*1 miscarriage of that no findings and all court essential justice is shown. judgment is affirmed and stated, the reasons above
For denying plaintiff’s motion appeal the order new trial dismissed. J., J., Traynor, J., Spence, J.,
Shenk, Edmonds, Carter, J., tern.,* Bray, pro J. concurred. Apr. No. 5528. Bank. [Crim. 1954.] THE PEOPLE, ROBINSON, Respondent, HOWARD S.
Appellant.
*Assignedby Chairman of Judicial Council. *2 Forno, pro. per., Joseph T. Robinson,
Howard S. and Supreme Appellant. for appointment Court, under Miller, Elizabeth Attorney General, Edmund and Brown, G. Deputy Attorney Respondent. General, for The Robinson Defendants Howard S.
SCHAUER, J. counts charged by information rmal B. Pratt were robbery; three having suffered charged with was Robinson having suffered felony and Pratt prior convictions alleges that further conviction; information one such charged in Count robbery of the time of the commission deadly weapon. The a armed with II defendants were other; of each independent defendants were of the defenses or support either conviction evidence was sufficient on both either or both defendants acquittal either an of the offense guilty jury Robinson was A found that counts. charged at the charged II; that he was armed Count that Pratt was offense; commission time of the jury I. The were charged in Count guilty of offense not and the remaining issues reach verdicts as to the unable to Robinson’s as to such issues. declared a mistrial trial court appeal from he did not new trial was denied and motion for prosecuting motion order of denial. On against information Robinson was dismissed. of the Count ensuing judgment of conviction appeals Robinson from the deprived he II. He contends that was Count request because, for con of his choice over to counsel independent counsel, him to tinuance to enable secure go represented required counsel for Pratt al- though such counsel had informed Robinson and judge be a of interest between Robinson suggested and Pratt and had Robinson should secure other counsel. It is our conclusion that under circumstances shown the trial court’s denial a continuance to afford Robinson a opportunity reasonable to obtain his requires own counsel a new trial. charged Angeles
The crimes were committed Los on June 4 relating and June 1952. circumstances opportunity Robinson’s to obtain counsel of his choice are as follows: Robinson and Pratt were arrested June 22. Attorney represented A. P. Coviello both defendants at the preliminary hearing. The July information was filed on 1952. July On represented still defendants, by Mr. Co- viello, arraigned pleaded guilty. were not Trial was set August 18. August On 18 the cause was called for trial following and the occurred: (cid:127) Honor, : Tour this unfortu- “Mr. Coviello quite nately, ready I am here. Mr. Robinson at least 10 days ago, or ago, attorneys. two weeks had consulted other I don’t lot detail, want into a but he did tell me *3 attorneys’ room that he represent didn’t want me to I him. I indicated that wanted to secure counsel. I felt diversity my that there be a client, interest between Mr. and Mr. Pratt, Robinson. I have known Mr. Pratt some time. morning me this here that he
“He has told hasn’t made any attorney. I arrangements with don’t definite know if public I consulted a defender not. want to he has assure your Honor I can’t him court if he doesn’t want I concerned, ready far as am I am me to. As to defend both go I men, originally assumption these did that I say again I them, would defend both of but at least two weeks I ago, days ago, or 10 told him in attorneys’ room I thought be for him get it would wise to question be no so there would of interests here. I I said, view of what he think would like to In ask the Court I it for at least a week. will up to continue leave it to him here, your interrogate if Honor to wants him. I Robinson: like to would ask this case be “Defendant
continued for two weeks I get because would like to an at- torney. ‘‘ you : gentlemen doWhat want to do in this The Court ?, matter Well, attorney] : we have [deputy district
“Mr. Russell me that the matter quite here. It seems to a few witnesses question put calendar when some should have been I as to the situation. and his client arose between prior this that there was advised time haven’t been contemplation of continuance. Is public here? Coubt:
“The defender far might state, I so as No, your “Mb. Honor. Russell: go have at least to the concerned, our it will calendar is September. latter large number of witnesses : In view the
“The Coubt Perhaps we could here, prefer I to continue the matter. get public moment. defender at the last accept the public The defender wouldn’t
“Mb. Russell: today. I it would they if don’t think had to require opportunity They fair some to them. would prepare for trial matter. pass circumstances, will this Coubt: Under the
“The case for the moment. like to talk to Mr. Russell would Coviello in and Pratt case. Mr. this Robinson
