People v. Logan

Upon request for appointment of counsel on the present appeal the court referred the matter to the Los Angeles Bar Association Committee on Criminal Appeals for a report to the court as to possible merit in the appeal. The matter was assigned to two members of the committee who have made written report to the court stating that the record had been examined and that in the opinion of the attorneys it disclosed no meritorious ground of appeal. Defendants were duly so advised and their time to file a brief was substantially extended. No brief has been filed. Such has been the practice of this court for several years. The services of the committee have been willingly rendered and have been of distinct value to the court.

Appointment of counsel to represent indigent appellants is not a matter of right as a part of due process. It

The appellants, Isaac Logan and Billy Eugene Wagner, were convicted of two offenses, namely, conspiracy to violate section 11714 of the Health and Safety Code (furnishing or selling a narcotic to a minor), and in a second count a violation of the same section. It was alleged in the information that the defendants committed certain overt acts in furtherance of the conspiracy, and that they feloniously sold marijuana to Lloyd Arthur Epperly. Logan was accused of and admitted a prior felony conviction. This is an appeal from the judgments and from orders denying motions for a new trial.

Lloyd Epperly testified that he was 17 years old; he received marijuana from Wagner on September 20, 1954, in exchange for $15 previously paid, and that at the time Wagner gave it to him, the defendant Logan was also present. According to the testimony of Epperly and one George Chosner, Epperly had approached defendants two days earlier, and had asked Wagner to obtain some marijuana for him, stating that a friend of his wanted it. Defendant Logan was present while Epperly talked with Wagner. Later that evening both defendants, together with Epperly and Chosner made an unsuccessful trip from Long Beach to Los Angeles where they endeavored to buy some marijuana. They freely discussed its purchase while on this trip. Before going to Los Angeles, the four had stopped at a place known as “The Hutch,”

Defendants were represented by separate counsel at the trial and upon their motions for a new trial. Upon denial of their motions they requested an opportunity to obtain new counsel. Thereafter several continuances were granted pursuant to their request. Defendants obtained new counsel, who made motion for an order vacating the order denying the motions for a new trial. The motions were supported by affidavits of defendants and a brother of Logan. The grounds of the motion and the substance of the affidavits were that defendants had not been properly represented at the trial in that they were advised by their attorneys not to take the stand and that persons who could have given evidence in their behalf were not called as witnesses. It was asserted in the affidavits that the attorneys intended to urge as a defense that the defendants were entrapped by the police into committing the offenses and that the defendants themselves stated to their attorneys that they were opposed to relying upon that defense. The trial judge permitted extensive presentation of the motions and gave the same patient consideration. The motions were denied, probation was denied, and defendants were sentenced to state prison. No notice of an appeal from the order was given. Defendants’ attorneys gave notice of appeal from the judgments and orders denying motions for a new trial. Thereafter defendants substituted themselves in the place and stead of the attorneys.

When it is claimed on motion for a new trial or appeal in a criminal case that the defendant was inadequately represented by counsel at the trial, the question is whether he was substantially denied his constitutional right to be represented by counsel. The right to representation is one which our courts will maintain “absolutely and to the full extent” (People v. Avilez, 86 Cal.App.2d 289 [ 194 P.2d 829 ] ; In re Major, 135 Cal.App.2d 405 [ 287 P.2d 359 ]). But where an accused is represented by counsel and the basis of his claim is that he received poor advice, indicative of poor judgment on the part of his attorney, and acted thereon to his detriment, those facts, even if substantiated, do not amount to a denial of the right of representation. (People v. Miller, 114 Cal. 10 [ 45 P. 986 ]; People v. Lennox, 67 Cal. 113 [ 7 P. 260 ]; People v. Kirk, 98 Cal.App.2d 687 [ 220 P.2d 976 ] ; People v. Gilbert, 25 Cal.2d 422 [ 154 P.2d 657 ]; People v. Ynostroza, 105 Cal.App.2d 332 [ 232 P.2d 913 ]; People v. Morton, 100 Cal.App.2d 269 [ 223 P.2d 259 ].)

The affidavits presented by the defendants show that the alleged ground of disagreement between defendants and their attorneys consisted of the expressed belief of the attorneys that the better defense was a claim of entrapment, whereas the defendants profess to have expressed a desire to testify in denial of the charges. The contention that defendants were entrapped was devoid of merit, but it may nevertheless have appeared to the attorneys as more likely to succeed than mere denials of the testimony of the witnesses

There was direct evidence of acts of the defendants constituting the essential elements of the offenses charged— namely, an unlawful agreement to procure for and sell a narcotic to a minor, followed by the commission of the overt acts alleged. This was an unlawful conspiracy. (Pen. Code, § 182; People v. Benenato, 77 Cal.App.2d 350 [ 175 P.2d 296 ].) There was ample evidence of a sale to a minor.

The record is devoid of error; defendants were accorded a fair trial.

The judgments and orders are affirmed.

Wood (Parker), J., and Vallée, J., concurred.