People v. Deveny

California Court of Appeal Aug 18, 1952 No. Crim. 917Published

Before: Mussell

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Holding. The court held that the defendant waived his right to counsel by explicitly declining representation and that his claim regarding the use of restraints during trial was procedurally barred by a failure to object and a lack of evidence of prejudice.

Issues

Whether the trial court committed reversible error by failing to remove the defendant's restraints during trial.
Whether the trial court erred in failing to provide the defendant with counsel.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since no objection was made by the appellant to wearing the so-called “boots,” no evidence was introduced showing their necessity or lack of necessity under the circumstances.”

“The right to be represented by counsel is a right which may be waived”

“Under the circumstances here presented, there was no error in failing to provide the appellant with counsel.”

MUSSELL, J.

Appellant, with one Leonard Cruz, was charged in an information with the crime of robbery. It was also charged that Cruz was armed with a deadly weapon and that he had been previously convicted of first degree burglary. Appellant Deveny was charged with three previous felony convictions: Violation of the Dyer and Mann Acts, forgery and escape from state prison. Appellant denied the first prior conviction and admitted the other two. A jury trial resulted in a conviction of both defendants and they were sentenced to the state prison. Deveny appeals from the judgment of conviction and contends that the trial court committed reversible error in not freeing him from bonds and shackles and in not providing him with counsel. It is not contended that the evidence was insufficient to sustain the verdict and judgment.

Statement op Facts

At about 8:30 a. m., June 8, 1951, appellant and Cruz entered the Valentine Furniture Store in San Bernardino. They asked for a portable radio and were being waited upon by Mr. Alton, the manager of the store, when defendant Cruz, who was armed with a gun, advised Alton “This is a stick up. Open the register up.” Alton complied and appellant then took between $20 and $30 from the register. Cruz and Deveny then pulled the telephone from the wall and broke the wires and Cruz said to Alton “You stay right there or I will put a forty-five right through you.” The defendants then ran out of the store to their parked automobile and drove away. A few minutes later they were arrested by police officers and taken to the store where they were identified as the men who had committed the robbery.

Mrs. Sullivan, a witness called by the prosecution, testified that the day before the robbery she was hitchhiking into Los Angeles when she was picked up by the defendants; that she came to San Bernardino with them, arriving at about 3 a. m. the following morning; that she was in the defendants’ car when it was stopped in the front of the furniture store; that she was instructed to lie down in the back seat of the car while the defendants entered the store; that they said they were going to “heist the joint”; that she saw a .45 automatic

[769]

in the automobile and that after they left the store Cruz asked Deveny “how much they’d gotten.”

People v. Deveny

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MUSSELL, J.

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