PEOPLE v. BENFORD

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District Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Hugh Edward BENFORD, etc., Defendant and Appellant.*

Cr. 6044.

Decided: November 20, 1957

Hugh Edward Benford, in pro. per. Edmund G. Brown, Atty. Gen., H. C. Grundell, Dist. Atty., San Luis Obispo, for respondent.

By information filed by the District Attorney of San Luis Obispo County, Hugh Edward Benford was charged with the crime of forgery, consisting of forging and passing a check for $57, purporting to bear the signature of George Finucane. It was alleged that the accused had been previously convicted of two offenses of forgery and had served terms in a federal prison therefor. The court appointed the Public Defender as counsel for defendant. When called upon to plead, Benford pleaded guilty and duly admitted having been previously convicted and imprisoned as alleged in the information. Probation was denied and sentence of imprisonment imposed. The court found that the defendant was not an habitual criminal. Benford gave notice of appeal.

Under date of July 31, 1957, defendant addressed a letter to this court requesting the appointment of an attorney upon the appeal. Pursuant to our usual practice of referring such matters to the Los Angeles Bar Association on Criminal Appeals or a like committee of the Criminal Courts Bar Association, we referred the present appeal to the Los Angeles Bar Association Committee. A report has been received from a member of that committee stating that the record shows no meritorious ground for an appeal. The request for appointment of counsel for Benford on the appeal was denied.

The present appeal is one of many in which this court has had the assistance of the bar association committee for the past eight years. The associations and the many members of those committee have been conscious of the duty imposed upon members of the profession by ancient tradition and by the provisions of Section 6068 of the Business and Professions Code to render assistance to the defenseless and oppressed. Although this court has the authority to appoint counsel on appeal and the duty to fix reasonable compensation for appointed counsel which is a charge against the state (Pen.Code § 1241), it would be a manifest misuse of that authority to make an appointment and create a charge against the state where it appears from our inspection of the record that no semblance of a meritorious ground for appeal exists.

The legislature has not made representation by counsel on appeal in a criminal case a matter of right. Appointment of counsel for indigent litigants on appeal lies within the discretion of the court, to be exercised to the end that no man shall be allowed to suffer from a conviction achieved in disregard of his right to a fair trial according to the law of the land and the law of the jurisdiction to which he is subject. We would not be justified in ordering compensation to be paid by the state, nor do we believe that any of the many lawyers who have rendered assistance gratuitously would expect compensation for the examination of a record which shows, upon its face or upon casual inspection, no possible reason for interfering with the judgment of the trial court. This is such a case.

It is the settled practice of this court, where an appellant is not represented by counsel to make an independent examination of the record, and to dispose of the appeal on its merits; appeals in such cases are not dismissed for failure to file an appellant's brief.

In his communication to this court Benford represents that he pleaded guilty upon the assurance of the Public Defender that he would receive a county jail sentence. He does not assert that he had a defense to the charge, that he was not guilty of the offense charged, or that he had not suffered the former convictions as alleged. His unsworn statement as to the reason for his plea of guilty does not carry conviction, nor does it amount to a meritorious ground for appeal, or for any other relief from the judgment entered thereon. People v. Miller, 114 Cal. 10, 16, 45 P. 986; In re Hough, 24 Cal.2d 522, 531, 150 P.2d 448; People v. Gottlieb, 25 Cal.App.2d 411, 415, 77 P.2d 489.

The judgment is affirmed.

I concur in the judgment and the denial of application for appointment of counsel.

SHINN, Presiding Justice.

VALLEÉ, J., Concurs.