# Record and brief — Lewis v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1191%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 1021 ## Text -uonned 51-1442 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 PHIL DARNELL LEWIS and O. C. NEAL, Petitioners, vs. STATE OF CALIFORNIA, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT PETITION FOR WRIT OF CERTIORARI LUKE McKISSACK 9911 West Pico Boulevard Suite 1000 Los Angeles, California 90035 (213) 557-1226 Attorney for Petitioner 5 SS Se ees ee ee 2 Dean-Standefer, 1340 W. Sixth St., Corona, Ca. 91720 - (714) 734-0811 QUESTION PRESENTED Can a trial court interrogate a crucial defense witness, inform her that she may incriminate herself and that she should have counsel, but, because she was not indigent, make her seek out and hire her own attorney, which she did, only to learn, not surprisingly, that he was unable to come to court on such short notice to represent her; all of which resulted in depriving the defense of its witness? TABLE OF CONTENTS CEE. “cbspcaccconcscevecdoosecns I 0 ee ae Dag ee ing oe a ey Dn building to come out, using the public address systems built into their patrol cars. (R.T. 20.) They received no response. All of the entrances to the building were locked, and the officers were unable to gain entrance. (R.T. 21.) Ultimately, however, Officer Owens walked up to the front door and yelled to the persons inside that if they did not come out, he would throw a cigarette in. (R.T. 109.) At that point defendant Neal opened the front door and tossed a key ring through the metal grate onto the sidewalk. The defendants were arrested and handcuffed to the grate while the officers attempted to unlock the grate by means of the keys. (R.T. 24.) In the meantime, the fire department had cut the locks off another door at the front of the building, and the door at the rear. (R.T. 24.) Officer Foster and five other officers then went inside the building, after donning respirators borrowed from the fire department. (R.T. 24.) Officer Roger Gilbert was one of the first to enter. He found that there was a haze and a strong chemical odor permeating the entire building. (R.T. 144-45.) He found paint cans, paint rollers and bottles on the ground floor. Downstairs he observed shelves with various containers on them, and the toilets in the bathrooms were overflowing with a milky-white substance. (R.T. 145.) When his respira- tor ma!functioned, he smelled an extremely strong chemical odor, which caused pain in his iungs and made him light- headed. (R.T. 146.) Officer Foster, after taking the defendants into custody, noticed that their clothing was very damp and emitted an odor which he associated with PCP. (R.T. 25.) It was stipu- lated that both of the defendants had PCP on their pants. (R.T. 181.) Defendants were transported to the station and book- ed. Officer Foster returned to the location at 8705 South Broadway and found that the chemical odor coming from within was too strong to permit him to enter. The fire de- partment was ventilating the building with large fans. The police officers assembled were required to wait for two and one-half to three hours to conduct a thorough search of the building. (R.T. 27.) After the fumes had dissipated, Officer Foster and others went into the vacant building and retrieved, from the wooden bench, two gas masks, a paint roller and roller tray, numerous bottles, and a piece of paper bearing a formula for manufacturing PCP. (R.T. 28.) Downstairs, in the basement of the building, Officer Foster observed numerous wooden shelves and drying racks with white crystal-like formations on them, numerous bottles and buckets, a crystal-type material on the floor, and various liquids in containers. Within the bathroom, there were sinks and toilets clogged with a crystal-like material which emitted a very strong chemical odor. (R.T. 29.) Richard Bingle, Chief Forensic Chemist for the City of Los Angeles, was also present to take inventory of the build- ing’s contents. He conducted a general search for flamable or toxic chemicals and took photographs and samples of most of the chemical substances he found. (R.T. 195 - 215.) He also testified that the piperidine cyclohexane carbonitrile is an in- termediate product in che manufacture of PCP. (R.T. 216.) It was stipulate’ -hat substantial quantities of piperidine cyclohexane carbonitrile, otherwise known as PCP, as well as 30 milliliters of phencyclidine, or PCP, were found upon the premises. (R.T. 222 - 23.) Virtually all of the bottles, cans and buckets found in the otherwise empty building were dusted for latent finger- prints. (R.T. 218 - 19.) However, only one print was obtain- ed linking either of the defendants with the containers. That was the palm print of defendant Lewis lifted from a five-gallon gas can. (R.T. 187.) Officer Joseph Stanley of the Los Angeles Police Depart- ment’s Administrative Narcotics Division testified an an expert in the field of manufacturing, packaging, sale and distribution of PCP. He testified that the two main ingredients