People v. Byoune

PEEK, J. Defendant Realm Luther Byoune appeals from a judgment of conviction entered after a jury found him guilty of second degree robbery.

There is no question as to the sufficiency of the evidence supporting the judgment. Defendant’s basic contention is that the trial court’s refusal to grant him a continuance for the purpose of obtaining private counsel constituted, in the [346]circumstances of this case, a prejudicial abuse of discretion as well as a violation of his constitutional right to the assistance of counsel. Since it appears that this contention is meritorious, it is unnecessary to resolve defendant’s other claims of prejudicial error.

On January 21,1965, defendant was charged by information with grand theft. He was arraigned on January 29, 1965, a public defender was appointed to represent him, and the case was set for trial on March 25. On March 24 the information was amended by adding a second count charging defendant with robbery. The following day, prior to the commencement of the selection of jurors, defendant moved for a continuance so that he could retain private counsel. He admitted he was indigent but said that his brother, who lived in Chicago, would pay for an attorney if defendant were given the opportunity to contact him.

The trial court determined that the addition of the robbery count did not cause surprise since both charges arose out of the same facts. The court also concluded that defendant should have retained private counsel in the two months which intervened between the original arraignment and the trial if he was dissatisfied with his appointed counsel. For these reasons the court ordered that the jury be empaneled that day, though it agreed to postpone the taking of evidence until the following morning.

It is not disputed that defendant, who was incarcerated, had no reasonable opportunity to obtain private counsel overnight. Neither is it seriously disputed that appointed counsel, who proceeded to represent defendant on the following morning, conducted a competent defense in his behalf.

In the recent case of People v. Crovedi, ante, p. 199 [53 Cal.Rptr. 284, 417 P.2d 868], we held that due process of law, as it is expressed through the right-to-counsel provisions of the state and federal Constitutions, comprehends a right to appear and defend with retained counsel of one’s own choice. We further observed, however, that this right is not absolute: it must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular ease. (People v. Crovedi, supra, ante, pp. 199, 206.) A defendant may not, for example, demand a continuance if he is unjustifiably dilatory in obtaining counsel (Ungar v. Sarafite, 376 U.S. 575, 590 [11 L.Ed.2d 921, 84 S.Ct. 841]), or if he arbitrarily chooses to substitute counsel at the time of trial