People v. Harmon

Citation4 Cal.Rptr. 161,351 P.2d 329,54 Cal.2d 9
Decision Date08 April 1960
Docket NumberCr. 6532
CourtUnited States State Supreme Court (California)
Parties, 351 P.2d 329 PEOPLE of the State of California, Plaintiff and Respondent, v. Robert S. HARMON, Defendant and Appellant.

Robert Stanley Harmon, in pro. per.

Stanley Mosk, Atty. Gen. and John S. McInerny, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

A jury found defendant guilty of violation of section 4500 of the Penal Code (assault with malice aforethought by force likely to produce great bodily injury, committed by one undergoing a life sentence in a state prison). Section 4500 as it read at the time of the commission of the assault and at the time of judgment herein (Stats. 1941, ch. 106, § 15) made the death penalty for such offense mandatory. This appeal from the judgment of death is taken pursuant to subdivision (b) of section 1239 of the Penal Code.

After judgment defendant asked that his court-appointed trial counsel be relieved. At a subsequent superior court hearing to settle the reporter's transcript, defendant was represented by another counsel, also court-appointed. This court, on defendant's request for counsel on appeal, appointed yet another attorney, who has since been relieved at defendant's request. Defendant in propria persona presents the following contentions: (1) he did not have opportunity to consult privately with counsel prior to trial; (2) the trial judge erroneously refused defendant's request for change of trial counsel after defendant's counsel indicated that he 'was not willing to help in subpoenaing proper witnesses to support a good case for the defendant' (3) this court should re-examine and overrule its holdings that section 4500 of the Penal Code applies to prisoners who are serving indeterminate sentences with a maximum statutory punishment of life imprisonment and whose terms have not been 'fixed' (by specifically designating them as life terms) by the Adult Authority, and that such application of section 4500 is constitutional; (4) the trial judge erred in the admission of evidence; (5) the prosecuting attorney was guilty of misconduct. We have concluded that defendant's contentions are without merit and our independent review of the record has convinced us that the judgment should be affirmed.

Defendant's contentions that he was denied effective representation of counsel are bare assertions without support in the record. The transcript does not disclose that defendant had any disagreement with his trial counsel, or that any complaint concerning defendant's representation was presented to the trial court. So far as appears these contentions are recent figments of defendant's imagination.

Defendant is directly chargeable with responsibility for the incongruity between his contentions and the record. With considerable experience in criminal law (in the capacity of one repeatedly accused and convicted of crime), defendant has chosen to refuse the services of court-appointed counsel on appeal. The testimony of defendant and the brief which he has himself prepared indicate that he is of sufficient intelligence that he should be able to appreciate the consequences of his insistence on representing himself on appeal. A letter sent by defendant personally to the district attorney after his arraignment and before the filing of the information herein suggests that defendant may have overestimated his legal ability. 1 However, it appears the following rules should apply:

'Except in certain situations not here pertinent, the court cannot force a competent defendant to be represented by an attorney.' (People v. Mattson (1959), 51 Cal.2d 777, 788-789, 336 P.2d 937; see Reynolds v. United States (1959, C.A. 9), 267 F.2d 235, 236; Duke v. United States (1958, C.A. 9), 255 F.2d 721, 724(4, 5), certiorari denied 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365.) When defendant in this court requested termination of the appointment of his counsel we were 'not required to demand that defendant, as a prerequisite to appearing in person, demonstrate either the acumen or the learning of a skilled lawyer' (People v. Linden (1959), 52 Cal.2d 1, 17 (3), 338 P.2d 397) and, having competently elected to represent himself, defendant 'assumes for all purposes connected with his case, and must be prepared to be treated as having, the qualifications and responsibilities concomitant with the role he has undertaken' (People v. Mattson (1959), supra, 51 Cal.2d 777, 794 (17), 336 P.2d 937).

