People v. Nunn

• Decision Date: 20 December 1963
• Docket Number: Cr. 9048
• Citation: 223 Cal.App.2d 658,35 Cal.Rptr. 884
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James William NUNN, Defendant and Appellant.

Page 884

35 Cal.Rptr. 884

223 Cal.App.2d 658

The PEOPLE of the State of California, Plaintiff and Respondent, v. James William NUNN, Defendant and Appellant.

Cr. 9048.

District Court of Appeal, Second District, Division 2, California.

Dec. 20, 1963.

Hearing Denied March 12, 1964.

Leonard Nasatir, Los Angeles, by appointment of the District Court of Appeal, for appellant.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

Appellant appeals from the judgment ¹ convicting him and a co-defendant of the crime of first degree burglary. He admitted the charge that he had suffered a prior burglary conviction.

It appears from the evidence that at approximately 2:15 a. m. on July 24, 1962, Mr. and Mrs. Clark were awakened by noises in their bedroom. Mrs. Clark heard a drawer in the bedroom being closed and then saw a man walk rapidly past her bed. She went to the front door and saw her twenty-five-year-old son Richard drive up in his car. As Richard approached the residence he had observed appellant and his co-defendant, at a distance of about one hundred fifty feet therefrom, walking in the opposite direction. His headlights struck both men when he was only a few feet from them and at the trial he was able to identify them positively.

The Clarks discovered the contents of the wife's purse scattered in the living room; the money it had contained was missing. Mr. Clark's wrist watch was also missing. The police were called and descriptions of the missing items of property and of the men seen leaving the area were given them. Appellant and the co-defendant were observed near a coffee shop approximately an hour later. They readily consented to empty their pockets, and in both their wallets money was found that matched the denominations missing from Mrs. Clark's purse. Richard Clark was called to the scene and identified the two men as those earlier described by him to the officers. A further search of the two men was made, and Mr. Clark's watch was found in the coat pocket of the co-defendant.

While they were being transported to the police station by Officer Brundage, he asked them: 'Just for the sake of argument, how did you get away from the scene of the burglary with so many police vehicles in the area?' The co-defendant answered, 'We left before the police cars got there.' The officer then asked, 'How did you happen to pick that particular house?' The co-defendant stated that they had not picked a particular house. Appellant made no response either to the questions or to his co-defendant's admissions. Neither appellant nor the co-defendant testified at the trial and neither called any witnesses in his own behalf.

Appellant's sole assignment of error is that he was prejudiced by the failure of the trial court to appoint counsel for him on the date set for trial, and that as the result thereof his waiver of a jury trial was ineffective.

The record before us indicates that on August 16, 1962, a deputy public defender was appointed for each defendant. They were arraigned at that time but were granted a week's continuance before entering their pleas. On August 23, 1962, the motion of the deputy public defender to be relieved as counsel for appellant was granted. The same public defender continued to represent the co-defendant who thereupon entered a plea of not guilty. Appellant's cause was continued to August 30, 1962, for purposes of plea and to allow him to secure private counsel.

On August 30, 1962, appellant was present with counsel, Louis W. Shaffer. He moved to dismiss the information under section 995 of the Penal Code and 'for severance.' These motions were set for hearing on September 6, 1962. On this later date the motion under section 995 was withdrawn and the motion for severance denied. Appellant entered a plea of 'not guilty' and trial was set for October 1, 1962, the same date set for his co-defendant on August 23, 1962.

On September 27, 1962, the matter was advanced upon motion of appellant and his counsel in order that a continuance of the trial date might be requested. The continuance was granted to October 15, 1962. Appellant was arraigned on the charge of the prior conviction which he admitted. On October 15, 1962, both parties were present with counsel. Upon appellant's motion, his counsel was relieved and the matter continued to November 13, 1962. On November 13, 1962, appellant appeared without counsel, moved for a further continuance, which was granted, and the cause was continued to January 7, 1963. On January 7, 1963, the action was again called for trial and the following proceedings were reported:

'THE COURT: Mr. Nunn, are you represented by counsel? DEFENDANT NUNN: I have been unable to obtain counsel. THE COURT: You remember what I told you the last time you were here, that you were going to try your own case today if you were not represented by counsel? DEFENDANT NUNN: Yes, I do, your Honor. I had good and serious intentions but the family finances wouldn't permit it. THE COURT: Are you still employed? DEFENDANT NUNN: I was going to ask the Court to appoint one. THE COURT: Not at this time, Mr. Nunn. I warned you the last time. Do you want me to read back what I told you the last time? I had the Reporter read it to me this morning. This is the fourth time that this case has been continued. DEFENDANT NUNN: I know what you told me the last time. THE COURT: I warned you that if you did not come in with counsel, that you should be prepared to try it yourself; do you recall that? DEFENDANT NUNN: Yes.

