CARTER, J. I dissent.
The majority opinion fails to make either a full or correct statement of the factual situation relative to the arbitrary action of the trial judge in denying appellant an opportunity to be represented by counsel of his own choice prepared to try his case. The facts as disclosed by the record are as follows: Appellant, Merlin James Smith, a boy of 19 years of age, a soldier in the United States Army, with the rank of sergeant, after engaging in a drinking orgy for several days, found himself faced with an indictment returned May 5, 1944, in which he was charged with the crimes of murder, robbery, and kidnapping alleged to have been committed in Los Angeles County on April 17, 1944. His home was in Idaho. He was without friends or means to defend himself. On May 9, 1944, he was arraigned on said indictment in the superior court, and being unable to employ counsel, the public defender was appointed to represent him. At that time his ease was set for trial for June 16, 1944. On June 12, 1944, relatives arranged with Mr. James 0. Warner of the Los Angeles Bar to represent the appellant, and on June 14, 1944, the matter of substitution of attorneys was brought before the court, appellant having been represented up to that time by the deputy public defender. The latter, together with Mr. Warner, appeared in court at that time, and the public defender made a motion to substitute Warner in his place. In reply the court stated, and the following ensued: “Are you prepared to go ahead on Friday [June 16, 1944], Mr. Warner? Mb. Warner: I don't know, your Honor, at this time; there are some witnesses I want to interview. The Court : I am not going to substi[856]tute counsel two days before the trial of a case that has been set for more than a month,- Mr. Warner : Your Honor, for the sake of the record- The Court (Continuing): -to- force a continuance. Mr. Warner : This man has only teen in a position to employ counsel within the last two days; he desires to have private counsel and his family desires him to have private counsel. The Court : That may be true, but if we recognized that as a ground for a continuance, all a man would have to do would be to get different counsel all the time and we would never get to trial. . . . The Court : In other words, he has competent counsel right now; he has counsel of his choosing at the time. Merely because he wants to change horses in the middle of the stream, two days before trial, and thus force a continuance- Mr. Warner : There has never been a continuance granted in this case, your Honor. I understand the man was without funds to employ counsel-I do not argue against the competency of the Public Defender’s office; do not misunderstand me,-but a man who has counsel furnished for him because of lack of funds, I think, when he is in a position at the earliest possible time to obtain funds and hire counsel within a short time-there has been no other continuance in this case. The Court : All a defendant is entitled to is to be represented by counsel who are competent to try his case. He has such counsel. He is not entitled to a continuance because he desires to make some change. He has been furnished with adequate and competent counsel at the expense of the County. I haven’t any objection to his changing counsel or his being without counsel. But that does not entitle him to a continuance, nor does it entitle him to force his co-defendant to endure a continuance, postpone the time, when that man could be tried. Mr. Warner : Well, the only thing, this motion is a motion for substitution. If there is a motion for a continuance-I am not making that motion at this time, but if I do make the motion- The Court : I am not going to furnish you or any defense counsel with grounds for a continuance, Mr. Warner. If I allow a substitution of counsel at the present time, you could come in tomorrow or the following day with the showing you are unprepared to proceed and I would be forced to grant a continuance, because at that time the defendant would be without counsel who were prepared to try the ease. At the present time he has counsel who are prepared. Mr. Warner : May I confer with counsel? (Conference between Mr. Warner and [857]Mr. Robinson.) Mr. Warner: Your Honor, in the matter of James Smith, I have talked with the defendant and Mr. Robinson, and I am willing to accept the responsibility of going to trial on Friday. I do not think that the conditions of substitution- the conditions that are imposed on the defendant’s counsel precludes any subsequent developments that might arise-I do not know that I am going to make a motion for a continuance, but I am going to have to put some intensive time in on this matter. Anything which develops which I feel justifiably should be brought to the court’s attention in the defense of a serious charge, I want it understood that I would bring it to your Honor’s attention whether you grant it or not. The Court : I "appreciate that situation, but I am not going to put the record in such shape so that counsel can come in-it is not a matter personally with you; you might be discharged overnight and we would find ourselves with another situation. We now have counsel who are prepared to try the case, and presumably the co-defendant is prepared to go to trial. Mrs. Kellogg : I am, your Honor. I am prepared to try the case, but I would like a little more time. I was not present at the time this case was set; the Public Defender represented me at that time, and the case was set for the 16th of June. However, I am ready to try the case. The Court : Well, our calendar is in such shape now a continuance of the matter would mean a continuance for a long period of time. I think these cases ought to be disposed