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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Herbert J. MATTSON, Defendant and Appellant.*

Cr. 1353.

Decided: July 17, 1958

John T. Schall, San Diego, for appellant. Edmund G. Brown, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent.

Defendant appeals from judgments of conviction of three felonies, rendered pursuant to jury verdicts based upon three counts in the information, each charging a violation of section 476a, Penal Code. Defendant entered pleas of not guilty and not guilty by reason of insanity. After the jury returned the verdicts, defendant withdrew his plea of not guilty by reason of insanity.

Upon this appeal defendant's primary contention is that he was denied the assistance of legal counsel by the court to aid, advise and assist him, thus he was deprived of his constitutional rights.

During the pendency of this appeal defendant petitioned this court for a writ of mandamus based in part upon the contention set out above. This petition was denied without written opinion.

During the arraignment proceedings and the trial of the action defendant usually referred to himself in the third person as ‘defendant’ or ‘the defendant’. During the arraignment and insofar as the record is pertinent, the following took place at different times:

‘The Defendant: The defendant has been trying to get the proper papers so that he could give verified copies, service on the District Attorney, but has no means to do so.

‘The Court: You use the term ‘the defendant.’ You are the defendant, aren't you?

‘The Defendant: Yes, and I am acting as my own counsel, your Honor.

‘The Court: Why don't you have counsel?

‘The Defendant: I had an unfortunate experience in Kentucky and it was through an appeal that I got out of a bad situation because the Court appointed attorney did not call my witnesses and a biased judge forced me to trial. * * *

‘The Court: Okay. What do you want to do about the arraignment on the checks?

‘The Defendant: The defendant pleads not guilty and not guilty by reason of insanity and asks a jury trial in both instances. * * *

‘The Court: 9:15 on Friday morning.

‘The Clerk: Your true name is Herbert J. Mattson?

‘The Defendant: Legal name, sir.

‘The Clerk: You are representing yourself, Mr. Mattson?

‘The Defendant: I represent myself.

‘The Court: It is my understanding you don't want court appointed counsel.

‘The Defendant: I would appreciate Court appointed counsel only for the purpose of assisting me in filing these things, but not to defend myself in a jury trial, no.

‘The Court: I don't know where to draw the line.

‘The Defendant: Under the Constitution of California I am allowed that, if your Honor thinks it would be more feasible?

‘The Court: Well, if we appoint a lawyer for you he will represent you for this case because all the motions you are making, you can't separate the motions from the case.

‘The Defendant: I don't want any lawyer to hire——

‘The Court: Okay. You represent yourself. * * *

‘The Court: Well, the law provides if you enter a plea of not guilty by reason of insanity we have to appoint two psychiatrists. We can't waive the law. I was going to suggest since you are representing yourself and pleading not guilty by reason of insanity, I think you are going to have considerable difficulty. In one breath you say you are insane and in the next breath you want to represent yourself. Maybe that is natural. I don't know.’

At the time of the arraignment after the verdicts of conviction and immediately prior to the pronouncement of judgment and sentence, the following occurred:

‘This being the time for arraignment for judgment, have you any legal cause to show why judgment should not be pronounced?

‘Defendant Mattson: None other than I have stated.’

During the entire proceedings and trial of this case the defendant had a complete understanding and knowledge of courtroom procedure. During the trial, he displayed a vast and accurate knowledge in questioning and cross-examining witnesses, rules of evidence, medical terms as applied to amnesiacs, how to request the court to approach the bench for a conference, the use of the transcript of the preliminary hearing on cross-examination, how to get in and how properly to exclude evidence. As reflected by the record, his abilities far exceed that of many members of the bar who are duly licensed to practice. At no time did the defendant make a motion for a continuance or objection on the ground that he desired to have legal counsel.

Article VI of the Amendments to the constitution of the United States, provides:

‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.’

