People v. Ortiz, Cr. 7639
| Court | California Court of Appeals |
| Writing for the Court | HERNDON; FOX, P. J., and ASHBURN |
| Citation | 15 Cal.Rptr. 398,195 Cal.App.2d 112 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Salvador ORTIZ, Defendant and Appellant. |
| Docket Number | Cr. 7639 |
| Decision Date | 22 August 1961 |
Page 398
v.
Salvador ORTIZ, Defendant and Appellant.
Page 399
[195 Cal.App.2d 113] Salvador Ortiz, in pro. per.
Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., C. Michael Gianola, Deputy Atty. Gen., for respondent.
HERNDON, Justice.
In a trial before the court without a jury, appellant was convicted and sentenced to state prison for a sale of heroin in violation of section 11501 of the Health and Safety Code. At the conclusion of the trial, he admitted a prior conviction of a violation of section 11500 of the Health and Safety Code.
Appellant does not question the sufficiency of the evidence to sustain the judgment. His only contentions are that he was deprived of his constitutional rights to be represented by counsel[195 Cal.App.2d 114] and to have witnesses produced in his behalf and that he was thereby denied due process of law.
It appears from the record that prior to appellant's arraignment, the public defender was regularly appointed to represent him. On November 18, 1960, he appeared before the court with the public defender as his counsel and was duly arraigned. He appeared with his said counsel on November 23, 1960, and entered a plea of not guilty. The case was set for trial on January 16, 1961, in Department 112 of the court. On January 16, 1961, appellant appeared in the designated department with the deputy public defender as his counsel. In the record on appeal as originally filed, the proceedings on this date were reflected only by a minute order which, among other things, recited that the public defender was relieved as appellant's counsel and that he was substituted in propria persona.
Page 400
In view of appellant's complaint that the record on appeal was incomplete and did not show the circumstances under which the public defender was relieved as his counsel, this court, on its own motion, ordered that a supplemental reporter's transcript containing the proceedings in the case on January 16, 1961, in Department 112 be prepared, certified and transmitted to this court.
The record as thus augmented clearly and conclusively shows that the trial court relieved the public defender and substituted appellant in propria persona at his insistence. When asked why he did not wish to have the public defender represent him, he said, 'Well, I feel he is quite busy and hasn't got enough time to take care of my case'. The gave no other reason.
When appellant then indicated that he would move to have private counsel appointed, the court advised him that he had given no sufficient reason for discharging the public defender and that the court would not appoint another attorney to represent him at taxpayers' expense. Appellant stated that if another attorney were not appointed, he wished to represent himself.
The trial court took great pains to inform appellant of the seriousness of the charge with which he was confronted and the dangers with which declination of counsel was fraught. The trial judge strenuously urged upon appellant the court's feeling that it would be advisable for him to avail himself of the services of his appointed counsel who was then and there ready, willing and able to represent him. The court concluded by saying, 'I would suggest that you keep the Public Defender,[195 Cal.App.2d 115] but that is all I can do, is to suggest it. I can't require you to do so. What do you want to do?' Appellant refused to withdraw his reiterated request that the public defender be relieved and stated that he preferred to represent himself. The court then made its order accordingly.
Thereafter, the court inquired of appellant whether or not he desired a continuance of the trial for the purpose of preparing his case. When he answered in the affirmative, he was asked how much time he would need. He answered, 'a couple of weeks'. The court thereupon ordered the trial continued to January 31, 1961.
On January 31, 1961, appellant appeared in propria persona and waived a jury trial, whereupon the case was transferred to...
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