in phen- cyclidine are piperidine and cyclohexanon. (R.T. 228.) He testified as to the manner in which they are combined to create the final product, which is a PCP crystal. (R.T. 228 - 29.) He explained how the piece of paper found on the bench oft. constituted a formula or recipe for the manufacture of PCP and stated that based upon the types of chemicals and quan- tities found in the premises he formed the opinion that the building was being used as a PCP laboratory. (R.T. 230 - 34.) Thomas Lander testified that he was the manager of the business located next door to the former furniture store at 8705 South Broadway. (R.T. 172.) Around the beginning of December, 1979, he noticed an unusual odor coming from the building next door. It smelled like ether. (R.T. 172 - 73.) He also noticed two black males at the back of the builidng who appeared to be loading or unloading a station wagon, but he could not identify the defendants as the persons whom he saw. (R.T. 174- 75.) Donald Taylor, a young man who was receiving radio installation training at Mr. Lander’s business, also testified that prior to the last week of December, 1979, he smelled an odor which he associated with PCP emanating from the building next door. He went inside the building and looked around but did not see anything. (R.T. 128 - 29.) During December, the odor was, at times, strong enough to make him feel sick. (R.T. 130.) He also saw two males sitting in a dark station wagon at the rear of the buildimz, but he could not identify them. (R.T. 131 - 32.) DEFENSE: There was never any question or dispute about the fact that the building contained many chemicals which are the precursors of PCP, a large quantity of PCC, an intermediate compound which, when combined with a cyanide, yields PCP, as well as a relatively small amount of PCP itself (30 milliliters). The defendants never contended that the base- sities ment of the building was not being used by someone to manufacture PCP. The defense was that they were not the “chemists,” and had no knowledge of the illegal oper- ation. Robert Watson, a journeyman carpenter, testified that on or about December 19, 1979, he leased the build- ing at 8705 South Broadway. (R.T. 266.) It was his inten- tion to rennovate the building and turn it into a restaurant and discotheque. (R.T. 266.) On the day that he executed the lease, he was given a key to the building and inspected the premises for ten or fifteen minutes. (R.T. 267.) The interior needed alterations, painting, and there was a great deal of clean-up work to be done both inside and out. Mr. Watson contacted Mr. John Henry, a contractor experienced in building the kinds of clubs he was interested in, and he sought Mr. Henry’s advice and assistance in per- forming the construction. (R.T. 269.) He gave Mr. Henry a key to the premises and showed him the debris, both inside and outside the building, which needed to be cleared away. (R.T. 269 - 70.) He did not detect any unusual odors when he visited the premises on December 19. (R.T. 272.) He advanced the sum of $75.00 to John Henry to pay someone to clean up the building. (R.T. 284.) He was not personally acquainted with either of the defendants. (R.T. 276 - 77.) John Henry testified that he is a contractor, and that he was asked by Mr. Watso: to assist in the construction of a restaurant and disco club at 8705 South Broadway. (R.T. 306.) He met with Mr. Watson at the location around December 20, and saw that there was a great deal of debris, inside and out, which needed to be cleaned up. There were many containers, varnishes, cans, boxes, bottles and buckets ti. on the ground floor and in the basement. (R.T. 310.) It also appeared that transients had been living in the building. (R.T. 311.) Mr. Henry attempted, without success, to get a num- ber of persons to undertake the clean-up chores. He happen- ed to have one of defendant Neal’s business cards identifying him as a “handyman,” and when he called Neal on December 29, 1979, Neal accepted the job. (R.T. 316-17.) Neal had never worked for or met Mr. Henry before that day. (R.T. 317-18.) Mr. Henry met Mr. Neal for the first time at the rear of the building at approximately 12:45 or 1:00 p.m. Mr. Lewis arrived shortly thereafter. Mr. Henry told the defend- ants that he wanted all of the junk and debris inside and outside the building cleaned up and hauled away and paid them $50.00 as an advance on the agreed price of $150.00 for the work to be performed. (R.T. 317 - 18.) He also instructed them to paint the windows with the paint and rollers, which he himself had brought to the building that day, so that transients would not be able to see throuzh the windows and be tempted to steal the equipment which he planned to store within. (R.T. 320-21.) He gave them a key to the lock on the front door and instructed them to throw the key through the grate at the back door after they had locked up and before leaving. (R.T. 322 - 25.) Mr. Henry also noticed a strong chemical odor origi- nating from the basement. He suspected this was caused by varnish