People v. Johnson
| Decision Date | 24 March 1970 |
| Docket Number | Cr. 3347 |
| Citation | 5 Cal.App.3d 851,85 Cal.Rptr. 485 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas G. JOHNSON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Defendant and Lola Mae White were charged with burglary. Defendant also was charged with having been armed with a deadly weapon at the time of the commission of the offense. Both defendants were found guilty of burglary in the first degree by a jury, and, in addition, the jury found the defendant was armed with a deadly weapon during the commission of the offense.
Defendant was sentenced to state prison for the term prescribed by law. He filed a timely notice of appeal. Defendant White is not appealing herein.
Defendant makes no contention that the evidence is insufficient to justify the judgment. Since the sufficiency of the evidence is not in dispute, we shall not unduly and unnecessarily lengthen this opinion by a recital of the facts except to say that we have examined the record carefully and find that, tested by established standards, the evidence is sufficient to sustain the judgment.
Defendant's first contention is that the court committed error by not granting the defendant a continuance for the purposes of (A) obtaining a private attorney; (B) allowing the public defender to prepare for trial; (C) securing witnesses to testify for the defendant; and (D) because there was a conflict of interest between himself and his codefendant.
For an understanding of these contentions, it is necessary to go into the background of this case in some detail.
At the preliminary examination, held September 26, 1967, the public defender was appointed to represent the defendant. Raymond Rager, Deputy Public Defender, represented the defendant at the preliminary.
The information was filed September 27, 1967. The defendant was arraigned on October 3, 1967, and, again, the public defender represented the defendant. The case was set for trial at 9:30 a.m., December 13, 1967, the defendant having waived statutory time for trial.
When the case was called for trial on December 13, 1967, Mr. Rager again represented the defendant and, prior to the selection of the jury, made a motion for a continuance based on the assertion that he was unprepared for trial and that the defendant desired to retain private counsel. Mr. Rager stated that he did not have an opportunity to meet with the defendant before the case was called although a letter had been sent to defendant asking him to meet with the public defender. Mr. Rager said that the defendant stated that he had not received this letter. Parenthetically, it might be observed that in his declaration filed in support of his motion for new trial (which he abandoned), the defendant makes no contention that he did not receive the letter, only that he had contacted a private attorney.
In further support of the motion, Mr. Rager stated that the defendant stated that he was being represented in a criminal matter in Los Angeles by a Mr. Berger, a Los Angeles attorney, and that the defendant desired to retain Mr. Berger in the present matter. Mr. Berger made no appearance, filed no declaration and is a total stranger to these proceedings. Strangely enough, a Mr. Sugimura, a Riverside attorney, eventually substituted in for the public defender for a motion for new trial (which was withdrawn) and the pronouncement of judgment. If the mysterious Mr. Berger exists, he is notable for his absence from this case.
The trial court denied the motion, but put the jury selection over until after the noon recess to allow Mr. Roger to consult with the defendant. The court observed that the trial date had been set for over two months, witnesses were subpoenaed and present, and a jury venire had been summoned. He stated that the defendant had the responsibility of contacting the public defender before trial, whether or not he had received a letter requesting he meet with him, and that he could not come in on the day of trial and make a representation that he was going to retain private counsel and expect a continuance.
After the noon recess, Mr. Rager renewed his motion for a continuance, restating the grounds stated earlier and added that the defendant had advised him that he had money available to retain Mr. Berger but that Mr. Berger was on a vacation. He also stated that the defendant advised him that he had two witnesses from Los Angeles whom he wished to call. The court denied the motion and again observed that a period in excess of two months had elapsed between the time of plea and the time of trial, that if Mr. Berger were to come into the case he should have done so, and if he had done so and made a timely motion for continuance, it would have undoubtedly been granted. The court stated in making this ruling, 'It would be absolutely impossible for this or any other court to function efficiently, or at all, if a defendant could come into court on the morning of trial and present no better reason or grounds for continuance than has been made by the defendants in this case.'
The court also pointed out that in anticipation of this case proceeding to trial, another case which involved local witnesses and local defendants had been continued to enable this matter to be heard. Insofar as the belated advice to the public defender as to the two witnesses from Los Angeles, the court said, '* * * and the fact that the defendants have waited until the morning of trial to advise counsel that there are witnesses available in Los Angeles County to testify in their defense, that it is regretful that they have to their detriment waited this long.'
Nevertheless after the selection of the jury, the court put the case over until the next day in order to allow the defendant to make arrangements to procure the attendance of the witnesses and advised the defendant that the processes of the court were available to compel the attendance of these witnesses.
Again, parenthetically, it should be noted that while the trial lasted from December 13 to December 18, these witnesses were never called, nor is there anything in the record to indicate that any effort was made to subpoena them, nor was there any subsequent motion for a continuance to enable the defendant to produce these witnesses.
The next morning, December 14, Mr. Rager expressed a desire On the part of the defendant to dismiss the public defender and obtain private counsel, stating that The defendant felt there was a conflict of interest and had said that Mr. Berger would be there to represent him that morning. The court advised that it had never been contacted by Mr. Berger, nor had any attache of the court, nor had the district attorney. The court further stated that if Mr. Berger ever appeared, he would be allowed to substitute in for the public defender. The public defender did not join with the defendant in his contention of a conflict of interest and the court stated that it found nothing that indicated any conflict of interest. As indicated, Mr. Berger never appeared.
The case finally got under way the second day and no further continuances were requested for the duration of the case.
We shall discuss each of the four grounds which the defendant presented for a continuance.
PRIVATE COUNSEL.
Although there is not an Absolute right to be represented by a particular attorney, the courts will make all Reasonable efforts to insure that a defendant financially able to retain an attorney of his own choice can be represented by that attorney. Under certain circumstances, due process is denied to a defendant who is not granted a continuance in order to secure a private attorney of his own choosing. (People v. Crovedi, 65 Cal.2d 199, 207, 53 Cal.Rptr. 284, 417 P.2d 868.) A court will not interfere with the defendant's right to be represented by counsel of his choice unless to accommodate him would result in a disruption of the ordinary process of justice to an unreasonable degree. (People v. Butcher, 275 A.C.A. 73, 78, 79 Cal.Rptr. 618.) Obviously, each case is to be tried on its facts and in each case there must be a determination as to whether or not the trial court abused its discretion in denying a continuance for this or other grounds.
Here, there is no indication that the defendant attempted, during the almost four months which elapsed from the preliminary examination to the trial date, to retain private counsel. It is not at all clear that he ever contacted Mr. Berger. If he did, Mr. Berger never made an appearance and never contacted the court in any way. The defendant's unjustified delay in asserting his Desire to retain private counsel (whom he represented to the court at one time as being on vacation and another time as being expected in court the second day of trial), his making a request for a continuance on the day of trial, the failure of the alleged private counsel to contact the court, all clearly indicate that it was not an abuse of discretion for the court to deny a continuance where witnesses had been subpoenaed and a jury was waiting to try the case. To continue the trial at such a date on such nebulous grounds would adversely affect the orderly administration of justice. (People v. Brady, 275 A.C.A. 1113, 1123, 80 Cal.Rptr. 418.)
TRIAL PREPARATION.
To be entitled to a continuance on the ground of lack of preparation, ...
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