*1 Dist., 16, 1972.] Aug. [Crim. No. 9594. First Div. One. PEOPLE,
THE Plaintiff Respondent, JACOBS, RAY
CLARENCE Defendant Appellant.
Counsel for Defendant the Court of Hunt, Appeal, A. under appointment
James and Appellant. J. General, and Karl Granucci Robert R. J. Younger, Attorney
Evelle General, Plaintiff Uebel, Respondent. Deputy Attorneys' Opinion P. J.
MOLINARI, Defendant from entered appeals pursuant judgment to a verdict him section 4501.5 of the Penal jury finding guilty violating Code1 (battery by He contends that he prisoner upon non-prisoner). trial; denied that the trial court erred in statutory speedy his motion to *7 denying dismiss defender to him to the public permit himself, defend and in defender’s to withdraw denying motion public case; from the and that the trial court committed error in prejudicial Therefore, None of instructing jury. these contentions has merit. must affirmed. judgment indicated, statutory
1Unless otherwise all references are to the Penal Code. Proceedings
Pretrial was An indictment 4501.52 defendant section charging violating filed on for an July On 13 defendant July arraignment, 1970.3 appeared indictment, advised of his and the given rights public copy defender was to defender him. appointed represent requested public a continuance of one week in order he have an that might opportunity to to interview defendant The matter was continued entering plea. prior to 20. July
On July 20 defendant informed court that he wished to dismiss defender public because a conflict of interest” had “major developed that the public defender wanted to him to crime allegedly guilty plead which he had never committed. The court ordered the matter continued to July 27 in order to defendant and the to file permit defender public affidavits. On July defendant submitted an affidavit that alleging defender public had advised him and that after guilty, plead informed him he trial, that was innocent and wished a jury public defender became and told defendant that he would angry him “dump” at the He trial. alleged that the defender refused his public request withdraw from the case. The court determined that the matter should be continued for one week in order to afford the defender and the public district an to read defendant’s affidavit and to opportunity file counter defendant, affidavits. The court asked “Is that agreeable you, continuing matter one week for that Defendant “Yes.” purpose?” replied, The court ordered the matter continued to thereupon 3. August
On August defender informed the public court his counter- that affidavit would be filed during week. The court asked if he had any objection the matter having continued for one week in order that the court might both have affidavits before it on the ruling “Well, motion. Defendant I’d like to replied, hear on now.” The court concluded that it should afford the defender an public opportunity to submit an affidavit. the court ordered Accordingly, the matter continued to August 10. On 10 the matter August was continued to August because the defender apparently had public yet filed his affidavit. On August 12 the defender filed public an affidavit in which he that denied he had advised defendant to that guilty, he had ever plead become angry at defendant, or that he had informed defendant going him at his “dump” trial. charged 2The May defendant, being indictment on prisoner under going Quentin, sentence in the b'áttery California State Prison at San committed a person anof individual who prisoner. was not himself a indicated,
3Unless otherwise dates year have reference to the 1970. *8 came for hearing defender on the motion to dismiss the public When to add further the court if he had August anything on asked defendant Defendant replied, his to defender. motion public respecting disqualify “Well, Defend then denied the motion. I all I need to The court said say.” counsel. The court to ant informed the that he waived his right then court to his waive and that he intended only defendant concluded questioned The court then concluded to be defender. right public represented been had denied. just of the motion which merely that this was repetition did have a to court that he copy The defender indicated public stated, behalf “On defender then of the indictment his file. The public Honor, continuance, for the Your we a one week of Mr. Jacobs request to continued of The court ordered matter entering plea.” purpose August 24. Quentin Prison. The
The were held at San August proceedings re- defendant had court that on defender informed the public August to handle it to assigned fused the case with the who was discuss Defend- defender. and that defendant refused to cooperate public counsel waive his ant then indicated the court that he wished to defendant as interrogated court then and assume his own defense. The education, in criminal proceedings, his age, previous experience his age, of years that he was 23 his Defendant legal training. responded education, court as defendant that he had been he had seventh grade occasions, that he had never ain criminal on five proceeding previous had no train- that he legal himself in of these any represented proceedings, books, that he knew kind, law any that he had not read any ing interro- the conclusion of this nothing about the rules evidence. Upon himself. gation the court denied defendant’s request represent order to defender then a two-week continuance requested public and authorities on the of whether or not present question points tO' this immediately request. could himself. Defendant represent objected he considered defender went on to submit to the court what The public whether then defendant as to to be The court pertinent inquiries. questioned offense, was, this what a he knew battery possible punishment concerning exist might defense that whether knew potential him. To of these charge against replied made each inquiries The court determined that it adhere to its finding “No.” would previous act attorney. that defendant as own was not competent of not The court then read the and defendant entered plea indictment on the it was “an He denied the conviction guilty. ground charge the court that he had conviction.” The defender informed illegal public
255 advised defendant of his to be tried within 60 after days the filing of the indictment and that defendant had determined not to waive time. Quentin The court set case for trial on October the 19 San Prison.
