People v. Carter

• Decision Date: 05 May 1967
• Docket Number: Cr. 10853
• Citation: 58 Cal.Rptr. 614,66 Cal.2d 666,427 P.2d 214
• Court: California Supreme Court
• Parties: , 427 P.2d 214 The PEOPLE, Plaintiff and Respondent, v. Roy Leroy CARTER, Defendant and Appellant. In Bank

Page 614

58 Cal.Rptr. 614

66 Cal.2d 666, 427 P.2d 214

The PEOPLE, Plaintiff and Respondent, v. Roy Leroy CARTER, Defendant and Appellant.

Cr. 10853.

Supreme Court of California,

In Bank.

May 5, 1967.

Martin Wolman, Los Angeles, under appointment by the Supreme Court, and Gillin & Scott, Hollywood, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Anthony M. Summers, Deputy Atty. Gen., for plaintiff and respondent.

MOSK, Associate Justice.

Once again the failure of a trial court to navigate adroitly between the Scylla of denying a defendant the right to determine his own fate and the Charybdis of violating his right to counsel by acceptance of an ineffectual waiver has brought a prosecution to grief.

Defendant appeals from judgments of conviction of kidnaping for the purpose of robbery (Pen.Code, § 209) and robbery while armed with a deadly weapon (Pen.Code, § 211a). Defendant argues, Inter alia, that his waiver of counsel at trial was conditional and that the failure of the trial court to accept the condition or advise defendant at the time of his purported waiver that it intended to reject the condition was error which deprived defendant of his constitutional right to counsel. We have concluded that defendant did not effectively waive his right to counsel, and since the trial proceeded without counsel, the judgments of conviction must be reversed.

Defendant, with one Russell Gordon, was charged in count I of an information with kidnaping Homer Coran on May 29, 1965, for the purpose of robbery, and it was alleged that at the time of the commission of the offense defendant and Gordon were armed with a deadly weapon. In count II defendant, with Russell Gordon, was charged with robbing Homer Coran of $59 on May 29, 1965, and it was alleged that at the time of the commission of the offense defendant and Gordon were armed with a deadly weapon. Defendant is the only party with whom we are here concerned.

In the four months prior to trial, defendant was granted numerous continuances and changes of counsel. On October 19 1965, the case was called and defendant's attorney moved to be relieved and further moved that defendant be substituted in propria persona. Defendant joined in the motion and it was granted. The district attorney thereupon reminded the trial court that the law requires some form of inquiry to be made as to defendant's ability to defend himself before an effective waiver can occur, and undertook to question defendant as follows:

'MR. ROSS (deputy district attorney): Mr. Carter, what is your age, sir? THE DEFENDANT: Thirty. MR. ROSS: And what schooling have you had? THE DEFENDANT: High school graduate. MR. ROSS: You are a high school graduate. Have you had any college courses of any kind? THE DEFENDANT: No. MR. ROSS: Where did you go to school? THE DEFENDANT: St. Louis, Missouri. MR. ROSS: Do you feel that you are capable of representing yourself? THE DEFENDANT: Yes, I do, If I am granted the use of the law library. MR. ROSS: Do you know what crimes you are charged with? THE DEFENDANT: Yes, I do. MR. ROSS: What crimes are you charged with? THE DEFENDANT: Robbery and Kidnapping, Grand Theft. MR. ROSS: You understand what the crime of Robbery is? THE DEFENDANT: Yes. MR. ROSS: You understand what the crime of Kidnapping is; is that correct? I have no other questions. If the Court feels he is capable--THE COURT: Very well. He is capable of defending himself. All right. We are ready to proceed. (Whereupon, the following proceedings were had in open court:) THE COURT: Will the clerk please swear in the panel. (Whereupon, the jury panel was duly sworn to answer questions touching upon their qualifications, following which 12 names were called by the clerk.) THE COURT: Well, ladies and gentlemen of the jury panel, I will address my remarks to the jurors whose names have been selected, and then ask the other members of the panel to listen to the explanation of the case and also the questions that will be asked to these jurors, so, in the event you occupy a position in the jury box, it will not be necessary to repeat the information or the questions. Can the lawyers approach the bench. (Whereupon, the following proceedings were had at the bench outside the hearing of the jury:) THE COURT: You want a motion? THE DEFENDANT: Yes. I wanted a motion--Time to go to the law library to review this case before I went to trial. That's what I asked for. I asked for it in court before I came here and I would ask for the same thing here. I want to go pro. per., but I wanted permission to use the law library. THE COURT: What is it you want to look up in the law library? Maybe we can get it for you. THE DEFENDANT: I wanted to review my case. I want to prepare my case. This is the first time I had my transcript in my hand. MR. ROSS: Your Honor, this case originally came from 'A.' THE COURT: I think it's too late. Let's see. You were arraigned on June 1 and you were notified at that time to have your lawyer. You said you would. The case was set for trial. THE DEFENDANT: I couldn't continue to pay him and I dismissed the lawyer. This is the first time I have had my transcript, and if I could possibly prepare myself for the case--THE COURT: You heard everything at the preliminary hearing. That's all that is in the transcript, is just what you heard. There isn't anything different in there. THE DEFENDANT: I still don't feel as though I can go in as short a time without my transcript. THE COURT: Motion is denied. Very well. THE DEFENDANT: I would like to put on the record that it is impossible for me to defend myself pro. per. without permission of the law library.' (Italics added.)