of. In other words, there has been ample time to prepare these cases for trial. Mrs. Kellogg : Could your Honor set it a week hence ? The Court : No, I cannot very well do that because of other cases on the calendar. Mrs. Kellogg : I am ready to go to trial, but I thought if there was any way I could assist counsel- The Court : I will permit Mr. Warner to appear here as counsel for the defendant, associated with the Public Defender. On the day of trial I will permit the Public Defender to withdraw, but I am not going to make an order of substitution which is going to force a continuance upon the basis that Mr. Warner coming into the case now is not prepared and would not be prepared on Friday to try the case. Obviously nobody can prepare a murder case in two days. Mr. Warner : As far as I know, I will be ready for trial. I have talked with Mr. Robinson and he advises me he has some other cases that are pending that he would like to try on those days, that he was going [858]to have to make other arrangements in these eases-1 understand he has continued them-he would like to be relieved of the case. The Court : Well, I will relieve him as soon as the trial starts. Mr. Robinson : If your Honor please, we do not know whether we are supposed to go ahead and get ready or not. The Court -. You are still in the case; you are under obligation to defend the client for whom you have been appointed.” The case was called on June 16, 1944, at which time the court postponed the trial until June 19, 1944, because of a congestion in the calendar and the public defender again asked to be relieved from representing appellant because Warner had been retained, to which the court again replied that it would not allow a substitution to obtain a continuance Warner asked for a continuance and the court stated: “Your motion or your contention is upon the basis that you personally have not had time to prepare. That is because you just have been very recently hired. It is not a question of whether you are personally prepared. The question is whether the defendant himself has had the case set for a sufficiently long time after plea to enable preparation to be made. I am assuming the Public Defender has made all the preparations the defendant indicated were necessary for his defense. Mr. Warner: There are certain witnesses in North Hollywood that possibly may be obtained. This defendant was drinking in a bar with strangers and the Public Defender’s office, because of the number of cases they have to try, have not had time to seek these witnesses out. The Court: The Public Defender has not made any motion for a continuance on the ground he has not had time to prepare. Mr. Thomas [public defender]: I will say, your Honor, I was speaking with Mr. Matthews about it last week, and said I thought we should have more time to prepare if we were to stay in the case. He said he had a large number of witnesses, so I did not press it further at that time. A further reason I did not press it further at that time was because the defendant was talking about securing other counsel. The case is, of course, a desperate ease from the standpoint of the defendants, and I feel that they should be given every opportunity to fully present their defense. The Court : I think so too. But I am under the impression a month and a half is quite ample time unless a most unusual situation appears, and none does appear. I, personally, have had a slight experience in the defense of murder eases and the prosecution of murder cases. Not in[859]frequently I have had to try cases on very much shorter notice than that. I think we all recall the Clara Phillips case. I had just one week t'o prepare that case for trial. Mr. Thomas : I am told by the District Attorney they have some thirty-three witnesses for the prosecution, which would indicate the scope of preparation and investigation required for this case. I will say we have not, hy any manner of means, contacted nor ascertained the nature of the testimony of those witnesses, what testimony we ivill have to meet. The Court : I can see no grounds for a continuance at the present time other than the immediate calendar situation. By reason of the congested condition of the calendar the ease is continued at this time until next Monday morning at 9 a. m. All witnesses ordered to return here at that time.” On June 19, 1944, the trial was commenced. Warner was substituted for the public defender. Warner again asked for a continuance and was refused, the court stating: “I do not think so under the circumstances. The case has been pending for a sufficiently long time to provide for reasonable preparation. As I have stated previously, it may be a little more difficult for you to proceed, having been in the case only a short time, but the rule for continuance applies to the defendant and not to his counsel.” !
It is clear that the time allowed to Warner to prepare for trial was too short, considering the seriousness of the charge, the many witnesses called by the prosecution and the lack of opportunity to interview them, the possibility of uncovering other evidence, and the length of the record. The trial judge stated that the time was too short. It is- also apparent from the foregoing quotation from the record that the public defender felt he had not made sufficient preparation inasmuch as he was expecting appellant to employ other counsel. Moreover he did not participate in the trial. Hence it is plain that no adequately prepared counsel was available to appellant. The majority opinion cites cases as to various periods of time being sufficient, but each case depends upon its own circumstances. Here the charge was of the most serious character and the trial judge stated the time was insufficient.