or lacquer left over from the furniture store, and he told the defendants to clean up the basement. (R.T. 323.) He then left the premises. Mr. Henry returned to the location around the 2nd of afi... January, 1980, and discovered that the clean-up work had not been completed. He had no knowledge of what had occurred at the premises and assumed that the men he had hired had simply taken the $50.00 advance and walked off the job. (R.T. 328.) He did not see either of the defendants again nor did he learn what had actually happened until he was contacted by defendant Neal in July of 1980. (R.T. 327.) Each of the defendants testified on their own behalf. They stated, in essence, that they had no dealings with each other or Mr. Henry prior to December 29, 1979; that on the morning of that day, Mr. Neai received a telephone call from Mr. Henry who offered to pay him for cleaning up the build- ing; that Mr. Neal met Mr. Lewis at a gym in Lynwood and asked him (Lewis) to assist in the clean-up operation; and that they both arrived at the building, in separate vehicles, at about 1:00 p.m. (R.T. 361 - 65, 410- 12.) Mr. Henry showed them around the building, told them to clean up the junk and haul it away, handed them a key and the sum of $50.00, and then left the premises. (R.T. 361 - 71, 413.) The defendants proceeded to the basement where they found many cans, bottles, plastic buckets and the like, and they started dumping the contents of these containers down the toilets, but then the chemicals started to give off such strong odors that the defendants were forced to abandon the basement and go up to the ground level where they com- menced painting the windows. (R.T. 372 - 77, 413 - 17.) They also piled up various pieces of debris so that they could be hauled away. While the defendants were in the clean-up process, they heard a helicopter overhead and noticed a number of police officers in the area. They did not hear any commands to come —~14— out of the building. Mr. Neal tried to get the attention of an officer at the back door to find out what was going on, but the officer drew his gun, and this frightened Mr. Neal back into the building. All of the other entrances were locked, so that there was no other way defendants could get out of the building. Fearing for their safety, they went to one of the front doors. They were met at the locked metal grate by police officers, who placed them under arrest. (R.T. 377 - 80, 417 - 20.) The defendants denied that they wore any gas masks and further denied any knowledge of the character of the chemicals found within the building. REASONS FOR GRANTING THE WRIT This Court is here presented with a case of first impres- sion and one which concerns a problem occurring with great frequency in criminal trials. The trial court below—in a case wherein the evidence was so close that the trial, which lasted but two days, required jurors deliberating an equal length of time, sua sponte—admonished all three defense witnesses (excepting the defendants) that they were likely to incrim- inate themselves and should seek counsel prior to giving testimony. No admonitions were given any prosecution witness. A crucial defense witness, Ms. Marset, was declared ineligible for court-appointed legal counsel because she was not an indigent witness. The court recessed proceedings on Friday afternoon, and they resumed the following Monday morning, at which point the trial judge interrogated Ms. Marset concerning the whereabouts of her retained legal counsel. She informed the court that she had hired an attorney to represent niin her, but that the attorney was engaged elsewhere and would the court advise him when he should be available. The court declined to do so, and the witness was excused, thus depriving the defendants of her vital testimony. What is not at issue here is the right of a state to refuse to provide legal counsel to defendants or witnesses who have the necessary funds to employ their own. What is at issue here is the court’s right to disrupt a trial in progress and effectively elimiiate a witness’s testimony because the witness is told she should consult an attorney and have him present before testifying; then requiring the witness to (1) locate an attorney and set up an appointment with him; (2) keep the appointment, ascertain his advice and his fee; (3) pay the fee; and (4) guarantee that the attorney can discard all prior com- mitments and be present with the witness in court immediately. In the present case, the failure of the witness to accom- plish all of the above between Friday afternoon at 2:35 p.m. and the commencement of court proceedings the following Monday morning resulted in her being dismissed and the loss of her testimony by the defense. The approach utilized by the trial court in this case allows the court to effectively intimidate defense witnesses and prevent their testimony, in violation of Sixth Amendment rights. Now, through the process of imitation, many defendants are losing these precious rights and more will do so as time goes on unless this Court