People v. Bourland

• Decision Date: 08 December 1966
• Docket Number: Cr. 5019,5455
• Citation: 55 Cal.Rptr. 357,247 Cal.App.2d 76
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. George W. BOURLAND, also known as Scott Crettell, Defendant and Appellant.

Page 357

55 Cal.Rptr. 357

247 Cal.App.2d 76

PEOPLE of the State of California, Plaintiff and Respondent, v. George W. BOURLAND, also known as Scott Crettell, Defendant and Appellant.

Cr. 5019, 5455.

Court of Appeal, First District, Division 1, California.

Dec. 8, 1966.

Rehearing Denied Dec. 23, 1966.

Hearing Denied Feb. 1, 1967.

Gregory J. Miller, San Jose, for appellant. (Under appointment of the Court of Appeal, First Appellate District).

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Jennifer L. Bain, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant, under the name of Scott Cretteli, was charged in three indictments with four sales of narcotics in violation of section 11501 of the Health and Safety Code. The actions were consolidated for trial. The defendant revealed his true name, entered his plea of not guilty to each of the four offenses charged, and admitted a prior conviction of possession of narcotics which was set forth in each of the indictments. Following a jury trial, verdicts were returned which found defendant guilty of each of the charged offenses.

The defendant's motion for new trial, addressed to each of the charges, was denied. The defendant interposed a motion for proceedings for an order for commitment for narcotics addition pursuant to the provisions of section 6451 of the Penal Code (now (Stats.1965, ch. 1226, §§ 1 and 2) § 3051 of the Welf. & Inst.Code). The following day the defendant filed a notice of appeal under the provisions of subdivision 2 of section 1237 of the Penal Code. His subsequent commitment for narcotics addiction breathed life into this premature notice of appeal as an appeal from the order denying his motion for a new trial. (Cal.Rules of Court, rule 31, subd. (a), 1st para.)

Thereafter, the defendant was returned to court pursuant to the provisions of section 6453 of the Penal Code (§ 3053 of the Welf. & Inst.Code) and given concurrent sentences to prison on the charges of which he had been convicted. A second notice of appeal was filed following the pronouncement and entry of judgment. ¹ The prior appeal should therefore be dismissed. (Pen.Code, § 1237, subd. (2).)

Defendant contends that he was denied his right to effective representation by counsel, and that the trial court committed prejudicial error in failing to give his requested instruction on entrapment. An examination of the record in the light of pertinent principles of law fails to sustain these contentions and

the judgment should be affirmed.

Defendant received effective aid of counsel in the preparation and trial of his case

The record reflects that the defendant was represented by an assistant public defender when he was originally arraigned on the three indictments, when he moved for and secured an order reducing his bail, and when the matters were consolidated for trial, that the public defender interposed motions to dismiss on his behalf and was present when he entered his pleas and when the case was set for trial after the motions were denied. When the case actually came on for trial some fifteen days later, the defendant first manifested his discontent with his attorney.

He asked that the public defender's office be relieved because it contended that the defense proposed by him would result in perjury. (Cf. In re Atchley (1957) 48 Cal.2d 408, 415--418, 310 P.2d 15.) He also represented that he had seven witnesses to be called and that he had not been consulted for more than ten minutes, and he stated that he had not yet read the allegations against him. In response to the court's question as to whether he wished to represent himself, he replied, 'I would like time to be prepared to do that.' The court assured him that subsequently he would have time to contact and call his witnesses, but indicated that the impanelment of the jury would proceed at that time.

The court then ascertained that the defendant had graduated from high school, but that he himself did not know how to measure his familiarity with legal procedure and law. The court then indicated it was not satisfied that the defendant was able to defend himself, and requested and secured the assent of the assistant public defender to 'sit with (the defendant) and make such objections as you think proper or motions to strike or take any other procedures that seem to you to be desirable all to the end that (defendant's) rights be fully protected.'

The court then asked the defendant, 'Would you have any objection, * * * to (the attorney) sitting with you and making suggestions to you and perhaps you making suggestions to him or conversing with him during the course of the trial?' The defendant indicated that he objected to that procedure, because of the attorney's contention about his proposed defense, but that it did not matter whether he was alone or assisted. The judge cut short defendant's pronouncement about facts he was going to bring out in court, ordered the attorney to assist as an agent or arm of the court, and proceeded with the impanelment of a jury. The record fails to reflect these proceedings. Subsequent remarks of the court, which were not contradicted by the defendant, indicate that there had been frequent consultations between the defendant and the attorney while the jury was being drawn and accepted.