On October the case was continued to October for The resetting. Quentin on October 20 were held at San Prison. The court proceedings asked the if defense would consent to a continuance and defendant imme- “No, diately replied, no.” The then defender be relieved public requested the of case. He stated that he and defendant were in “substantial disagree- ment” as the method of attacking the conviction. The proper prior public defender felt it would be that the inadequate merely deny that conviction was. obtained and that legally the would remedy appropriate abe writ of habeas filed on behalf defendant corpus an the Court of appointed by The court the Appeal. that responded disagree- ment to be limited to a appeared collateral matter. The defender public stated that it reflected a basic difference as to the main in that he charge and defendant differed the concerning elements of significant the case and that no they were able to longer communicate. The court that replied it could not the permit defender public withdraw on the simply basis of the existence of a between disagreement him and his client.
The court stated that it was to have to case over going then continue The court noted that was short one county defendant’s objection. and one and that assistance afforded courtroom judge despite Judicial Council the state of the calendar the case to bringing precluded trial for at least a The court further that the month. noted present policy Quentin not one try to more than case a San inmate in the involving Marin time. defender then County courthouse at a The moved to public dismiss the indictment on had not ground been brought to trial filing within 60 The court stated that days indictment. the. denied motion was for the reasons The court set the case already given. on October 26.
On October 26 the case came on for trial. After the had been im- jury excused, defender renewed the motion to dismiss paneled public had indictment on not been to trial within brought ground court stated that would hear the motion on days. following defender The district day. On October 27 the motion. public repeated the motion. The motion was attorney argued apparently opposition argued of section for a on basis subdivision 2 providing if brought the case is to trial after the days filing dismissal within indictment, The court then read the was applicable. transcript dis- held October 20 and indicated that the proceedings transcript *10 stated on that date. The court did not waive time closed that defendant cause had been whether not there good that in its issue was opinion at the waived time for and whether defendant had pro- the continuance consider this 24, but that was not ceedings held on August prepared then testified bailiff after it had The court’s transcript. issue until read at the Marin courthouse County taken respecting security precautions trial hold than one it was feasible to more expressed opinion Quentin under at motion was taken inmates a time. The involving San People court motion submission. On this same day granted The in the interest of justice. conviction to dismiss the charge prior conviction to use that he did not intend district indicated impeachment. purposes the indictment. to dismiss the court denied the motion On October 29 time had waived The that in its court indicated opinion 20, October set for August 24 and that on that date lapse up that the indicated which was The court within limit. 60-day further the statutory to October 26 went beyond continuance from October 20 noted, first, that the The court but was cause. period by good supported all had of the court Judicial Council request providing responded court entered the transcripts assistance that was possible. evidence. 24 and October 20 into August held on proceedings Speedy Trial and article Constitution The Sixth Amendment the United States I, right accused the section 13 Constitution an guarantee California accused, an to a trial. The of this is to guarantee protect speedy purpose unwarranted him for an having from criminal charges pending against Godlewski, 381]; 677, 682 (People of time. v. 22 Cal.2d period [140 525]; 516, 645, In re 446 P.2d Mugica, Cal.2d 522 69 Cal.Rptr. [72 Aguirre, 577, 477].) The People v. Cal.Rptr. 181 580 Cal.App.2d [5 con underlying legislative enactments this respecting supplement Godlewski, 682, 684.) (People supra, v. stitutional guarantee. pp. - of the indict
In the case the time from elapsing filing present trial was 3 and 21 days, ment the commencement of the months and the the time between the of the offense com commission intervening than 6 days, mencement of the trial was less months. slightly 174 and the were trial court Although apparently People, 1382, is section we under the statute applicable per- impression be section The latter statute has been ceive statute to 1381. applicable held to the constitutional and statutory California pris- govern rights
257 (See to a another felony charge. trial on rights oner’s parolee’s speedy Godlewski, 516, 523; Mugica, People supra, In v. 22 re Rowden, 677, 683; 868, People Cal.2d v. 268 872-873 [74 Cal.App.2d Robinson, 448]; 261, v. People 265-266 Cal.Rptr. [72 Cal.App.2d Hernandez, 33]; People v. 848-849 Cal.Rptr. Cal.App.2d Goss, 835]; People v. 725-726 [14 Cal.Rptr. Cal.App.2d 580-581; 569]; Aguirre, People supra, Cal.Rptr. Cal.App.2d Garmon, 60]; People 177 Cal.App.2d *11 Ragsdale, 640]; Supe Osmulski v. 676, 177 678 Cal.Rptr. Cal.App.2d [2 Court, 444, 520].) rior 445 169 Cal.App.2d [337 1381, Section in a term relevant that a part, serving provides person in a state criminal pending whom was either against another prison, charge at the time began during his term or was time he was serving the filed sentence, has a right to have the to or the new pending charge brought trial in days and, 90 written notice if after to the district the attorney; court, action is not to trial brought within the the either 90-day period, motion, on its own the motion of the the attorney, district person counsel, confined or his Corrections, or the Director of must the dismiss Witkin, (See charge. (1963) Cal. Criminal 308.) Procedure § p.