forestalls this type of abuse. ARGUMENT Petitioners Were Denied Due Process Of Law And A Fair Trial, Under The Sixth And Fourteenth Amend- =" Ss ments To The United States Constitution, When The Trial Court, Jn A Case Of First Impression, On Its Own Motion, Ordered A Witness, Who Was About To Testify For The Defense, To Hire Private Counsel, An Act Which Ultimately Resulted In The Petitioners Being Deprived Of The Witness’s Testimony. After the prosecution rested, the defense announced that it would call as its initial witness Dorothy Marset. She was in court and ready to testify. She had a possessory interest in the property at 8705 South Broadway—where the crime was committed—during the criminal activity conducted there and remained the owner at the time of trial. Also, during the crucial time period, she actually visited the premises. The trial judge, on his own motion, admonished her that if she had a possessory interest in the property she might incriminate herself. (R.T. 257 - 60.) The court, despite the in-trial situation, proceeded to interrogate her concerning income and property holdings (including a self-incriminatory question to which she responded in the affirmative concerning ownership of the premises where the contraband was seized), then concluded that, because she was not sufficiently impov- erished, she would have to hire her own attorney rather than to be able to utilize the services of the public defender or a private attorney usually obtainable from the same or a near- by courtroom, which is the common practice. (/bid.) Of course, when she was compelled to hire a criminal lawyer, his services were not necessarily available in an instant and, addi- tionally, financial remuneration had to be considered. The trial was then recessed for the remainder of the afternoon - = (Friday). Ms. Marset returned on Monday morning and inform- ed the court that her attorney, Mr. Armstrong, had another matter in another courtroom and could not be present to represent her but would if the court would call his office for a suitable date. (R.T. 263.) An irate court then in- structed Mis. Marset to have her attorney contact the court to arrange a time when he could be present for her testi- mony and ordered the defense to proceed with its other witnesses at 10:35 a.m. At 1:57 p.m., the same day, the attorney for Mr. Neal advised the court that he had been unable to speak with Mr. Armstrong but that he had no objection to Ms. Marset’s being excused until he contacted him, which neaver happened. (R.T. 315.) The witness never did testify. The best method of highlighting what was egregiously wrong with the trial judge’s unprecedented procedure is to assess the practical considerations against a backdrop of appropriate constitutional concerns like the right to a fair trial and to present and confront witnesses as enshrined in the Sixth Amendment and rendered applicable to the states through the Fourteenth Amendment. See, e.g., Washington v. Texas, 388 U.S. 14, 19 (1967); Webb v. Texas, 409 U.S. 95 (1972); Pointer v. Texas, 380 U.S. 400 (1965); Douglas v. Alabama, 380 U.S. 415 (1965); Brookhart v. Janis, 384 U.S. 1 (1966); In re Mosley, 1 Cal. 3d 919 (1970). It is fundamentai that a defendant whom the state seeks 3 all three of the defendants’ witnesses (apart from the defendants themselves) were admonished as to possible self-incrimination by the trial judge. No prosecution witness was so treated. attin to deprive of his liberty be accorded a fair trial, which encompasses the right to summon witnesses in his behalf. Webb v. Texas, supra; Washington v. Texas, supra. This is frequently the most responsible and necessary means of defending one’s self. In the present case, the issue of who had control of the premises and the dimensions and variety of that control was of decisive significance. In Webb v. Texas, supra, the trial judge, on his own initiative, during a recess, singled out the only prospective defense witness for a lengthy admonition on the dangers of perjury. Not only warning the witness of his right to refuse to testify, and of the need to tell the truth, the judge went on to imply that he expected the witness to lie, and that, if the witness did so, he would be prosecuted and probably convicted of perjury. The witness then refused to testify for any purpose. This Court held that the threatening remarks effectively drove the witness off the stand and deprived the defendant of due process of law. In Webb, the failure of the defense counsel to offer a timely objection and the total lack of an offer of proof to demonstrate damage to the defendant’s case were deemed insignificant given the nature of the constitutional right denied. The Court relied upon the Sixth Amendment to the United States Constitution, which explicitly provides for the defense to call witnesses in its behalf. “In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”’ (Em- phasis supplied.) Moreover, this Court reaffirmed the wisdom contained —19~— in the case of Washington v. Texas, supra, 388 U.S. at 19, as follows: “The