Defendant makes the assertion, unsupported by the record, that there was 'no sufficient proof' that he was serving a life sentence on May 2, 1959, the date of the assault, and June 30, 1959, the date of rendition of judgment. On those dates defendant was confined under a judgment of conviction of two counts of first degree robbery, sentences running consecutively. The penalty for robbery of the first degree is imprisonment for not less than five years (Pen.Code, § 213, subd. 1) with a maximum punishment of life imprisonment (Pen.Code, § 671). Defendant testified that his term had not been fixed by the Adult Authority, although he had repeatedly appeared before that body at hearings relating to the fixing of terms. Defendant is mistaken as to the nature and effect of the action taken by the Adult Authority. Penal Code, section 671, provides that 'Whenever any person is declared punishable for a crime by imprisonment in the state prison for a term not less than any specified number of years, and no limit to the duration of such imprisonment is declared, punishment of such offender shall be imprisonment during his natural life' subject to the provisions of Part 3 of the Penal Code providing for an Adult Authority and administration of the indeterminate sentence law. (See Pen.Code, §§ 1168, 2 3020 3 and related sections.) By the terms of the applicable statutes a defendant sentenced under section 213 of the Penal Code to imprisonment in a state prison 'for not less than five years' is under a life sentence unless and until the Adult Authority sees fit to relieve him of the life sentence by limiting (subject to the provisions of the above referred to Penal Code sections) the punishment to imprisonment for a span of years. In the case of a life term convict whom the Authority does not believe merits a lesser term it may, and customarily does, act by simply refraining from fixing his term at a span of years. Since by statute he is already serving a life term there is no occasion for the Authority to re-declare the fact.

From what has been stated above it is clear that under the law of this state, defendant was 'undergoing a life sentence' within the meaning of section 4500 of the Penal Code. 4 Such construction and application of the statute has repeatedly been held constitutional. In People v. Jefferson (1956), 47 Cal.2d 438, 442-444 (3-6), 303 P.2d 1024, and People v Berry (1955), 44 Cal.2d 426, 430 (1), 282 P.2d 861, we reaffirmed the views expressed in People v. Wells (1949), 33 Cal.2d 330, 334-337 (2a-2b), 202 P.2d 53, and cases there cited, where arguments similar to those advanced by defendant here had been discussed and rejected. Other arguments concerning the application and constitutionality of section 4500 which are reiterated by defendant were viewed favorably in Ex parte Wells (1950, D.C., N.D.Cal., S.D.), 90 F.Supp. 855, 858 (1), but thereafter rejected by this court in the case of In re Wells (1950), 35 Cal.2d 889, 891-894 (1-3), 221 P.2d 947. And Ex parte Wells (1951, D.C., N.D.Cal., S.D.), 99 F.Supp. 320, 324-326, which asserted the unconstitutionality of the statute as construed by this court, and which is relied on by defendant here, was reversed in Duffy v. Wells (1953, C.A. 9), 201 F.2d 503, 505-506 (2-6). We consider this matter settled.

The following evidence sustains the verdict: Gerald Garrow, victim of the assault, verdict: Gerald Garrow, victim of the assault, testified as follows: On May 2, 1959, he was a prisoner at Soledad State Prison. At 6:15 p. m. on that date he was seated in a recreation room of the prison, watching television, when a prisoner known to him as Shortie 5 stabbed him in the chest and stomach. Garrow 'got up, and all of a sudden I started feeling stabs in my back * * * I turned around and I could see the defendant here. * * * I don't know if he had something in his hand or what, but he was the one standing directly in back of me, and I am pretty sure I caught a glimpse of the knife when I pulled away.' Garrow ran from the room and a guard took him to the prison hospital. Garrow had suffered eight stab wounds about the ribs and in the abdomen.

The following testimony of Garrow was received upon the question of a malicious motive actuating the attack: During the days shortly before the stabbing defendant, sometimes with Shortie, had asked Garrow to steal candy and tobacco from other prisoners and give them to defendant, to have sexual relations, and to give Garrow's cigarettes to defendant in exchange for 'protection.' Defendant and Shortie also offered Garrow a knife for use against another prisoner with whom Garrow had had an altercation. Garrow brusquely refused these requests and offers.

Guards who searched the recreation room after the stabbing found that a window pane had been broken from the inside and two knives which could have caused Garrow's wounds were on the ground outside the window. As might have been expected, other prisoners, called by the prosecution and the defendant, refused to testify.

At 10:45 a. m. on May 4, 1959, defendant at his own request made a statement, which was reported and transcribed, to Correctional Captain Paul Rendleman. In this statement defendant admitted the stabbing but said that Shortie did not participate in the attack. Shortly after 11 a. m. on May 4, defendant appeared before the prison disciplinary committee, again admitted the attack but said that Shortie had not participated,...

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  • People v. Collins
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    ......Harmon, 54 Cal.2d 9, 15, 4 Cal.Rptr. 161, 164, 351 P.2d 329, 332, is here pertinent: "Except in certain situations not here pertinent,[220 Cal.App.2d 575] the court cannot force a competent defendant to be represented by an attorney.' [Citations.] When defendant in this court requested termination of ......
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