In Robinson (266 at 264-265) (250 and Cal.App.2d pp. Hernandez at 848-849) it Cal.App.2d pp. was held that the a specifically right is trial that which speedy arises after notice is written given pursuant section 1381. With to the of a respect demand Godlewski requirement follows; observes as “We find unreasonable in nothing the requirement for a demand. It does not the abrogate constitutional It guarantee. is merely of it. regulatory Persons incarcerated will already in not suffer prison (22 684; Rowden, imprisonment during People at see delay.” Cal.2d p. 868, 872; 268 re Mugica, supra, 516, 523.) In Cal.App.2d The cases dealing with a California constitutional prisoner’s parolee’s a statutory rights to trial on another felony charge have made speedy no distinction between the cases in which a was the charge pending time his term in began which was filed the those time charge during he was it. is serving any Nor made distinction in section nor has any cases, been the recognized by between a filed charge the term during but which serving, arose before he prisoner began the serving term and a which arose charge after he began his term.4 serving charge 4In Godlewski began; pending Rowden at the time the term Mugica the offense occurred before but commencement term was filed commenced; Robinson, Garmon, Ragsdale Aguirre, after it and Osmulski offense was charges during serving committed and prisoner were filed the time the sentence; and in and Goss crime was while the Hernandez committed Hernandez, made, parole. was on In where no demand for a trial was it was held that delay bringing of seven deprive months case to trial not did defendant of a trial; Aguirre speedy and in it was delay year held that a of one between the com- section, defend In that section 1382 contending applicable because that is unconstitutional ant is section 1381 essentially urging that He since laws. contends right violates his protection equal right has defendants who are not in granted Legislature prison from providing within 60 it is days, be brought precluded days. to trial within 90 only are inmates need be brought defendants who does the statutes. Section This misconstrues argument import to trial within to be defendants an absolute guarantee brought not beyond trial at time they may It days. brought provides Other delay. for the cause is established good 60-day period provided are they if entitled to automatically are thus not dismissal defendants Salcido, (See People to trial brought beyond statutory period. 193]; Chapman, 261 Cal.App. 4-5 Cal.Rptr. Cal.App.2d Moreover, not 601].) good even if there is 2d 157-160 will be reversed appeal conviction delay, cause to support Cal.App.2d Katzman, (People v. showing in the absence of of prejudice. a. *12 7, of section 319].) Under the provisions 789-790 Cal.Rptr. [66 77 1381, 90-day the hand, be delayed beyond the other the trial not may on bemay delayed cause the of showing good People; period inmate, 90-day period the in which event with consent of the only the. or consent which such to run anew from the date to request commences consents, charge unless the inmate continued trial. Accordingly, after demand must if he to trial within days be dismissed is not 90 brought 1381, therefore, greater actually to be to trial. Section provides brought does section 1382. and to the than security person charged protection of of guarantee protection We the constitutional equal apprehend denied the of be to mean that no or class shall persons laws person or other other same of laws which protection enjoyed persons lives, in liberty, classes like their property in circumstances in 312, 336-338 (See v. 257 U.S. Corrigan, their of Truax pursuit happiness. 254, Kentucky Corp. 264-266, 124, 375]; L.Ed. 42 S.Ct. 27 A.L.R. [66 Exch., 1115-1116, 544, 1112, v. Paramount L.Ed. 262 U.S. 550 [67 Whitmore, 904].) 