After the impanelment of the jury and the noon recess, the court again interrogated the defendant out of the presence of the jury. In response to the court's question as to whether he still desired to represent himself, the defendant stated: 'My desire was to have a paid attorney, but being I wasn't able to at this time, I choose to represent myself rather than be represented by defense counsel.'

The court advised him that the public defender was available for his services and that another attorney would not be appointed. The court stated, 'I have concluded from my interrogation of you that you are not--I am not down-grading your intelligence at all--I don't think you are competent or qualified to represent yourself, but that is a decision that you must make. I can't deny you that right. Now, Mr. Weeks is appointed, as you know, to act on your behalf by the Court to do the things that you ordinarily do.'

The court then alluded to the cooperation manifested in connection with the impanelment of the jury and concluded: 'So, I suppose the arrangement is working out fairly well between you and Mr. Weeks.' Defendant replied: 'I don't know of any alternative, your Honor.'

The defendant was clearly entitled to counsel. 'The right to trial counsel is guaranteed by the Sixth Amendment, which is applicable in criminal trials in the state courts (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, (93 A.L.R.2d 733)), and by section 13 of article I of the California Constitution. '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, 600.)' (People v. Douglas (1964) 61 Cal.2d 430, 434, 38 Cal.Rptr. 884, 886, 392 P.2d 964, 966; and see People v. Mattson (1959) 51 Cal.2d 777, 788, 336 P.2d 937; and People v. Shroyer (1962) 203 Cal.App.2d 478, 482, 21 Cal.Rptr. 460.)

The refusal to permit a defendant financially able to retain an attorney to be represented by counsel of his own choice will constitute a denial of due process of law where it can be effected under the circumstances of the case without an unreasonable disruption of the orderly processes of justice. (People v. Crovedi (1966) 65 A.C. 197, 207, 53 Cal.Rptr. 284, 417 P.2d 868.) Decisions in this state 'demonstrate a conviction that the state should keep to a necessary minimum its interference with the individual's desire to defend himself in whatever manner he deems best, using any legitimate means within his resources--and that that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.' (65 A.C. at pp. 206--207, 53 Cal.Rptr. at p. 290, 417 P.2d at p. 875.)

Where the defendant is financially unable to retain an attorney 'Our constitutional guarantee that an accused 'shall have the right * * * to appear and defend, in person and with counsel' (Cal.Const., art. I, § 13; Pen.Code, § 686), substantially similar to that accorded federal defendants by the Sixth Amendment to the United States Constitution (People v. Mattson (1959) 51 Cal.2d 777, 795 (21) 336 P.2d 937), is satisfied by the appointment and appearance of the public defender in behalf of the accused (the latter also being present).' (People v. Hughes (1961) 57 Cal.2d 89, 98, 17 Cal.Rptr. 617, 622, 367 P.2d 33, 38.)

Where the defendant is so represented by counsel, the following rule applies: "It is settled that the attorney of record has the exclusive right to appear in court for his client and to control the court proceedings, So that neither the party himself (citations), nor another attorney (citations), can be recognized by the court in the conduct or disposition of the case. (Citations.)" (People v. Merkouris (1956) 46 Cal.2d 540, 554--555, 297 P.2d 999, 1009, quoting and emphasizing language from Wells Fargo & Co. v. City & County of San Francisco (1944) 25 Cal.2d 37, 42--43, 152 P.2d 625; and see People v. Mattson, supra, 51 Cal.2d 777, 787, 336 P.2d 937, fns. 2 and 3, and p. 798; People v. Garabito (1966) 244 A.C.A. 630, 634, 53 Cal.Rptr. 152; In re Van Brunt (1966) 242 A.C.A. 89, 98, 51 Cal.Rptr. 136.)

An indigent defendant is not entitled, as a matter of constitutional and statutory right, both to conduct his own defense and to be provided with the services of court-appointed counsel to advise and assist him in a subservient capacity in preparing for and during trial. (People v. Mattson, supra, 51 Cal.2d 777, 782 and 789--796, 336 P.2d 937.)

Except...