People v. Collins

• Decision Date: 20 September 1963
• Docket Number: Cr. 4918
• Citation: 33 Cal.Rptr. 638,220 Cal.App.2d 563
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John COLLINS, Defendant and Appellant.

Page 638

33 Cal.Rptr. 638

220 Cal.App.2d 563

The PEOPLE of the State of California, Plaintiff and Respondent, v. John COLLINS, Defendant and Appellant.

Cr. 4918.

District Court of Appeal, Second District, Division 2, California.

Sept. 20, 1963.

Hearing Denied Nov. 13, 1963.

Cary G. Branch, Los Angeles, under appointment by the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

On May 20, 1952, appellant was convicted of burglary, grand theft and two counts of assault with a deadly weapon; a further charge of prior conviction of robbery and serving of a term of imprisonment therefor was also found to be true.

Upon appeal the judgment was affirmed on April 3, 1953, in People v. Collins, 117 Cal.App.2d 175, 255 P.2d 59; the California Supreme Court denied a hearing and defendant appealed to the United States Supreme Court which on October 12, 1953, dismissed the appeal but treated it as a petition for writ of certiorari and denied the same (346 U.S. 803). Defendant, whose application for appointment of an attorney to represent him on appeal had been denied before the hearing on the merits, presented on May 21, 1963, a petition for recall of remittitur and appointment of counsel to represent him on appeal, relying upon Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, decided March 18, 1963. In that case the United States Supreme Court itself vacated the judgment of Division Three of this court for failure to appoint counsel and remanded the cause for further proceedings not inconsistent with the opinion. Complying with the implied direction of said case and of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 and Vasquez v. District Court of Appeal, 59 A.C. 606, 30 Cal.Rptr. 467, 381 P.2d 203 (cf. In re Martin, 58 Cal.2d 133, 142, 23 Cal.Rptr. 167, 373 P.2d 103) we, on May 28, 1963, recalled the remittitur, vacated the judgment, appointed present counsel to represent appellant throughout further stages of the cause, gave him time to present a brief on behalf of appellant. This was done and the cause is now before us for a second time upon the merits and after the lapse of over ten years.

Appointed counsel does not question the sufficiency of the evidence but 'refers to the Opening Brief heretofore filed by the appellant in Pro Per and incorporates herein, by this reference, as a part of this brief, all of the Points and Arguments set out in said Brief. In addition thereto, present Counsel sets out the following Points on Appeal, and contends that the judgment should be reversed and a new trial granted because of the following errors.' The opinion prepared by the late Presiding Justice Moore (People v. Collins, supra, 117 Cal.App.2d 175, 255 P.2d 59) fully and satisfactorily covers all the points previously raised and we adopt it as the opinion of the court as presently constituted, addressing ourselves particularly to the points now brought forward by counsel, which points overlap to some extent the subject matter covered by the former opinion. Those points are: 'The appellant was denied the right to aid of counsel' and 'The trial judge was guilty of prejudicial misconduct' and 'The judgments as pronounced were in excess of the jurisdiction of the trial court because they were within the prohibition required by Section 654 of the Penal Code.'

Concerning the matter of counsel the former opinion says: 'Appellant complains that a deputy public defender was appointed to represent him; that in his consultation with the lawyer, the latter undertook to persuade him to plead guilty; that when the deputy declined to act unless appellant would abstain from examining the witnesses, the officer on his own motion was relieved from further representing appellant. The latter now complains that the court did not offer to appoint other counsel and that such conduct is a denial of due process of law. In support of his proposition appellant cites discussions with the deputy that are not a part of the record. They cannot therefore be considered. * * * It has been judicially declared that the public defender of Los Angeles County and his staff have higher than average ability in defending criminal actions. People v. Adamson, 34 Cal.2d 320, 333, 210 P.2d 13. As to the 'refusal' of the trial court to appoint another lawyer to represent appellant, the court was not obliged to force appellant to accept the service of other counsel after his unjustifiable refusal to permit the deputy public defender to conduct the trial. Relative to his complaint that the court refused to appoint other counsel, it is pertinent to observe that on the very first day of the trial the judge said to appellant, 'You refused counsel, and I tried to talk you into having counsel and if you had counsel you would know how to go about this. * * * I was trying to do my best to have you to have counsel and you refused it * * * that is why I told you before you should have an attorney and that is why I tried my best to get you to have an attorney * * * this is a serious charge that is against you and I tried to insist on your getting an attorney. * * *' In reply thereto appellant gave no indication that he desired the appointment of counsel but displayed an apparent zeal to act on his own behalf. From such record it is clear that appellant's complaint suggests no ground for reversal. Where a defendant requests permission to conduct his own trial, he cannot complain of the court's failure to appoint counsel for him. People v. Acosta, 114 Cal.App.2d 1, 249 P.2d 316.' (People v. Collins, supra, 117 Cal.App.2d 175, 182-183, 255 P.2d 59, 63-64.)

