People v. Karlin

FORD, J.

The defendant Karlin was convicted of the crime of possession of marijuana. (Health & Saf. Code, § 11530.) Imposition of judgment and sentence was suspended and the defendant was granted probation on condition that he serve a period of 90 days in the county jail. He purports to appeal from the judgment of conviction and from the nonappealable order denying his motion for a new trial. We treat his appeal as one from the order granting probation. (See

People

v.

Sharer,

61 Cal.2d 869, 870 [40 Cal.Rptr. 851, 853, 395 P.2d 899].)

At the preliminary hearing the defendant Karlin, who is the appellant herein, was not represented by counsel separate and apart from the attorney who represented his then co-defendant, Frank Mabry. Under circumstances hereinafter related, the defendant Karlin testified at that hearing that

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he, and not Mabry, had possession of the marijuana involved in the charge. It was ordered that Mabry be discharged. At the defendant Karlin’s trial in the superior court, he unsuccessfully objected to the introduction of evidence of such admission of guilt on the ground that the evidence was incompetent because the admission was made at a time when he was not afforded adequate representation by counsel. The question presented on this appeal is whether the reception of that evidence constituted prejudicial error.

In the hearing conducted by the trial judge to determine the competency of the challenged evidence, the defendant Karlin testified that about three or four days after he was arrested he met the attorney who thereafter appeared at the preliminary hearing. The meeting was in the attorneys ’ room in the Hall of Justice. He had not summoned her. Frank Mabry, who had been arrested at the same time, was also present. Mabry had hired her as his attorney. The defendant Karlin further testified that in the presence of the attorney, Mabry told him that if he, Karlin, would “turn him loose,” the “most” that Karlin would receive would be “straight probation.” The attorney said that that was “about” what he would get, but she made no promise. Karlin said that he would think about it but that he doubted that he would “turn him loose” at the preliminary hearing; he would have to find his own attorney and he wanted to be released on bail first. Karlin made no financial arrangements with the attorney to whom he talked in the jail.