People v. Douglas

• Decision Date: 29 December 1960
• Docket Number: Cr. 7040
• Citation: 10 Cal.Rptr. 188,187 Cal.App.2d 802
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William DOUGLAS and Bennie Will Meyes, Defendants and Appellants.

Page 188

10 Cal.Rptr. 188

187 Cal.App.2d 802

PEOPLE of the State of California, Plaintiff and Respondent, v. William DOUGLAS and Bennie Will Meyes, Defendants and Appellants.

Cr. 7040.

District Court of Appeal, Second District, Division 3, California.

Dec. 29, 1960.

Rehearing Denied Jan. 26, 1961.

Hearing Denied Feb. 21, 1961.

Bennie Will Meyes and William Douglas, in pro. per.

Stanley Mosk, Atty. Gen., and Jack E. Goertzen, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

On sufficient evidence a jury convicted defendants Douglas and Meyes of ten counts of robbery (counts 1-6, 8-10, 13), one count of assault with intent to commit murder (count 7), and two counts of assault with a deadly weapon (counts 11, 12). The jury also found that defendnat Meyes had been convicted of burglary in 1948, robbery in 1950 and in 1951, and had served terms of imprisonment therefor. Defendants appeal from the judgments and from orders denying their months for new trials.

Defendants contend it was essential they be indicted by a grand jury and that it was error to proceed by information. The point has no merit. Prosecution of criminal cases by information is an alternative remedy. Due process of law does not require an indictment by a grand jury as defendants assert. People v. Thwaits, 101 Cal.App.2d 674, 677, 226 P.2d 58.

At the time defendants were arraigned on August 18, 1959, the public defender was appointed their counsel. When the cause was called for trial before Judge Rhone on September 30, 1959, defendants, represented by Deputy Public Defender Norman R. Atkins, filed an affidavit of prejudice and made an oral peremptory challenge under section 170.6 of the Code of Civil Procedure. The challenge was denied. Mr. Atkins made a motion for a continuance. The motion was denied. On behalf of defendant Douglas, he then requested the court to appoint separate counsel for Douglas. The request was denied. During impanelment of the jury, both defendants in open court dismissed Mr. Atkins as their counsel and requested the court for time in which to obtain private counsel. The request was denied. Defendants then determined to defend themselves without the assistance of counsel.

It is asserted the court erred in denying a continuance. On August 21, 1959 the trial was set for September 30, 1959. It was on the latter date that the court denied a continuance. The assertion is based on the contention that Mr. Atkins was not prepared to go to trial. While Mr. Atkins stated he would like more time in which to prepare, he said, 'On my own part I feel that I am prepared,' and 'I have prepared this case so that I could defend it now.' Mr. Atkins also said, 'as this trial progresses, I feel I would be able to do that [further prepare] as I go along, and it may not be to Mr. Meyes' satisfaction or Mr. Douglas' satisfaction, but I would be able to do that and do it properly.'

'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.' Pen.Code, § 1050. The granting of a continuance normally rests in the discretion of the trial court. People v. Buckowski, 37 Cal.2d 629, 631, 233 P.2d 912. The action of the trial court will not be disturbed in the absence of a clear abuse of discretion. People v. Markos, 146 Cal.App.2d 82, 86, 303 P.2d 363. No abuse of discretion appears.

Defendants contend it was error not to appoint other counsel for them at the time they dismissed Mr. Atkins on the day of trial. So far as the record shows, defendnats had no ground for dismissing Mr. Atkins. The dismissal was unqualified.

'Defendant Meyes: I can't use him under any circumstances. I'm letting you know, Mr. Atkinson, I don't want you to represent me.

'Mr. Atkins: Well, that seems unqualified enough, your Honor.

'Defendant Meyes: I don't want you to represent me. I stated that as clearly as I know how. I do not want you for my counsel. I don't want you under any circumstances.

'The Court: All right. You now state the same thing, do you, Mr. Douglas?

'Mr. Douglas: I do.

'The Court: Very well. Then, under those circumstances I will have to relieve Mr. Atkins. We will proceed with the trial.'

A defendant's right to counsel does not include the right to postpone the trial of a case indefinitely and reject the services of the public defender while defendnat, at his leisure, attempts to find counsel. People v. Adamson, 34 Cal.2d 320, 332-333, 210 P.2d 13. As in Adamson 34 Cal.2d at page 333, 210 P.2d at page 19), 'This court can take judicial notice, too, that it would be difficult to find in California any lawyers more experienced or better qualified in defendant criminal cases that [sic] the public defender of Los Angeles County and his staff.'

