People v. Chung

KINGSLEY, J. Defendant was convicted of two counts of robbery. He appealed in propria persona. No request for the appointment of counsel was made. No brief was filed and, on September 6, 1962, the appeal was dismissed under rule 17a of the California Rules of Court.

Defendant has recently retained counsel through whom he has filed a motion seeking recall of our remittitur and vacation of the judgment of dismissal. The motion, which relies on Swenson v. Bosler (1967) 386 U.S. 258 [18 L.Ed.2d 33, 87 S.Ct. 996], Carnley v. Cochran (1962) 369 U.S. 506 [8 L.Ed. 2d 70, 82 S.Ct. 884], and Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733], cites [434]the earlier history of this case and of the companion case involved in our Crim. No. 8084. The motion takes into account the fact that, unlike Case No. 8084, no request for counsel was made in this case and seeks to avoid the effect of that omission by the following argument: “Defendant having theretofore, in Case No. 2d Crim. 8084, filed with said court a request for the appointment of counsel and being cognizant of the procedure and requirements of said appellate court for the appointment of counsel, and of the denial of said court for the appointment of counsel in Case No. 2d Crim. 8084, and not being fully cognizant of his right under the United States Constitution to the appointment of counsel, failed to request said court to appoint counsel on appeal, and although the appellate court was aware that the defendant had prosecuted his trial in propria persona, said court failed and neglected to appoint counsel for him.

“The defendant, not being fully cognizant of the method and manner of preparing and filing a brief on appeal, nor fully cognizant nor capable of researching the points on appeal, being unable to prepare and file a brief on appeal, failed to file said brief, and by reason of defendant’s failure to file a brief on appeal, the appeal was dismissed by this Court. ’ ’

In opposing the motion, the Attorney General argues: (1) That the application, made almost five years after the dismissal, comes too late; and (2) That the right to counsel was waived.

For the reasons set forth in our opinion in Crim. No. 8084, the first contention is not valid. But we conclude that the Attorney General is correct in his second contention.

We recognize that, in Swenson v. Bosler, supra, (1967) 386 U.S. 258, 260 [18 L.Ed.2d 33, 36, 87 S.Ct. 996, 998], the Supreme Court of the United States said: “When a defendant Avhose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel. ’ ’ But in the case now before us, the record discloses much more than a mere failure to request counsel. We conclude that it shows an intentional waiver of the right to make such a request by an appellant who knew that such a right existed.