People v. Sharp

WOOD (Fred B.), J.

Convicted of violating Penal Code, section 4530, escape from the state prison at Soledad, defendant has appealed.

(1)

Was it error not to appoint counsel to represent defendant at the trial? No.

When arraigned, defendant waived counsel. The record does not show what the judge said at that time. The minutes of the court state that upon that occasion “defendant waives his right to be represented by counsel,” and that he was ar

[522]

raigned. There is a presumption that “official duty has been regularly performed.” (Code Civ. Proc., § 1963, subd. 15), which of course includes a presumption that defendant was duly arraigned and advised of his right to counsel as required by section 987 of the Penal Code.

(People

v.

Justice,

125 Cal.App.2d 572, 575 [270 P.2d 859].)

Toward the close of the trial the court informed defendant he had the right to take the witness stand and that if he did not an instruction might be given the jury concerning his failure to deny or explain what had been stated by plaintiff’s witnesses. Defendant replied, “. . . Tour Honor, it seems that I have entered the wrong plea for what I was hoping to prove. It is not no fault of mine; I mean, no fault, but my own.” Then the court observed: “Tes, you were granted, as you know, permission to have counsel at any time, and I think those rights were explained, weren’t they, Mr. Sharp?” Defendant said, “Yes, they were.”

Furthermore, his conduct of his case during the trial indicates he understood what he was doing. We conclude he “had intelligence enough to know what he was doing when he waived his right to counsel.”

(People

v.

Justice, supra,

125 Cal.App.2d 572, 575.)

The implied finding by the trial court that there was competent and intelligent waiver of counsel cannot be disturbed.