“(Conference record.) in chambers off the “ ” (Other heard.) matters August jury impaneled Later on 18 a and the trial proceeded representing Coviello both defendants further Mr. Coviello or defendant without comment representation Robinson as of Robinson. to Coviello’s per- crime identified defendants its of each victim robbery passerby A who witnessed second noted petrators. used number of a Chevrolet automobile which was the license Shortly after the robbers fled from the scene the robbers. patrol crime, police officers in a radio car ob- of the second (which was stolen and bore stolen served the Chevrolet car) According of another outside a café. plates license testimony Robinson was then in the their automobile and They café. arrested the Pratt was defendants. gun which the victim of the Chevrolet were a the second robbery had been used testified commission *4 which, thumbprint bottle wine on which was a crime and a opinion expert, Pratt’s; steering of an was on the which, opinion expert, in fingerprint the the wheel was a city The officers took the Robinson’s. defendants to the was they patrol there, When according car. reached hall testimony officers, of one of the he found to the between the patrol rear seat the ear a back and the wallet which had
745 wallet which and another victim the second been taken from this case. was not connected with which a check to cash attempted 4 Robinson had
On June manager robbery day; credit the had been taken in attempted cash check of the store where Robinson robbery and that reported in a it had been taken stated that summoning thereupon went policeman. he Robinson was leaving out of the the check. store, an inde- Each defendant took the stand testified to pendent alibi for crime. Each testified that he did each operate not an Each know how to automobile. testified he had entered the café alone. Pratt testified that he told arresting officers never that he had seen Robinson before café; he entered the Robinson of his testified that extent acquaintance with Pratt was that he had “seen around . . . several times.” Each he testified that had not been or prior at the -time of Chevrolet automobile to his arrest, that he not gun, had seen the above mentioned victim, wallet of the second or wine bottle until he was taken city to the acquired hall. Robinson testified that he the check attempted gambling to cash game. on June jury That the considered factually that this was a close case appears from following Although, circumstances: so far reporter’s as the transcript shows, equally the witnesses were positive in their identification of each defendant, the jury, previously stated, acquitted Pratt charge I, Count convicted charge Robinson II, Count and were unable agree whether Pratt was guilty II Count and Robinson of Count I. The jury retired to deliberate at 9:55 a. m. on August 22 and returned to on court occasions have testimony certain (the read record does disclose what testimony read); p. they m. were sent ato hotel night; 10at a. on August m. they resumed delibera- tions and at 2:45 theym. returned to p. courtroom, re- turned verdicts some of issues, and the court declared a mistrial as to the other issues. right to counsel assured in the federal courts Amendment to the
the Sixth United States Constitution and of this in the courts state section 13 of article of our right Constitution includes to the undivided assistance of of defendant’s own choice and this is denied by forcing upon a defendant, over his and objection, counsel’s employed an who has been a codefendant.
746 Supreme Court has held the United States this connection
(in 315 U.S. S.Ct. (1942), United States Glasser v. 680]), 457, 86 L.Ed. of right assistance to the
“Even as we have held that by court the denial state counsel is so fundamental counsel of one’s of to allow the selection of a reasonable time an of that to make effective choosing, own and the failure court concept of the appointment of offend our counsel, so hearing requirements of fair as amount to a denial basic process contrary of Fourteenth Amendment due of law of are we clear that the ‘assistance counsel’ so [citation] guaranteed contemplates by the Amendment that such Sixth unimpaired by a assistance be untrammeled and court order requiring lawyer simultaneously represent con- that one shall flicting right If of interests. to the assistance this, safeguard means less than a valued constitutional is sub- stantially impaired. 70 of 315 . . . [P. U.S.] yet
“There is another consideration. Glasser wished benefit the undivided of counsel of his assistance own part choice. We think such a desire an accused respected. Irrespective interest, should be conflict of representing party may additional burden of conceivably impair counsel’s effectiveness. precise degree
“To prejudice determine the sustained by Glasser as a appointment result the court’s of Stewart as counsel for unnecessary. Kretske is at once difficult and to have the assistance counsel is too fundamental and absolute to allow indulge courts to in nice calculations as to prejudice arising amount from its denial.. [Cita- equal importance Of duty with the tions.] court to see that an accused has the assistance of duty its counsel.is to refrain from embarrassing counsel in the of an defense by insisting, accused or indeed, even suggesting, that counsel undertake to concurrently represent interests which di- verge from those of his client, possibility first when the of that divergence brought is home to [Pp. the court. 75-76 of 315 U.S.]” held,
This has' problem court with reference to the same (in Lanigan (1943), 569, Cal.2d 576-577 [140 176]), 148 A.L.R. objections many why reasons Mr. Lavine are