Article I, Section 13, Constitution of the State of California, provides in part:

‘In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend, in person and with counsel. * * *’

Section 686 of the Penal Code provides:

‘In a criminal action the defendant is entitled:

‘2. To be allowed counsel as in civil actions, or to appear and defend in person and with counsel.’

The portions of the record set out above clearly reflect not only that defendant was advised of his right to the assistance of counsel, but affirmatively stated ‘* * * I am acting as my own counsel, your Honor. The Clerk: You are representing yourself, Mr. Mattson? The Defendant: I represent myself.’

Defendant states he didn't want to have counsel appointed to defend him but to assist him. During the proceedings which occurred before trial defendant requested the court to appoint counsel ‘only for the purpose of assisting me in filing these things, but not to defend myself in a jury trial, no.’ ‘These things' apparently referred to papers regarding a writ of habeas corpus and possibly a motion. The trial judge gave defendant advice and assistance in these matters. Defendant is not now complaining about a failure of the trial court to appoint an attorney to assist in filing ‘these things' but, as previously stated, he complains because counsel was not appointed for the arraignment and trial. The record reflects the trial judge explained in effect that the court-appointed counsel would be of record for all purposes. After this statement, defendant made the representation to the court that he was representing himself.

In principle, defendant is right in the statement that under the federal and state constitutions a defendant in a criminal case has the right of the assistance of counsel. However, a defendant in a criminal action also has a right which he may exercise to waive his constitutional rights to assistance of counsel. People v. Mimms, 110 Cal.App.2d 310, 313, 242 P.2d 331.

An attorney appointed by the court is the attorney of record. As such, he stands in a dual relationship: he represents his client and he is an officer of the court. He stands before the court as an attorney in the particular case for all purposes. See, Delaney v. Husband, 64 N.J.L. 275, 45 A. 265. Defendant did not desire an attorney to represent him or to be an officer of the court. He desired an advisor. Defendant could have requested the court to appoint an attorney who would be of record. Nevertheless he chose to represent himself.

The waiver of the right to be represented by an attorney may be exercised in various ways. In People v. Mimms, supra, the defendant had an intelligent understanding of what he was doing. Upon questions put to him by the court, the defendant stated he wanted to represent himself. In People v. Ansite, 110 Cal.App.2d 38, 241 P.2d 1036, the defendant, by his own volition and with full knowledge of what he was doing, moved the court for permission to represent himself, and the appellate court held he had waived the assistance of counsel. See, also, People v. Chessman, 38 Cal.2d 166, 173, 238 P.2d 1001; People v. Pearson, 41 Cal.App.2d 614, 619, 107 P.2d 463.

Defendant in the instant case voluntarily, knowingly and with knowledge of what he was doing waived his right to the assistance of counsel. Having done so, he cannot successfully raise the point on appeal. People v. Mimms, supra; People v. Ansite, supra; People v. Shapiro, 85 Cal.App.2d 253, 194 P.2d 731; People v. Collins, 117 Cal.App.2d 175, 255 P.2d 59.

Defendant had a constitutional right to appear, represent and defend himself, which right he exercised. People v. Ansite, supra; People v. Looney, 9 Cal.App.2d 335, 49 P.2d 889.

Defendant cites the cases of People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001 and People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806 to sustain his position that he was entitled to an advisor. The facts in those cases are readily distinguishable from those presently before this court. In the Northcott case, the defendant had an attorney of record who was conducting the trial work. This attorney apparently was employed by defendant. Defendant Northcott, against the advice of the trial court, discharged the attorney and then on appeal complained he was forced to relieve his counsel. The Supreme Court found no merit in the contention. In the Chessman case, the defendant complained of a ruling of the trial court in not allowing defendant to argue the facts and an attorney to argue the law to the jury. The attorney apparently was not court-appointed. Defendant had represented himself during the trial and had refused to appear by counsel. The Supreme Court opined that the defendant had ‘put himself in a position where he cannot complain of the trial court's ruling.’