right to offer testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prose- cution’s witnesses for the purpose of challeng- ing their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” Webb admittedly involved an extremely hostile act of intervention by the trial judge; however, the principle should not be devoured by its foremost example. In this case, the court had no duty to obtain “waivers” of Fifth Amendment rights from defense witnesses before they testified. By doing so, the court interfered with the orderly presentation of the defendants’ evidence, and by ordering Ms. Marset to obtain private counsel (an unprecedent- ed move), ultimately deprived the defense of Ms. Marset’s testi- mony altogether. The ruling placed the defendants at the mercy of the witness and her attorney, thereby encumbering and delaying the trial. The trial court could have corrected its initial error by appointing the public defender to advise the witness on Monday, when her attorney could not appear, even though she was not indigent. The interests of the defend- ants in exercising their constitutional riglit to put on a defense clearly would have outweighed any minor expense to the =~ = state in appointing an attorney to advise the witness. Such a practice would have a beneficial effect on the administra- tion of justice, in that it would expedite trials and preserve the constitutional rights of criminal defendants as well as potential witnesses. Given the preceding observations, what should the trial judge have done, bearing in mind that an appellate statement of what procedure is most salutary addresses a problem which asserts itself with great frequency but low visibility because it has always been handled by appointing the public defender or a nearby attorney. To begin with, neither the Attorney General nor the Court of Appeal of the State of California cited any authority which required the trial judge to admon- ish a witness to dread incriminating herself or himself, because there is none, although arguably it is a healthy proposition—but not if it disrupts the trial and results in denying the defendant the benefit of testimony. Secondly, given the fact that a defense to a trial may take no time at all because the defense can rely on the prosecution’s failure to prove a case—or may last merely a day or two, as in this case, it is essential that if a judge chooses to advise a witness of his fears concerning the prospects of self-incrimination, that he couple that fear with some satisfactory mechanism for resolving it which does not unduly intimidate the witness or, because of practicalities of stress, time and money, deter the witness from giving presumably helpful, often decisive testi- mony. Consequently, we must compare the usual technique of calling upon the public defender for assistance or appoint- ing a private attorney to give independent advice, with the one invoked in this case of asking a witness in court to hire an attorney on her own, who must be almost instantly == reachable, and set up an appointment, discuss the fee, raise the money for the fee, pay the fee, discuss availability, etc. It is a precept fraught with difficulty which requires the trial judge to make a defense witness in court enter upon a private quest for a lawyer and cope with all of the foresee- able problems. If that approach can be utilized in this case, it can be utilized in others; and the counsel seeking the witness's testimony which will prove heipful to the accused can ill afford to demand that a witness not consult private counsel once the awesome authority of a judge delivers that unmistakable message. What kind of result could we expect if the defense attorney responded with: “We don’t have time for her to seek out an attorney of her own choosing, Judge. How about appointing one? In fact, my friend, Mr. Smooth, is down the hall in Department Heaven, and he could use the money!” When Ms. Marset located a private attorney, he, not surprisingly, left a message that he was presently unavailable but to have the court contact him for a suitable date. This angered the trial judge so that he expressed his consternation by stating that he would not contact the attorney; that the attorney should contact the court. (R.T. 263.) But none of this counterplay was of any assistance to Ms. Marset, much less the defendants on trial who were desirous of producing an unintimidated witness. And, giving everyone the benefit of the doubt, counsel may have conceived of his chore as a favor to the court, because the circumstances surrounding the visit to his office by an obviously confused Ms. Marset required him to sail in uncharted waters. The court, on the other hand, obviously conceived of the situation as the routine hiring of an attorney and so, understandably, bristled at the thought that he was obliged to contact defense counsel —22— to agree upon an appropriate “date.” The well-intentioned trial judge created a fiasco which resulted in the defendants’ being deprived of what might have been crucial evidence. This was, after all, a