People v. Miller

ASHBURN, J. Defendant was found' guilty' of first degree robbery as charged in two counts. , Motion for. new. trial denied. He appeals from the judgment.

The cause having regularly .come before us upon the merits the judgment was affirmed in People v. Miller, 190. Cal.App.2d 361 [11 Cal.Rptr. 920], The Supreme Court denied á hearing on May 16, 1961,. and the remittitur issued. in due course. Thereafter, upon petition of, appellant, based upon the fact that his application for appointment of an attorney .to represent him upon appeal, made ..prior to the hearing upon the merits, had been denied by this court, and, acting under the compulsion of Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811], we recalled the remittitur, vacated our judgment, appointed an attorney to represent appellant [630]throughout further stages of the cause, gave him time for preparation and filing of an opening brief and placed the cause upon the July 1963 calendar for hearing. Appointed counsel duly served and filed an opening brief and respondent interposed an answering brief; the cause is again before us upon the merits.

Appointed counsel has abandoned the points raised in appellant’s pro. per. brief, which were passed upon in our former opinion. Counsel presents the cause upon this basis: “It is our view that the trial court erred in permitting the appellant to act as his own attorney and did not insist that appellant either have counsel represent him or else appoint counsel to confer and assist appellant in the course of the trial,” and “ [i]t is our considered opinion that the trial court, if it did not insist upon appellant appearing by and through counsel, should at least have appointed counsel to sit at the counsel table with appellant and assist him during the trial. ’ ’

We refrain from repeating our views upon the points raised by appellant upon the former hearing and incorporate herein by reference the treatment of same found in our opinion which appears in People v. Miller, supra, 190 Cal.App.2d 361.

Concerning the alleged asserted obligation of the trial court to appoint an attorney for defendant after he had twice insisted upon discharge of the public defender who had been representing him, we first quote the second paragraph of the former opinion: “Appellant was arrested on October 23, 1959; the information was filed on November 6, 1959. He was represented by a deputy public defender at. the time of arraignment and plea; also on December 18, the date set for trial, and on December 21 the date to which the matter was continued. On the latter date, appellant’s motion to dismiss the public defender was denied; his request for the transcript of certain testimony given in a related trial was granted. Trial was reset for January 4, 1960, upon which date at defendant’s personal request the public defender was relieved as counsel, appellant was substituted in propria persona, and the cause was continued to January 18. On January 7 appellant appeared with a deputy public defender and the cause was reset for trial on January 8. Thereafter appellant appeared in propria persona. On January 8 the matter was continued to February 4 at the request of appellant, upon which date the cause was called for a jury trial.