People v. Addison

• Decision Date: 15 November 1967
• Docket Number: Cr. 12650
• Citation: 256 Cal.App.2d 18,63 Cal.Rptr. 626
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Irving ADDISON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 626

63 Cal.Rptr. 626

256 Cal.App.2d 18

The PEOPLE of the State of California, Plaintiff and Respondent, v. Irving ADDISON, Defendant and Appellant.

Cr. 12650.

Court of Appeal, Second District, Division 5, California.

Nov. 15, 1967.

As Modified on Denial of Rehearing Dec. 7, 1967.

Hearing Denied Jan. 11, 1968.

Stephen A. Schneider, Los Angeles, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence E. Mindell, Deputy Atty. Gen., for respondent.

KAUS, Presiding Justice.

On March 11, 1966, the district attorney filed an information charging defendant with grand theft. Five prior felony convictions were also charged. On the same day the public defender was appointed to represent defendant. On March 17, after the denial of a motion under section 995 of the Penal Code the case was set for trial on May 3. On that date the People were ready for trial, but Mr. Fujisaki, a deputy public defender, moved for a continuance to May 23 on the ground that Mr. Parks, the deputy to whom the case had been assigned, was ill. The deputy district attorney pointed out that the People's witnesses were present, but stated that in view of Mr. Parks' illness, he did not see how he could oppose the motion for continuance. Mr. Fujisaki then indicated to the court that the defendant wanted to address it. Defendant moved the court to be permitted to proceed in propria persona. The following then took place: 'THE COURT: Is this going to be a jury trial or a court trial? THE DEFENDANT: Yes, jury trial. THE COURT: And do you know how to impanel a jury? THE DEFENDANT: All I can do is the best I can. THE COURT: Yes, but do you know how to impanel a jury? THE DEFENDANT: Well, I know how to question them and find out if I want them on the jury, yes. THE COURT: And that is all you know about impaneling a jury? THE DEFENDANT: Well, I understand I have certain peremptory challenges and I have the right to question them and to accept them or deny them. THE COURT: And how much do you know about the rules of evidence? THE DEFENDANT: I know up to the point of whether evidence is admissible--in other words, there is portions of this trial where this is going to be one of the points, admissibility of evidence. THE COURT: Let's see, what do you know about the hearsay rule in evidence? THE DEFENDANT: The hearsay? THE COURT: Yes, sir. THE DEFENDANT: Well, this can't be used. It has to be direct testimony. THE COURT: Well, aren't there some exceptions to the hearsay rule? THE DEFENDANT: I'm not a lawyer, your Honor. I don't know. THE COURT: I understand that. The reason I am asking all of this is I have to determine whether to permit you to represent yourself or not. THE DEFENDANT: I understand that. THE COURT: And in permitting you, I have to determine whether you would be capable--THE DEFENDANT: Yes, sir. THE COURT:--of representing yourself. And that is the only reason I am asking these questions. If I feel that you are capable of representing yourself and there would be no problem, I would let you go through with representing yourself. But if I feel that you are not, then I feel I am duty bound in my conscience not to permit you to represent yourself. THE DEFENDANT: I understand, but I would like to reiterate one point. If the man has had this case for seven or six weeks and hadn't done anything yet--THE COURT: You don't know what he has done. All you know is he has seen you for ten minutes. THE DEFENDANT: Right. THE COURT: You don't know what else he has done in the case. THE DEFENDANT: I know at the time that I saw him he hadn't read the transcript, and I asked him for a copy of the transcript and he said, 'Well, I'll give it to you Tuesday.' So there has been no collaboration between he and I as far as I can see. I am not trying to run the man down, but I can't see that three weeks from now it is going to be any better. THE COURT: Okay. Your motion to relieve the Public Defender and permit you to represent yourself is denied. * * *'

The court and the two attorneys present then returned to the matter of a continuance. During that discussion the court twice asked defendant whether he waived his right to go to trial within sixty days from the date of the filing of the information (Pen.Code, § 1382). Each time defendant emphatically said that he did not waive. ¹

The attorneys then advised the court that Mr. Parks was expected back before the sixty day period would elapse on May 16. ² Then there followed some discussion about the fact that section 1382 permits a trial beyond the sixty day period if 'good cause to the contrary is shown.' The only 'good cause' suggested was a statement by the deputy district attorney to the effect that Mr. Parks, the deputy public defender, had a full calendar. The court then continued the case to May 23.

