People v. Robinson, Cr. 5528

• Decision Date: 27 April 1954
• Docket Number: Cr. 5528
• Citation: 269 P.2d 6,42 Cal.2d 741
• Court: California Supreme Court
• Parties: PEOPLE v. ROBINSON.

Page 6

269 P.2d 6

42 Cal.2d 741

PEOPLE v. ROBINSON.

Cr. 5528.

Supreme Court of California, In Bank.

April 27, 1954.

Howard S. Robinson in pro. per. and Joseph T. Forno, Los Angeles, under appointment by the Supreme Court.

Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

SCHAUER, Justice.

Defendants Howard S. Robinson and Therman B. Pratt were charged by information with two counts of robbery; Robinson was charged with having suffered three prior convictions of felony and Pratt with having suffered one such conviction; the information further alleges that at the time of the commission of the robbery charged in Count II defendants were armed with a deadly weapon. The defenses of the defendants were independent of each other; the evidence was sufficient to support either a conviction or an acquittal of either or both defendants on either or both counts. A jury found that Robinson was guilty of the offense charged in Count II; that he was armed as charged at the time of the commission of such offense; and that Pratt was not guilty of the offense charged in Count I. The jury were unable to reach verdicts as to the remaining issues and the trial court declared a mistrial as to such issues. Robinson's motion for new trial was denied and he did not appeal from the order of denial. On motion of the prosecuting attorney Count I of the information against Robinson was dismissed. Robinson appeals from the ensuing judgment of conviction of Count II. He contends that he was deprived of the right to counsel of his choice because, over his request for a continuance to enable him to secure independent counsel, he was required to go to trial represented by counsel for Pratt although such counsel had informed Robinson and the trial judge that there might be a diversity of interest between Robinson and Pratt and had suggested that Robinson should secure other counsel. It is our conclusion that under the circumstances shown the trial court's denial of a continuance to afford Robinson a reasonable opportunity to obtain his own counsel requires a new trial.

The crimes charged were committed in Los Angeles on June 4 and June 22, 1952. The circumstances relating to Robinson's opportunity to obtain counsel of his choice are as follows: Robinson and Pratt were arrested on June 22. Attorney A. P. Coviello represented both defendants at the preliminary hearing. The information was filed on July 17, 1952. On July 21 defendants, still represented by Mr. Coviello, were arraigned and pleaded not guilty. Trial was set for August 18. On August 18 the cause was called for trial and the following occurred:

'Mr. Coviello: Your Honor, in this case, unfortunately, I am not quite ready here. Mr. Robinson at least 10 days ago, or two weeks ago, had consulted other attorneys. I don't want to go into a lot of detail, but he did tell me in the attorneys' room that he didn't want me to represent him I indicated that I wanted him to secure counsel. I felt that there might be a diversity of interest between my client, Mr. Pratt, and Mr. Robinson. I have known Mr. Pratt for some time.

'He has told me this morning here that he hasn't made definite arrangements with any attorney. I don't know if he has consulted a public defender or not. I want to assure your Honor I can't represent him in court if he doesn't want me to. As far as I am concerned, I am ready to defend both these men, and I did go originally on the assumption that I would defend both of them, but I say again at least two weeks ago, or 10 days ago, I told him in the attorneys' room I thought it would be wise for him to get another attorney so there would be no question of diversity of interests here. In view of what he said I think I would like to ask the Court to continue it for at least a week. I will leave it up to him here, if your Honor wants to interrogate him.

'Defendant Robinson: I would like to ask this case be continued for two weeks because I would like to get an attorney. 'The Court: What do you gentlemen want to do in this matter?

'Mr. Russell (deputy district attorney): Well, we have quite a few witnesses here. It seems to me that the matter should have been put on the calendar when some question arose between counsel and his client as to the situation. I haven't been advised prior to this time that there was any contemplation of continuance.

'The Court: Is the public defender here?

'Mr. Russell: No, your Honor. I might state, so far as our calendar is concerned, it will have to go at least to the latter part of September.