636]; 1, 21 Gray 43 S.Ct. 17 Cal.Rptr. Cal.App.3d of recognition “The of of laws compels concept equal protection legitimate situated similarly respect proposition persons Fitzpatrick & v. State (Purdy of the law receive like treatment.” purpose California, 456 P.2d Cal.2d of not, Gray, 1194].) does how A.L.R.3d As we observed “This concept ever, necessarily that a statute or apply absolute equality require [citations] for [citations]; rather, it state to all permits provide equally persons as the result does amount to invidious discrim differences so an long 21-22.) (17 ination. Cal.App.3d pp. [Citations.]” deprive did not mission of offense and the indictment issuance speedy of a trial. do not amount to in differences in sections 1381 observe, vidious who are initially, serving discrimination. We persons treated alike. described in section 1381 are imprisonment terms observe that the statutes are We next described respective persons who are not not in like circumstances. Section 1382 persons applies section 1382 time as defined in section 1381. currently serving Essentially, who are either out bail while awaiting awaiting trial applies persons bailable, trial who are who are misdemeanor sentences of less serving re (see than 90 While both trial In days. sections contemplate speedy 516, 523), Mugica, supra, 69 Cal.2d danger suffering imprisonment during is not delay already where incarcerated present as person Godlewski, (See People supra, section 1381. 22 Cal.2d provided 684.) We also that a perceive who is sentence person undergoing prison not to may to trial while a because of the prefer go prisoner possibility that his as such a might status his trial. We prisoner prejudice apprehend, too, that there tactical may other reasons awhy may not desire prisoner to be tried new while event the law charge serving time. In such a grants He seek an options. may early prisoner by making a demand for trial as prescribed by section 1381 or elect to defer may the making of such demand until he deems it to do so. expedient
We that while both apprehend sections 1381 and 1382 have the objective the accused protecting from having him for an charges pending against Godlewski, (see undue length 677, 682; of time *13 In supra, 516, re Mugica, 522), Cal.2d 69 there is an rational important distinction between the defendant described in 1381 and section the defend- ant entitled to invoke section 1382. Under section 1381 the defendant is incarcerated because been a has convicted of under section felony; 1382 a defendant whose guilt non-guilt remains undetermined be suffer- may ing incarceration because he merely has not been able to make bail. objective section 1382 is to insure that the defendant in the latter circumstances will be given an trial. early
We recognize that while there is between the described inequality persons in section 1382, 1381 those encompassed by of section provisions the differences have been held by California Court to be Supreme based on a rational basis and therefore do not amount to invidious discrim ination. This is the apparent holding Godlewski which has been followed by Courts of cases, two In Court of Supe Osmulski v. Appeal. Appeal Court, supra, rior 444, Rowden, 169 People v. Cal.App.2d supra, 268 868, Cal.App.2d were filed petitions hearing in the Court Supreme and were denied by high 1968, court. As as recently California 523, Mugica, Court in In re supra, Supreme 69 Cal.2d at reaffirmed page the consti the Court of cases that of Godlewski and Appeal the holdings a in a dealing cases statutory rights prisoner tutional and speedy section are felony governed who with another charged is parolee Mugica noted that In court reviewing provisions 1381. specifically charge a criminal whom of section 1381 both to against apply prisoner whom, and a prisoner against at the time his term began pending he is a sentence. filed the time charge serving another criminal during the decisions (At bound 523.) necessarily While we are not p. Witkin, Cal. divisions Pro (see districts or
Courts other Appeal these (2d 1971) 4560), ed. we are to follow decisions cedure p. disposed People (i.e., of this court since are accord with decision they the decisions Aguirre, 577), and we must follow supra, 181 Cal.App.2d . Sales, Superior (Auto Inc. v Equity of the California Court. Supreme 321, Court, 937].) 450, filed, Defendant, was a prisoner at the time the instant charge may complain He therefore serving term in state properly prison. because under that his trial was violated section right to speedy den, supra, 268 (People v. Row Cal.App.2d this statute inapplicable. 872-873.) it was incumbent to section 1381 Pursuant of the of his imprison notice to the district attorney written present place running start the to trial order to ment and of his desire to be brought 682; Godlewski, supra, 22 Cal.2d (People v. limit. 90-day 264-265; Robinson, People supra, 266 Cal.App.2d Hernandez, 848-849; Superior Osmulski v. supra, 250 Cal.App.2d Court, 444, 445.) not deliver such Defendant did 169 Cal.App.2d notice to the district attorney.
