People v. Douglas

• Decision Date: 18 June 1964
• Docket Number: Cr. 7710
• Citation: 392 P.2d 964,38 Cal.Rptr. 884,61 Cal.2d 430
• Parties: , 392 P.2d 964 The PEOPLE, Plaintiff and Respondent, v. William DOUGLAS et al., Defendants and Appellants.
• Court: California Supreme Court

Page 884

38 Cal.Rptr. 884

61 Cal.2d 430, 392 P.2d 964

The PEOPLE, Plaintiff and Respondent, v. William DOUGLAS et al., Defendants and Appellants.

Cr. 7710.

Supreme Court of California, In Bank.

June 18, 1964.

Marvin M. Mitchelson and Burton Marks, Beverly Hills, under appointment by the Supreme Court, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

After a jury trial, defendants Douglas and Meyes were convicted of ten counts of robbery, one count of assault with intent to commit murder, and two counts of assault with a deadly weapon. In addition, Meyes was adjudged to be an habitual criminal, having been found to have suffered convictions of burglary in 1948 and of two robberies in 1950 and 1951. Both defendants appealed from the judgments of conviction and from the denials of their motions for new trials. Such appeals were perfected prior to the 1961 amendments to section 1237 of the Penal Code.

On a previous appeal, the United States Supreme Court reversed the affirmance of the convictions because the defendants had not been represented by counsel at the appellate stage. (Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.) That decision was limited to the issue of right to counsel on appeal, the court holding that the Fourteenth Amendment requires appointment of counsel for indigent defendants at 'the one and only appeal an indigent has as of right' (Douglas v. California, supra, 372 U.S. at p. 357, 83 S.Ct. at p. 816). Defendants have now had the aid of counsel on appeal. We hold here that the convictions must be reversed because of the infringement of the defendants' right to counsel at the trial stage. ¹

Prior to the trial of the instant case, the defendants had been jointly tried for the murder of a police officer while he was attempting to arrest them for some of the crimes here involved. After a mistrial, a second trial resulted in the conviction of Meyes for second degree murder and the acquittal of Douglas. Meyes was also there found to be an habitual criminal. During the course of those trials, evidence of the offenses here involved was introduced for the purpose of showing motive. At those trials, Meyes and Douglas had been represented by a deputy public defender, and Douglas by private counsel.

A preliminary hearing on the charges involved in this appeal was held on August 3 and 4, 1959. The defendants were there jointly represented by public defender Salter. On August 18th, the defendants were arraigned. A single public defender, Norman Atkins, was appointed to represent both defendants at the trial. On August 21st, the trial was set for September 30th. On the morning of the 30th, the trial judge was challenged and an affidavit of prejudice under Code of Civil Procedure section 170.6 was filed. It was properly denied on the ground that it was not timely. Then atkins moved for a continuance on the ground that he needed more time to prepare the defense, to complete his investigations in support of alibi defenses, and to study more carefully and cross-index the transcripts of the prior murder trials. A continuance was denied. Then, on behalf of Douglas, Atkins requested that the court appoint separate counsel, on the ground that the interests of the codefendants conflicted and that therefore single counsel would be embarrassed in defending both. The trial court ruled that no conflict existed, and refused to appoint separate counsel. After a brief recess, Atkins again moved for a continuance, on the ground that Douglas had been in contact with an attorney, one Leo Brennan, and that he had made arrangements with Brennan to handle the defense. Subsequent statements by Douglas indicated that in fact no definite arrangements had been made. The court denied the motion. At this point, as the impaneling of the jury began, both defendants, particularly Meyes, began to complain that Atkins was unprepared, in that he had been to see them only twice before the trial, for short periods, and had not read the transcripts of the previous trials. It was noted in the record that these complaints were addressed to the jury panel, not to the court. Meyes disrupted the proceedings to the point of interfering with Atkins' conduct of the defense. Notwithstanding such conduct, the public defender did his best on behalf of the defendants. He stated emphatically that he was not as well prepared as he would have liked to be, although he later indicated that he thought he could carry on the defense and could supplement his preparation as the trial progressed. Atkins successfully moved for sequestration of witnesses, and then questioned the jury on voir dire. The defendants again complained of Atkins' lack of preparation and insisted upon dismissing him, after having been warned that the dismissal would not entitle them to a continuance and that they would have to proceed without counsel. After further coloquy, there occurred an apparently unqualified dismissal of counsel by each defendant. Thereafter, jury selection was completed and trial was had. The defendants made no defense, did not cross-examine any prosecution witnesses, but continued to disrupt the proceedings, repeatedly demanding counsel. The jury returned a verdict of guilty.

