People v. Howard

• Citation: 286 P.2d 454,135 Cal.App.2d 95
• Decision Date: 15 August 1955
• Docket Number: Cr. 1036
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Preston Lavern HOWARD, Defendant and Appellant.
• Court: California Court of Appeals

Page 454

286 P.2d 454

135 Cal.App.2d 95

PEOPLE of the State of California, Plaintiff and Respondent, v. Preston Lavern HOWARD, Defendant and Appellant.

Cr. 1036.

District Court of Appeal, Fourth District, California.

Aug. 15, 1955.

Rehearing Denied Aug. 25, 1955.

Preston Lavern Howard, in pro. per.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

BARNARD, Presiding, Justice.

The defendant was charged with robbery alleged to have been committed on January 1, 1955, it being also alleged that he was at that time armed with a deadly weapon, a .38 caliber nickel-plated revolver. In a second count he was charged with the crime of possession of a firearm by one previously convicted of a felony, in violation of section 12021 of the Penal Code. He was also charged with two prior convictions. He pleaded not guilty as to both counts of the information. He first admitted the prior convictions, but on the advice of the court that he first consult a lawyer he denied them. A jury found him guilty on both counts, and also found that the allegations of the two prior convictions were true. With respect to the first count, the jury fixed the degree as robbery in the first degree, and also found that at the time that crime was committed the defendant was armed with a deadly weapon. The defendant has appealed from the judgment and 'from the order denying defendant's motion for a new trial.' From the record, it appears that no such motion was made.

A service station attendant testified that in the early morning hours of January 1, 1955, the defendant came into the station, 'put a gun' on him, and demanded that he open the till; that the pistol was cocked and he could see the bullets in it; that the defendant reached over and took the money out of the till; and that the defendant then made him lay down saying 'Give me a chance to get away.' There was evidence that about $160 was taken on this occasion.

Early on the morning of January 12, 1955, two police officers saw the defendant walking on the street in San Diego. They questioned him and a search revealed a nickel-plated revolver, which was introduced in evidence. It was found in the defendant's pants pocket and was fully loaded. They took the defendant over to this service station, and the attendant there identified the defendant as the man who had robbed him on January 1, and identified the gun as the one that had been used on that occasion. He also identified a suede jacket then worn by the defendant as similar to the one the defendant was wearing on the other occasion. At the trial the service station attendant again identified the defendant, the gun, and the jacket, in similar manner. Testimony was also received, including certified copies, concerning the prior convictions. The defendant took the stand and admitted the prior convictions. He also admitted the possession of the weapon, as charged in Count II, but claimed that he would not have had it if he 'knew there was a law governing it.' While on the stand he said nothing of the charge of robbery contained in Count I, and did not deny any of the evidence in that connection.

The evidence of defendant's guilt was overwhelming, and he does not question the sufficiency of the evidence as such. He contends, however, that he was not given a fair trial. It is first contended that he was deprived of his right to be represented by counsel. At the time he was arraigned, the court asked the defendant if he had counsel and the defendant replied 'Not at the present'. The court asked him if he wanted an attorney and he replied 'No', and then told the court the case could be set for trial and he would have a lawyer by that time. When the court offered to appoint a lawyer for him, he replied 'No, I don't want you to appoint me a lawyer. I will have a lawyer.' The court then set the trial for March 11, 1955, and the defendant responded 'O.K.'. The defendant then hired a lawyer named Whittinghill, and paid him $200. The defendant was brought into court on March 9, Whittinghill being present. The court then told the defendant that he was brought in to see whether he had an attorney, and that a continuance would not be granted. The defendant stated that he had paid Whittinghill $200, but that he did not want him to represent him and wanted to get a Mr. Fitzgerald as his attorney, saying that he had told Fitzerald he would give him the money when he got it back from Whittinghill. The court told the defendant to be ready for trial on the date set, that he would have Whittinghill there, and that Whittinghill would be ready, able and willing to represent him. Whittinghill was present at all stages of the trial but the defendant insisted on conducting his own case. He now contends that he was deprived of the right to be represented by counsel because of the court's failure to compel Whittinghill to give him back his $200, so he could hire another lawyer. So far as the record discloses, the court had no authority to order Whittinghill to return the money. 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. In re Connor, 16 Cal.2d 701, 108 P.2d 10; People v. O'Neill, 78 Cal.App.2d 888, 179 P.2d 10; People v. Brickert, 3...