People v. Johnson

• Decision Date: 22 October 1958
• Docket Number: Cr. 3391
• Citation: 330 P.2d 894,164 Cal.App.2d 470
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Wesley JOHNSON, Defendant and Appellant.

Page 894

330 P.2d 894

164 Cal.App.2d 470

The PEOPLE of the State of California, Plaintiff and Respondent, v. Daniel Wesley JOHNSON, Defendant and Appellant.

Cr. 3391.

District Court of Appeal, First District, Division 1, California.

Oct. 22, 1958.

Marvin Stender, San Jose, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier, Lloyd Hinkelman, Deputy Attys. Gen., for respondent.

ST. CLAIR, Justice pro tem.

Defendant was charged in an information with three violations of Penal Code, section 476a, drawing and uttering checks in the amount of $20, $20, and $12.50, knowing that he had insufficient funds for the payment of the checks upon their presentation. After first pleading not guilty to all three counts, defendant withdrew this plea and pleaded guilty to the three counts. Defendant appeals from the judgment entered on the guilty pleas.

Counsel has been appointed for this appeal whose sole contention is that the face of the record shows that defendant was represented by incompetent counsel in the trial court. Defendant has also filed two briefs in this matter, urging this ground and others. The Attorney General has filed two briefs, one responsive to the defendant's opening brief, and one responsive to counsel's opening brief.

I.

Was defendant denied effective aid of counsel because of incompetence of his chosen counsel?

Defendant was first arraigned on the information involved in this appeal on November 2, 1956. Mr. Nunes, of the Public Defender's Office, appeared with him. Defendant pleaded not guilty to all three counts, and the trial was continued to November 13. At that time another continuance was granted at the request of Mr. Nunes to permit defendant to employ private counsel.

The next hearing was held on November 23. An attorney named Robert P. Brorby of the firm of Dodge and Evans appeared, and stated that 'arrangements have practically been completed for this firm to represent Mr. Johnson.' The matter was continued to November 30. On that date defendant was represented by Mr. Nunes, who stated that he had been informed that Mr. Dodge would take the case. The clerk said that he had received a telephone call that 'the man's coming in from out of towm and that he'll be here by eleven o'clock.' The matter was continued.

On December 3, 1956, the case was set for trial. Defendant was present at this hearing but his counsel, a Mr. White, did not make a personal appearance. During this hearing, White telephoned the clerk, who repeated his statements to the judge. White was substituted in as defendant's attorney.

On December 19, the date set for trial, White arrived before court convened. He advised the clerk that he had another trial scheduled for that day and they agreed on a date for continuance. White also advised the clerk that defendant would waive time. Defendant, when questioned by the Court, stated that his attorney's statement was correct, i. e., he would and did waive time of trial.

On January 21, 1957, White appeared and stated that he had had a conference with his client the previous day and that the defendant intended to change his plea.

The defendant did not appear on February 4 and a bench warrant issued. When the defendant surrendered on March 7, White was not present but the defendant stated that he had consulted with him by phone the previous Monday.

On March 11, in the presence of the defendant, White represented that the defendant had consulted with him, and that he had advised him before defendant's rearrest on the bench warrant. White stated that the defendant had 'indicated now he's perfectly willing to change his plea' and asked permission to withdraw the previous plea. The defendant thereupon pleaded guilty to the first count of the information, which was described as 'a felony.' Then the following colloquy took place. This is the passage relied upon the show incompetence as a matter of law:

'The Clerk: Daniel Wesley Johnson, to the crime of a felony, to-wit, a----

'Mr. White: Before we proceed any further, Mr. Merrill is at a disadvantage, but the commitment is such, as to one count, the usual----

'Mr. Merrill: Well, the problem is, I think, on the amount here, Clint. If I'm not mistaken, that is the problem, with the amount, to keep the jurisdiction in this Court, because they're all--they're all small checks.

'Mr. White: What is the problem, then?

