People v. Jackson

• Decision Date: 10 November 1960
• Docket Number: Cr. 1452
• Citation: 186 Cal.App.2d 307,8 Cal.Rptr. 849
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William George JACKSON, Defendant and Appellant.

Page 849

8 Cal.Rptr. 849

186 Cal.App.2d 307

PEOPLE of the State of California, Plaintiff and Respondent, v. William George JACKSON, Defendant and Appellant.

Cr. 1452.

District Court of Appeal, Fourth District, California.

Nov. 10, 1960.

Georg Geiger, Oceanside, for appellant.

Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

COUGHLIN, Justice.

The defendant, appellant herein, shot and killed his mother-in-law; shot his wife; was tried by a jury for and convicted of the offenses of murder in the first degree and assult with a deadly weapon with intent to commit murder, after the return of an indictment charging him with these offenses; made a motion for a new trial, which was denied; and, by a judgment, following a further jury verdict fixing the murder penalty at life imprisonment, was sentenced to imprisonment in the state prison. From the judgment, sentence and order denying his motion for a new trial he appeals.

An appeal does not lie from a sentence (People v. Millum, 42 Cal.2d 524, 525, 267 P.2d 1039), and the attempted appeal therefrom should be dismissed.

In appellant's opening brief herein it is stated: 'There can be no doubt that the evidence overwhelmingly shows defendant to be a murderer.' We have reviewed the record and are in complete agreement with this conclusion. The evidence leaves no doubt respecting its sufficiency to sustain the conviction of murder in the first degree and assault with a deadly weapon with intent to commit murder. Nevertheless, it is contended that the judgment should be reversed because the defendant was not accorded a fair trial and was denied due process of law.

No useful purpose would be served in relating the evidence respecting the events which preceded and resulted in the murder and assault under consideration. The defendant is an indigent person. When arraigned on the indictment he was represented by a court-appointed attorney; refused to enter a plea; and a plea of not guilty was entered on his behalf. Thereafter, when arraigned on a supplement to the indictment alleging the prior convictions, he refused to admit or deny these allegations, and a denial thereof was entered on his behalf. At this time his court-appointed attorney advised the court that the defendant would not cooperate with him, and asked to be relieved of his assignment. This request was granted and the court appointed John A. Brady, an attorney at law, to represent the defendant. On the morning of the trial, in a session outside the presence of the jury, the defendant told the trial judge that he had 'filed a document' the contents of which he described as follows: 'The document is to ask you to step down off the case and also the lawyer you appointed, I mean, because I would rather not proceed with this attorney.' From the discourse which followed it appears that the defendant had directed his attorney to undertake proceedings pursuant to the 'recent statute' which would disqualify the judge. Undoubtedly he was referring to Section 170.6 of the Code of Civil Procedure. The attorney did not believe that such a move was for the defendant's best interests and refused to follow his directions. The defendant did not request his attorney to determine whether the judge was disqualified to try his case; did not mention any reason for such disqualification; never suggested any of the grounds listed in Section 170 of the Code of Civil Procedure as a cause for disqualification; and it may not be assumed that any such grounds existed. The trial judge advised the defendant that he had not received the written request prepared and mailed by him, and that when such request was received it would be stricken from the files because the defendant was required to act through his attorney and also because the request was not made within the time required by law. The judge said to the defendant:

'You have a lawyer of record; and can only appear through a lawyer; you can't have a lawyer and then represent yourself.'

