Opinion
Cr. 4977
8-6-1953
PEOPLE v. ROBINSON. *
Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.
PEOPLE
v.
ROBINSON. *
Aug. 6, 1953.
Hearing Granted Sept. 4, 1953.
Edmund G. Brown, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.
MOORE, Presiding Justice.
Appellant and his codefendant Pratt were accused in two counts of robbery and of prior felony convictions. At the preliminary hearing they were represented by attorney Coviello. Following his conviction of the robbery of one Campbell, which occurred on June 22, 1952, appellant appealed from the judgment and from the order denying his motion for a new trial on the sole ground of the court's having abused its discretion in denying his motion for a continuance.
When the case came on for trial in the superior court, Coviello announced that he could not represent both defendants; that he wished to be relieved as counsel for appellant. The following colloquy discloses the entire proceeding with reference to the alleged error:
'Mr. Russell: The People are ready.
'Mr. Coviello: Your Honor, in this case, unfortunately, I am not quite ready here. Mr. Robinson at least 10 days ago, or two weeks ago, had consulted other attorneys. I don't want to go into a lot of detail, but he did tell me in the attorneys' room that he didn't want me to represent him. I indicated that I wanted him to secure counsel. I felt that there might be a diversity of interest between my client, Mr. Pratt, and Mr. Robinson. I have known Mr. Pratt for some time.
'He has told me this morning here that he hasn't made definite arrangements with any attorney. I don't know if he has consulted a public defender or not. I want to assure your Honor I can't represent him in court if he doesn't want me to. As far as I am concerned, I am ready to defend both these men, and I did go originally on the assumption that I would defend both of them, but I say again at least two weeks ago, or 10 days ago, I told him in the attorneys' room I thought it would be wise for him to get another attorney so there would be no question of diversity of interests here. In view of what he said, I think I would like to ask the Court to continue it for at least a week. I will leave it up to him here, if your Honor wants to interrogate him.
'Defendant Robinson: I would like to ask this case be continued for two weeks because I would like to get an attorney.
'The Court: What do you gentlemen want to do in this matter?
'Mr. Russell: Well, we have quite a few witnesses here. It seems to me that the matter should have been put on [sic] the calendar when some question arose between counsel and his client as to the situation. I haven't bene advised prior to this time that there was any contemplation of continuance.
'The Court: Is the public defender here?
'Mr. Russell: No, your Honor. I might state, so far as our calendar is concerned, it will have to go at least to the latter part of September.
'The Court: In view of the large number of witnesses here, I prefer not to continue the matter. Perhaps we could get a public defender at the last moment.
'Mr. Russell: The public defender wouldn't accept the case, if they had to go to trial today. I don't think it would be fair to them. They would require some opportunity to prepare for trial in the matter.
'The Court: Under the circumstances, I will pass this case for the moment. I would like to talk to Mr. Russell and Mr. Coviello in this Robinson and Pratt case.
'(Conference in chambers off the record.)
'(Other matters heard.)
'The Court: People v. Robinson and Pratt.
'Mr. Russell: Ready, your Honor.
'Mr. Coviello: Ready, your Honor.
'(Whereupon, a jury was duly impaneled and sworn to try the cause.)
'The Court: Do you waive the reading of the information?
'Mr. Coviello: I will waive it.
'Mr. Russell: People waive it.
'Mr. Coviello: At this time, if your Honor please, I would like to ask that all witnesses on the part of the People be excused from the courtroom.
'Mr. Russell: I have no objection to that request, but I think it should apply to all witnesses; not merely the witnesses for the People.
'The Court: Do you want the police officers excluded also?
'Mr. Coviello: Yes, your Honor. I meant all witnesses, defendants' and People's.'
The rule was enforced and all witnesses were excluded. Thereafter the trial proceeded smoothly, without dispute between defendants' counsel and either of them and without an adverse ruling. A search of the record discloses no diversity of interests of the accused and no divergence of their defenses.
Appellant grounds his contention for a reversal upon the hypothesis that his counsel informed the court of 'a diversity of interest between the defendants'; that by reason of such statement it became the judge's duty to grant a continuance; that the refusal to do so violated the due process clause of Article I, § 13 of the state Constitution and the Fourteenth Amendment to the federal Constitution. In support of such argument he cites People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176; Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Neither is pertinent. Lanigan and his companion, Giardano, were tried twice. At the first trial Lanigan was represented by attorney Cantillon, Giardano by attorney Lavine. When on January 28, the court set the case for retrial on March 9, 1942, Cantillon was, upon motion, released from further duty and Lanigan was instructed to employ other counsel and to be prepared to proceed on the date designated. When the cause came on for trial, Lanigan asked for a continuance until he could obtain counsel. The court cited its former admonition, denied the continuance and, over the objection of attorney Lavine that there 'will be a conflict in the interests,' appointed the latter to represent Lanigan as well as his own client Giardano. On appeal it was held that because Lavine had been employed by Giardano as his sole counsel, the 'engagement required him to 'maintain inviolate the confidence and at every peril to himself to preserve the secrets, of his client'.' [22Cal.2d 569, 140 P.2d 28.] Lavine's fidelity to his client, Giardano, foreclosed Lavine from voluntarily representing Lanigan. Therefore, since voluntary employment by Lanigan would have been improper, compelling him to accept Lavine was prejudicial. To force Giardano to share the attention and efforts of his counsel with Lanigan was unjust and the latter was prejudiced by being required to have as his advocate an attorney who felt that he could not properly represent the accused.
