People v. Manning
| Decision Date | 16 June 1981 |
| Docket Number | Cr. 39270 |
| Citation | 174 Cal.Rptr. 625,120 Cal.App.3d 421 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Hudson Edward MANNING, Defendant and Appellant. |
Quin Denvir, State Public Defender, Kelvin D. Filer, Deputy State Public Defender, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz, Jane M. Began, Deputy Attys. Gen., for plaintiff and respondent.
Defendant was convicted in a nonjury trial of the crime of assault with a deadly weapon. He was found not guilty of a count of false imprisonment. We affirm the conviction.
The prosecution produced evidence that defendant assaulted an elementary school teacher on the school grounds by striking her in the head with a rock which he held in his hand. The injury required suturing and emergency hospital treatment.
Defendant first accosted the victim in the classroom and, after forcibly detaining her there for a period of time, dragged her outside the building where the assault took place.
Defendant offered no evidence. On appeal his only contention is that his trial counsel was not permitted to present a final argument to the court prior to the decision finding him guilty of the crime of assault with a deadly weapon.
The source of defendant's contention lies in the following passage from the reporter's transcript.
A corollary to the constitutional right to be represented by counsel is the right of counsel to present argument to the court or jury in an attempt to persuade the fact finder of the defendant's innocence. (People v. Green, 99 Cal. 564, 34 P. 231; Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593; In Re William F., 11 Cal.3d 249, 113 Cal.Rptr. 170, 520 P.2d 986.)
Further, Penal Code section 1093, subdivision (5) provides in part:
"When the evidence is concluded, unless the case is submitted on either side, or both sides, without argument, the district attorney, ... and counsel for the defendant, may argue the case to the court and jury; ..."
Thus since the right is both constitutional and statutory, it cannot be denied. Like any other such right, however, it can be waived. In looking at the above quoted passage from the reporter's transcript, the Attorney General sees an implicit waiver of argument, while defendant's attorney sees a denial of the right to argue. According to defendant he never had an opportunity to waive argument since the trial court announced its verdict immediately after the defendant rested his case.
In People v. Dougherty, 102 Cal.App.3d 270, at 272-3, 162 Cal.Rptr. 277, the Court of Appeal for the Fifth District, had before it a case in which the same issue was raised and the critical passage from the reporter's transcript was as follows:
The court there in a two to one decision, found that there had been no waiver of argument because "insofar as this record shows" there was no opportunity to waive argument. Continuing, the majority disavowed any requirement of an affirmative waiver on the record, and eschewed any need to determine what would suffice as an implied waiver, since the majority was convinced that none had occurred in that case. The holding then is indeed a narrow one.
In People v. Dougherty, supra, the majority additionally commented that a request for argument after the decision or at the time of a motion for a new trial would be futile.
Presiding Justice George Brown, dissenting, observed that the trial judge was seasoned and experienced and should be presumed to have performed his duty. It was thus quite likely that defense counsel had, in some manner, indicated a lack of desire to argue. Presiding Justice Brown suggested that the obligation to request argument should rest with counsel and the appellate court should not further add to an already over-extended list of sua sponte duties of a trial judge.
As we will discuss, infra, we find the dissenting opinion more persuasive, and indeed more in tune with the realities of the criminal trial court.
It appears to us that the majority in Dougherty and the defendant here necessarily, but erroneously, assume that because the transcript of what occurred in the trial court shows certain statements by court and counsel as being made sequentially, that those statements were made with machine-gun like rapidity without pause and without any inflection in the voice or facial or physical gestures on the part of the speaker.
Only by viewing the record in such a mechanical fashion can one reach the conclusion that counsel had no opportunity to request argument prior to the pronouncement of the decision.
In both Dougherty and in the case before us even as much as a second of hesitation between the final remark of counsel and the statement of the court in announcing its judgment, would have afforded an...
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Spence v. State
...appellate panels, and has not been followed, In re Michael W., 175 Cal.Rptr. 886 (1981) (juvenile proceedings); 2 People v. Manning, 120 Cal.App.3d 421, 174 Cal.Rptr. 625 (1981). In short, no state's highest court has gone as far as the majority does Maryland case law does not counsel the r......
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Com. v. Miranda
...We cannot fairly imagine a time break between the judge's first sentence and those that followed. Contrast People v. Manning, 120 Cal.App.3d 421, 425-426, 174 Cal.Rptr. 625 (1981). Rather, his four sentences together constituted an unbroken thought--that argument was superfluous because he ......
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State v. Hebert, 25754.
...when the trial judge begins announcing his or her judgment without allowing a closing argument. The case of People v. Manning, 120 Cal. App.3d 421, 174 Cal.Rptr. 625 (1981), is illustrative. In Manning, the defense counsel had "rested" after telling the trial judge that he was not going to ......
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Spence v. State
...In subsequent cases the California Courts have all but refused to apply the People v. Dougherty rule. See, e.g., People v. Manning, 120 Cal.App.3d 421, 174 Cal.Rptr. 625 (1981).2 Defense counsel strenuously argued the merits of the instant case with reference to robbery, theft and burglary ......