Opinion
Page __
__ Cal.App.2d __ 252 P.2d 959 Ex parte MASCHING. Cr. 4933. California Court of Appeals, Second District, Third Division Feb. 6, 1953Hearing Granted March 6, 1953.
Morris Lavine, Los Angeles, for petitioner.
Ray L. Chesebro, City Atty., Donald M. Redwine, Asst. City Atty. and Philip E. Grey, Deputy City Atty., Los Angeles, for respondent.
PARKER WOOD, Justice.
Petition for writ of habeas corpus. In a complaint filed in the municipal court on May 12, 1952, petitioner was charged with violation of section 502 of the Vehicle Code (driving a vehicle while under influence of liquor), a misdemeanor. On May 13, 1952, he was arraigned, pleaded not guilty, and asked for a jury trial. On said date, trial was set for June 12, 1952. At the arraignment, he was not represented by counsel. On the date set for trial, defendant appeared without counsel and, according to the petition herein, asked for a continuance in order to give him an opportunity to obtain counsel and witnesses. The request for a continuance was denied. An entry in the docket recites that: 'Defendant waives jury trial.' The case then was transferred to another division of the court for trial. Trial was by the court without a jury. Two witnesses called by the People testified, and the defendant and a witness called by defendant testified. Defendant was adjudged guilty. Defendant was sentenced to imprisonment in the city jail for 180 days; execution of sentence was suspended, and defendant placed on probation for three years on condition that he spend 170 days in the city jail.
On appeal to the superior court (appellate department), the judgment of conviction was affirmed. Petitioner was represented [252 P.2d 960] on the appeal by his present counsel. The contentions in the present proceedings were presented to the superior court on that appeal. A petition for rehearing on that appeal was denied. On October 20, 1952, after the appeal, defendant was committed by the municipal court to the city jail.
On October 22, 1952, the superior court denied an application for a writ of habeas corpus.
In the petition to this court for a writ of habeas corpus, it is alleged that: petitioner, by reason of injuries sustained in an automobile accident on the day of the alleged offense herein, was in bed approximately three weeks and was therefore unable to secure an attorney or arrange to subpoena witnesses; he was without funds to hire counsel; a few days before the trial, he contacted the public defender's office and was told that he would have to get private counsel; he was not guilty of the charge, but was suffering from a severe head injury; he could have produced several witnesses in his behalf; the trial judge did not question him about his illness or his inability to get witnesses; petitioner, to the best of his knowledge or recollection, did not waive trial by jury or right to have an attorney represent him.
Petitioner contends in effect that, by reason of the denial of his motion for a continuance, he was denied his right to be represented by counsel, and his right to obtain witnesses; and that he was denied due process of law, in that, a defendant and his counsel must join in a waiver of trial by jury.
As above shown, it was approximately one month from the date of arraignment to the date of trial. It is alleged in the petition herein that, on the date set for trial, the petitioner asked the court for a continuance in order 'to give him an opportunity to get an attorney and to bring his witnesses into court.' It is not alleged in the petition that the petitioner, at the time he asked for a continuance, stated the reason he had not obtained counsel and witnesses. It does not appear from the petition that, at the time he asked for a continuance, he informed the court that he had a severe head injury, as stated in his petition; or that he was without funds to hire counsel, as stated in his petition; or that a month was not sufficient time in which to obtain counsel and witnesses. The reporter's transcript was not presented to this court, but an examination of it shows that at the time petitioner asked for a continuance he said, 'I have been confined to bed for the last three weeks and I would like a chance to get my witnesses, and also counsel.' The 'granting of a continuance normally rests in the discretion of the trial court.' People v. Buckowski, 37 Cal.2d 629, 631, 233 P.2d 912, 913. In People v. Gaines, 1 Cal.2d 110, at page 113, 34 P.2d 146, at page 147, it was said, 'The trial court is apprised of all the circumstances of the case and the previous proceedings, and is therefore better able to decide upon the propriety of granting the application than an appellate court; and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed.' There was no abuse of discretion and certainly no deprivation of due process in denying the motion for a continuance.
Petitioner contends that a trial by jury was not waived. He argues that a defendant and his counsel must join in a waiver of trial by jury and, since he did not have counsel, there was no waiver of a jury trial. It is true that when a defendant is represented by counsel, they must both join in the waiver. It was not necessary, however, that the defendant herein obtain counsel in order to waive trial by jury. In the case of People v. Thompson, 41 Cal.App.2d Supp. 965, 108 P.2d 105, wherein the defendant was charged with a misdemeanor and was not represented by counsel, a question was whether defendant could waive trial by jury. The court stated therein, 41 Cal.App.2d Supp. at page 967, 108 P.2d at page 107, 'In a waiver of a jury he and his counsel, if he have one, must concur. It seems to us, however, that his right to waive counsel carries with it the implication that if he chooses to have none, he alone may do for [252 P.2d 961] himself that which he and his counsel together might do.'
Petitioner argues further that 'to the best of his knowledge or recollection' he, alone, did not waive trial by jury. That statement is indefinite, and it is not a statement that he did not waive trial by jury. The certified copy of the docket, attached to the return herein, shows an entry as follows: 'Defendant waives jury trial.' As above stated, the reporter's transcript was not presented to this court. An examination of it, however, shows nothing with respect to waiving or not waiving a jury. Petitioner does not allege in the petition herein that he did not waive a trial by jury. His indefinite statement that 'to the best of his knowledge or recollection' he did not waive trial by jury, and the absence of reference to trial by jury in the reporter's transcript, should not prevail, under the circumstances of this proceeding, against the definite statement in the docket that he did waive a jury.
The writ is discharged and the petitioner is remanded to custody.
SHINN, P. J., and VALLÉE, J., concur.