People v. Sewell

• Decision Date: 24 June 1977
• Docket Number: Cr. 29404
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Henry SEWELL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 389

139 Cal.Rptr. 389

71 Cal.App.3d 114

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Henry SEWELL, Defendant and Appellant.

Cr. 29404.

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

June 24, 1977.

As modified on Denial of Rehearing July 13, 1977.

For Opinion Hearing, see 143 Cal.Rptr. 879, 574 P.2d 231.

Paul Arthur Turner, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Roger W. Boren, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Defendant William Henry Sewell was convicted by a jury of three counts of murder in the first degree. Allegations that he used a firearm at the time of commission of the offenses were found to be true. Sentence as to the firearm use on two of the counts was suspended. Sentences as to all counts were ordered to run concurrently with each other and consecutively with a life sentence imposed in Maryland. Defendant was transmitted to Maryland who had first call on him. He appeals the judgment of conviction. We affirm.

The facts underlying the defendant's conviction are summarized only briefly since defendant does not attack the sufficiency of evidence to sustain the judgment of conviction.

During June 1973, the defendant who was an escapee from the Maryland State Prison departed by automobile from Atlantic City, New Jersey, en route to Los Angeles. He was accompanied by Reggie Gladden, Benny Stokes and Orieton (Ordy) Houston. They carried a cargo of stolen musical instruments which they intended to sell in order to buy narcotics for resale on the East Coast.

In Los Angeles they went to the home of Sylvanus Caswell who was to arrange the sale of the goods through a 'fence.' The plan fell through and the partners were forced to peddle their wares in smaller quantities and at a price below expectations.

After a week of indifferent success and having failed to make connections with narcotics dealers the group planned to return East with the exception of the defendant who was remaining in Los Angeles because he feared apprehension in Maryland.

During the early morning of July 8, 1973, the defendant shot and killed Caswell, Houston and Stokes while they lay asleep in Caswell's apartment. Defendant fled to Maryland that night and was later apprehended there during the commission of another crime.

DENIAL OF MOTION TO DISMISS UNDER PENAL CODE SECTION 995

Defendant's first contention is that the trial court should have granted his motion to dismiss pursuant to Penal Code section 995 on the grounds that at the preliminary hearing he was denied his right to self-representation and was improperly denied a continuance.

At the preliminary hearing defendant stated to the magistrate that he was having 'differences' with the deputy public defender and requested that a private attorney be appointed. When this request was denied defendant asked to be and was permitted to appear in propria persona.

During a colloquy with the magistrate in connection with his request to be permitted to represent himself defendant asked that he be given 'a certain amount of time to familiarize myself with the proper procedures . . ..' The continuance was refused on the grounds that the case had previously been continued and that a further continuance for the purpose stated was counter to the magistrate's pronouncement that he would not extend special concessions to one who was determined to appear in propria persona.

Upon being relieved as counsel for defendant the deputy public defender turned over to the defendant numerous documents which had been obtained by way of discovery proceedings.

On the following day defendant formally moved to be granted in propria persona status (which the court had already given). When he asked for advisory counsel, which he termed co-counsel, the court refused, giving the defendant the alternative of using the appointed public defender or acting in propria persona.

The following colloquy then took place between the magistrate and defendant.

'THE COURT: Call your first witness. THE DEFENDANT: Your Honor--THE COURT: Yes. THE DEFENDANT: I would like to make an application that you disqualify yourself because as you stated you know Mr. O' Brien [deputy public defender] to be a very competent witness--I mean an attorney; so like John Mitchell and President Nixon were competent, and they strayed. Like I said, I have proof that Mr. O'Brien was not acting in my best interest, and you refused to hear it and therefore, you know, I would like you to relieve yourself. I cannot receive justice in this courtroom, because my freedom is at stake. I am being tried, not Mr. O'Brien or anyone else. THE COURT: I realize that and you were granted pro per. No, your motion is denied. THE DEFENDANT: Well, I would like to be relieved of the courtroom then. THE COURT: No, Mr. Sewell. You are going to be tried regardless of your delaying tactics by you or any others. THE DEFENDANT: Because I don't--THE COURT: You were told yesterday--THE DEFENDANT: I am not familiar with the case. I don't know anything about it. I haven't had time to research on anything. THE COURT: In other words, you are telling me you cannot act as your own attorney? Is that what you are stating? THE DEFENDANT: That's right. THE COURT: All right. Bring in Mr. O'Brien. He will be your attorney. You cannot act as your own attorney. THE DEFENDANT: Mr. O'Brien cannot. THE COURT: He will be your attorney. THE DEFENDANT: I am sorry--THE COURT: Bring Mr. O'Brien. The defendant has stated he cannot be his own attorney. Call Mr. O'Brien.'

The United States Supreme Court stated in Faretta v. California, 422 U.S. 806, at p. 835, 95 S.Ct. 2525, at p. 2541, 45 L.Ed.2d 562: 'When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. , at 464-465, 58 S.Ct. [1019] at 1023, 82 L.Ed. 1461, 146 A.L.R. 357. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' Adams v. United States ex rel. McCann, 317 U.S. , at 279, 63 S.Ct. at 242, , .' (Emphasis added.)

In the case at bench the defendant quite obviously chose pro per status only because he had no other alternative to the services of the public defender. The magistrate properly refused to appoint a private attorney in the absence of any disqualification of the public defender. (Drumgo v. Superior Court, 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007.) Refusal to appoint an advisory or co-counsel was also a proper exercise of discretion. (People v. Harris, 65 Cal.App.3d 930, 135 Cal.Rptr. 668.)

In rejecting the named public defender at the preliminary hearing because of 'differences' and in asking that any other attorney be appointed the defendant made it clear that he did not unequivocally desire to appear as his own attorney in spite of his request to do so.

The magistrate had only granted the defendant pro per status because of the compulsion of Faretta. In reversing that decision the magistrate accurately assessed the defendant's posture as being obstructive as well as arising from a genuine desire for assistance of counsel, albeit assistance from other than the public defender. The magistrate was entitled to believe that the defendant's statement that he did not wish to act as his own attorney sprang perhaps less from his dismay upon being given the numerous documents comprising the defense discovery than it did from his conviction that he had too much at stake to dispense with the aid of trained counsel.

Furthermore the defendant's request for self-representation was untimely. The request came only after the preliminary hearing had been pending for six months and after proceedings had begun. A request to change attorneys must be made at a reasonable time prior to a trial or hearing. That question is a matter for the discretion of the court. (People v. Windham, 19 Cal.3d 121, 128, 137 Cal.Rptr. 8, 560 P.2d 1187.) No abuse of that discretion is perceived here.

MOTION FOR CONTINUANCE

After the jury was selected and sworn the prosecution delivered to defense counsel a substantial number of documents pursuant to the discovery order. Defense counsel claimed that the late delivery of these documents rendered him unable to prepare for trial. He requested a thirty day continuance. The trial court denied that request but did grant a continuance for one week.

Defendant contends that the late compliance with the discovery order amounted to suppression of evidence and that the denial of the request for a continuance was prejudicial. We disagree.

First it appears that much of the documentation had previously been submitted by the prosecution to defense counsel's predecessor and that there was perhaps a failure of communication between deputy public defenders. In any event at the close of the week when the parties resumed trial the defense was unable to point to a single document or witness which required further investigation or interview in order to be ready for trial. Additionally the defense utterly failed to show which documents were the subject of belated production and what, if any, effect their delayed production would have upon the defense of the case.

A careful review of this complicated record which...