“There respected. themselves should have been defendants and the employed Giardano as his had been sole counsel. Mr. Lavine very professional carried with it a employment definite That engagement re- Lavine. The obligation every confidence, and quired him to ‘maintain inviolate (subd. secrets, of client’ peril preserve to himself lawyers Act). (e) State Bar That admonition sec. professional old as the canons of ethics. Undivided personal loyalty to the cause of client is essential to the high integrity of and to the maintenance *6 legal profession. standards of Under the circumstances the presented, fidelity employed to him here the client who first voluntarily have Mr. represent- would foreclosed Lavine from ing voluntary employment the codefendant. Since in that behalf improper, compulsory representation would have been imposed. should not have been Mr. Lavine was therefore rights well his objecting within appointment to Lanigan for counsel and Giardano was entitled to un- the divided assistance of employed. the counsel whom he had . . . presentation for When the the of their time came defense question confronted Mr. Lavine was with the delicate whether testify to advise them to in their own for behalf, the failure by of explain deny any defendant ‘to or to testimony a against may evidence or facts the case be commented upon by by may the court counsel, by be considered (Cal. jury’ the court or Const., I, the art. see. as amended 1934). frequently In criminal cases it occurs circum- that testify stances make it advisable for one defendant to present given are not when consideration question is the to of offering another defendant as a witness. One be impeaching questions vulnerable to and the other not. It Blight highly be desirable the that one not so vulnerable take the witness stand and the other If not. the former should do not, so and the might other the weigh heavily circumstance against the latter in the might not occur if of jury. minds the prejudice A like represented
the defendants by sep- were arate Bach counsel. of the defendants was entitled to have questions of this nature considered by and decided independently interests other. And should not hampered by being embarrassed compelled to against choose one course as the other because of the action taken the court.” People urge
The record does not disclose any diversity interest defendants here. But, quotations, diversity as indicated in the a in- above any sense of inconsistency factual between the terest controlling or necessarily is sole defenses advanced not the requirement for underlying consideration that counsel upon is codefendant not be forced another defendant. It diversity necessary for Robinson show that he had some to from (e.g., interest Pratt that he have wished to attempt strengthen by casting for his own case blame entirely any factually Pratt); apart appar crimes ent Robinson interests was entitled to the un loyalty divided and untrammeled assistance of his own counsel. Supreme As Court stated Glasser quoted fully “Irrespective above, more conflict interest, representing party the additional burden of may conceivably impair counsel’s effectiveness. . . . The to have the assistance of counsel too fundamental and abso indulge courts lute allow in nice calculations as to the prejudice arising from its Upon amount of denial.” impelled facts of this case we are to conclude that a miscar riage justice (See People (1945), is shown. v. Sarazzawski 934].) 27 Cal.2d suggest attempting improp- that Robinson was delay erly proceedings by seeking change minute last Robinson, counsel. the time Coviello advised days him two or 10 weeks before the date set *7 get “it wise for him would’be to another so there question diversity would no of here,” be of interests was county jail the opportunities confined in and his to communi- attorneys with other According cate were limited. his to required, county statement he “was under the rules of the jail, by to seek new process counsel mail . . . It is a slow ...” attempts He did make some counsel; to obtain other it does appear not availability that he knew of the public personally opportunity defender or that bring had to the judge matter to the attention of the until the case was called for trial. appear the it not circumstances does chargeable dilatoriness him to of sufficient grave substance consequence to warrant the being required opportunity without further to secure counsel of his choice.
For the judgment reasons above stated the is reversed. Gibson, C. J., Shenk, J., Traynor, J., and concurred. in the conclusion I concur reached in the CARTER, J. generally reasoning upon in the majority opinion and appears to be in full based, as it views it accord the Dorman, expressed by my me dissenting opinion in in v. However, Dorman Cal.2d the 686]. ease there was no claim of between the a conflict interest defendants, of de being the sole claim represented by fendant be own choice. Smith to counsel Here the claim of to be appear does not conflict interest very great opinion majority moment and does point by out prejudiced wherein the defendant was alleged conflict between himself the other interest and However, defendant. a de express defendant Robinson did represented sire to be counsel of his and own choice expressed Coviello willingness to withdraw as said permit defendant employ and other counsel. The court, however, requests grant denied these and refused to a continuance to enable defendant Robinson to obtain of his own choice. Under ma as disclosed facts jority my opinion, it is view that this constituted an abuse of discretion, denying because it had the effect of defendant Robinson an opportunity employ counsel of choice. his own For the reasons above expressed length stated those my dissenting opinion in case, supra, the Dorman I am opinion that the ruling of preju- the trial court was dicial rights to the of defendant Robinson and he should granted a new trial.
