People v. Washington

FILES, P. J. Appellants Washington and Wilson, together with their codefendant Davenport, were tried by a jury and convicted of burglary (Pen. Code, § 459). These appeals are from the judgments.

At 1:15 a.m. on February 18, 1966, police officers saw Davenport and Wilson outside the entrance of a clothing store pulling something through the broken glass of the door. The men fled as the police approached, but were quickly apprehended.

At the curb was an automobile, with the motor running. Inside its open trunk were 20 men’s suits. This vehicle was registered in the name of appellant Wilson’s brother.

The officers saw another figure inside the store when they first approached. After a search they found appellant Washington inside the building hiding in a cardboard box covered with green canvas garment bags.

At the trial neither Wilson nor Davenport testified. Wash[114]ington testified that he was very drunk, and couldn’t remember anything that had happened that night.

It was a question of fact for the jury to determine whether Washington had the intent which is an element of the crime of burglary. The jury was instructed, in conformity with Penal Code, section 26, that it might take into consideration the evidence of Washington’s intoxication in determining whether he had such intent. The circumstantial evidence indicates that Washington had entered the building -and had collected a considerable number of men’s suits which he handed through the broken glass to his confederates on the outside. It also appears that when the police arrived he had sufficient comprehension to find a box, crouch inside of it, and pull canvas over the top. The jury was of course not required to accept at face value the self-serving testimony of the defendant, and of his mother and wife, as to the extent of his intoxication. The jury’s determination was not an unreasonable one, and cannot be upset by this appellate court. (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778].)

Appellant Wilson asks a retrial upon the ground that he was denied the right to represent himself. The record shows that Davenport was represented by the public defender, Washington by Attorney Joseph Rosen, and Wilson by Attorney Philip Erbsen, all appointed by the court.

The first expression of dissatisfaction on the part of Wilson appeared at the very end of the People’s case on the second day of the trial.1 After the arresting officer had completed his testimony and counsel had agreed that the witness might be excused, Wilson demanded that the officer remain on call. He added, “Tour Honor, I move to fire this lawyer.” The ensuing colloquy disclosed that the reason for this outburst was that Mr. Erbsen had declined to ask the officer a particular question which Wilson had suggested, namely, “Was the store next door broken into?” The court attempted to persuade Wilson that it was in his interest to rely upon counsel, and when Wilson persisted in his demand the court said: “Well, the Court has observed the defendant Wilson in this courtroom, and he apparently is not able to conduct himself