People v. Floyd

Decision Date27 January 1970
Docket NumberCr. 12226
CourtCalifornia Supreme Court
Parties, 464 P.2d 64 The PEOPLE, Plaintiff and Respondent, v. Barry FLOYD and Johnny Milton, Defendants and Appellants.
Emmet Hagerty, San Francisco, and David A. Binder, Los Angeles, under appointments by the Supreme Court, Meyer S. Levitt, Jared R. B. Hutton and Rodney Moss, Los Angeles, for defendants and appellants

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

[1 Cal.3d 702] BURKE, Justice.

A jury found Barry Floyd and Johnny Milton guilty of first degree robbery (Pen.Code, § 211) and first degree murder (Pen.Code, § 187) and sentenced them to death. This appeal is automatic. (Pen.Code, § 1239, subd. (b).)

On January 10, 1967, about 1 p.m., a Los Angeles Rapid Transit District bus driver, named Hartzel, was robbed, shot [464 P.2d 68]

and killed by two male passengers. Two other passengers identified Floyd and one passenger identified Milton as the robbers; Floyd was identified as the triggerman. An eyewitness outside the bus observed Floyd and Milton fleeing; he identified Milton as one of those fleeing the bus

A fingerprint of Floyd was found on the bus. Miscellaneous change, but no currency, was found on and near the bus. Twenty-one one-dollar bills, folded individually, and a numbered transfer from the bus driver's transfer book were found in Floyd's shirt when he was arrested on the day of the robbery. Thirty one-dollar bills and a five-dollar bill, folded individually, were found in Milton's pants pocket after he was arrested on the day of the robbery. A later search, authorized by warrant, of the apartment at which Milton and Floyd were arrested yielded a gun, which, according to expert ballistics testimony, was the murder weapon, and a numbered transfer, one number lower than the transfer found on Floyd and also from the bus driver's transfer book. Both the gun and the transfer were found in the same place in the apartment.

Floyd did not testify at either the guilt or penalty trials. Milton testified at both trials. Milton's defense was that of alibi; he testified that he had been at his half-brother's apartment (where he and Floyd were arrested) since 11 or 11:30 a.m.; his testimony was corroborated by testimony of his half-brother, a woman who had been the common law wife of his half-brother, and his younger sister.


Milton contends that he was denied his right to represent himself, or, in the alternative, denied his right to effective counsel because the trial court refused to appoint another attorney despite defendant's demands for another attorney. Neither contention has merit.

A 'defendant in a criminal case has the constitutional right to waive counsel and represent himself if he knowingly and intelligently elects to do so. (Citations.)' (E.g., People v. Maddox, 67 Cal.2d 647, 651, 63 Cal.Rptr. 371, 374, 433 P.2d 163, 166.) However, the decision whether the defendant is capable of making a knowing and intelligent election is a discretionary[1 Cal.3d 703] matter, which, absent a showing of abuse, will not be disturbed on appeal. (People v. Carter, 66 Cal.2d 666, 672, 58 Cal.Rptr. 614, 427 P.2d 214; People v. Shroyer, 203 Cal.App.2d 478, 482--483, 21 Cal.Rptr. 460.)

Although the defendant's right to represent himself cannot be denied simply because he is unable to 'demonstrate either the acumen or the learning of a skilled lawyer'. (People v. Harmon, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 164, 351 P.2d 329, 332; People v. Linden, 52 Cal.2d 1, 18, 338 P.2d 397; see also, People v. Addison, 256 Cal.App.2d 18, 24, 63 Cal.Rptr. 626), a defendant may waive counsel and choose to represent himself only if the defendant has an intelligent conception of the consequences of his act (People v. Carter, Supra, 66 Cal.2d 666, 670, 58 Cal.Rptr. 614, 427 P.2d 214) and understands the nature of the offense, the available pleas and defenses, and the possible punishments (In re Johnson, 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 398 P.2d 420).

Milton contends that the questions asked by the trial court, in response to his request to represent himself, and the court's refusal to allow him to do so violated the rule that a defendant need not have the knowledge or learning of an attorney.

The particular questions quoted by Milton, without more, may not have justified denying him his right to represent himself. But the questions cannot be isolated from the answers, nor from other factors of which the court was aware. 1

[464 P.2d 69] [1 Cal.3d 704]

The record makes clear that by May 22, when the motion was made, the court had adequate opportunity to observe and listen to Milton, and adequate grounds to decide that he could not intelligently waive the right to counsel nor represent himself

First, the charges against Milton were serious, murder and robbery, with the prosecution seeking the death penalty. Second, the court had been requested to appoint a psychiatrist to examine Milton, and a plea of not guilty by reason of insanity, although later withdrawn, had been entered. Third, Milton was only 21 years of age at the time of trial, had no prior adult record of convictions, and had a 10th or 11th grade education.

