People v. Gonzales

151 Cal.App.2d 112 (1957) THE PEOPLE, Respondent,

v.

LOUIS VILLAREAL GONZALES, Appellant.

Crim. No. 3265. California Court of Appeals. First Dist., Div. One.

May 17, 1957. Sanford N. Diller, under appointment by the District Court of Appeal, for Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, and John S. McInerny, Deputy Attorney General, for Respondent.

BRAY, J.

Defendant appeals from a judgment of conviction, after jury trial and after denial of probation, of violation of section 11500, Health and Safety Code (sale of narcotics), and from order denying new trial. [fn. *]

Questions Presented

1. Was defendant denied his constitutional right to counsel?

2. Alleged misconduct of district attorney.

Record

As defendant does not question the sufficiency of the evidence to sustain the conviction (he hardly could, as the evidence shows that defendant sold four bindles of heroin to a police officer, although defendant contended it was a case of mistaken identity and attempted to prove an alibi), it is unnecessary to detail the evidence.

March 9, 1956, on arraignment defendant was informed of his right to counsel and stated he would have his own counsel. The time to plead was continued to March 16th. At that time he was represented by Attorney Feeley and pleaded not guilty, denying four priors charged against him (unlawful sale and use of narcotics). Trial was set for May 8th. When defendant appeared with his counsel, Attorney Machado, Machado [114] made a motion to withdraw as counsel. "Counsel and defendant are now heard." The court granted the motion. The court ordered defendant to be ready for trial at 1:30 p.m. "if represented by counsel or not. Thereupon the defendant with Edward J. Nelson, Esq. acting on behalf of Manny Gomez, Esq. as counsel for the defendant" moved for a continuance of the trial date one week. The motion was granted. May 15th, in chambers, Attorney Gomez stated that he had been retained by defendant solely for the purpose of seeking the continuance on May 8th and not for the trial of the case, and that defendant had informed him defendant was going to act as his own counsel and desired to admit the priors. Attorney Gomez moved to be discharged as attorney for defendant. The motion was granted. The court then asked if defendant was willing to represent himself. He stated that he was. When asked if he wanted to go ahead with the trial he stated: "Well, I didn't want to. I wanted Mr. Gomez to represent me, but I'm short of funds at the present moment, so they didn't give me no continuance, I haven't asked for any, I asked for one last week and I didn't get one, but if I could get a two-week continuance I could probably raise the money." In a colloquy with the court defendant stated that he could probably raise the money for counsel fees "if they give me a little time." The court reminded him that he had been given a continuance of a week to get a lawyer. Defendant stated that he had paid $500 for a bail bond so he did not have any money for counsel fees. The court then reminded him that he had had a lawyer, Attorney Machado, but as the court understood it defendant would not let Machado conduct the case, and only wanted Machado to sit with him in court. Defendant said that the understanding was that as he did not have any money Machado was to sit with him, but if he could raise enough money Machado would "represent me all the way through." Defendant did not get the money so Machado withdrew. The court stated it did not know how long it would take defendant to raise the money to pay a lawyer, "and you had one week's time, and if you didn't have the money to pay a lawyer, the Court could have appointed a lawyer for you. It looks to me like you want to represent yourself and you just don't want a lawyer, so we have the jury here today, we have all the witnesses, and everything is ready to go. You're just going to have to represent yourself." After some talk about defendant having received the continuance he had asked for previously the court asked the defendant how much time he wanted.