People v. Ferry

1 On December 19, 1963, an information was filed in the superior court charging appellant with robbery from the person. Later an amended information included charges of four prior felonies. On December 23 defendant appeared for arraignment. He stated he was without funds to employ private counsel and wanted the public defender to represent him. The public defender, then present, stated defendant had *882 told them he owned a substantial amount of property, and for that reason the public defender’s staff thought defendant might not be a proper subject for their representation. The cause was continued for one week and the court directed the defendant to make an effort to hire an attorney. On his next appearance, December 30, defendant stated he desired to employ one Mr. DeCristoforo, that he was endeavoring to arrange payment of his fee but had so far been unable to do that. Mr. DeCristoforo, who was present, requested a continuance of one week, which was granted. On January 6, 1964, defendant appeared again with Mr. DeCristoforo present. Defendant stated he had not been able to provide funds and wanted the public defender appointed. The public defender stated defendant owned 640 acres of land in Placer County valued at $1,200-$!,500 an acre but was without immediate cash. Upon inquiry from the court, Mr. DeCristoforo stated there were no prospects that he would be retained. The court asked defendant if he wanted to hire an attorney, stating that the court would not appoint the public defender if defendant had funds to obtain private counsel. Defendant stated that funds were not presently available because the land (part of an estate) was under probate and it would take probably six months to a year before probate would be completed. Defendant said he was attempting to borrow money from relatives. The court then appointed the public defender, and defendant entered a plea of not guilty to the charge of robbery as the information then stood. The cause was set for trial on the 11th of February. Prior to the trial date defendant appeared in court with the public defender who advised the court that upon further investigation they found defendant had inherited 40 acres of land with an appraised value of $5,432; that the estate would not be ready for distribution until March or April; that because of this inheritance the public defender did not believe it was a proper case for his office to defend since defendant was not indigent. The court told defendant he would either have to get counsel or appear as his own counsel on February 11. On that date defendant was before the court. The public defender was present and stated that defendant had sent for him, apparently for aid in contacting private counsel, and the cause was thereupon further continued, defendant waiving time. On February 14 defendant appeared, again accompanied by the public defender who advised the court that defendant had in the interim talked with two attorneys, a Mr. Snyder and a Mr. Heekin; that Mr. Snyder had quoted a price of $500 but he and defendant had not reached an agreement; that Mr. Heekin, after talking with defendant, had called the public defender and suggested that defendant’s ease was a proper one for public defense. Defendant told the court he had not been able to borrow money on the land but would be willing to sign a lien on the property to the public defender. He pointed out that he, himself, had not been able to make money because he had had only 27 months of freedom since 1950 and had 11 children to support. It appeared that Mr. Heekin had declined to take security on the land. Thereupon, the cause was continued for five days to enable the public defender to make a more intensive investigation as to indigency. On February 19 defendant appeared accompanied by the public defender who informed the court that the value of the property was $5,000 and that the estate should be closed within approximately two *883 months, for which reasons he considered the assets were such that they could be utilized by the defendant in order to retain counsel. Again the matter was continued. On February 24 defendant appeared accompanied by Mr. Snyder who said that no agreement had been reached for representation by him and that defendant had indicated he wanted an attorney of greater experience. Defendant stated that he was trying to contact another attorney whom he believed would be satisfactory. On February 26 defendant appeared accompanied by Mr. Earl Warren, Jr., who stated he believed that an agreement could be reached whereby he would represent defendant and for that purpose requested a continuance of three weeks, which was granted. On March IS defendant appeared with Mr. Warren acting as his counsel. Again a plea of not guilty was entered; time for trial was further waived. On March 27 defendant, represented by Mr. Warren, entered a denial of the four prior convictions which then stood charged in an amended information. Trial was set for April 23, 1964. On April 23, before a jury was impaneled, Mr. Warren stated to the court that "... Mr. Ferry has recently, just now in fact, conveyed to me the information that he perhaps wants to make a motion on his own in this regard. ...” Defendant then stated that ‘ ‘ There seems to be a misunderstanding between Mr. Warren and myself, and I think it is in the best interests of all concerned that he withdraw from the ease at this time.” Defendant said Mr. Warren was a good man but they did not seem to agree and he was going to get another attorney. When the court pressed him for further explanation, he said it was a matter about money, that he wanted to pay Mr. Warren before he went to court because "he has to have his fees.” Thereupon Mr. Warren stated that it was true no financial arrangements had been made but "since I did agree to enter the case and did make the various appearances, I am willing to continue in this matter, whether or not I ever receive any compensation.” Defendant stated that there was more to it than the matter of attorney’s fees and that he