Representation Public Defender *14 that denial motion
Defendant does not the court’s his suggest Rather, that to he contends dismiss the defender unwarranted. public First, he asserts the manner in which the was handled was motion improper. that the court counsel to the motion either have argue should appointed behalf. for defender on his him undertaken of the questioning public Second, that he was his to cross-examine the he asserts denied public right we that defender. Before consider these contentions note to proceeding defendant no at made such an the time made request appointment his to dismiss the defender. motion public
An criminal defendant entitled to have counsel indigent appointed is to him of the in which his every stage substantial represent proceedings
261 128, be rights (Mempa Rhay, affected. v. may 389 U.S. 134 L.Ed.2d [19 340, 336, 254]; Wainwright, 88 Gideon v. L.Ed.2d S.Ct. 372 335 U.S. [9 799, 792, 733].) 83 S.Ct. may 93 A.L.R.2d That include the right right to have counsel and other counsel substituted court-appointed discharged if it is shown that the would deny right. failure substantially impair Mitchell, (People 319]; v. 507, People 185 512 Cal.App.2d Cal.Rptr. [8 Williams, Thus, v. 894, 2 208, 1008].) Cal.3d P.2d 904 471 Cal.Rptr. [88 where the record that shows the first counsel is not adequately appointed accused, a defendant has the representing to right appointment Mitchell, Williams, (People supra; other v. v. People supra.) counsel.
The to right counsel and discharge to substitute court-appointed other counsel is not an however, absolute but right, suf depends upon ficient showing and the decision to whether such discharge permit Mitchell, is substitution within the (People discretion the trial v. court. supra, Williams, 507, 512; 185 Cal.App.2d People v. supra, 2 Cal.3d 894, 904.) noted, It should moreover, that there is no constitu tional of an who appointment will conduct the defense in accordance Luna, with every suggestion (In of the defendant. re 257 754, Nailor, 121]; Cal.App.2d People v. Cal.Rptr. [65 240 Cal.App. 489, 2d Mattson, 616]; see Cal.Rptr. People 777, [49 v. 51 Cal.2d 937].) Moreover, [336 a court is under no to relieve obligation defender because he and public disagree petitioner strategy. Luna, (In Stewart, supra; re Cal.App.2d Cal.Rptr. 26].)
We entitled to state reasons apprehend for the new counsel and substitute request discharge court-appointed him, counsel, and that it is appointed deny error prejudicial oppor Marsden, to state such tunity (People reasons. 2 Cal.3d 123-125 Williams, 44]; People 465 P.2d 904.) us, But we have authority, found no nor has been cited to entitled to have counsel his motion to argue appointed conclude, moreover, dismiss his We in the counsel. court-appointed light authorities, that he have deci foregoing does not such right. sion, in each is whether instance counsel is adequately court-appointed the defendant. The court is in to make that deter representing position mination without of having counsel necessity present appointed motion. The determination rests whether reasons given by defendant suffice to indicate that he is not receiving adequate representa *15 tion. We that disagreement between the accused his court- perceive is counsel best resolved the by court its first appointed upon determining do, whether differences if actually whether are of such they exist they Marsden, (See People as nature to effective impede representation. a. ease 123-126.) that the into the supra, at also injection We apprehend pp. not, the situation than compound of another more often may, attorney challenge be to since that called attorney may question upon sum, we defendant’s counsel. In the first strategy appointed perceive counsel and to be entitles him to competent substantial that which right an in the to represented not adequate representation, right is counsel competent in to determine whether appointed proceedings is him. adequately representing of his motion to dismiss defendant’s characterization Accepting does brought as been not having defender public propria persona, to defender follow that the trial was judge question public required The trial court’s obligation to merits motion. respect to to or evidence in. defendant an give argument sup present opportunity of his contention that he receiving inadequate representation. port Marsden, (See Superior 118, 124; Spector 2 Cal.3d Court, 909].) record 361 P.2d file before that the below both us discloses judge requested parties defend and that at the the motion he asked specifically affidavits hearing if judge ant he had further to add his motion. The anything support thus defendant with which demonstrate provided ample opportunities that defender was not his interests. There representing public adequately that defendant ever defender no indication sought question public matters set forth in the affidavits. As the court concerning the provided affidavits, an defendant with elaborate there opportunity that concluding no basis for defendant was denied his question defender. public between defendant disagreement that the we observe case
In present to- defendant advice to be the latter’s is asserted and the defender public to defendant’s contrary wishes and he defendant’s against guilty plead as defendant’s statement as well trial. This desire to have a jury allegation, did trial if him the defender would “dump” that the public wishes, were denied by public defender’s not accede to public did conflict court of this factual oath. the basis under defender Upon discloses, motion. The record defendant’s its discretion in denying not abuse trial by he had a moreover, guilty, jury, did that defendant plead at the trial. defender and that was represented public competently the court error for concedes it was not necessarily Defendant thus to to withdraw and have to have refused the defender’s request public counsel, the motion was only declined new the basis for as appoint *16 and the defender of a defendant disagreement existence between public con- to the case. Defendant manner handling respect proper tends, however, into nature of the that the court erred in inquiring which had arisen. disagreement have out that a trial court is not required
We already pointed remove as to the counsel because of a disagreement proper court-appointed Luna, (In supra, method of re handling defense. 257 Cal.App.2d so, 757.) may however, A court to do if has disagreement required “ resulted in a ‘breakdown in such attorney-client relationship as magnitude the defendant’s to effective assistance of right jeopardize ’’ Williams, supra, v. (People 905.) counsel.’ 2 Cal.3d case,
Turning to the facts instant we that the note public defender informed the court at the time he made withdraw request that he and defendant were in “substantial and that the disagreement” “basic problem” concerned the of defendant’s handling conviction. prior The court observed that this was did collateral matter not reflect any .and basic disagreement as the defense of the main de charge. public “Yes, fender as follows: does. replied It does reflect a basic difference in the main charge, because there are other to- elements this case which I feel are significant, and Mr. Jacobs me on. disagrees with have gotten We to the point where there lack of between complete communication myself Jacobs, Mr. Jacobs, and—or between the office and Mr. I feel on those that I grounds should withdrawal.” The court then denied request the motion without making any regarding inquiries consequences this asserted breakdown in communications.
