People v. Moss

• Citation: 61 Cal.Rptr. 107,253 Cal.App.2d 248
• Decision Date: 04 August 1967
• Docket Number: Cr. 333
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Richard MOSS, Defendant and Appellant.
• Court: California Court of Appeals

Page 107

61 Cal.Rptr. 107

253 Cal.App.2d 248

PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Richard MOSS, Defendant and Appellant.

Cr. 333.

Court of Appeal, Fifth District, California.

Aug. 4, 1967.

Hearing Denied Sept. 27, 1967.

Roland Vernon Howard, Merced, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Jack R. Winkler, Deputy Atty. Gen., Sacramento, for respondent.

STONE, Associate Judge.

Defendant was charged with armed robbery. A deputy public defender represented him at the preliminary hearing and in all matters up to the time of trial. The first day of trial was spent selecting a jury, the next day was a legal holiday, and on the following day when the trial was to resume a hearing was held in chambers, out of the presence of the jury. Defendant's counsel said:

'Your Honor, I would like to make a brief statement. Within the last hour, facts have come to my attention regarding the case which made me change the method in which I intended to present it. I have relayed these facts to Mr. Moss and Mr. Moss has indicated to me he's dissatisfied with this method and there may exist between us such a disagreement that he would not want me to represent him, and I want to bring that to the Court's attention and give Mr. Moss a chance, if he wishes, to make a motion to relieve me.'

The court then asked defendant if he intended to represent himself and he said that he did; the court advised him of the seriousness of the charge, the consequences of a conviction, and what would be expected of him if he undertook to represent himself. There followed this dialogue:

'THE COURT: In other words, I will not relieve Mr. Minor if there's the slightest doubt in your mind as to whether you want him or not to represent you.

THE DEFENDANT: It's nothing between Mr. Minor and myself, it's only the fact that he won't call the witness that I asked him to. That is why I made this statement to him.

'THE COURT: Well, Mr. Minor is an experienced trial lawyer. He's had this case since the time of your arraignment. I don't know if he represented you in the preliminary hearing or not.

THE DEFENDANT: Yes, he did.

'THE COURT: He's a man trained in law. He's handled quite a few criminal cases here as a Deputy Public Defender, and perhaps he's given you the benefit of his best judgment, which you ought to consider seriously before you release him.

THE DEFENDANT: Well, your Honor, this certain witness is the only witness I have in my defense that knows where I was this night and he's wanting to release her and this I don't want to happen and if it means going to the penitentiary, then I'll have to represent myself.

'THE COURT: Have you reached such a point, Mr. Minor, that you cannot call this witness?

MR. MINOR: No, I cannot, your Honor.

'THE COURT: I don't know who the witness is. I don't know what the testimony will be, but you feel secure that you cannot--

MR. MINOR: Absolutely.

'THE COURT:--as an attorney call her?

MR. MINOR: No, I cannot.

'THE COURT: All right. I will then release you. The defendant, Mr. Moss, will represent himself. I want the record to show that Mr. Moss hasn't asked for any other attorneys also, is that correct?

THE DEFENDANT: There's none available, I assume.

'THE COURT: There would be none available and since this jury was impaneled on Tuesday and we held out yesterday because of Columbus Day, we didn't have court. I won't grant a continuance at this late date because the jury is impaneled and ready to proceed. So with that understanding you will be relieved, Mr. Minor.'

We think the court's categorical denial that a lawyer was available, without making any inquiry on the point, together with the flat statement that no continuance would be granted, deprived defendant of his constitutional right to be represented by counsel, and brings the case within the ambit of People v. Crovedi, 65 A.C. 197, 53 Cal.Rptr. 284, 417 P.2d 868.

In Crovedi the defendant's attorney suffered a heart attack during trial and was unable to proceed. The court refused a continuance for a couple of months until the attorney's expected return to trial work, and appointed the disabled attorney's law partner as defense counsel, over the objection of both Crovedi and the partner. Under these circumstances, the trial was resumed in about three weeks. The Supreme Court held that defendant was denied his right to an attorney of his choice.

Respondent purports to distinguish Crovedi upon the ground the defendant there wanted a continuance in order to hire paid counsel of his choice, while here defendant is an indigent with appointed counsel. The distinction between an opportunity to obtain counsel of one's choice and the right to a continuance to obtain assigned counsel is said to be found in cases that follow the reasoning of People v. O'Neill, 78 Cal.App.2d 888, 179 P.2d 10. There the defendant sought to change assigned counsel, for no valid reason, and waited until the day of trial to make the request. The facts are clearly dissimilar.

In People v. Massie, 66 A.C. 937, 948, 59 Cal.Rptr. 733, 741, 428 P.2d 869, 877, the court held there was no error in denying a continuance where the defendant Massie sought a change of attorneys and the 'Appointment of some Private counsel.' The court pointed out that an indigent defendant has the right to assigned counsel but no right to have a Particular attorney appointed, and made the additional observation that

'Massie alleged no specific reason why the public defender could not adequately defend him.'

This points up the most critical distinction between the O'Neill and Massie line of cases and this case, namely, that in the cited cases the defendant had no reason for trying to jettison the appointed attorney. Here, the attorney and defendant reached an impasse on a crucial issue: whether to call defendant's chief alibi witness. They deemed the difference so fundamental that both advised the judge the attorney should be relieved of the duty to represent defendant. The deputy public defender told the judge that he had learned of the circumstance 'within the last hour.' Thus it is clear that defendant did not contrive a reason for change of counsel in order to get a continuance or, for that matter, to obtain a different attorney.

We believe the basic right to representation by counsel, made so clear by Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, encompasses the right to the appointment of different counsel when a legitimate difference of opinion develops between a defendant and his appointed counsel as to a fundamental trial tactic. When this occurs, the defendant is entitled to a reasonable continuance in order to effectuate a change of attorneys and obtain the representation by counsel he is entitled to have under the Constitution. The United States Supreme Court recently said, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149:

'Of course, nothing decided or said in the opinions in the cited cases links the right to counsel only to protection of Fifth Amendment rights. Rather those decisions 'no more than (reflect) a constitutional principle established as long ago as Powell v. Alabama (287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158) * * *.' Massiah v. United States, supra, 377 U.S. at 205, 84 S.Ct. at 1202. It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate the accused's right to a fair trial. The security of that...