People v. Lefer

California Court of Appeal Jul 16, 1968 No. Crim. 14010Published

Before: Roth

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Holding. The court held that a defendant does not have a right to a continuance to earn money to hire private counsel, and that applying a sentence enhancement for being armed during a robbery constitutes double punishment when being armed is an element of the offense.

Issues

Did the trial court err in denying a continuance for the defendant to earn money to hire private counsel?
Does the imposition of a sentence enhancement for being armed during a robbery constitute double punishment when being armed is an element of the underlying offense?

Disposition. affirmed, as modified

Quotations verified verbatim against the opinion

“The condition of being “financially able” for the purposes of employing counsel of choice must be limited to exclude those who cannot hire the services of chosen counsel at the time of the proceedings against him.”

“The judgment will be modified by striking therefrom the finding that appellant was armed with a deadly weapon within the meaning of Penal Code section 12022 at the time of the commission of the offense charged.”

ROTH, P. J.

—Appellant was, by the court, found guilty of robbery in the first degree and sentenced to imprisonment in the state prison for the term prescribed by law. This appeal is from the judgment and sentence.

The transcript of the preliminary hearing by proper stipulation together with additional testimony of appellant and his partner in crime, was the basis of the trial.

Ollie Barksdale was host at a party in his home on January 7, 1967. Guests were playing cards and generally socializing. At approximately 9 p.m. appellant and one Harvell Lewis, who was tried separately from appellant, armed with concealed pistols, gained entry to Mr. Barksdale’s home. Mr. Barksdale did not know Lewis and asked who he was looking for. Lewis responded, “We’re just looking for some action.” Mr. Barksdale informed him that there was no action there. Lewis responded by pulling out a pistol. While Lewis was holding the guests at gunpoint, appellant, standing at the front door with his pistol drawn, pushed Mr. King Duffy, a guest, against a wall, extended a paper sack to him and said, “Old man, get the money.” After the money was collected and given to Lewis, appellant and Lewis fled together from the residence.

Lewis testified that he had gone to Mr. Barksdale’s home to gamble, that he caught Barksdale cheating and demanded a return of his money, that when it was not returned he drew the pistol for his protection, and collected only the money which he had brought with him. Appellant testified that he had been watching television in another room, and hearing a commotion, he looked in the eardroom, saw Lewis flash his pistol, became frightened, and when someone grabbed his arm, he pulled out his pistol.

Appellant appeared at the preliminary hearing without counsel and was granted a continuance to employ counsel.

Approximately one week later, appellant appeared with

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counsel who had been appointed for him. Appellant requested a second continuance to afford him time to earn enough money on his job to be able to hire and pay a lawyer of his choice.*

People v. Lefer

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ROTH, P. J.

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