We as a apprehend just decision on whether a defendant’s request to dismiss counsel rests in court-appointed the sound discretion of the trial so judge, should the of a similar motion disposition made the court- Williams, (See People counsel. appointed 894, 904.) supra, 2 Cal.3d too, We perceive, sufficient must be made to demonstrate showing that the disagreement between and client has so deteriorated the between them as to relationship client’s substantially impair Williams, the effective assistance (See People of counsel. supra, at p. Marsden, 905; People 123-124.) In present case the defender did not disclose public the nature of the disagreement between him and to indicate that the “basic except problem” how to handle defendant’s conviction. We here observe that did not in the join defender’s to withdraw nor did he public request seek to offer observe, also, reason explanation We disagreement.
that neither defendant nor the defender was public precluded from making *17 the to
any showing concerning disagreement. With explanation respect was that it conviction court under the apparently prior impression awas collateral matter in view of the defender’s that the statement public of the could be attacked validity only by conviction habeas prior corpus. to No effort made indicate to court that it was Under the not. the court did not abuse its discretion circumstances in denying public defender’s motion to withdraw. abuse its discre the court did be said that
Assuming that may miscarriage justice. a of tion, we error did not result in find that such by was dismissed of conviction that the charge record discloses prior the case. The issue in trial and was an district no longer defender adequate repre that the provided record discloses further public the circum Under of trial. course defendant during sentation a favorable that result more reasonably probable stances it not does appear had defender been reached if the public would have been to defendant (People been had appointed. and substitute counsel to withdraw permitted Watson, 243].)5 Self-representation his denying that the court erred request
Defendant contends of the him should have informed himself in that the court represent which of the sentence charged of the with which he nature offense the court’s that also contends Defendant could be imposed. apparently law ignorance was founded defendant’s solely upon determination and as such was improper. observe, a constitu a defendant does not have
We initially, Sharp, Cal.3d (People v. himself. tionally protected represent A 489].) court may 499 P.2d himself, but a denial of case defendant represent proper permit is not he be himself defendant that by permitted represent request then, but the error the defendant can show even prejudice, error unless because he did incompetent defender was public 5We do not consider that public The record discloses call an additional witness for defense. not the witness until the last the existence of defender was not told stated he day for new trial defendant support affidavit in of motion of trial. In an thought it irrelevant earlier because he the existence this witness did mention not circumstance People’s witnesses would lie. This anticipate he did that the in that not attorney-client had been a breakdown in the an inference that there not warrant does magnitude deprived effective have relationship of such as to judge disposing motion of upon As was noted assistance counsel. affidavit, testimony witness’s a consideration of additional new trial merely been cumulative. have would Sharp, (People one of constitutional dimensions. 459- pp. 461.) *18 a he able
Where to himself must be to defendant seeks represent “an meet certain must show he has intelligent standards. He that concep act,” of he tion of his and that “understands the nature consequences defenses, offense, of available and and the pleas punish possible 608, (People Floyd, ments v. 1 Cal.3d 703 Cal.Rptr. [citation].” 64]; see Sharp, supra, 448, 461.) v. Cal.3d In deter a whether defendant meets these standards there is no mining obligation on of trial to a to part education a defendant judge impart legal Carter, seeking (People in 66 Cal.2d appear persona. propria 214].) 427 P.2d In case it was not encumbent present judge to advise of defendant the elements of the offense with which he was of which in charged, could be punishment imposed, determining Rather, whether defendant was himself. competent represent inquiry was directed to whether defendant understood the nature of the properly offense and the The possible such were punishment. responses inquiry factors determining deciding in whether defendant was competent himself. represent made by the trial inquiry disclosed that defendant had judge only
a education; seventh grade that he had never himself a represented legal books; that he had never read law proceeding; he was of unaware evidence; rules of that he did not know the nature of the crime with which he was charged; raised; that he was unaware of might the defenses which be he did that not know what sentence could be imposed.
