People v. Santos

BROWN, P. J.

J.Defendant and another were tried jointly for burglary (Pen. Code, § 459) and grand theft (Pen. Code, § 487, subd. 1). One attorney had been appointed to represent both defendants and did so throughout the prosecution of the People’s case. The evidence was that a house in San Diego County had been burglarized; some of the things taken were a .22 pistol, camera, two watches, tape recorder and two radios. The lady living there thought she had talked to defendant several days before the burglary; she identified him as having come to her home to inquire if she subscribed to a local newspaper.

The defendants pawned several of the stolen items the day the burglary occurred. Three days later the police found the defendants and another man asleep in an automobile in a public parking lot in Las Vegas, Nevada. Several cameras and watches in the car were in plain view of one of the policemen outside. The men were arrested for their “disorderly condition. ’ ’ In the automobile were a watch, tape recorder, and the .22 pistol taken in the San Diego burglary. Both defendants denied guilt. There was no conflict of interest between them.

In the second day of trial, after the prosecution had rested its case, defendant Santos moved the trial court to dismiss his counsel and to appoint new counsel for him; the trial court

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denied the motion for new counsel, but allowed defendant to represent himself. The codefendant kept the attorney to the end of the proceedings. The jury found both defendants guilty. Santos appeals the judgment of conviction, raising the issue of an ineffective waiver of counsel. This court appointed new counsel for him on appeal.

Defendant’s motion for new counsel during trial was based on defendant’s feeling that his counsel had not made objections during the prosecution’s case as defendant thought he should have, particularly in reference to an asserted unlawful search of defendant’s car and seizure of evidence found inside. The trial judge responded that counsel was experienced, able, and fully performing his duties as advocate. He refused to postpone the trial then in progress in order to appoint new counsel, and offered defendant the choice of keeping his present counsel or of representing himself. Defendant chose to represent himself. The trial judge stated the trial would proceed with the codefendant’s case first to make available to defendant “some pointers on what to do.”