It should be equally clear that if the trial court abused its discretion the error was prejudicial and requires a reversal. True, from the record it appears that defense counsel Warner presented a vigorous defense, but it is impossible to appraise the result that may have flowed from a full investigation of [860]the case and the evidence available. It is aptly said in Powell v. Alabama, 287 U.S. 45, 58 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527] : “Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. ” In People v. McNabb, 3 Cal.2d 441 [45 P.2d 334], and People v. White, 137 Cal.App. 467 [30 P.2d 555], the charge was much less serious and there were not the same circumstances bearing upon the opportunity for preparation. Under the circumstances in the instant ease the mere fact that the defense was vigorous is not enough to show lack of prejudice in the denial of the continuance. The shortness of the time in the light of the circumstances here presented indicates prejudice to appellant.
We thus have a situation in which neither the public defender, nor counsel of defendant’s own choice, were prepared to try the case, and if the public defender were or should have been prepared he did not participate in the trial.- He was relieved of his representation of appellant. Appellant was first denied the right to have counsel of his own choice unless the public defender also acted or unless no continuance for preparation would be asked. Having private counsel was of little value to appellant under those circumstances. Counsel not having an opportunity to prepare is tantamount to no counsel. (Powell v. Alabama, supra.) And a defendant in a criminal case is entitled to select and engage private counsel. (In re Ades, 6 F.Supp. 467; McCleary v. State, 122 Md. 394 [89 A. 1100]; People v. Price, 262 N.Y. 410 [187 N.E. 298]; Glasser v. United States, 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680].)
The majority opinion argues, however, that the policy of the state to have speedy trials and expedite the administration of justice must be given consideration and that a defendant should not be permitted by last minute changes of counsel to obtain continuances and thwart that policy; that in the instant case appellant had ample time to procure private counsel. The controlling principles that must be observed in such cases are stated in Glasser v. United States, supra, at page 69: “The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power. Among those guarantees is the right granted by the Sixth Amendment to an accused in a criminal proceeding in a federal court ‘to have the Assistance of Counsel for his defense.’ ‘This is one of the safeguards . . . deemed necessary to insure fundamental [861]human rights of life and liberty’ and a federal court cannot constitutionally deprive an accused whose life or liberty is at stake of the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 462, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. 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, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, 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 conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired.
‘ ‘ To preserve the protection of the Bill of Rights for hard-pressed defendants, we indulge every reasonable presumption against the waiver of fundamental rights. Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093. . . .
“Upon the trial fudge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. Speaking of the obligation of the trial court to preserve the right to jury trial for an accused Mr. Justice Sutherland said that such duty ‘is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.’ Patton v. United States, 281 U.S. 276, 312, 313, 50 S.Ct. 253, 263, 74 L.Ed. 854, 70 A.L.R. 263. The trial court should protect the right of an accused to have the assistance of counsel. ‘This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting [862]and appropriate for that determination to appear upon the record. ’ Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.” (Emphasis added.) Likewise, by analogy in the instant case, we should indulge in the presumption that there was no scheme or plan by appellant to secure a postponement of the trial by the device of changing counsel. Otherwise the fundamental right is whittled away with the knife of a mere supposition that persons accused will impose upon the courts. Prior to June 14, 1944, appellant was endeavoring to obtain funds from relatives to pay the fee of an attorney to be engaged by him for his defense. Presumably the chosen counsel appeared at the earliest opportunity to obtain a continuance, two days before the trial date. There is no showing or indication of bad faith on the part of either appellant or his counsel Warner. The public defender joined in the proceeding and was apparently satisfied with the endeavor of appellant to obtain counsel. The prosecuting attorney made little protest and advanced a feeble reason why a continuance would not be proper. The court in remarking that because of the many cases scheduled for trial in the future, the trial might be delayed a long time, may well have been correct, but the fundamental right here involved should not swing on the congestion of the courts for which appellant is not to blame. By virtue of the same reasoning his attorney could be limited to two hours for preparation.
I think it is obvious that the trial court was not sufficiently solicitous in protecting the constitutional right of the appellant to the assistance of counsel as that right is defined in the Glasser and Powell cases. It used as a weapon to prevent appellant from having a counsel of his own selection, the threat of either not making such a choice or taking an unprepared counsel by the device of denying a continuance, all upon the supposition that appellant was attempting to obtain an unjustified delay in the trial. The policy to expedite the administration of justice must be considered in the light stated in Williams v. Kaiser, 323 U.S. 471, 476 [65 S.Ct. 363, 89 L.Ed. 398] : “Prompt and expeditious detection and punishment of crime are necessary for the protection of society. But that may not be done at the expense of the civil rights of the citizen. Law enforcement need not be inefficient when “accommodated to the constitutional guarantees of the individual.” And in Powell v. Alabama, supra, at page 59: “The prompt disposition of criminal cases is to be commended and eneour[863]aged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.” There is undoubtedly large discretion vested in the trial court in passing upon requests for continuances, but in light of what I have said and the presence of the fundamental issue of right to counsel, there was clearly an abuse of discretion in this case.
