People v. Ryan

GRIFFIN, J.

It appears from the record that on September 11, 1950, defendant, in propria persona, filed a petition for a writ of error

coram nobis

which apparently

[145]

raised some of the same questions here presented. At defendant’s request he was returned from state’s prison at Folsom for the hearing. An attorney was appointed to represent him and also act as “a friend of the court.” Thereafter the court denied the petition. No appeal was taken from that order.

Thereafter, on September 8, 1952, defendant filed another such petition (also denominated petition for writ of

coram vobis)

alleging generally that he is now unlawfully imprisoned in the state’s prison at San Quentin because he was not, at the time of his preliminary hearing, properly informed of and given the right to the aid and advice of counsel.

On November 13, 1952, through his attorney herein, who was appointed by the court, he filed a petition for a writ of habeas corpus predicated upon the same grounds. Petitioner was again returned to the superior court and by stipulation a hearing was had upon both petitions at the same time. Evidence was offered on behalf of the People and on defendant’s behalf, resulting in orders denying both petitions. This appeal is from those orders.

In his opening brief, defendant contends that the court erred in failing to appoint counsel to represent him at the preliminary examination since (he claims) he did not waive any right to be represented by counsel, and only acquiesced in the preliminary hearing because of material misrepresentations made to him by the assistant district attorney.

It appears from the evidence that on January 29, 1949, defendant was charged with the issuance of a check without sufficient funds, in violation of section 476a of the Penal Code. He was duly arraigned in the city court in Hanford. A copy of the proceedings in that court was considered at the hearing. It shows that the magistrate informed defendant of his right to counsel; that defendant requested a continuance of one week for the purpose of employing an attorney, which continuance the court granted; that the defendant stated he thought he had finances “I can get ahold of”; that the court then told him it would be his responsibility to employ an attorney and that defendant acquiesced; that in the meantime defendant apparently notified the assistant district attorney that he desired to take the witness stand and testify at the preliminary hearing and enter a plea of guilty in