People v. Frank G.

California Court of Appeal

People v. Frank G.

104 Cal. App. 3d 593, 163 Cal. Rptr. 762, 1980 Cal. App. LEXIS 1709

CourtCalifornia Court of Appeal

DecidedApril 15, 1980

DocketCiv. 45420

StatusPublished

Cited by1 cases

This text of 104 Cal. App. 3d 593 (People v. Frank G.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Frank G., 104 Cal. App. 3d 593, 163 Cal. Rptr. 762, 1980 Cal. App. LEXIS 1709 (Cal. Ct. App. 1980).

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Opinion

CHRISTIAN, J.

Frank G. appeals from a judgment committing him to the Youth Authority after the juvenile court sustained allegations [595]*595that appellant had committed robbery (Pen. Code, § 211), false imprisonment (Pen. Code, § 236) and auto, theft (Veh. Code, § 10851).

The findings and judgment are based on evidence that appellant and several companions invaded a business establishment in the evening, captured and tied up the maintenance man and the plant manager, and took several items of property.

Appellant’s brother, Carlos, had previously been employed at the establishment. The plant manager recognized one of the masked robbers as Carlos by his voice.

Several months later, appellant went to the Los Angeles County Sheriffs Department and gave a tape-recorded confession. At trial, appellant testified that he gave the confession because he and his family had been threatened by Carlos, who was himself implicated in the robbery and demanded help in fabricating a defense.

Appellant contends that it was a deprivation of the constitutional right to effective assistance of counsel for trial counsel to neglect making a challenge to the admissibility of the taped confession. This contention is entirely without substance. Defense counsel thoroughly examined the police officer who took the statement, questioning the adequacy of the Miranda warning. The claim that appellant had given a false admission under duress exerted by his brother was undermined by the showing that Carlos had been in custody for as long as two months when the pressure was supposedly exerted. There is no constitutional requirement that defense counsel make all conceivable motions and objections for which there is any colorable basis, even though he considers the motion or objection unfounded. Appellant has not shown that a reasonably competent attorney acting as a diligent advocate could not have withheld making the duress challenge on the basis of tactical judgment that the challenge was unsound and that to make it would only weaken the credibility of appellant’s case. Moreover, there is no substantial basis for speculating that if defense counsel had moved to strike the confession the court might have accepted appellant’s story and granted the motion. Thus, the failure of defense counsel to move to strike the admission did not result in the “withdrawal of a potentially meritorious defense.” (See People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].)

The judgment is affirmed.

[596]*596Caldecott, P. J., concurred.

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Opinion

CHRISTIAN, J.

Frank G. appeals from a judgment committing him to the Youth Authority after the juvenile court sustained allegations [595]*595that appellant had committed robbery (Pen. Code, § 211), false imprisonment (Pen. Code, § 236) and auto, theft (Veh. Code, § 10851).

The findings and judgment are based on evidence that appellant and several companions invaded a business establishment in the evening, captured and tied up the maintenance man and the plant manager, and took several items of property.

Appellant’s brother, Carlos, had previously been employed at the establishment. The plant manager recognized one of the masked robbers as Carlos by his voice.

Several months later, appellant went to the Los Angeles County Sheriffs Department and gave a tape-recorded confession. At trial, appellant testified that he gave the confession because he and his family had been threatened by Carlos, who was himself implicated in the robbery and demanded help in fabricating a defense.

Appellant contends that it was a deprivation of the constitutional right to effective assistance of counsel for trial counsel to neglect making a challenge to the admissibility of the taped confession. This contention is entirely without substance. Defense counsel thoroughly examined the police officer who took the statement, questioning the adequacy of the Miranda warning. The claim that appellant had given a false admission under duress exerted by his brother was undermined by the showing that Carlos had been in custody for as long as two months when the pressure was supposedly exerted. There is no constitutional requirement that defense counsel make all conceivable motions and objections for which there is any colorable basis, even though he considers the motion or objection unfounded. Appellant has not shown that a reasonably competent attorney acting as a diligent advocate could not have withheld making the duress challenge on the basis of tactical judgment that the challenge was unsound and that to make it would only weaken the credibility of appellant’s case. Moreover, there is no substantial basis for speculating that if defense counsel had moved to strike the confession the court might have accepted appellant’s story and granted the motion. Thus, the failure of defense counsel to move to strike the admission did not result in the “withdrawal of a potentially meritorious defense.” (See People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859].)

The judgment is affirmed.

[596]*596Caldecott, P. J., concurred.

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104 Cal. App. 3d 593, 163 Cal. Rptr. 762, 1980 Cal. App. LEXIS 1709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-frank-g-calctapp-1980.

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