People v. Armstrong

• Decision Date: 25 June 1969
• Docket Number: Cr. 15381
• Citation: 79 Cal.Rptr. 223,274 Cal.App.2d 297
• Parties: The PEOPLE, Plaintiff and Respondent, v. George Edward ARMSTRONG, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 223

79 Cal.Rptr. 223

274 Cal.App.2d 297

The PEOPLE, Plaintiff and Respondent, v. George Edward ARMSTRONG, Defendant and Appellant.

Cr. 15381.

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

June 25, 1969.

Rehearing Denied July 10, 1969.

Samuel P. Delug, Los Angeles, by court appointment, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

DUNN, Associate Justice.

By information filed January 10, 1968, appellant was charged with burglary, a felony, accomplished December 16, 1967 at a gasoline service station in Los Angeles. When called for trial March 22, 1968, defendant waived a jury trial, and following nonjury trial he was found guilty of burglary in the second degree (Pen.Code, §§ 459, 460) and sentenced to state prison. Appellant's sole contention on appeal is that the trial court erred in finding him competent to represent himself in propria persona.

The facts surrounding the crime are simple. At 3 o'clock in the morning of December 16, 1967 Los Angeles city police officer Ripley heard a police broadcast that a burglary was then in progress at a gasoline station located at New Hampshire and Santa Monica Boulevard in Los Angeles. He drove there, got out of his vehicle and walked toward the station. When he turned the beam of his flashlight on it he saw defendant standing inside and cabinets, drawers and papers strewn about. Appellant broke out the glass window in the door and ran off, the officer pursuing him and firing several shots in an effort to stop him. He was unsuccessful and returned to his car radio, described appellant's physical appearance and clothing and requested arriving police units to seal off the neighborhood, which they did. A search for appellant ensued and another officer found him hiding, lying prone alongside a row of bushes. The broadcast description matched appellant, who was arrested. After being advised of his constitutional rights he said, 'You've got me cold' and 'I don't know why I did it'. Tools stolen from the gasoline station were found in his possession.

When arraigned in the superior court and again at the time of plea, appellant was represented by the public defender, appointed to do so by the court. When his case was called for trial on March 7 he was still so represented but, without stating substantially any reason therefor, he orally moved the court for an order relieving the public defender as counsel and allowing appellant to represent himself. ¹ This he was permitted to do.

On this same occasion a number of written motions filed by appellant also were ruled on by the court. These were: to dismiss the public defender as his attorney (already granted on oral motion), to dismiss the charges against appellant (withdrawn by appellant), for an order to produce evidence (granted as to 'mug shots' and withdrawn by appellant as to other items) and to reduce bail (granted). Oral motions also were made by appellant for his release from custody 'O.R.' (own recognizance--denied) and for a continuance of the trial (granted and trial continued to March 22).

The trial took place March 22 and March 25 and produced the facts already cited. At the outset, the court again interrogated appellant concerning his desire to defend himself. ² Appellant objected to questions asked by the prosecution and vigorously cross-examined the People's witnesses, consuming nearly 60 pages of transcript in all. He attempted to impeach them by use of the preliminary transcript and by use of his own and the prosecution's exhibits. He testified in his own behalf, called three witnesses on corroboration, prepared and used a model of a window as demonstrative evidence, argued his case at the conclusion of the trial and otherwise demonstrated an understanding of the charge against him, of the procedure followed and an ability to conduct his own defense. Whenever he seemed uncertain, the trial court was quick to assist him with explanation and guidance. His only problem was that the proof of his guilt was overwhelming and he was so found by the court.

From reference to earlier footnotes it will be observed that appellant had completed high school and was in his third year of college, had studied common (not 'commercial') law in college, and had spent three years in the Military Police working with the Judge Advocate General's office. He presented and argued written and oral motions, obtained a continuance as requested and secured a reduction of bail. During the argument to be released 'O.R.' or for reduction of bail it came out that appellant had been tried in 1955 for burglary in Detroit and convicted of grand theft in 1966, resulting in his receiving a one year suspended sentence and three years probation. He was on probation at the time of the present trial. The trial court concluded, however, that there was no record of a felony conviction. All of these matters demonstrate appellant was not an innocent or ignorant lamb in the field of criminal law. Though he now professes erroneous deprivation of his constitutional right to be represented by counsel there is also a constitutional right to represent oneself in a criminal case.