SPENCE, J. I dissent. majority opinion While certain lan- relies broad guage found in cases, language read cited must be light of the facts which were under consideration. nothing justify find in these cases nor reason to judgment present reversal believe seriously interfering such reversal will have the effect of efficient orderly justice administration our trial courts. not a case in which a trial court has assumed to
This is of one codefendant appoint counsel objection ground of in over (Glasser States, between the codefendants. United terest *8 ; People Lanigan, 60 86 L.Ed. v. 315 U.S. S.Ct. 680] [62 176].) 148 A.L.R. 22 569 P.2d Neither is Cal.2d [140 been in which a defendant has forced to it a ease (People Manchetti, counsel v. 29 452 unprepared Cal.2d 533]) representation by any or P.2d without counsel. [175 41 530 Masching, 251].) Cal.2d (In re [261 750 one of presents a case in which present
The record by counsel codefendants, jointly represented who been had arraign- hearing, during preliminary of their own choice appears ment, preparation for and trial] days day for over 30 after trial, counsel on the set is or arraignment; previous appropriate indication and without (Pen. 1050), informally requests motion a continuance Code, § mere purpose obtaining counsel, upon for the other suggestion might be of interest.” that “there a Appellant’s concerned, I am stated, far counsel “as am ready men, go originally on to defend both these and I did assumption that would defend both them. ...” It patent colloquy from is this and the rest that any did not believe and that existed, that interest conflict he any felt he represent that could both continue to without duty (Rules violation of his either his clients Prof. 5). During Conduct, colloquy, prosecution rule inter- objection posed an passed, to the continuance, the ease was attorneys and the judge for both sides conferred with the trial proceedings chambers. The at this conference are not to be found in the assumed, however, record. It judge performed trial duty, his official and satis- fied himself, as previously indicated, counsel had that counsel could fairly both prejudice. defendants and without judge The trial then called the case for trial. an- Counsel “ready” swered defendants, behalf of both and the trial proceeded any objection by without counsel. vigorously record reveals that ably repre- sented codefendants, and there slightest is not the indi- any cation conflict appears interest. It thus that de- fendant, making without proper a motion for continuance (Pen. Code, 1050) interposing § without proper ob- jection, took the chance of obtaining a verdict; favorable being disappointed result, upon now a seeks reversal the claim that the trial court abused denying its discretion in a continuance under the No circumstances. case has been cited sustain such claim. a jealously guard should rights
While our courts
crime,
no
accused of
absolute
person
to insist
of the accused
continance
change
representation by
permitting
purpose (People
Dowell,
of his choice
another.
v.
one counsel
807]; People Whinnery,
Cal.App.
P.
109, Cal.
*9
Cal.App.
v.
; People
Shaw,
P.2d
794,
2d
798-799 [131
33]
; Berger Mantle,
v.
Cal.
P.2d
2d
772-775
34]
[117
335].)
with the
App.2d 245, 248-249
am in accord
[63
language
by
Schauer, while
following
employed Mr. Justice
Appeal,
People
v.
presiding Court
Whin
District
quoting
supra,
approvingly
nery,
page
charged
“To
Shaw, supra:
v.
hold that
selection,
right to counsel of his own
crime has an absolute
trial,
of his
continuances
unlimited
to insist
prompt administration
exe
would be subversive of the
depends largely
effective
laws—upon
cution
their
must in
apparent
ness.
It is at once
that the trial court
things
matters,
nature
have some control over
judicial
may
dispatched
orderly
in an
end that
business
manner;
apparent
and if it
it is
us
has
discretion
particular
that such discretion was not abused in this
in
’’
stance.
But,
majority opinion
as I
read the
instant
if
jointly repre
the accused and his codefendant have been
by
merely
sented
their own choice and the accused
suggests informally
day
the first time on the
trial that
be a
codefendants,
of interest between the
proceed
the trial
granted,
and a continuance must be
perchance
may subsequently expressly
unless
the accused
con
going
joint representation.
(See
sent
to trial with such
People Rocco,
704].)
For Presiding the above reasons and stated those Justice Moore when the case was before the District Court Appeal (People *(Cal.App.) 683), v. Robinson 259 P.2d judgment. I would affirm the J., concurred.
Edmonds, hearing granted Supreme September 4, *A Court on 1953.