Moreover, Milton's conduct in court after the court denied his motion to proceed in propria persona makes clear that he was incapable of defending himself. Had a defendant like Milton represented himself in a death penalty case, this court would have been required to reverse any conviction resulting from those proceedings, based on a fundamental denial of due process. There was no error in refusing to allow Milton to represent himself.

Milton contends that because of an alleged conflict between himself and his court-appointed counsel, he was entitled to have another attorney appointed. 2 '(T)here is no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant's whims.' (People v. Nailor, 240 Cal.App.2d 489, 494, 49 Cal.Rptr. 616, 620, cert. den., 385 U.S. 1030, 87 S.Ct. 763, 17 L.Ed.2d 678; see also People v. Mattson, 51 Cal.2d 777, 793, 336 P.2d 937; In re Atchley, 48 Cal.2d 408, 418--419, 310 P.2d 15; In re Luna, 257 Cal.App.2d 754, 757, 65 Cal.Rptr. 121.) Further, it is well established that an attorney representing a criminal defendant has the power to control the court proceedings. (See People v. Hill, 67 Cal.2d 105, 114--115, 60 Cal.Rptr. 234, 429 P.2d 586, cert. den., 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed.2d 607; People v. Foster, 67 Cal.2d 604, 606, 63 Cal.Rptr. 288, 432 P.2d 976; People v. Darling, 58 Cal.2d 15, 19, 22 Cal.Rptr. 484, 372 P.2d 316; People v. Mattson, Supra, 51 Cal.2d 777, 789, 336 P.2d 937; People v. Merkouris, 46 Cal.2d 540, 554--555, 297 P.2d 999.)

Milton's reliance on People v. Moss, 253 Cal.App.2d 248, 250, 61 Cal.Rptr. 107, [464 P.2d 70]

in which the defendant and his court-appointed [1 Cal.3d 705] attorney had reached an 'impasse on a crucial issue' is misplaced. The court in Moss stated: 'We believe the basic right to representation by counsel * * * encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic.' (id., at p. 251, 61 cal.rptr. at p. 110.) we need not decide whether the rule proposed in Moss correctly states the law as to right to counsel (seePeople v. Maddox, Supra, 67 Cal.2d 647, 654, fn. 2, 63 Cal.Rptr. 371, 433 P.2d 163), since Milton's repeated requests that a different attorney be appointed were premised on a lack of confidence in his appointed counsel not on a disagreement as to trial tactics

The record makes crystal clear that the only substantial 'conflict' between Milton and his attorney was that Milton refused to cooperate in order to permit his attorney to prepare a defense consistent with a not guilty plea.


Both Floyd and Milton contend that the trial court's refusal to grant a change of venue deprive them of due process, because defendants were tried 'in a county inflamed with passion and prejudice against individuals accused of the type of crimes charged * * *.' The contention is based solely on public concern for and publicity concerning 'the increasing number of crimes being committed in the South Central part of the City against persons involved in various service industries.'

'A motion for change of venue * * * shall be granted whenever it is determined that because of the dissemination of potentionally prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.' (Maine v. Superior Court, 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 729, 438 P.2d 372, 377.) Crime is always a matter for public concern, and if the fact that the public has expressed concerns as to a rising crime rate or certain classes of crime meant that a fair trial could not be had, it is doubtful whether a fair trial could ever be had. Such general concerns are in large part balanced by the community's desire to convict the true wrongdoer and acquit the innocent, and the general concern to reduce crime and apprehend criminals does not furnish the basis for a change of venue.

In all of the cases on which defendants rely, the determination that a fair trial could not be had was based on a showing of prejudice against the particular defendant or defendants. (Sheppard v. Maxwell (1966) 384 U.S. 333, 339--342, 86 S.Ct. 1507, 16 L.Ed.2d 600; Maine v. Superior Court, Supra, 68 Cal.2d 375, 385--386, 66 Cal.Rptr. 724, 438 P.2d 372; People v. McKay, 37 Cal.2d 792, 794, 236 P.2d 145; People v. Suesser, 132 Cal. 631, 633--634, 64 P. 1095; People v. Yoakum, 53 Cal. 566, 569--570; People v. Lee, 5 Cal. 353, 354.) Defendants, however, cite no publicity[1 Cal.3d...

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