was waiting for some of his own witnesses. He asked more time to contact witnesses and said he then might be able to pay Mr. Warren. Asked about his witnesses, he stated he only knew their nicknames, that they had several names, and he could not say for sure where they lived but they would show up in Sacramento, although now they could be in Los Angeles. In explanation of his evasiveness as to naming his witnesses, he asserted that he did not want them to be intimidated. After a recess and a conference with counsel in chambers, the court stated to defendant, upon reconvening; “X am going to do this now. Tour attorney in this case, I am going to excuse Mr. Warren as you requested, so he is released from his obligation to represent you as attorney. I am going to give you a continuance for the purpose of securing another attorney and getting your witnesses. . . . Now, I want the record to show that you are requesting the continuance in this matter, that you are doing it for the purpose of obtaining another attorney and on the basis of contacting witnesses. I am going to give you thirty days. ... We will continue this trial and set this for May 25th. Now, I am going to make it very clear to you right now that there aren’t going to be any other continuances beyond May 25th, and if you don’t have your other attorney and have your witnesses *884 and be ready to go on Hay 25th, then the Court is going to order you to go to trial and represent yourself without your witnesses. Now, you have already had almost five months in which to contact any witnesses . that you have. I am going to advise you at this time you are entitled to have a subpoena issued by the Court to compel any person to attend as a witness in this court, and if you will give me the names of witnesses today, as I have asked you to, I will today issue subpoenas to compel them to attend. Now, are you prepared to give me their names at this time? The Defendant: May I submit those names to you in the very near future? The Court: All right. If you understand clearly you are going to trial on May 25th. . . . [T]his will be the order of the Court then, that the matter is continued until May 25th, and Mr. Warren is released from his obligation. The Defendant: And Judge, your Honor, I will tell you right now I do know the names of my witnesses, and I will try to have them on hand. The Court: You are going to have to move.” Prosecution witnesses, some had been brought from San Francisco, were recognized and directed to appear on the next trial date. On May 25 the cause was called for trial, the People answered ready, but defendant, when asked if he was ready to proceed, replied, “Judge, your Honor,. I didn’t get my witness. I have letters here that I have -traced for my main witness as far as two weeks ago. She’s in Stockton at the present time. The Court: That’s your wife, is that right, Mr. .Ferry? The Defendant: Yes, your honor, she is. The Court: Now, let •me tell you this. You were arrested for this offense November 16, 1963, and the original complaint was filed on November 18th, 1963. Pre.liminary hearing was held on December 18th and you were bound over to the Superior Court, and your first appearance in Superior Court was •December 23rd, 1963. And at that time you were given a continuance of one week to December 30th, to permit you to arrange to employ private counsel. That means at that time you had five weeks total to get a private attorney. . . . Despite that, on December 30th, you appeared in court, and it was continued again to January 6th. And on January •■6th you were in court with the Public Defender representing you. And .this was with your own knowledge, because the court minutes indicate this was a temporary arrangement until you could get a private attorney of your own. On January 6th this ease was set for trial on February 11th. On January 28th the Public Defender’s Office withdrew, and you were ordered at that time by Judge Coughlin to get your private attorney. Now, that’s January 28th. “February 11th there was a further continuance until February 14th. And at this time you still haven’t hired a private attorney. Now, that means a period of almost three months. “On February 14th you still had the Public Defender appearing for .you. You still know that the Public Defender won’t appear for you because you have these assets in your mother’s estate. Anyway, on February 19th Judge Coughlin continued again to February 24th. “Now, some place in there, between February 14th and February 24th you employed an attorney by the name of L. M. Snyder to represent you, because he appeared as your attorney on February 24th. But •he asked to be released from the obligation of representing you, and he .was, and the case was continued to February 26th. *885 ‘ ‘ On February 26th you showed up. You were represented at that time by Bari Warren, Jr. And the matter was set over to the master calendar for trial and it was set for trial on April 23rd. ... "... March 27th the complaint was amended. On April 23rd when you came into court Mr. Warren asked if he could withdraw. You indicated you wanted him to withdraw, so I made an order permitting • him to withdraw. At that time I told you very clearly that you were to line up your witnesses and be ready for trial on May 25. "Now, what we have here, you have a period of time from November 16th, 1963, when you were arrested, until May 25th, which is seven months, in which you had the right to employ your attorneys, line them up and find your witnesses. An'd when you tell me that you don’t know where your wife has been for a period of seven months, and you can’t find your witnesses, and you tell me in open court as you did the last time that you don’t know the names of your witnesses, I can reach only one conclusion, and that is that you are deliberately attempting to delay this trial. "Under those circumstances, I think the Court is justified in ordering you to proceed to trial and to defend yourself at this time. And I am going to so order. ...” The court then advised defendant that if he