'The Court: In view of the large number of witnesses here, I prefer not to continue the matter. Perhaps we could get a public defender at the last moment.

'Mr. Russell: The public defender wouldn't accept the case, if they had to go to trial today. I don't think it would be fair to them. They would require some opportunity to prepare for trial in the matter.

'The Court: Under the circumstances, I will pass this case for the moment. I would like to talk to Mr. Russell and Mr. Coviello in this Robinson and Pratt case.

'(Conference in chambers off the record.)

'(Other matters heard.)'

Later on August 18 a jury was impaneled and the trial proceeded with Mr. Coviello representing both defendants and without further comment by Mr. Coviello or defendant Robinson as to Coviello's representation of Robinson.

The victim of each crime identified defendants as its perpetrators. A passer-by who witnessed the second robbery noted the license number of a Chevrolet automobile which was used by the robbers. Shortly after the robbers fled from the scene of the second crime, police officers in a radio patrol car observed the Chevrolet (which was stolen and which bore stolen license plates of another car) outside a cafe. According to their testimony Robinson was then in the automobile and Pratt was in the cafe. They arrested the defendants. In the Chevrolet were a gun which the victim of the second robbery testified had been used in the commission of that crime and a bottle of wine on which was a thumb print which, in the opinion of an expert, was Pratt's; on the steering wheel was a finger print which, in the opinion of the expert, was Robinson's. The officers took the defendants to the City Hall in the patrol car. When they reached there, according to the testimony of one of the officers, he found between the back and the rear seat of the patrol car a wallet which had been taken from the second victim and another wallet which was not connected with this case.

On June 4 Robinson had attempted to cash a check which had been taken in the robbery of that day: the credit manager of the store where Robinson attempted to cash the check stated that it had been reported taken in a robbery and that he was summoning a policeman. Robinson thereupon went out of the store, leaving the check.

Each defendant took the stand and testified to an independent alibi for each crime. Each testified that he did not know how to operate an automobile. Each testified that he had entered the cafe alone. Pratt testified that he told the arresting officers that he had never seen Robinson before he entered the cafe; Robinson testified the the extent of his acquaintance with Pratt was that he had 'seen him around * * * several times.' Each defendant testified that he had not been in the Chevrolet automobile at the time of or prior to his arrest, that he had not seen the above mentioned gun, wallet of the second victim, or wine bottle until he was taken to the City Hall. Robinson testified that he acquired the check which he attempted to cash on June 4 in a gambling game.

That the jury considered that this was a close case factually appears from the following circumstances: Although, so far as the reporter's transcript shows, the witnesses were equally positive in their identification of each defendant, the jury, as previously stated, acquitted Pratt of the charge in Count I, convicted Robinson of the charge in Count II, and were unable to agree whether Pratt was guilty of Count II and Robinson of Count I. The jury retired to deliberate at 9:55 a. m. on August 22 and returned to court on two occasions to have certain testimony read (the record does not disclose what testimony was read); at 11 p. m. they were sent to a hotel for the night; at 10 a. m. on August 23 they resumed deliberations and t 2:45 p. m. they returned to the court room, returned verdicts on some of the issues, and the court declared a mistrial as to the other issues.

The right to counsel assured in the federal courts by the Sixth Amendment to the United States Constitution and in the courts of this state by section 13 of article I of our Constitution includes the right to the undivided assistance of counsel of defendant's own choice and this right is denied by forcing upon a defendant, over his and counsel's objection, an attorney who has been employed to represent a co-defendant. In this connection the United States Supreme Court has held (in Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680).

'Even as we have held that the right to the assistance of counsel is so fundamental that the denial by a state court of a reasonable time to allow the selection of counsel of one's own choosing, and the failure of that court to make an effective appointment of counsel, may so offend our concept of the basic requirements of a fair hearing as to amount to a denial of due process of law contrary to the Fourteenth Amendment (citation) so are we clear that the 'assistance of counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent confliciting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. (P. 70 of 315 U.S., p. 464 of 62 S.Ct.) * * *

'There is yet another...