Trial to a jury actually started on May 24. On June 1 the jury returned with a verdict finding defendant guilty of grand theft and also finding all five prior felony convictions to be true. On June 21 defendant was placed on probation for a period of five years. One of the conditions of probation was that he spend one year in the county jail. The appeal is from the order granting probation.

On appeal, appointed counsel raises several issues, one of them being a violation of defendant's right to a speedy trial as defined in section 1382 of the Penal Code. If he is correct on that point, other issues need not be considered.

Although the trial court's denial of defendant's motion to be permitted to represent himself is not attacked as such by defense counsel, the Attorney General's brief shows that the People realize that the correctness of that denial is the determinative issue on this appeal. If the court should have permitted defendant to proceed in propria persona, no cause whatever was shown for not starting the trial on May 3 when everybody was ready.

The right of a defendant in a criminal case to represent himself is recognized by our Constitution (Cal.Const., art. I, § 13) and case law (People v. Harmon, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 351 P.2d 329). As a constitutional right it is peculiar in that, as a condition precedent to its exercise, the defendant must prove to the satisfaction of the court that he is competent to waive the right to counsel. '* * * although every defendant in a criminal case has the constitutional right to represent himself if he so elects (Cal.Const., art. I, § 13; People v. Harmon (1960) 54 Cal.2d 9, 15 (4 Cal.Rptr. 161, 351 P.2d 329); People v. Mattson (1959) 51 Cal.2d 777, 788--789 (336 P.2d 937); People v. Shields (1965) 232 Cal.App.2d 716, 722 (43 Cal.Rptr. 188); People v. Shroyer (1962) 203 Cal.App.2d 478, 482 (21 Cal.Rptr. 460)), before his waiver of counsel may be accepted the trial court is duty bound to determine his competency to represent himself. (See e.g., In re Johnson (1965) 62 Cal.2d 325, 335--337 (42 Cal.Rptr. 228, 398 P.2d 420), and cases there cited.) As stated in Johnson (at p. 335, 42 Cal.Rptr. at p. 235, 398 P.2d at p. 427), "the court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he 'understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted (quoting from In re James (1952) 38 Cal.2d 302, 313 (240 P.2d 596))."' The inquiry into the defendant's ability to defend himself fulfills a two-fold purpose. It serves not only to determine his competence, but also to alert him to the seriousness of the action he contemplates as well as the pitfalls he may expect to encounter.' (People v. Carter, 66 Cal.2d ---, --- ^*, 58 Cal.Rptr. 614, 619, 427 P.2d 214, 219.)

The dilemma in which trial courts find themselves because of the requirement that before permitting a defendant to represent himself a determination must be made that the waiver of the right to counsel be 'intelligent and understanding' (Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; In re Johnson, 62 Cal.2d 325, 333--334, 42 Cal.Rptr. 228, 398 P.2d 420) is apparent. Cunning criminals consistently take advantage of it and all too often the demand for self-representation becomes a 'heads I win tails you lose' proposition. If the trial court too readily accedes to it an appellate court will find the waiver of the right to counsel to be ineffectual. Conversely, if the court leans over backwards in protecting the latter right, it runs the risk of depriving defendant of the former.

In recognition of this dilemma, appellate courts go far in deferring to the trial court's discretion (People v. Carter, supra, 66 A.C. p. 700, 58 Cal.Rptr. 614, 427 P.2d 214), but we find no authority that permits the trial court to deny a defendant the right to represent himself simply because he does not know as much law as an attorney. The proper test was announced in In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10, 15: 'A defendant who, With an intelligent conception of the consequences of his act, declines the aid of counsel prior to or at the commencement of his trial, is not entitled thereafter to interrupt and delay the hearing at any stage he deems advantageous merely to interpose a demand for legal assistance. * * *' (Emphasis added.) This statement was quoted with approval in People v. Thomas, 58 Cal.2d 121, 131--132, 23 Cal.Rptr. 161, 373 P.2d 97.

An 'intelligent conception of the consequences' of proceeding without counsel is not negatived by a lack of knowledge of particular rules of law or procedure. If the defendant wants to venture into the unknown, he must be allowed to do so, if he is aware of the dangers that lurk therein. He need not demonstrate that he can meet them. ³

In imparting to the defendant the 'intelligent concept of the consequences' the 'bar examination' of the type...