admitted the priors no mention could be made of them during the trial unless upon cross- ’■ examination if he testified. But if they stood denied, then they could be proved and commented on. During further discussion it appeared that before Ms arrest and up to trial defendant had been on parole. The following then occurred; "The Defendant: Without my witnesses I can’t defend my case. The • Court: I’m sorry. You have had seven months to get those witnesses, and I am not going to give you any further continuance. . . . The Defendant: As a parolee, I would like to have you withdraw from the case? The Court: Why? The Defendant: Well, things happened in North Sacramento when you was [sic] Judge there. The Court: You ' never appeared before me. . . . The Defendant : And I would like you to withdraw from the ease. I have no witnesses here and I want an' attorney to represent me. It’s silly for me to try to defend myself. The Court: ... I am not going to give you any further continuance. ... You are going to trial today. The Defendant : I have no money to hire an attorney. . . . The Administrator of my estate has been: taking care of my children since 1950. My debts far exceed my inheritance I will receive. The Court: The Public Defender’s Office checked that out, and they say that that is not true, Mr. Ferry. The Defendant : I would like to contact J. Allen Jones to defend me. The Court: You have had a month to do that. I told you one month ago that you were going to go on trial today. The Defendant: I would like to have tMs one continuance. The Court: No further continuances will' be granted. The Defendant: I would like to contact Gordon Fleury. The Court: No further continuances will be granted. The Defendant:. Then you will have to try me without an attorney then. The Court: That’s what I intend to do, and I intend to do it this morning. I want' to -make it perfectly clear to you as to what your position is. Now, I' want you to understand on these prior convictions, do you admit those *886 or do you want to deny them? The Dependant: I have no attorney to defend myself. The Court: You are defending yourself in pro per. The Dependant: I am not qualified to defend myself. You want to try me—■ The Court: Do you want to admit those priors or do you wish to deny them? The Dependant: I have nothing further to say. Without any additional time I cannot defend myself. I need counsel and I am trying to get it. I will get counsel today. I tried to use the telephone down in the Sheriff’s Office and several times I failed to be able to use it. Whether they forgot it or what, I wasn’t able to contact J. Allen Jones or Gordon Fleury, and I will contact them. I do need counsel. I can’t fight this case. I’m not qualified. I haven’t education enough to do so. So if the Judge will be kind enough to grant me time— The Court: No, I.will not do so, because you have already had seven months to do it. You have had two attorneys, and you have had the Public Defender to appear for you twice during that same period of time. I am not going to give you any further continuance. The Dependant: I didn’t appoint an attorney at no time. The Court: You hired an attorney. The Depend-ant: I did not hire no attorney. . . . The Court: Your request for a continuance is denied. ... I am asking you about these four convictions of felonies, which are alleged in the complaint. Do you admit them or do you want to deny them? The Dependant: Let my last statement stand. The Court: In other words, you are not going to say anything? All right, the record will show they are deemed denied.” Thereupon, after a recess, the jury panel was called into the courtroom and the following occurred: “The Dependant: Judge, I—under all these threats of prior convictions and this and that, habitual criminal act, I’ve spoke to the District Attorney, and I would be willing to plead guilty to second degree robbery, because I have no money, I have no counsel ... no chance to defend myself whatsoever. You will not grant me a continuance for trial, I mean, to subpoena my witness, which I have them within—now I’ll show you the letters I have here, Judge, about my wife. I’m within two weeks of locating her. She’s been seen in Stockton. May I show the District Attorney this? The Court: You want to withdraw your plea of not guilty and enter a plea of guilty? Is that, my understanding? . . . The Dependant: This is May 8th [referring to letter] ‘I went to Stockton. I seen Bay’s wife Alberta down Stockton. She didn’t have much to say.’ The Court: ... Is it my understanding you want to withdraw your plea . . .? The Dependant: Is it possible to withdraw my plea of not guilty at this time and give me three days to enter my other plea of guilty? The Court: No, we are going to do it right now. The Dependant: You won’t give me a chance to get my witnesses up here or hire my attorneys to defend myself. The Cqurt: We’ve already been over this.” The court again reviewed the history of the proceedings and then said, ‘‘Now . . . do you wish to withdraw your plea of not guilty and enter a plea of guilty to the charge of robbery second? The Dependant: Would you give me a chance to employ counsel? I’d like to get Gordon Bleüry here. The Court: I will not give you any further continuance for the purpose of employing counsel or for the purpose of getting any witnesses. . . . Now, Mr. Derry, are you going to withdraw this plea of not guilty and enter a plea of guilty? You can answer that yes. or no. *887 The Dependant: Well, I’ll have to, I guess. The Court: You are answering yes? . . . The Dependant: Okay. The Court: And the priors are to be dismissed then . . .? [Deputy District Attorney Mr. Dorfman] : That is correct. ’ ’ The case was referred to the probation officer for report. Convened for sentencing, probation was denied, whereupon defendant asked leave to withdraw his plea, saying that he was forced to so plead by threats based on the habitual criminal act, that he was innocent of the ‘ ‘ ridiculous charge of robbery. ’ ’ His request was denied and sentence was pronounced.