The trial judge’s of determination whether a defendant is capable making knowing waiver of intelligent counsel is matter of discretion and it will be not disturbed on in the of a absence appeal (People Floyd, abuse. showing supra, 694, 702-703.) In the case there was no abuse of discretion since present responses clearly demonstrated that he did not meet standards which might him to himself. permit represent
Moreover, review of entire record a did justice miscarriage result, even error in assuming the motion to defend denying se. pro It does not from the record that a appear result more to defend favorable Watson, ant would have been reached had (People he himself. represented 837.)6 Cal.2d Thomas, Quentin, 6Officer Kenneth E. a correctional officer San testified that escorting as he Quentin to an isolation cell in San Prison was struck
Instructions battery define failing court erred contends the Defendant instructed The court offenses. included to instruct on lesser refusing a state prison confined in every “the that person law the jury provides who of an individual a battery upon person of this state who commits This therein, of a felony.” shall guilty confined not himself person defendant; which, charged. the crime a correct description beat battering act of “the namely, meaning, has common Battery Third New (Webster’s . . .” of another . . beating the unlawful ing .. meaning this common contends Diet.) Defendant Intemat. apparently *19 erred the court and thus intent of legal requirement does not encompass rendered is argument This battery. definition not expanding upon follows: was as instruction the court’s next the fact that ineffective by conduct of act or a union or joint operation exist “In that there must crime necessary it is not intent criminal intent. But to constitute and criminal inten a law. Where to violate the person exist an intent that there should crime, a he is acting be declares to which the law does that tionally is act. conduct not know that his he may though criminal intent even unlawful.” case, to the facts of instant note that defendant ad-
Adverting we mitted struck the officer. issue was thus whether primary had established that he acted in self-defense and full instructions were Under the that the given this issue. circumstances this case we find instructions defining battery court’s intent were adequate. which
Defendant an instruction that the offense with requested assault, he was included the or obstruct lesser offenses of charged restricting a ing officer in duty public discharge attempt discharge any office, refusing He contends the court disturbing erred peace. this give instruction.
“The rule is that a defendant entitled general upon request instructions on included the evidence necessarily offenses which tends Martin, (People v. St. 1 Cal.3d prove.” 532-533 Cal.Rptr. Noah, 390]; by testimony His defendant. corroborated two other officers who came to him, frightened, his aid. Defendant testified that he became pushed Thomas balance, upon regaining his testified that struck Thomas. Another inmate Thomas had pushed defendant before struck Thomas. third inmate A testified bleeding saw left eye when he defendant after the incident his and he had bruises back pushed on the of his neck. Thomas testified that he defendant or had never contact with him to the physical time he was hit defendant. included necessarily 1009].) In this two types state 487 P.2d “First, cannot be com offense one been where offenses have recognized: offense, necessarily a latter offense is another mitted without committing included Second, necessarily a lesser offense included offense. [Citation.] accusatory in the pleading, charged if it is the offense specifically within of the crime. definition [Citations.]” the statutory as from distinguished Martin, crimes men 536.) None (People supra, v. St. p. test. 4501.5 requires meet this Section instruction tioned in proffered in a state a confined prison. the defendant as an element that person this element. as included offenses contain None of the crimes suggested Moreover, Noah, defendant admitted 479.) since (See People v. at p. that he was it is prisoner that he struck Thomas and undisputed officer, Thomas, correctional a state at the he struck prison state time prison that defendant’s could conclude no evidence from which jury there was who himself of an individual battery person action was less than is delineated in that crime in a state as is not confined prison person Noah, (See People supra.) section 4501.5. is affirmed.
The judgment *20 J., concurred.