His claim of improper waiver of counsel, because of his now professed ignorance of the hazards thereof, is somewhat belied by the record following his conviction. He was found guilty by the court on March 25, 1968 and on April 5 filed a written Notice of Motion for New Trial. This is supported by a statement, an affidavit and a memorandum of points and authorities, each dated April 2, 1968, just seven days afterwards. The method of presentation, the familiarity with cases cited and the time obviously spent in locating them leads one to suspect appellant was quite familiar with the rules of law for a period some time before April 2 and very probably on March 22nd when he waived representation by counsel for the second time. Nevertheless, we decide this case without reference to suspicions so aroused and solely upon the record before us.

The Constitution of California (art. I, § 13) guarantees to an accused the right '* * * to appear and defend, in person and with counsel'; Pen.Code § 686, subd. 2, reiterates it. The phrase has been interpreted to mean: in person Or by counsel; thus, there is no right to counsel and also personally to participate in the trial. People v. Mattson, 51 Cal.2d 777, 336 P.2d 937 (1959); People v. Lopez, 60 Cal.2d 223, 255, 32 Cal.Rptr. 424, 384 P.2d 16 (1963). The record (see footnote 1) shows that appellant, at the time of waiver, first requested the trial court to appoint the public defender to Assist appellant to try his own case, a request that was declined. While not complained about by appellant as a point on his appeal, we note that the court's ruling was proper under People v. Mattson, Supra, People v. Ashley, 59 Cal.2d 339, 361, 29 Cal.Rptr. 16, 379 P.2d 496 (1963), People v. Lopez, Supra, 60 Cal.2d at p. 255, 32 Cal.Rptr. 424, 384 P.2d 16 and People v. Bourland, 247 Cal.App.2d 76, 83, 55 Cal.Rptr. 347 (1966).

There is no doubt that an accused, while entitled to the constitutional right of representation by counsel, also has a constitutional right to refuse counsel and to represent himself. This latter right is not an unlimited one. Thus, the court must first make inquiry into his competence, and be reasonably satisfied of it, before accepting the accused's waiver of counsel. 'Competence' means more than a minimum of mental awareness and capability, however, and involves 'an intelligent conception of the consequences of his act'. In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10, 15 (1940); People v. Thomas, 58 Cal.2d 121, 131--132, 23 Cal.Rptr. 161, 373 P.2d 97 (1962); People v. Carter, 66 Cal.2d 666, 669--670, 58 Cal.Rptr. 614, 427 P.2d 214 (1967); People v. Addison, 256 Cal.App.2d 18, 24, 63 Cal.Rptr. 626 (1967); People v. Ruiz, 263 Cal.App.2d 216, 69 Cal.Rptr. 473, 263 A.C.A. 220, 230 (1968).

The determination that an accused is or is not competent '* * * involves an exercise of discretion by the trial judge which, in the absence of a showing of abuse, will not be disturbed on appeal.' People v. Carter, Supra, 66 Cal.2d at p. 672, 58 Cal.Rptr. at p. 620, 427 P.2d at p. 220.

In re Johnson, 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420 (1965), was cited approvingly in Carter. In Johnson, appellant was arrested and arraigned on five misdemeanor complaints arising from a number of past Vehicle Code violations. While he was informed of his right to have counsel, the Supreme Court found that he had never waived such right. Indeed, we note he was never asked if he waived the right or did he ever so state. He was unrepresented at the arraignment and there pled 'guilty' to all charges. He was sentenced without any attorney present to represent him. Under these facts the court observed (p. 335, 42 Cal.Rptr. p. 234, 398 P.2d p. 426):

'(13) Moreover, it is settled that 'The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, Upon the particular facts and circumstances surrounding that case, including the back ground, experience, and conduct of the accused.' (Italics added.) (Johnson v. Zerbst (1938) Supra, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; accord, People v. Chesser (1947) Supra, 29 Cal.2d 815, 822(4), 178 P.2d 761) (14) Manifestly that determination must be made Before any plea--guilty or otherwise--is accepted by the trial court, or the right to counsel loses most of its meaning and effectiveness. ⁷ (Footnote omitted.) (15) The making of this determination in a timely fashion is therefore the 'serious and weighty responsibility' of the trial judge. (Johnson v. Zerbst (1938) Supra, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461.) As we said in Chesser (at pp. 821(1)--822(5) of 29 Cal.2d at pp. 764--765 of 178 P.2d), (10b) 'The fact...