information that he felt that he would possible go back and I forget his exact words, but he meant's 'go back to prison' and that if he talked, he would find a knife between his ribs after he got back there and I didn't pursue the matter any further.'
The appellant argues that it is wrong for a prosecuting officer to introduce evidence of the evil character of the defendant (People v. Powell, 186 Cal.App.2d 54, 8 Cal.Rptr. 707; People v. Donaldson, 130 Cal.App.2d 250, 278 P.2d 739), and argues that the remark was used only to show a general criminal character of the accused; it is contended that no admonition of the jury by the court could have erased such a harmful statement (People v. Lyons, 50 Cal.2d 245, 262, 324 P.2d 556). True as such contentions are, considered separately and abstractly, there is also a clearly defined rule that admissions of a defendant if given freely and voluntarily may be admitted in evidence even though they incidentally show that the party accused has a criminal character or previous criminal experience. In this connection, the state maintains that what the defendant said contains an inferential admission of guilt in the present case.
On this second contention, respondent argues that the statements which defendant made to Officer Comer were admissions, and the statement that he realized that he could possibly go back to prison was an admission that he knew he had violated the law in regard to passing the checks in Bakersfield. Respondent maintains that defendant's other statements to the police concerning his knowledge of the passing of the checks were denials that he had passed any checks in the City of Bakersfield, but that he had been warned not to use them in that area and that a conflict resulted between these statements; also, defendant's statement that if he talked he would find a knife between his ribs in prison made it apparent that appellant admitted knowledge of the falsity of the checks, which was contrary to his earlier denials, and the admissions had probative value.
It should be noted in connection with the evidence on this second point that no objection was made to it by the defendant at the trial and that the observation heretofore noted with respect to the duty of a defendant to make objections in the court below as a prerequisite to urging the point on appeal is applicable here. (People v. Seiterle, 59 Cal.2d 703, 31 Cal.Rptr. 67, 381 P.2d 947; People v. Brice, 49 Cal.2d 434, 437, 317 P.2d 961; People v. Alvidrez, 158 Cal.App.2d 299, 300, 322 P.2d 557; People People v. Prado,
The judgment is affirmed.
RALPH M. BROWN and STONE, JJ., concur.