So many novel concepts of due process have evolved in the past ten years that we feel it proper to supplement what was said by the court in 1953, but before doing so we will refer to certain federal court decisions of which counsel have stipulated the court may take judicial notice, namely, Collins v. Heinze, 125 F.Supp. 186 (D.C.N.D. Calif.), and Collins v. Heinze, (9 C.A.) 217 F.2d 62 (certiorari denied in 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268.)

In 1954 this appellant sought in the federal court release from Folsom penitentiary upon writ of habeas corpus. The record of the proceedings in the state court, including the testimony, was placed before the district court. The judge said, at pages 188-190 of 125 F.Supp.: 'The contention that petitioner was denied right to counsel is not sustained by the record. * * * Petitioner would not cooperate with his counsel and therefore the deputy public defender asked for and was relieved from further duty to represent petitioner. Thereafter he conducted his own case, this in the face of strong advice offered by the trial judge that he should have counsel. He did not ask that the court appoint other counsel and appeared content to conduct his own case. Counsel could not be forced upon him against his will.

'A constitutional right, like any other right, may be waived; and while the constitutional right to have the benefit of counsel is a valuable and sacred one, and one that should never be denied or abridged, it is not a compulsory right; or, to put it in plain and simple words, if the defendant does not desire the assistance of counsel, but prefers to act as his own lawyer, he has that right also.

'The appointed counsel could not be expected and should not be required to continue to carry this heavy burden of responsibility handicapped, as he would have been, by a dissatisfied client.

'Petitioner was not a stranger in criminal courts. He had previously suffered a felony conviction and a term of imprisonment. This is a circumstance that may properly be considered in determining whether he understandingly waived counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

'The following is taken from the record of proceedings had at the time the Public Defender was discharged:

"Mr. Powell. If your Honor please, I now move to advance this matter, which is on the trial calendar for the 13th of May, for the purpose of making a motion to be relieved as counsel for the defendant.

"The Court. Is that your desire, Mr. Collins, to substitute some other attorney in place of the Public Defender?

"The Defendant. Yes.

"Mr. Powell. Well, he indicates to me that he has no private counsel but that he does not desire my services in any sense of the word. He won't cooperate with me in preparing for his defense and has told me that he has no desire to be represented by my office or myself.

"The Court. Very well. Is that what you want to do?

"The Defendant. Yes. I would rather defend myself.

"The Court. Very well. The Public Defender is ordered relieved and the record will so show.'

'Petitioner disputes the correctness of the above. Be that as it may, his own statement contained in his 'Answer to Court's Letter And Respondent's Supplement And Motion To Subpoena Record On Appeal' may be accepted for the purpose of this court's ruling. Therein he states,

"It is the petitioner's contention in this respect that the Public Defender, Elias Powell, told the petitioner that he would defend him only upon the condition that he avoid questioning the witnesses, and when the petitioner told him that he had a right to defend in person as well as with counsel the Public Defender moved to be relieved as petitioner's counsel.

"The petitioner told the trial judge that he wanted to reserve the right to cross-examine the witnesses and that he had no confidence in the Public Defender because he objected to this procedure. Whereupon the judge accepted the Public Defender's motion to be relieved as counsel for the petitioner.'

'It should be also noted petitioner in his brief to District Court of Appeal said,

"On March 24th, in the Superior Court at Santa Monica, without the consent of the Appellant who was satisfied with Public Defender, John Cole, who represented him...