People v. Prado

• Decision Date: 21 March 1961
• Docket Number: Cr. 7403
• Citation: 190 Cal.App.2d 374,12 Cal.Rptr. 141
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Joel PRADO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 141

12 Cal.Rptr. 141

190 Cal.App.2d 374

PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Joel PRADO, Defendant and Appellant.

Cr. 7403.

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

March 21, 1961.

Ernest Joel Prado, in pro. per., for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman H. Sokolow, Matthew M. Kearney, Deputy Attys. Gen., for respondent.

ASHBURN, Justice.

Defendant appeals from a judgment of conviction of unlawfully possessing heroin. Two prior felony convictions were found to be true and defendant was sentenced to State Prison.

Jury trial was waived and by stipulation the matter was submitted upon the transcript of the preliminary hearing. Appellant did not testify.

Appellant, filing his brief in propria persona, states that his 'primary ground of contention is that the failure and ineffectiveness of his counsel in the courts below was so great as to amount to a lack of representation by counsel.' He points, first, to the fact that defense counsel entered into a stipulation as to the qualification of the prosecution's witness to testify as an expert chemist, and that if called he would testify that the exhibit in question was received by him from the Property Division of the Los Angeles Police Department, that he made a chemical examination of same and formed the opinion that it contained heroin. The second claim is that his counsel failed to object to the introduction into evidence of the narcotics which it is contended were illegally obtained.

Appellant was represented by counsel of his own choice at all stages of the proceedings, and the record contains no complaint or suggestion by appellant that he was not adequately represented in the trial court. The following statement by the court in People v. Wilson, 78 Cal.App.2d 108, 119-120, 177 P.2d 567, 573, is pertinent and a complete answer to appellant's first contention: 'Defendant was present and heard her attorney enter into the stipulations. She at no time objected thereto nor sought to be relieved therefrom, nor did her attorney make any such request in her behalf. No contention is advanced that the stipulations were not in accordance with the facts * * *. It would appear that the stipulations were made in the exercise of good judgment on the part of defendant's attorney and that defendant was not prejudiced thereby. But however this may be, defendant is in no position to question the authority of her attorney. When the stipulations were made in her presence and the terms and import of them were fully understood by her, their binding force did not rest upon the authority of the attorney derived from the attorney and client relationship, any more than it did upon her consent thereto, which was evidenced by her silence. An attorney has implied authority to enter into stipulations affecting procedure in the trial, as distinguished from those which go to the cause of action itself [citation], and a defendant may not assert on appeal procedural rights which he waived at the trial. [Citation.]' See also, People v. Kobey, 105 Cal.App.2d 548, 560, 234 P.2d 251; People v. Hanna, 36 Cal.App.2d 333, 336, 97 P.2d 847.

As to appellant's second contention, it is well established that '[i]f defendant felt his counsel did not adequately represent him he should have complained to the trial court and given that court an opportunity to correct the situation. In the absence of such complaint the acts of defendant's counsel are imputed to him. [Citations.]' People v. Youders, 96 Cal.App.2d 562, 569, 215 P.2d 743, 748. In People v. Hood, 141 Cal.App.2d 585, 589, 297 P.2d 52, 55, the court states that 'the rule announced in the Youders case, supra, does not require that complaint be made of specific acts on the part of counsel, but affords him the opportunity to complain when, at any time during the trial his counsel did not adequately represent him, thereby affording the trial court an opportunity to correct the situation. Not having availed himself of this privilege, appellant cannot now, after an adverse judgment, for the first time complain. [Citation.]'

We do not find that counsel's representation of appellant was of 'such a low order as to render the trial a farce and mockery of justice' as contended by appellant, nor that the situation is comparable to People v. Davis, 48 Cal.2d 241, 309 P.2d 1 upon which he relies. It is stated in People v. Dupree, 156 Cal.App.2d 60, 69, 319 P.2d 39, 45: 'Before it can be held that an accused's representation by counsel was inadequate to the degree that it violated his right to representation under the Fourteenth Amendment to the Constitution of the United States, an extreme case must be disclosed. The representation must be of such a low order as to render the trial a farce and a mockery of justice (Diggs v. Welch, 148 F.2d 667, 669), or it must be shown that the essential integrity of the proceeding as a trial was destroyed by the incompetency of counsel (United States ex rel. Weber v. Ragen, [7 Cir.] 176 F.2d 579, 586). * * * While the opportunity to try his former lawyer has its undoubted attraction to a disappointed prisoner, the courts are uniform in holding that the claimed absence of effective representation will not be sustained unless the circumstances surrounding the trial indicate a representation so lacking in competence that it becomes the duty of the court to observe and to correct it.' In reply to contentions very similar to those raised by appellant herein, the court in People v. Amado, 167 Cal.App.2d 345, at page 347, 334 P.2d 254, at page 256, after...