'Mr. Merrill: Well, to keep it within the jurisdiction of this Court there would have to be a plea to the three, because they total--they just total over fifty, I think, or a hundred, whatever the code section reads, since the code section's been amended this last year. Actually they are such small checks I don't think it would make much difference.

'Mr. White: That is true, but in each instance they are a felony.

'Mr. Merrill: No, that is not true, not unless----

'Mr. White: Well, educate me, because I only assumed that he would plead to one, as so often is the case.

'The Court: Well, I don't assume there would be any consecutive sentence involved.

Mr. White: All right.

'Mr. Merrill: Here is the point, under the code, the way it is, a plea to one would be a misdemeanor and take it out of the jurisdiction of the Court.' The defendant thereupon pleaded guilty to the other two counts of the information.

Penal Code, section 476a, provides that any person who 'willfully, with intent to defraud, makes or draws or utters or delivers any check * * * upon any bank * * * for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker * * * has not sufficient funds in, or credit with said bank or depository * * * for the payment of such check * * * in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than 14 years.' The second paragraph contains a proviso that 'if the total amount of all such checks * * * that the defendant is charged with and convicted of making, drawing, or uttering does not exceed fifty dollars ($50), the offense is punishable only by imprisonment in the county jail for not more than one year,' except when the defendant has certain previous convinctions not applicable here. Thus Mr. White was correct in stating that each violation of 476a may be a felony, regardless of the amount of the individual check, but the District Attorney was correct in stating that the offense is not punishable as a felony unless the aggregate of the bad checks involved in the offenses for which defendant is convicted is more than $50.

Counsel on appeal argues that the above quoted colloquy demonstrates that 'counsel had not read and was not familiar with the contends to the statute which his client was accused of violating,' that 'he was unfamiliar with the mechanics of that fundamental distinction in the criminal law between misdemeanor and felony, and therefore that White was incompetent. The first inference might be drawn, although it is not the only possible inference in the context of the discussion, but there is no evidence of the second contention.

White suggested that the defendant plead only to one count. Mr. Merrill objected because of the 'problem, with the amount.' White's question, 'What is the problem then?' could indicate an unfamiliarily with section 476a, but it could also be a rhetorical question asking for a clarification of the prior statement from Mr. Merrill, which was somewhat disjointed. After Mr. Merrill's reference to the $50 qualification of the code section, White said, 'That is true, but in each instance they are a felony.' This statement was correct, but Mr. Merrill disagreed with it. White's answer, 'Well, educate me, because I only assumed that he would plead to one, as so often is the case,' could be interpreted as an admission of ignorance, but in context, it also could be interpreted as an explanation of White's disagreement with Merrill's prior statement, and as an expression of concern over protection of his client against consecutive sentences. The trial court adopted this latter interpretation, as evidence by the court's response that 'I don't assume there would be any consecutive sentence involved.'

As support for the contention that White was unfamiliar with the felony-misdemeanor distinction counsel cites White's construction of the statute. ('That is true, but in each instance they are a felony.') White's interpretation is correct as the statute expressly says the uttering of any 'bad' check is punishable by 'imprisonment in the county jail for not more than one year, or in the state prison for not more than 14 years.'

Penal Code, section 16, reads:

'Crimes, How Defined. Crimes are divided into:

'1. Felonies; and,

'2. Misdemeanors.'

The first three sentences of Penal Code, section 17, read:

'A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment other than imprisonment in the state prison, unless the court commits the defendant to the California Youth Authority.'

Where an offense is punishable either as a felony by imprisonment in the state prison or as a misdemeanor by fine or by imprisonment in a jail the offense is a felony up to the time the sentence is imposed. See Fricke, California Criminal Law (5th Ed.), pages 5-6.

Subsection (b), Penal Code, section 476a is a peculiar statute; it reads:

'However, if the total amount of all such checks, drafts, or orders that the defendant is charged with and convicted of making, knowing, or uttering does not exceed fifty dollars ($50), the offense is punishable only by imprisonment in the county jail for not more than one...