People v. Boulware

[1755]

Opinion

EPSTEIN, Acting P. J.

Appellant, Ruben Odell Boulware, appeals his conviction by jury verdict of three counts of second degree robbery (Pen. Code, § 211; all further code citations are to the Penal Code unless otherwise indicated) together with a five-year enhancement for a prior serious felony conviction (robbery) and a one-year enhancement for a prior prison term for possession of a controlled substance (Health & Saf. Code, § 11350) and burglary (§ 459).

Factual Summary

Since the only issue raised on this appeal (other than in appellant’s pro se supplemental brief) is a claim that appellant was denied his Sixth Amendment right to counsel at the felony preliminary hearing, a detailed discussion of the evidence at trial is not necessary.

Appellant was charged with three counts of robbery. On June 25, 1992, a public defender was appointed to represent appellant. The public defender represented defendant at arraignment, but on July 2, 1992, appellant’s motion for in propria persona status was granted. (No challenge is made to the correctness of this ruling.) The preliminary hearing was held on July 8, 1992, the ninth day of the ten-day statutory period within which the preliminary hearing was required to be held. (§ 859b.) At the beginning of the hearing, appellant told the court that he was going to put his case “back in the hands of a state appointed attorney due to the fact that there are a lot of games around the road if I try to defend myself, me being in custody, an Afro American with little intelligence, [fl] I would ask you to put it in the hands of a state appointed attorney, letting you go on doing what you need to do to feel superior to me.” The court asked appellant if he would agree to continue the preliminary hearing. Appellant answered, “I want to get it on right now. I have no objections to it being handled right now.” The court denied appellant’s request to appoint counsel and for the hearing, and stated, “[w]e will go ahead with your preliminary hearing today and I will note for the record that you have relinquished your pro per status and I’ll have the public defender appointed to represent you and start preparation for your trial if you are held to answer.” At the preliminary hearing the investigating officer testified pursuant to section 872, subdivision (b), enacted by Proposition 115 in 1990. Appellant was held to answer the pending charges for robbery.