People v. Agnew

• Decision Date: 17 November 1952
• Docket Number: No. C,C
• Citation: 250 P.2d 369,114 Cal.App.2d Supp. 841
• Parties: 114 Cal.App.2d Supp. 841 PEOPLE v. AGNEW. r. A. 2892. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 369

250 P.2d 369

114 Cal.App.2d Supp. 841

PEOPLE v. AGNEW.

No. Cr. A. 2892.

Appellate Department, Superior Court, Los Angeles County, California.

Nov. 17, 1952.

Rosemary Agnew, in pro per.

Ray L. Chesebro, City Atty., Donald M. Redwine, Asst. City Atty., and Philip E. Grey, Deputy City Atty., Los Angeles, for respondent.

BISHOP, Judge.

Because the defendant was brought to trial without the aid of counsel, although she repeatedly requested that counsel be afforded her, we are reversing the judgment sentencing her to imprisonment on each of two counts, and are reversing the order denying the defendant a new trial.

The record before us reveals these facts: The defendant was charged with agreeing to perform a lewd act for money, and with being a lewd person. When arraigned for her plea on January 18, she was represented by counsel, a deputy public defender. Time to plead was requested and granted. Upon the date fixed for her plea, the defendant appeared, and, the minutes of the court state, she was again represented by the deputy public defender who had first appeared as her counsel. It seems rather clear, however, from affidavits filed later in support of a motion for relief, that that deputy did not attend the hearing and that the deputy who did attend did not appear on defendant's behalf. In any event, she filed a demurrer 'respectfully submitted' in her own name. The hearing on the demurrer was continued to January 25, at which time, defendant unquestionably appearing without counsel, it was overruled.

A motion for relief was then filed, its first request being the appointment of counsel. This request was denied February 13, and a like request on February 15 was also denied. Defendant's trial commenced in the morning of March 6, she having waived a jury 'because my husband told me so.' At the opening of the afternoon session the defendant stated that she was seventeen years of age--a fact that appears without refutation in several affidavits also--without funds to employ an attorney, and she desired the court to appoint counsel for her. The motion was denied without inquiry or comment.

The case was one where the need of skilled counsel was glaringly apparent. The defendant over and over betrayed, by what she said and did, her bewilderment at what was going on. The testimony of the police officers was in direct conflict with the essential parts of her somewhat incoherent statements as a witness, and, had a foundation been laid while he was on the stand, the main witness for the People could have been impeached at a vital point by the testimony he had given less than three months earlier at a juvenile court hearing. In making this statement, we are assuming, as we may, that defendant's husand would have testified, if called as a witness, to the same facts that he swore to in an affidavit filed in support of defendant's motion for a new trial. A layman, even one mature enough and sufficiently equipped, mentally, to conduct his defense under ordinary conditions, could not be expected to know that, if he desired to impeach a witness by showing that he had made contrary statements on other occasions, he must lay the foundation for the impeaching evidence while the witness is on the stand. Too many counsel show themselves ignorant of this requirement for us to concede that it is one that a layman should be expected to know.

We have, then, a case where the failure of the trial court to see to it that the defendant was represented by counsel was a denial of the due process required by the Fourteenth Amendment. It is not every denial, in a state court, of the appointment of counsel, that results in a denial of due process. Betts v. Brady, 1941, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. But, we read in Palmer v. Ashe, 1951, 342 U.S. 134, 72 S.Ct. 191, 192, 96 L.Ed. ----: 'This Court repeatedly has held that the Due Process Clause of the Fourteenth Amendment requires states to afford defendants assistance of counsel in non-capital criminal cases when there are special circumstances showing that without a lawyer a defendant could not have an adequate and a fair defense.' Such a case was Wade v. Mayo, 1947, 334 U.S. 672, 684, 68 S.Ct. 1270, 1276, 92 L.Ed. 1647, 1654, where it was stated: 'There are some individuals who, by reason of age, ignorance or mental capacity, are incapable of representing themselves adequately in a prosecution of a relatively simple nature. This incapacity is purely personal and can be determined only by an examination and observation of the individual. Where such incapacity is present, the refusal to appoint counsel is a denial of due process of law under the Fourteenth Amendment.' (As already indicated, the incapacity of the defendant in our case was patently present.) See also Uveges v. Pennsylvania, 1948, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127.

It is true, as counsel for the People contend, that none of the cited cases deals with misdemeanors. This, however, does not serve to distinguish them, for the requirement of the Fourteenth Amendment, that no person shall be deprived of liberty or property without due process, applies equally where the deprivation occurs by means of a prosecution on a misdemeanor charge. See In re McCoy, 1948, 32 Cal.2d 73, 76, 194 P.2d 531, 532, and Tumey v. Ohio, 1927, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.

The defendant's right to have the assistance of counsel in making her defense has, in addition to the Fourteenth Amendment to the Federal Constitution, the protection of section 13, Article I of our state constitution. Its provision that 'In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel', applies to a person brought before a police court on a misdemeanor charge, In re Jingles, 1946, 27 Cal.2d 496, 498, 165 P.2d 12, 14, and so to the defendant in this case.

It will be remembered that when the defendant was originally arraigned for her plea, she was represented by counsel. The circumstance that her counsel was a deputy public defender is not one of significance to the constitutional question we are considering. The source of his compensation is different, but otherwise the relation of attorney and client is the same when a public defender appears for one accused of crime as would be the relation between privately employed counsel and client. In re Hough, 1944, 24 Cal.2d 522, 528-529, 150 P.2d 448, 451; People v. O'Neill, 1947, 78 Cal.App.2d 888, 891, 179 P.2d 10, 12; People v. Avilez, 1948, 86 Cal.App.2d 289, 296, 194 P.2d 829, 834. That relationship having been entered into, proceedings following the original arraignment should not have been undertaken in the absence of defendant's counsel without inquiry as to the reason for his absence or his withdrawal from the case, for some good reason. If such good reason is found in the fact that the defendant was...