On this appeal respondent argues that even if defendants were entitled to counsel, that right was waived. There is no merit to this contention.

Appellants were 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), 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.) Meaningfully applied, the right to counsel includes the opportunity to receive 'effective aid in the preparation and trial of the case.' (Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158; People v. Mattson, 51 Cal.2d 777, 790, 336 P.2d 937.) To be sure, this right may be waived (Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461; People v. Rocco, 209 Cal. 68, 285 P. 704), but 'a finding of waiver is not lightly to be made.' (Moore v. Michigan, 355 U.S. 155, 161, 78 S.Ct. 191, 195, 2 L.Ed.2d 167.) 'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' (Johnson v. Zerbst, supra, 304 U.S. at p. 464, 58 S.Ct. at p. 1023.) These principles are 'equally applicable to asserted waivers of the right to counsel in state criminal proceedings.' (Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 890, 8 L.Ed.2d 70.) Not only must the waiver be unqualified, but it may be made only by a defendant who has been apprised of his rights and who has 'an intelligent conception of the consequences of his act.' (In re Tedford, 31 Cal.2d 693, 695, 192 P.2d 3, 5.) Of course, the right to counsel may not be used to subvert the orderly and efficient administration of justice (People v. Thomas, 58 Cal.2d 121, 131, 23 Cal.Rptr. 161, 373 P.2d 97; United States v. Bentvena, 2 Cir., 319 F.2d 916, 936), and its utilization as a tool for dilatory purposes may not be permitted. (People v. Adamson, 34 Cal.2d 320, 332-333, 210 P.2d 13.)

Here the waiver, based upon the dismissal of the public defender by each defendant, was not a waiver of the request for separate counsel. This dismissal did not occur until after the trial court had denied the request for separate counsel. When Meyes dismissed the public defender as his counsel, he was faced with the alternative of having joint counsel or no counsel at all. Under the circumstances of this case, such a choice could not constitutionally be forced upon him. Douglas' dismissal of counsel was made immediately thereafter, when he was faced with the same choice. There never was a direct or indirect waiver of the right to separate counsel. As will later be pointed out, defendants had a constitutional right to separate counsel. It would be a strange rule to hold that where the defendants are wrongfully denied their right to independent counsel, a later dismissal of dual counsel amounts to a waiver of independent counsel. Such is not the law. The dismissal here involved cannot be distorted into a waiver of the right to independent counsel if defendants were entitled to that right.

Preliminarily, appellants complain of the denial of the continuance. Penal Code, section 1050 provides that 'No continuance of a criminal trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance.' The granting of a continuance is a matter within the discretion of the trial court. (People v. Buckowski, 37 Cal.2d 629, 233 P.2d 912; People v. Ketchel, 59 Cal.2d 503, 546, 30 Cal.Rptr. 538, 381 P.2d 394.) Of course, a continuance may not be denied if to do so would deprive counsel of reasonably adequate time to prepare a defense. (See People v. Murphy, 59 Cal.2d 818, 825, 31 Cal.Rptr. 306, 382 P.2d 346; People v. Mattson, supra, 51 Cal.2d 777, 790, 336 P.2d 937; People v. Sarazzawski, 27 Cal.2d 7, 17, 161 P.2d 934.) Although the public defender made clear that he was not as well prepared as he might wish, he did indicate that he had done some preparation and that he could supplement this as the trial progressed. He stated that he had gone through the transcripts of the carlier proceedings to some extent, although he had not cross-indexed them. The trial court pointed out that...