People v. Munoz

Opinion

GARGANO, J.

By grand jury indictment, appellant Joseph Louis Munoz was accused of the sale of heroin in violation of section 11501 (now § 11352) of the Health and Safety Code. Thereafter, appellant entered a plea of not guilty to the charge. He also moved for a change of venue; the motion for change of venue was denied and the cause was set for jury trial.

On the morning of appellant’s trial, appellant and his trial counsel convened in the trial judge’s chambers so that the judge could inform appellant of the consequences of admitting or denying a prior conviction. During this proceeding, the following occurred:

“The Defendant: I am not getting too much help from [my attorney],

“Mr. Ballard [Acting Public Defender]: I have already given him advice with respect to the prior.

“The Defendant: You don’t want to fight the case. I tell him the way it happened, and he—he tells me, “You are guilty; you ain’t got a chance.” What kind of defense do I have, if I listen to him?

“The Court: I am sure of this. When your attorney talks to you privately, he talks straight to you and gives you the benefit of his advice and his opinion of what you should do. How he behaves out in the courtroom is a different matter. He is bound by his oath, and he will do a good job.

“The Court : Let the record show the Defendant admits the prior conviction, and when the Clerk reads the Amended Indictment to the Jury, that charge will not. be read to the Jury.

[65]

All right, let’s go out in open Court.

“The Defendant: What are we going to do about my lawyer?

“The Court: He is going to represent you out there.

“The Defendant: Stay on the transcript. I say, “No.” I don’t want him. I want Mr. Gendron.

“The Court: He is going to represent you. Take the Defendant back into the Courtroom.