Elkington, SIMS, J. tire concur. I with the that defendant’s I majority right agree and because to a trial was not violated because he waived in part, speedy did not consent. good cause established to which he was for continuances in Code section 1381 Nevertheless of Penal my opinion provisions arises charged should not be in which the offense applied proceedings It that the authori out of defendant’s must be conceded imprisonment. 1381 ties in the the view that section marshalled sustain majority opinion should “a filed against be all cases where is charge person applied state any time such a sentence during serving person prison that, . these cases indicates state . . .” An of county jail analysis this committed with but three involve offenses they either exceptions, v. People (see for which were either then charges imprisonment pending 677, 381]; (1943) People Row Godlewski 679 and [140 448]), 868, or for which (1969) den 268 870 Cal.App.2d Cal.Rptr. [74 516, (see Cal.2d Mugica (1968) were filed In re 69 charges subsequently 645, 525]), 446 P.2d or offenses committed after 518 Cal.Rptr. impris [72 what asserted was until after was in which not instituted prosecution onment (see Aguirre (1960) 181 People to be an undue Cal.App.2d delay 477]; People (1960) v. Ragsdale 177 579 Cal.App.2d [5 Cal.Rptr. defendant, as re- 640]), or a arraign 677 failure Cal.Rptr. Penal Code quired section 825 an by offense committed while he was on parole, after his parole was revoked and he was returned constructive custody (see Department People Corrections v. Goss (1961) 720, 722-724 Cal.App.2d 569]). [14 Cal.Rptr. (1968) v. Robinson Cal.App.2d 33] offense, all case. in vio-
ostensibly fours with the instant The escape (b), lation Penal Code section subdivision was connected his and the trial occurred charged arraigned, he was imprisonment, after days than 90 his court reliance arraignment. more upon below, two cases discussed as one of two alternative for upholding grounds the conviction against assertion that defendant had been denied a trial, “Furthermore, stated, Code, section 1381 of the Penal while speedy to be to trial within 90 condi- affording right days, brought tions such written the defendant. No upon request request case, made in the instant is no in the showing there record either ignorant of for such necessity request. A. in the of defendant must make the prisoner demand that position (Osmulski Superior trial before he can People proceed complain. (1959) Court .)” (266 445 .. . at Cal.App.2d Cal.App.2d 264-265.) In pp. my opinion this statement is dimin- weight given ished the fact the court had noted that already the defendant had waived to a trial because any right he had failed to speedy object (id:, 264), time before to trial and because in going neither Robinson p. nor in the case which it relies was the be- distinction question new tween connected offenses and prison charges for other offenses pending considered. *21 v. Superior Osmulski (1959)
In Court Cal.App.2d the charge was also In 520] an alternative writ of escape. discharging pro- hibition, and writ, court, denying the without peremptory distinguishing the between nature of the involved to follow charges purported Godlewski, supra, concluded, and “It the the by at appears petition time the of charge was made he him was a escape against serving prisoner a sentence Therefore, in a state the of section 1381 of prison. the provisions Penal Code govern his rights. ... prisoner A of petitioner position is entitled to the rights given him under section 1381 and must make the demand that the trial (169 before he can People proceed complain.” 445.) at Cal.App.2d p. People v.
In (1967) 250 835], Cal.App.2d Hernandez Robinson, which the court also referred in the defendant was brought to trial within 52 after he days arraigned was on an indictment for an six filed indictment was on he was committed while parole. offense committed, he had which time at ten after the offense days and months the dismissal violator, following and held a parole and as been arrested offense. for same had been filed which of successive informations two well as as 60 days, to trial within brought the defendant Although of his contention the court disposed on the current days charge, within 90 could not raise that he theory trial on the denied that was speedy (250 section by Cal.App.2d without the notice required point giving an to consider whether 849). In this it is unnecessary proceeding p. offense committed should be as an committed on treated offense parole (i.e., if filed for which are charges pending prior imprisonment to actual constructive custody actual return or Department physical as Corrections), urged if be treated filed, they of should subsequently status. arising below for offenses out of the custodial Osmulski, case, and it is absurd
In current as in Robinson require of while the custody a defendant who been arraigned has charged to deliver district of to the Corrections Department filed of his charge in which the “written notice of county place to trial or commitment and his to be imprisonment brought desire to ex- said These sense when charge.” make requirements only applied (see above), trinsic to the charges arising prior imprisonment, perhaps while free actual such custody, from In offenses parole. cause, incarceration. is thwarted for the defendant’s
speedy good to a Section 1381 means for bringing outstanding charge provides conclusion if defendant so desires. In the the election situation pending to file the custody made those for his charges presumably responsible in conjunction with those for in the responsible jurisdiction prosecution in which he was confined the offense occurred. The time for prosecu- of such tion actions should not be extended application provisions which were for the designed accused. protection one is filed against indictment or information when an my
In opinion out of that an impris- offense arising of imprisonment term undergoing and he should onment, apply subdivision of section provisions indictment or filing in the finding tried within 60 after days should be *22 shown, ex- cause to the contrary of the information unless good that the defendant is not It recognized waives time. impliedly pressly all the other rea- but delay, unwarranted incarceration suffering are for applicable. sons speedy disposition proceedings and the opinion denied September A rehearing petition hearing for a as above. petition to read Appellant’s was modified printed denied October 1972. Court was Supreme