and the defendant replied: 'I understand that.' Thereupon the court discussed the time element problem. Section 170.6 of the Code of Civil Procedure provides that no judge of any Superior Court shall try any criminal action when it is established, as therein provided, that the judge is prejudiced against the defendant; that the defendant or his attorney may establish such prejudice by an oral or written motion supported by affidavit that the judge is prejudiced against the defendant and that he belives he cannot have a fair and impartial trial before such judge; and that the motion should be made at least five days before the trial date, if the judge assigned to the case is known at least ten days before that date. The instant case, pursuant to a formula previously prescribed by court order, had been assigned for trial before the judge in question commencing with the date of arraignment. On October 2, 1959 the case was set for trial for November 2, 1959. Any motion for disqualification pursuant to statute should have been filed at least five days prior to trial. The defendant told the court that he had asked his attorney to take the necessary proceedings to effect disqualification before the five day period but that his attorney refused to do so. The attorney reiterated his position that he did not believe that it would be to the best interest of the defendant to disqualify the judge to which the case had been assigned because, in his judgment, it would be better to try the defendant's case before that judge rather than in other departments to which it might be assigned. For this reason, he refused to make the requested motion and stated that he told the defendant that if he wanted to challenge the judge he would have to do it himself, i. e., in propria persona. Thereupon, the attorney moved to be relieved of his assignment, and for a continuance to permit the defendant to obtain other counsel. The court denied this motion; told the defendant that he was represented by Mr. Brady; that he was not to make any outbursts in court; that if there was anything he wished his counsel to do he should 'whisper to him and he will present it if he feels it is to your interest and it is proper'; and ordered the trial to commence.

The aforementioned discourse also developed that the attorney had undertaken discovery proceedings on behalf of the defendant; that the defendant refused to cooperated in obtaining the information which the attorney was attempting to obtain thereby and would not sign a declaration foundational to such proceedings; but the court determined that the district attorney voluntarily had cooperated with the attorney for the defendant, by revealing the information requested, and declined to participate in any further discussion of the matter.

From the record it appears that thereafter the defendant told Mr. Brady that he approved of the manner in which his defense was being conducted, except for the matter respecting the disqualification proceedings; and, after the discussion heretofore noted, but prior to the selection of the jury, requested Mr. Brady to continue to represent him. It also appears from the record that Mr. Brady ably represented the defendant; protected his interests in every lawful manner; and ardently advocated his cause. During the course of the proceedings incident to pronouncement of judgment, the court commended Mr. Brady for the able manner in which he had conducted the defendant's case, and voiced the belief that if it had not been for his ardent advocacy the defendant might have received the death penalty.

The defendant claims that his trial was unfair because he was not given the opportunity to exercise his right to disqualify the trial judge; that he was deprived of this opportunity because he was indigent; that his poverty compelled him to accept the services of a court-appointed attorney who was not required to follow his request to institute disqualification proceedings against the trial judge, whereas, if he had been financially able to do so he could have employed an attorney who would have been willing to follow his directions and would have undertaken such proceedings; and that these circumstances constitute a deprivation of due process of law.

A formidable obstacle to the defendant's contention lies in the decision of the Supreme Court of this state in People v. Mattson, 51 Cal.2d 777, 796, 336 P.2d 937, where it said:

'We recognize that in the California courts, * * * a defendant who insists upon representing himself and who can employ an attorney may secure a quantum or type of legal assistance greater than or different from that which must be accorded a defendant who is unable to employ an attorney and who insists upon representing himself, for a defendant who can find private counsel willing to accept employment in 'an inferior position in the defense' must be allowed out-of-court consultation with such attorney. See Pen.Code, § 825. But the only reason the indigent does not have out-of-court consultation with an attorney is because he refuses to accept appointment of an attorney to represent him; i. e., to act within the traditional and statutory status of his office. This difference between the right to the aid of counsel of defendant's choice and the right to have counsel provided is not a denial of due process or equal protection.' People v. Mattson, supra, 51 Cal.2d 777, 796, 336 P.2d 937, 951.

In the case at bar certain factual conclusions are readily apparent. At all times the defendant was represented by an able attorney. At no time did he ask to represent himself, i. e., to act in propria persona. Upon refual of Mr. Brady to institute disqualification proceedings, the defendant did not immediately commence the same on his own behalf, ask to represent himself, or request the court to appoint another attorney. Instead, he took no action until shortly before the trial. The document prepared by the...