Magee v. Superior Court

• Decision Date: 11 September 1973
• Citation: 109 Cal.Rptr. 758,34 Cal.App.3d 201
• Court: California Court of Appeals Court of Appeals
• Parties: Ruchell MAGEE, Petitioner, v. SUPERIOR COURT FOR the COUNTY OF SANTA CLARA, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 33407.

Page 758

109 Cal.Rptr. 758

34 Cal.App.3d 201

Ruchell MAGEE, Petitioner, v. SUPERIOR COURT FOR the COUNTY OF SANTA CLARA, Respondent PEOPLE of the State of California, Real Party in Interest.

Civ. 33407.

Court of Appeal, First District, Division 4, California.

Sept. 11, 1973.

Hearing Denied Nov. 7, 1973.

Robert D. Carrow, Novato, for petitioner (under appointment by the Court of Appeal).

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Albert

W. Harris, Jr., Asst. Atty. Gen., Timothy A. Reardon, James M. Lee, Deputy Attys. Gen., San Francisco, for real party in interest.

BRAY, ^* Associate Justice (Assigned).

Petition for writ of mandate and/or prohibition.

Petitioner Ruchell Magee is presently charged by indictment with violations of Penal Code sections 209 (kidnaping) and 187 (murder). The indictment was originally returned by the Marin County Grand Jury and filed in the superior court for that county. Petitioner moved the court for a change of venue, pursuant to Penal Code section 1033, upon the ground that a fair and impartial trial could not be had in Marin County. The court granted his motion and ordered the place of trial changed to the City and County of San Francisco.

Petitioner's subsequent trial in the San Francisco Superior Court terminated when the court declared a mistrial by reason of the jury's inability to agree upon a verdict. The court then set a new jury trial, to commence on May 29, 1973. On that date retrial was set for June 29, 1973.

On several pertinent occasions during the proceedings which occurred prior to the mistrial, the respective superior courts had made orders to the various effects that petitioner was incompetent to represent himself or to make a knowing, intelligent and understanding waiver of his right to counsel; that he was incompetent to participate actively in his defense, and was not (and would not be) permitted to do so; and that he was to address the trial court only through court-appointed counsel (Mr. Robert D. Carrow, who represented petitioner at his jury trial in San Francisco, and who appears as his counsel in the present proceeding). ¹

These orders were in full force and effect when the San Francisco Superior Court set the cause for a second jury trial to commence on May 29, 1973. Notwithstanding this fact, petitioner personally (i.e., in propria persona) filed a written motion with that court on May 2, 1973, seeking a change of venue from San Francisco. The San Francisco Superior Court granted his motion, made in open court on May 11, and, by formal order entered on May 15, transferred the cause to the Santa Clara Superior Court (respondent in the present proceeding). ²

After the cause had been transferred as ordered, and acting through counsel, petitioner moved respondent court for, among other things, (1) an order reinstating his 'pro per or co-counsel' status (see fn. 1, Ante), (2) an order returning the cause to the San Francisco Superior Court for an evidentiary hearing on the issue of proper venue or, in the alternative, (3) an order vacating the San Francisco Superior Court's order changing the venue to Santa Clara County, (4) leave to change petitioner's plea to count 1 of the indictment (violation of Pen.Code, § 209) by adding pleas thereto of (a) former judgment of acquittal of the offense charged and (b) once in jeopardy, (5) an evidentiary hearing on the propriety of the proposed additional pleas, (6) an order dismissing count 1 of the indictment on statutory (Pen.Code, § 995) and constitutional grounds or, in the alternative, (7) an In limine order restraining real party in interest (the People) from utilizing, at petitioner's forthcoming trial, an unconstitutional construction of Penal Code sections 209 and 518 as argued by the People at the earlier trial, (8) an order dismissing the indictment on statutory and constitutional grounds relating to petitioner's right to a speedy trial, and (9) dismissing the indictment pursuant to Penal Code section 1385.

Respondent court denied all of the justmentioned motions. Petitioner (again acting through court-appointed counsel) has filed in this court a petition for writ of mandate and/or prohibition in which he seeks substantially the same relief denied him upon his motions in respondent court. We issued an alternative writ which was limited in application to the specifications set forth above as (3) and (4); we have not acted upon the other specifications mentioned, which also remain before us for disposition. We hereinafter deal with all of petitioner's specifications in sequence.