very close case. The jury deliberated for two full days, the same amount of time it took to present the evidence; and then the verdicts were reached only after all of the testimony of Officer Foster, defendant Neal, and Mr. Lander was re-read. The evidence of guilt clearly rested on a hairline, and we are in no position to speculate concerning the impact of testimony. Obviously, ““what’s sauce for the goose is sauce for the gander,” so, if the trial court’s decision to send Ms, Marset on a wild goose chase for an attorney made to order for the press- ing predicament was correct, this Court must condone the same conduct if requested by the defense. If it appears that a prosecution witness might incriminate herself, it is uncum- bent upon defense counsel to: (1) Ask that she be warned that she should not testify unless she has been advised by legal counsel as to whether she might incriminate herself, or after consultation with counsel elects to waive her Fifth Amendment rights; (2) Insist that the trial judge inquire as to the state of the witness’s finances before appointing the public defender or private counsel to handle a task demanding immediate atten- tion (presently done as a matter of routine); (3) If it appears that the witness is not impecunious, remind the judge that in the Lewis and Neal case the court was right in declaring the witness ineligible for the public defender or court-appointed counsel and that it would be improper and also a denial of Equal Protection of the Law to do either with a prosecution witness. alin This, then, would require that the courts have some reasonable notion about what a counsel would charge to represent a witness in such a proceeding on such short notice. This counsel has performed an identical service perhaps twenty times as an officer of the court, without remuneration, but has never heard of a going rate for such a service. Further, defense counsel has the right to object to anything more than a temporary recess in the trial, be- cause there is no authority which permits the prosecution to seek and obtain recesses so that its witnesses can obtain private counsel to ponder with them about jeopardizing their constitutional rights or appearing in court. Of course, if a prosecution witness incriminates himself, it is less likely that he or she would experience prosecution than a defense witness who is always a threat to destroy the prosecution’s case. This case was so evenly balanced that Ms. Marset’s past and present possessory interest and visit to the premises during the critical time period shouid suffice to warrant a new trial, and in this case of first impression, wherein a trial judge’s benign concern that a witness might incriminate herself led him to compel her to seek unavailable counsel due to lack of indigence and therefore effectively eliminated her as a witness, warrants review by this Court. CONCLUSION For the foregoing reasons, the writ of certiorari should be granted. Respectfully submitted, LUKE McKISSACK Attorney for Petitioners “Sac INDEX TO APPENDIXES Opinion of the Court of Appeal of the State of California, Second Appel- late District, Division Two, filed Sept- GT SUE 0.60 6% 0666000dees se Denial of Petition for Hearing in the Supreme Court of the State of Calif- ornia, filed November 27, 1981 Page APPENDIX “A” l. OPINION BELOW NOT TO BE PUBLISHED In the Court of Appeal of the State of California, Second Appellate District, Division Two. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. PHIL DARNELL LEWIS and O. C. NEAL, Defendants and Appellants. 2D CRIM. NO. 38984. (Superior Court No. A617415). [Filed September 8, 1981] Phil Lewis and O. C. Neal appeal from the judgments entered following a jury trial in which they were found guilty of possessing piperidine and cyclohexanone and a combination product thereof with the intent to manufac- ture phencyclidine (PCP) (Health & Saf. Code, § 11383, subd. (b), count I) and possessing PCP for the purpose of sale (Health & Saf. Code, § 11378.5, count II).! They con- tend: “I. The unexplained failure of defense counsel to move for suppression of evidence under Penal Code § 1538.5 and to object to obvious irregularities in the proceedings amounted to a denial of the defendants’ Sixth Amendment right to the effective assistance of counsel. II. Defendants were denied due process and a fair trial when the court, on lin count II the jury returned guilty verdicts to both possessing PCP for purpose of sale and the lesser included offense of possessing PCP. This forms the basis for appellants’ third contention, infra. Appendix 2. its own motion, ordered a witness, who was about to testify for the defense, to obtain private counsel, an act which ultimately resulted in the defendants’ being depriv- ed of the witness’ testimony. III. The inconsistent and uncertain verdicts returned by the jury on count II compel a ruling that defendants have been acquitted of the greater offense of possession of a controlled substance for sale and convicted only of the lesser included offense of simple pos- session. IV. The