People v. Terry

DRAPER, P. J.

A jury found defendant guilty of petty theft and also found that he had been convicted and had served prison terms for four other felonies (three second degree burglaries and one petty theft with priors). He was sentenced to prison (Pen. Code, § 667). He appeals from the judgment.

There is evidence that defendant and one Williams were found about midnight attempting to conceal themselves in a storage yard used by a supply company. About 1,000 feet of copper wire cut from a spool in the yard lay outside the wire fence of the enclosure. Inside it, a few feet from defendant, was a pair of cutting pliers. Near where Williams had hidden was a hacksaw. Both were charged. Williams apparently pleaded guilty, and the ease was tried only as to defendant. Recordings of confessions by defendant were played to the jury, but he contended that these statements were obtained by force or threats.

The sole question is whether defendant properly waived counsel at trial. Mr. Maynard represented him under court appointment at preliminary examination, and, with defendant’s consent, was appointed as counsel in superior court. Defendant pleaded not guilty January 12, and trial was set for February 5. On that date, trial was continued on the court’s own motion to February 7 and then was similarly continued to February 13, when it was assigned to another department for trial. Mr. Maynard appeared for him throughout. When the ease was called, with the jury panel present, defendant announced that he didn’t want his pres

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ent attorney, and asked for another. The court asked why defendant desired to discharge Mr. Maynard, and was told “He wanted me to plead guilty of something I wasn’t guilty of.”

The court promptly excluded the prospective jurors from the courtroom, and carefully explained to defendant that Mr. Maynard was known to the judge to be competent and conscientious. It was also explained to defendant that counsel might feel it his duty to advise a guilty plea, but could nevertheless defend adequately if the advice were not followed. The court then detailed the disadvantages under which defendant would labor in attempting to defend himself, and again extolled the capabilities of Mr. Maynard. Defendant said: “I’d — I don’t think I would be worse off. I mean I will ■—■ willing to take the responsible, whatever it is. It couldn’t have-—-be any worse is I not satisfied with the counsel.” After further colloquy, he said “I prefer to, I mean, defend my own case”, and, later, “I think I be — do a pretty good job of it.” He later protested several times that he did not even want Mr. Maynard in an advisory capacity, but Maynard consented to serve and was so designated. Defendant again protested, and the court told him that he could conduct his own case, but could call on Mr. Maynard for any advice desired. Mr. Maynard sat throughout the trial, but apparently was never called upon by defendant. Defendant tried his own case, and did it poorly. Whether due to the clearness of the evidence or the nature of the defense, the jury returned after 14 minutes with verdicts finding him guilty and determining that he had suffered each of the four alleged prior convictions.