People v. Simeone, 132 Cal.App.2d 593, at page 597, 282 P.2d 971, at page 973, says:

'[W]hen the court assigned the Public Defender to represent appellant, the accused had at hand one of the best equipped law offices in the state to chamption his cause. It has a corps of vigorous, learned, amiable gentlemen who present their causes with force and intelligence * * *.' Where a person accused of crime refuses to be represented by the Public Defender of Los Angeles County, and demands that some practicing lawyer leave his private practice in order to defend such accused, the latter prefers to have cause for a grouch rather than a chance to defeat his accusers. Because there are thousands of lawyers in Los Angeles County who would gladly suffer much inconvienience rather than see the constitutional right of an accused violated, is no reason why a defendant should be privileged to dawdle with the trial court, to neglect for four weeks to obtain counsel, and then have his conviction reversed because he did not choose to be represented by the public defender.'

And in People v. Williams, 174 Cal.App.2d 364, at page 378, 354 P.2d 47, at page 56:

'We perceive no grounds, legal or otherwise, why an accused should be permitted to refuse the services of the public defender, waive his right to counsel unless one of his choice is appointed, and then have his conviction reversed because he did not choose to be represented by the legal aid provided by the county.'

Again, in People v. Duncan, 175 Cal.App.2d 372, at page 382, 346 P.2d 521, at page 528:

'Defendant's right to represent himself no more includes the right to reject the services of the public defender and postpone indefinitely the trial, allowing him to at his leisure attempt to find counsel who will serve without charge, than does defendant's right to counsel.'

And, as said in People v. Howard, 135 Cal.App.2d 95, at page 98, 286 P.2d 454, at page 456:

No good reason was given by the defendant for terminating the services of his counsel, who was present and ready to act at all stages after the arraignment, and no prejudicial error appears.'

The court did not err in not appointing counsel for defendants at the time they dismissed the public defender on the day of trial. As the People suggest, the record clearly shows defendants were attempting improperly to delay the proceedings by a last-minute dismissal of the public defender.

It is urged the court deprived defendants of an opportunity to present alibi defenses. Defendants did not cross-examine any of the People's witnesses. When the People rested, the trial judge said to defendants: 'The People have rested. Let the record show the jurors are not present in the courtroom. The People have rested, and as soon as the jury comes back will be the time for the defendants to produce any evidence that they desire to produce. I might state that you are not required to testify. This is a criminal proceeding and, obviously, in a criminal proceeding a defendant is not required to testify against himself, and I think you should be informed of that. You do have the right to have some witnesses subpoenaed on your behalf. In the event they have not already been subpoenaed, we will serve the subpoenaes if you will give us the name and addresses of the persons that you desire to have subpoenaed. I am wondering if you are ready to proceed at this time when the jury returns.' Defendant Meyes stated he was not qualified to defend himself, and said, 'I would like to ask again that the Court stop this illegal procedure and grant us the opportunity to have counsel to represent us.' The judge stated a recess would be taken and 'if you do not wish to present any evidence, why, then the matter will then be closed; that is, as far as the evidence. Then the District Attorney can argue it and each of you can argue on your behalf, and the Court will instruct the jury.' After the recess, with the jurors in the box, the judge stated: 'Mr. Douglas and Mr. Meyes, the People have rested, and this is the time to put on any evidence that you desire to put on. Mr. Douglas, do you have any witnesses you desire to call?' Defendant Douglas replied: 'We are not ready, your Honor. We do not have proper counsel. We have no evidence to put on.' The judge stated: 'Mr Meyes, do you have any witnesses you desire to call?' Defendant Meyes replied: 'Your Honor, we cannot put on any defense without a lawyer, without counsel.' The judge said: 'Well, the defendants not having presented any evidence, they resisting presenting any evidence, I assume then that the defendants rest.' After further discussions between defendants and the court in which defendants asked the court to reconsider giving them lawyers and sufficient time to obtain an attorney, the court stated: 'You have been given all the opportunity. We urged you not to discharge your counsel yesterday, and I told you what the consequences might be, and you, knowing that, you deliberately determined to discharge your counsel. * * * Well, that matter has been determined, and now is the time for argument, and you will be given an opportunity to argue the case; but you will be...