concurrent sentences on count II were imposed in violation of Penal Code § 654.” Viewed in the light most favorable to the judgment as is required by the usual rule governing appellate review, the evidence established that at approximately 4:10 p.m. on December 29, 1979, Los Angeles Police Officers Steven Foster and Thomas Owens detected the strong odor of ether associated with PCP coming from an abandoned furniture store. Peering through a broken window partial- ly covered with boards and an area between two doors where the weather stripping had worn away, Officer Foster observed two figures at a work bench. For approximately 30 minutes the officers unsuccessfuily ordered the occupants of the building to exit. They finally did so only after Officer Owens shouted that he would throw a cigarette inside. Several officers with gas masks then entered the build- ing and observed that it was full of mist and an overpowering odor of ether. After approximately two to three hours dur- ing which the fire department ventilated the building, police officers reentered and on the basement level discovered that the toilets and sinks were overflowing with chemicals which had been dumped into them. They recovered containers of PCP, piperidine cyclohexanone carbonitrile (PCC, a Appendix 3. chemical intermediate step in the making of PCP), piperi- dine, hydrochloric acid, sodium cyanide, sodium bisulphate, petroleum ether, ethyl ether, cyclohexanone, and sodium hydroxide, all ingredients used in making PCP. Two gas masks and the formula for producing PCP were also found on the premises. It was appellants’ defense that they were only handy- men who had been hired to clean the building and they had not been manufacturing PCP. Appellants’ first contention is based upon their claim that trial counsel should have moved to suppress the proofs of their guilt on two theones: (1) the police entry after the building had Seen ventilated was not an emergency and (2) their reasonable expectation of privacy had been violated when the pohce looked through the window and cracks in the doors. However, incompetency is never shown by a trial Counsel's failure to make patently meritless monons. (Un re Frank G. (1980) 104 Cal. App. 34 $93, 595; People v. Bokstrom (1974) 43 Cal. App. 34 995, 1003.) The police were, of course, required to investigate to discover the source of the extremely dangerous contraband and the exigent cir cumstances Continued to exist even Two or three hours after the initial discovery since a large Quantity of dangerous chemicals were on the premises and potentially volatile. (Cleaver v. Superior Court (1979) 24 Cal. 3d 297; Peomie v. Patterson (\ 97) 94 Cal. App. 3d 456, 465; see Guidi v. Superior Court (1973) 10'Cal. 3d 1, 17, fn. 18.) Appellants’ second contention t squally meritiess. When the People had rested, anneliant Neal's counss! stated that he would be calling two men to testify they had heen in possession of the building durme the month of Appendix 4. December of 1979. The court advised these witnesses of the possibility that their testimony could be self-incrimin- ating and of their right to consult an attorney. Nonethe- less, each of them decided to testify without such represen- tation. Later that day, counsel also informed the court that he would call as witness one Dorothy Marset who apparently owned the building. The following occurred: “THE COURT: Dorothy Marset. Miss Marset, I have been informed by both defense attorneys that it is your intent to testify in this matter this afternoon, and that it is your intent to testify that you had a possessory interest in the premises of 8705 South Broadway, at least from December Ist to December 29th, 1979, and that on a particular date during that period, that you actually visited the premises. “Now, the Court is advising you at this time that if it is your intent to testify in that manner, admitting those facts, it may very well be that you will incriminate your- self. Not only that, that the testimony that you give may, and probably will be used against you, which means that you could have charges filed against you, and you could be prosecuted. “Before you take that witness stand and testify, the Court is advising you that you have a constitutional right to be represented by an attorney, and if you do not have the money or means with which to hire an attorney, the Court will appoint an attorney to represent you at no present cost to you. . “Do you understand that? “MS. MARSET: Yes. “THE COURT: Now, is it your desire to be repre- Appendix 5. sented by an attorney so that an attorney can advise you as to your personal interests prior to taking the witness stand? “MS. MARSET: Yes. “THE COURT: Do you have the money and means with which to hire an attorney? “MS. MARSET: No. Well, see, I didn’t know that I would have to have an attorney. I was just coming to - - “THE COURT: Explain. I understand. But, the fact is that if you testify as to what I have been advised that you are going to testify to, that could incriminate you to the point where charges