There is nothing in the cases of Betts v. Brady, 316 U.S. 455 [62 S.Ct. 1252, 86 L.Ed. 1595], and Avery v. Alabama, 308 U.S. 444 [60 S.Ct. 321, 84 L.Ed. 377], which compels a contrary result. In the Avery case it is stated that a mere denial of a continuance alone does not deny a person the right to assistance of counsel. It is there conceded that “But the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guaranty of assistance of counsel cannot be satisfied by mere formal appointment.” Moreover the court laid stress on the point that the scene of the crime was a rural community, contrary to the case at bar, where investigation would be simple, and stressed that the policy of Alabama should be given weight and consideration. We believe the policy of this court for this state should be as above stated. Likewise in the Betts ease the court was concerned with the application of the Fourteenth Amendment to state court proceedings and merely said that in that case there was not a lack of due process of law. I am here merely holding that prejudicial error was committed.
There is language in People v. Shaw, 46 Cal.App.2d 768 [117 P.2d 34], quoted in People v. Whinnery, 55 Cal.App.2d 794 [131 P.2d 33], to the effect that courts should be zealous in guarding the rights of accused but; “To hold that a defendant charged with a crime has an absolute right to counsel of his own selection, with unlimited right to insist upon continuances of his trial, would be subversive of the prompt administration and execution of the laws-upon which depends largely their effectiveness. It is at once apparent that the trial court must in the nature of things have some control over such matters, to the end that judicial business may be dispatched in an orderly manner.” But in the Shaw and [864]Whinnery eases the counsel who was to be substituted out of the case participated therein, and there the circumstances were not the same as here.
The majority opinion relies upon section 1050 of the Penal Code the material parts of which provide: “The court shall set all criminal cases for trial for a date not later than thirty days after the date of entry of the plea of the defendant. No continuance of the trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance. No continuance shall be granted for any longer time than it is affirmatively proved the ends of justice require. Whenever any continuance is granted, the court shall enter in its minutes the facts proved which require the continuance.” But in the instant ease no objection was made by the prosecution as to the procedure followed in attempting to obtain the continuance and the court accepted the claim of lack of time for preparation as true and did not mention or make any point that a better showing should have been made of any facts pertinent to the subject, and ordered the case to go to trial with an admittedly unprepared counsel without any association or assistance by the former counsel. Under these circumstances, keeping in mind the fundamental right involved, I do not believe that the position taken in the majority opinion is meritorious. Certainly the policy stated in that section cannot be expanded to impair that sacred right.
In order to sustain the arbitrary action of the trial judge in this case the majority opinion has glossed over the poignant circumstances which stand out clearly in the record herein-above quoted. This record discloses that the public defender was not prepared to try the case at the time Warner was employed, and he so informed the court. Warner would have had two days to prepare if the substitution had been allowed on June 14th and the case had gone to trial on the 16th. The court did not allow the substitution on the 14th so both Warner and the public defender were uncertain as to what either should do. In fact the court never ruled on the motion made by the public defender on June 14th to substitute Warner in his place, but stated that he would permit Warner to appear as counsel for defendant associated with the public defender and on the day of trial he would permit the latter to withdraw. The case could not go to trial on June 16th and was continued to June 19th when the trial commenced. [865]At that time the public defender made a motion to substitute Warner in his place and that he be permitted to withdraw. This motion was granted. Warner had a total of four days, which included a Saturday and Sunday, to prepare for trial. The public defender having announced in open court that he was not prepared to try the case could obviously have been of little assistance to him even if he had remained in the case. In the face of these facts, to say that appellant was accorded his constitutional right to be represented by counsel of his own choice and afforded a reasonable opportunity to prepare for trial, should tax the credulity of anyone who has had experience in the trial of criminal cases.
While appellant may have participated in the commission of a heinous and fiendish crime and the punishment meted out to him by the judgment and sentence may be in accord with the popular concept of justice, I cannot yield to the concept, which is the basis of the majority opinion, that judicial expediency may be substituted for constitutional guarantees. Decisions such as this make these guarantees meaningless.
In my opinion the judgment should be reversed.