People v. Whinnery

SCHAUER, P. J.

Defendant Whinnery appeals from a judgment of conviction pronounced upon his plea of guilty of the crime of robbery. The sole contention is that the trial court abused its discretion in (1) refusing to allow a continuance, and (2) refusing to permit a substitution of attorneys, and that thereby defendant was denied a fair trial. The record fails to show any abuse of discretion or miscarriage of justice.

Appellant, hereinafter generally referred to as the defendant, and one Paul B. Potter were by amended information jointly charged with the commission of five felonies in Los Angeles County. Counts I, III and V charged robbery and counts II and IV charged kidnapping for the purpose of robbery. The information also alleged, in each count, that at the time of the commission of the offense therein described, the defendant was armed with a revolver, and it was further alleged that the defendant had suffered two prior felony convictions for each of which he had served a term of imprisonment in a penitentiary.

The defendant was first arraigned, on the original information, on April 9, 1942. He appeared personally and with an attorney. At his (defendant’s) request the time to plead was continued to April 20, 1942. On the latter date defendant again appeared with the same attorney, the amended information was filed, defendant was rearraigned, pleaded not guilty to each count, and denied both priors. Trial was set for May 22, 1942. On May 12, 1942, the defendant (with his codefendant) was personally present in court. He was then informed by the trial judge that the attorney who had appeared for him at the arraignments was himself in jail. The judge specifically stated, “Your attorney . . . got into difficulty himself and is now in the county jail. Your case is set for'trial on the 22nd of May, and will go to trial on that date. . . . Mr. Whinnery, you understand the situation . . . ? ... You understand you have a right to stay with him

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if you want to, or to secure another attorney ? ’ ’ The defendant replied in the affirmative to both questions.

On May 22, the defendant appeared with his attorney and then, for the first time, sought to substitute another attorney. The trial judge replied, “The substitution will be permitted only if Mr. Haley [the attorney sought to be substituted into the case] is prepared to go ahead with the case.” Mr. Haley stated that the defendant had contacted him at least seven days prior to this date but that he was not ready for trial. He said, “It has been a case of trying to contact his friends on the outside so . . . [his original attorney] could be paid for the work he has done before I could come into the ease. ’ ’ The trial judge pointed out, “the defendant either was or was not able to employ counsel at the time I had him down here ten days ago. If he had been financially unable to employ counsel, the Public Defender’s office would have been appointed. Instead of that, he chose to do the thing on his own responsibility. In other words, he has created the situation which now exists.” The original attorney stated, “I am perfectly willing to go ahead and try the case, because I am familiar with all the circumstances. I do not think I am incapacitated. I will be ready as soon as I get through with the ease now on trial. I will be glad to have Mr. Haley come in as associate counsel.” To this suggestion the court responded, “If he is to be merely associated, there will be no objection to that. There will be no substitution, as far as this court is concerned.”