Thereupon trial was resumed with defendants steadfastly refusing to participate because of the court's failure to meet the condition of his waiver. Subsequently, defendant was found guilty of all crimes charged and sentenced to state prison.

Speaking of the right to counsel and the effective waiver thereof, we declared in People v. Douglas (1964) 61 Cal.2d 430, 434--435, 38 Cal.Rptr. 884, 886, 392 P.2d 964, 966: "The right to counsel is a fundamental constitutional right, which has been carefully guarded by the courts of this state.' (In re James, 38 Cal.2d 302, 310, 240 P.2d 596.) Meaningfully applied, the right to counsel includes the opportunity to receive 'effective aid in the preparation and trial of the case.' (Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527; People v. Mattson, 51 Cal.2d 777, 790, 336 P.2d 937.) To be sure, this right may be waived (Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461, 1467, 146 A.L.R. 357, 362; People v. Rocco, 209 Cal. 68, 285 P. 704), but 'a finding of waiver is not lightly to be made.' (Moore v. State of Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 2 L.Ed.2d 167, 172.) 'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' (Johnson v. Zerbst, supra, 304 U.S. at p. 464, 58 S.Ct. at p. 1023, 82 L.Ed. at p. 1466, 146 A.L.R. at pp. 361--362.) These principles are 'equally applicable to asserted waivers of the right to counsel in state criminal proceedings.' (Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 890, 8 L.Ed.2d 70.) Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has 'an intelligent conception of the consequences of his act.' (In re Tedford, 31 Cal.2d 693, 695, 192 P.2d 35.)' ¹

In the present matter there was no effective waiver of the right to counsel. Manifestly, a waiver of counsel which is made conditional by a defendant cannot be effective unless the condition is accepted by the court. Here it is clear from the record that defendant's willingness to proceed without counsel was predicated upon his mistaken belief, reinforced by the failure of the trial judge to promptly and unequivocally reject the condition imposed by defendant, that he would be permitted some sort of meaningful access to and use of library facilities.

While we adhere to the view expressed in People v. Douglas (1964) supra, 61 Cal.2d 430, 435, 38 Cal.Rptr. 884, 887, 392 P.2d 964, 967 that 'the right to counsel may not be used to subvert the orderly and efficient administration of justice (People v. Thomas, 58 Cal.2d 121, 131, 23 Cal.Rptr. 161, 373 P.2d 97; United States v. Bentvena, 2 Cir., 319 F.2d 916, 936), and its utilization as a tool for dilatory purposes may not be permitted. (People v. Adamson, 34 Cal.2d 320, 332--333, 210 P.2d 13.),' we find the cases cited by the People to be distinguishable. In People v. Thomas (1962) 58 Cal.2d 121, 23 Cal.Rptr. 161, 373 P.2d 97, the defendant, although not a lawyer, was well versed in criminal procedure and represented himself competently throughout the trial. Moreover, unlike the present matter, the defendant in Thomas was permitted many hours in the law library to prepare his case. Further, we noted in Thomas that our holding was applicable only to 'a defendant who, with an intelligent conception of the consequences of his act, declines the aid of counsel * * *.' We believe the defendant here was unaware of the true consequences of his purported waiver, as he believed he would be permitted reasonable use of library facilities. His conduct throughout the trial was consistent with that belief.

Also distinguishable is People v. Oritz (1961) 195 Cal.App.2d 112, 15 Cal.Rptr. 398, wherein the defendant was granted precisely that which defendant here was denied, 'a couple of weeks' to prepare for trial in propria persona. People v. Nunn (1963), 223 Cal.App.2d 658, 35 Cal.Rptr 884, involved a nonindigent who despite repeated warnings and...