'THE COURT: On all of these occasions that it has been continued, I warned you that we couldn't appoint the public defender for you because of the money that you were making. You have had private counsel once, and he has been relieved. This case has been pending since August and it is going to have to be tried, Mr. Nunn. DEFENDANT NUNN: I realize that, and for quite awhile I was doing pretty well financially, but then this slack season came up and a few financial crises arose. THE COURT: As I recall, you were making $165 a week and I can't furnish a lawyer to anybody who is making $165 a week. DEFENDANT NUNN: I was averaging that at the time I told you that. THE COURT: We will hold it for trial. You will have to try your own case.'

Thereater, when the case was again called the following proceedings were had regarding the issue of jury waiver: 'MR. BRUNDAGE: [Deputy District Attorney] Your Honor, I have discussed with Mr. Nunn the possibility of whether he wished to waive a jury and be tried by the Court, your Honor, and he informs me at the present time that he wishes to have the matter tried by your Honor in a court trial.

'Is that true, Mr. Nunn? DEFENDANT NUNN: Yes. I don't feel capable of trying a case in front of a jury, and I believe that the Court is capable of fully deciding the matter satisfactorily. THE COURT: What is the position of your client, Mr. Schoenheit? MR. SCHOENHEIT: [Deputy Public Defender] We are willing to waive a jury. THE COURT: You are willing to waive? MR. SCHOENHEIT: Yes. THE COURT: Mr. Nunn and Mr. Field, from what has been said, I understand that both of you now have decided to waive your right to a jury trial in this case, is that right? DEFENDANT FIELD: Yes. DEFENDANT NUNN: Yes, I believe I should. THE COURT: You both understand that you are entitled to a jury trial? DEFENDANT FIELD: Yes. DEFENDANT NUNN: Yes. THE COURT: You are both waiving that right voluntarily, are you? DEFENDANT FIELD: Yes. THE COURT: Mr. Nunn? DEFENDANT NUNN: Yes. THE COURT: Very well.'

In support of his contentions appellant relies largely upon the conceded fact that 'The right to counsel is a fundamental constitutional right, which has been carefully guarded by the courts of this state.' (In re James, 38 Cal.2d 302, 310, 240 P.2d 596.) However, as pointed out in People v. Adamson, 34 Cal.2d 320, 332-333, 210 P.2d 13, 19: 'Of course defendant's right to counsel does not include the right to postpone the trial of a case indefinitely and reject the services of the public defender while defendant, at his leisure, attempts to find counsel who will serve without charge and of whom defendant * * * approves[s]. (See People v. Manchetti (1946), 29 Cal.2d 452, 458, 175 P.2d 533, and cases there cited.)'

Or, as stated in the earlier case of In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10, and recently repeated in People v. Thomas, 58 Cal.2d 121, 131-132, 23 Cal.Rptr. 161, 166-167, 373 P.2d 97, 102-103: 'The right to the assistance of counsel guaranteed by the constitutional and statutory provisions, like any other legal right, may be invoked only in the course of orderly procedure. A defendant who, with an intelligent conception of the consequences of his act, declines the aid of counsel prior to or at the commencement of his trial, is not entitled thereafter to interrupt and delay the hearing at any state he deems advantageous merely to interpose a demand for legal assistance. * * *'

It should be noted also that although appellant relies heavily upon the recent decision in Gideon v. Wainwright, 372 U.S. 335, 339-340, 83 S.Ct. 792, 9 L.Ed.2d 799, the present case clearly is not one involving an indigent defendant. Defendant in his own statements to the trial court conceded that he had advised that court that he was earning an average of $165 a week and, further, that he 'was doing pretty well financially until a few financial crises arose.' He did not answer the judge's inquiry, 'Are you still employed?', but merely stated, 'I was going to ask the Court to appoint one [an attorney].'

In addition to his failure to obtain an attorney during a period when admittedly he was financially able to do so, the record reveals that at the probation and sentence hearing, when appellant first complained of the court's failure to appoint counsel for him, he stated that he had not requested that the public defender be relieved. In response to...