could be filed against you, and you could be prosecuted. “So, before you do that, this Court has to be sure that you understand what you are doing. “MS. MARSET: Well, I don’t understand what I am doing. “THE COURT: So, again, do you have the money or means with which to hire an attorney? “MS. MARSET: No. “THE COURT: Are you employed? “MS. MARSET: Yes. “THE COURT: What is your salary? “MS. MARSET: Eight hundred a month. “THE COURT: Do you currently own the premises, 8705? “MS. MARSET: Yes. “THE COURT: Can I assume that you own other property? “MS. MARSET: Yes. “THE COURT: You are not going to qualify for the Appendix 6. services of the public defender. So, you would be required to hire your own attorney. “MS. MARSET: Well, could I speak with Mr. Byers? “THE COURT: You can speak with him, but I have to advise you that each attorney represents one of the defend- ants. You have to keep in mind they represent these two defendants. They don’t represent you, and their first interest is their clients. “My advice to you would be to hire an attorney that would be representing your interests. “MS. MARSET: I see. “THE COURT: Do you understand? “MS. MARSET: Yes.” On the next court date Ms. Marset advised that she had retained an attorney. The following is then reported: “MR. BYRON [defendant Neal’s counsel]: Mrs. Mar- set is here, and I haven’t spoken to counsel. I would have no objection to her being excused, Your Honor. When and if I do make contact with her counsel and I decide the diffi- culty, then I can call her. “THE COURT: Very well. “Is U ore any objection on the part of the People? “MR. HODGMAN [deputy district attorney]: No, Your Honor. Whatever they can work out is fine with me. “THE COURT: Mrs. Marset, you are excused at this time. You do not have to remain any longer. “MRS. MARSET: Okay. Thank you.” No further mention was ever made of Ms. Marset or her testimony. It is manifest that the trial court did not deprive appellants of the testimony of Ms. Marset by merely warning Appendix 7. her of the dangers inherent in her testifying. Defense counsel was not prohibited from calling her as a witness and why he did not do so is not revealed by the record. Nothing in Webb v. Texas (1972) 409 U.S. 95 would require a contrary conclusion. Appellants’ third contention also fails. Since the jury expressly found appellants guilty of both the greater offense of possessing PCP for sale as charged in count Il and the lesser offense included therein of simple posses- sion (Health & Saf. Code, § 11377), the trial court appro- priately struck their convictions for the lesser included offense. (People v. Moran (1970) 1 Cal. 3d 755, 763.) Although of no pragmatic significance since the adoption of the determinate sentencing law, appellants’ final contention that even concurrent sentences should not have been imposed is meritorious. That is to say, it is clear, as respondent concedes, that appellants’ manufac- turing and possession for sale of PCP were but parts of one criminal enterprise. The sentences imposed on each appellant as to count II are stayed pending completion of their sentences on count I and thereafter permanently. In all other respects, the judgments are affirmed. NOT TO BE PUBLISHED. BEACH, J. We concur: ROTH, P.J. COMPTON, J. APPENDIX “B” DENIAL OF PETITION FOR HEARING (Post Card Notice) Clerk’s Office, Supreme Court 4250 State Building San Francisco, California 94102 NOV 27 1981 I have this day filed ORDER HEARING DENIED In re: 2 Crim. No. 38984 People v. Phil Darnell Lewis & O. C. Neal Respectfully, Clerk PROOF OF SERVICE BY MAIL STATE OF CALIFORNIA ) ) County of Riverside ) I, the undersigned, say: I am and was at all times herein mentioned, a citizen of the United States and employed in the County of Riverside, California, over the age of eighteen years and not a party to the within action or proceeding; that My business address is 1340 West Sixth Street, Corona, California 91720, thaton JANUARY __, 1982, I served the within PETITION FOR WRIT OF CERTIORARI to the Court of Appeal of the State of California, Second Appellate District, on the following named parties by depositing the designated copies thereof, enclose 4 in a sealed envelope with postage thereon fully prepaid in the United States Post Office in the City of Corona, County of Riverside, State of California: Attorney General, State of California 3580 Wilshire Boulevard Los Angeles, California 90010 (3 copies) District Attorney County of Los Angeles 210 West Temple Street Los Angeles, California 90012 (1 copy) Court of Appeal, Second App ellate District 3580 Wilshire Boulevard (Ref. No. 24 Crim. 38984) Los Angeles, California 90010 (1 copy) Clerk of the Superior Court 200 West Compton Avenue . Compton, California 90220 (1 copy) Ref. Super. Ct. No. A617415) I declare under penalty of perjury that the foregoing is true and correct. Executed on JANUARY _, 1982, at CORONA, Dean-Standefer,1340 West Sixth St., Corona, Ca. 91720 (714) 734-081 1 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1191%3A0. Public record. Not legal advice.