People v. O'Neill

WILSON, J.

Appellant was charged with the crime of robbery with two prior convictions of felonies for each of which he served a term of imprisonment in the state prison. Upon his arraignment he was without counsel and the public defender was appointed by the court to represent him. Subsequently, with his counsel present, he pleaded not guilty and denied the prior convictions. Several days before the day set for his trial, pursuant to appellant’s personal request made in open court, the public defender was relieved from- further service as his counsel and thereafter he appeared in propria persona. When the case was called for trial he requested and was granted a continuance for the reason that certain witnesses desired by him were not present because they had not been served with subpoenas. On the day to which the trial was continued appellant withdrew his denial of prior convictions and admitted both, to wit, assault with a deadly weapon and petty theft with a prior felony, both convictions having been in the State of California. He then announced that he was ready for trial, waived a jury and consented to a trial by the court. He made no request for the appointment of an attorney and conducted his own defense. The court found him guilty as charged and denied his motion for a new trial. The appeal is from the judgment of conviction and from the order denying a new trial.

As one of the grounds of appeal appellant asserts that he was denied due process of law by reason of his having been

[891]

placed on trial without benefit of counsel. Since he waived his right to counsel by voluntarily dismissing the public defender who had represented him by appointment of the court the objection now made is without avail. While a person charged with crime is entitled to representation by counsel (Const., art. I, § 13) the right is one that he may waive.

(In re Connor,

16 Cal.2d 701, 709 [108 P.2d 10]. An express waiver is not necessary, an implied waiver being sufficient.

(In re Jingles,

27 Cal.2d 496, 499 [165 P.2d 12];

In re Connor

15 Cal.2d 161, 165 [99 P.2d 248].) The minutes of the court recite that: “Pursuant to a personal request by the defendant, the Public Defender is relieved as his counsel, the defendant now appearing in Propria Persona.” Appellant had been twice convicted of felonies before his trial upon the present charge and it would be' assumed “that he was not unfamiliar with court proceedings, and that there is no injustice to him to apply the rules of waiver to his case in view of his undoubted familiarity of such matters and his attitude in court.”