People v. Moore

KINGSLEY, J. After defendant had been convicted in municipal court of a violation of section 11721 of the Health and Safety Code (using narcotics), proceedings pursuant to section 3050 of the Welfare and Institutions Code were instituted, looking toward his commitment to the California Rehabilitation Center as a narcotic addict. Two doctors were appointed, their reports were filed, and a hearing was held at [488]which defendant was represented by the public defender. That, hearing resulted in a finding that defendant was a narcotic drug addict within the meaning of the statute and in an order that he be committed as prayed. Pursuant to the final paragraph of section 3050, defendant duly demanded a trial by jury and a jury trial date was set. Thereafter defendant asked the court to relieve the public defender and allow him to defend himself. That motion was denied but a similar motion, five days later, was granted, after a colloquy with the court. The matter was then continued twice to enable defendant to prepare for the jury trial. On the date ultimately set, he executed a stipulation that the matter be heard before a court commissioner sitting as a judge pro tempore. The jury trial proceeded before that official, resulting in a finding that defendant was an addict. Based on the jury verdict and the earlier order of commitment, he was ordered transmitted to the Behabilitation Center. He has appealed.

I

Court-appointed counsel argues that defendant was denied his constitutional right to counsel because the deputy public defender was not adequately defending him, thus forcing him to fall back on a propria persona defense.

The difficulty with that ingenious argument is that its major premise fails. Had defendant been able to show that the court-appointed public defender was, in fact, not providing adequate representation, it would have been the clear duty of the trial court to see that that deputy was relieved and some other counsel appointed. We have no doubt that it would have done so. But defendant showed only that he was aggrieved because the deputy had not conferred with him as much as he wished. The colloquy with the court made it clear that defendant desired to confer, not over the impending commitment trial, but over a possible appeal from his municipal court conviction. That desire, while understandable, was immaterial. In the first place, the deputy had been appointed solely for the then pending commitment case; he had neither responsibility nor jurisdiction in connection with the criminal conviction. Secondly, at the time in question, since the criminal case had not proceeded to either sentence or a motion for new trial, no right of appeal yet existed;1 any discussion of that subject was premature. Nothing in the record suggests