A similar situation is found in Glasser v. U. S., supra. When the case was called, McDonnell, the attorney for defendant Kretske, informed the court that Kretske did not wish to have him (McDonnell) as his attorney. The court forced Stewart, Glasser's attorney, to represent both defendants, contrary to Glasser's objection. On appeal, it was held that Glasser was entitled to the 'undivided assistance' of counsel of his own choosing, and that the Sixth Amendment had been violated. It is important that a court 'see that an accused has the assistance of counsel' [315 U.S. 60, 62 S.Ct. 467] and refrain from embarrassing the attorney so engaged by even suggesting that the latter 'undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.'
Appellant, in effect, withdrew his request for a continuance 'for two weeks because I would like to get an attorney.' After the deputy district attorney had resisted the continuance, the court recessed and the judge conferred with both counsel in chambers. When the session was resumed, both the prosecutor and Mr. Coviello announced ready and waived the reading of the information. Notwithstanding appellant's assertion that he 'was forced to trial without counsel of his own choice,' not a chirp was heard from him about a continuance after the announcement of ready. Such conduct following the attorneys' conference with the judge in chambers was reasonably construed by the trial court as a withdrawal of the motion.
Moreover, the circumstances of the motion for a continuance justified the court's finding that it was not made in good faith but was interposed as a means of effecting a delay. The information was filed July 17, 1952; the defendants were arraigned July 21 and the matter was set for trial on August 18, 1952. Prior to the latter date, Coviello had represented both defendants at the preliminary hearing and at every stage of the proceeding after the information was filed. On that day for the first time Coviello advised the court that about two weeks previously appellant had told him that he did not wish Coviello to represent appellant and that he (Coviello) indicated that he desired appellant to procure other counsel because he felt there might be a diversity of interest between the two accused. Not a word had been said to either the court or the district attorney by either appellant or Coviello of a desire to transfer the burden of defending appellant to another. Had there been such a conversation between the lawyer and his client as reported to Judge Scheinman, the fair, reasonable and logical act of the lawyer would have been to notify the court and the adversary party of the change in status. The reasonable and natural act of the client would have been to commence negotiation for new counsel immediately, at least to the extent of seeking aid from the court and the public defender, in view of the impending trial. Is it possible that appellant could not arrange suitable counsel in two weeks, if only for the purpose of entering a motion for a continuance? In the absence of any of this conduct, it was not irrational for the judge to believe the motion for a continuance was made in bad faith and that the exercise of a sound discretion required its denial.
There was no diversity of the interests of the two accused. Viewing first their affirmative defenses, each man presented his own alibi. Neither implicated the other in a participation in the crimes charged. Their testimony as to their arrests was substantially identical. Appellant has not indicated the respect in which there was a diversity of interests. No claim is made that any other lawyer could have done more for appellant than was done by Coviello. Viewing the evidence introduced by the People, it was not possible for a diversity of interests to exist. Immediately after Pratt had assaulted and threatened Mr. Souhire in his market at 8:00 a. m. June 4, 1952, appellant entered, locked the door, struck the proprietor on the head and took the bag of money from his person. The two men departed together. At 4:45 a. m. of June 22, 1952, John Campbell, the second victim of the two men, saw Pratt driving down Twelfth Street, with appellant as his guest; saw them park the automobile. Thereupon, appellant approached, beat and robbed Campbell and left only after Pratt signalled by sounding his horn. At 5:00 a. m. they parked the same sedan in front of a cafe in which they consumed refreshments and in which both were arrested. From their car the officers took a bottle of wine which bore the right thumb print of Pratt.
From such incidents showing the close alliance of appellant and his confederate, it is inconceivable that their interests could have diverged in the slightest degree. Appellant was therefore not prejudiced by the fact that the attorney whom he had employed and retained for over four weeks and until the day of trial continued as his counsel. People v. Dorman, 28 Cal.2d 846, 852, 172 P.2d 686; People v. Shaw, 46 Cal.App.2d 768, 774, 117 P.2d 34.
Judgment affirmed.
FOX, J., concurs.
McCOMB, J., concurs in the judgment. --------------- * Subsequent opinion 269 P.2d 6.