(1) Petitioner is not entitled to the 'pro per co-counsel' status sought

The trial court properly denied petitioner the relief sought in this regard. '(T)he decision whether the defendant is capable of making a knowing and intelligent election (to waive counsel and represent himself) is a discretionary matter, which, absent a showing of abuse, will not be disturbed on appeal.' (People v. Floyd (1970) 1 Cal.3d 694, 702--703, 83 Cal.Rptr. 608, 612, 464 P.2d 64.) In People v. Shroyer (1962) 203 Cal.App.2d 478, at page 482, 21 Cal.Rptr. 460, at page 462, the court said:

'Every defendant in a criminal case has the constitutional right to counsel and also to represent himself if he so elects. (Citations.) However, before he may be permitted to represent himself, the trial court is duty bound to determine whether he is making a competent, intelligent and complete waiver of his constitutionally guaranteed right to be represented by counsel. (Citations.) This obligation has been described as a 'serious and weighty responsibility' (citation); its discharge requires 'a consideration of the nature of the charge, the facts and circumstances of the case, and the education, experience, mental competence and conduct of the accused' (citations) . . ..'

In denying petitioner's motions for 'pro per or co-counsel' status, the trial judge wrote a detailed memorandum decision which shows that he conscientiously and thoroughly gave consideration to the fact that petitioner had a constitutional right to represent himself unless, under the guidelines set forth in People v. Shroyer, Supra, People v. Floyd, Supra, and People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, petitioner showed himself to be incompetent to properly defend himself against the serious charges set forth in the indictment. Before denying petitioner's motion or motions in this regard, the judge had had ample opportunity to observe the person and demeanor of petitioner and the benefit of an extensive record with regard to both; had permitted him to argue orally; had put personal inquiry to him concerning procedural and evidentiary matters; had observed various pleadings and motions filed by him (which were numerous and extensive); and had read 'long excerpts of the very voluminous record of the case.'

The judge also considered the gravity of the charges against petitioner, the complexity of the factual and legal issues presented; the facts that the trial was likely to be protracted, and to require more ability than is ordinarily demanded of counsel in a criminal defense; the possible pleas available to petitioner, the elements thereof and the penalties involved; and the probability, or the lack thereof, of petitioner's receiving a fair trial if he were to represent himself or to act as co-counsel.

Upon these considerations, the trial court found that petitioner lacked the ability to participate in his defense with the knowledge, intelligence and understanding necessary thereto. The court further found that petitioner did not demonstrate a minimum familiarity with the charges against him. The record of petitioner's trial in the San Francisco Superior Court (to which record the trial court referred) indicated that 'on occasion the defendant (petitioner) has committed gross improprieties' in the presence of the jury.

'(I)n deciding the issue of intelligent waiver of counsel, the trial court must take into consideration not only defendant's background and his answers to questions but his entire demeanor in court.' (People v. Glaser (1968) 265 Cal.App.2d 849, 853, fn. 2, 71 Cal.Rptr. 706, 708; People v. Sharp, Supra, at p. 462 of 7 Cal.3d, 103 Cal.Rptr. 233, 499 P.2d 489.) 'The court, however, should not permit a litigant both to have counsel and to actively participate in the conduct of the case (as by conducting examination of witnesses, interposing objections, arguing points of law or of fact, addressing the jury, etc.) unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed.' (People v. Mattson (1959) 51 Cal.2d 777, 797, 336 P.2d 937, 952.)

This trial court found that the cause of justice, and the prospect of a fair trial for petitioner, would not be served by his personal participation in his defense with the aid of advisory counsel only. It may again be noted (see fn. 1 and accompanying text, Ante) that several superior court judges had previously determined, upon substantial evidence, that petitioner was incompetent to represent himself. The action of respondent court, in denying the motion or motions to permit petitioner to act 'in pro per or co-counsel status' was proper; the present petition must be denied in this regard.

At this point, we acknowledge that counsel alone has signed and verified the present petition and caused it to be filed, that petitioner has not personally participated in any such action, and that counsel expressly alleges in the petition that it has been filed 'without the consent of petitioner Ruchell Magee, either express or implied.' We nevertheless consider and act upon it because of petitioner's personal lack of 'pro per or co-counsel' status, which has been previously ...