Defendant also cites Robinson v. Johnston, D.C., 50 F.Supp. 774 to sustain his contention. Again an examination of the facts of the case are not similar to those present here.

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, the Supreme Court said the determination of whether there is a waiver of the constitutional right of legal assistance ‘must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused’, and also, ‘while an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the reocrd.’ In the instant case, the trial judge did not specifically use the word ‘waiver’ but the verbiage used conveys the same meaning.

Although not entirely clear because they are so entwined, intermingled, intermixed and admixed with the primary contention above decided, the following arguments seem to emerge: (1) certain prosecution witnesses did not tell the truth; (2) evidence regarding a bank account in 1945 should not have been admitted; (3) the testimony of the court-appointed psychiatrist was not proper ‘since basic psychiatry teaches ‘systematic psychiatry’ described by Webster's dictionary. Testimony is deliberately misleading since any psychiatrist with a California license can describe ‘Systematic Amnesia”; (4) he did not have available to him some allegedly impeaching testimony allegedly contained in an official court record of the state of Kentucky; (5) certain of his papers were left deliberately in a jail in Kentucky at the time he was brought to California.

It is the exclusive province of the jury to determine the credibility of a witness. Section 1847, Code of Civil Procedure. If the witness complained of gave evidence at the preliminary hearing inconsistent with his testimony at the trial the defendant could have used the transcript of that hearing for impeachment purposes. The record reflects defendant knew how to use such a transcript for such a purpose.

The prosecution was allowed to prove that since 1945 or 1946 neither defendant nor his wife's business organization had had a bank account in the Kentucky bank upon which the checks were drawn and issued by defendant. This testimony was proper to show there was no bank account at the bank against which defendant could legally issue a check. There was testimony that defendant knew of this state of facts. This evidence was proper to show the intent of defendant at the time he issued the checks upon which the felony counts were predicated.

The trial court allowed the prosecution to present and examine the court-appointed psychiatrists on its case in chief as to whether or not, in his opinion, defendant was in a state of amnesia at the time of the commission of the offenses charged. This was proper under defendant's plea of not guilty. In his cross-examination of this psychiatrist defendant used such expressions as ‘hysterical amnesia’, ‘dementia depressive’, ‘amnesia’ and ‘historic amnesia’, but at no place in the record, either on direct or cross-examination, was the expression ‘systematic amnesia’ used. Whether by his point (3) on this appeal defendant seeks to show lack of qualification of the doctor or that ‘amnesia’ is different in type or degree from ‘systematic amnesia’ is not clear. If the defendant seeks on this appeal to disqualify the doctor, he has raised the point too late. No objection to the doctor's testimony was interposed in the trial court. If defendant is seeking to distinguish the diseases, or the type or degree of the disease, there is no testimony in the record to warrant such a distinction, particularly since there is no use of ‘systematic amnesia’ in the record.

If defendant needed the records of the Kentucky court at the trial of his case, he did not reveal this need to the court. This point could have been obviated at the trial court level had defendant raised it. Therefore, defendant cannot raise this point for the first time on this appeal. Mott v. Smith, 16 Cal. 533, 555; Milwaukee Mechanics' Ins. Co. v. Warren, 150 Cal. 346, 353, 89 P. 93.

It is contended that certain papers were deliberately left at a jail in Kentucky by the officers sent from California to return the defendant to California, and that these papers were material to defendant's case. At the trial, one of the police officers testified for the defendant to the effect that defendant had placed the papers with the jailer in Kentucky, had recovered them before leaving for California, had them while on the ‘transportation car’ coming to California, and that neither the accompanying sergeant nor the police officer had taken them from defendant. There was no contrary evidence. Defendant did not request the court to take any action, or offer to prove the materiality or relevancy of the papers. This issue cannot be raised for the first time on appeal. See, Mott v. Smith, supra.

The judgments and each of them, affirmed.

McCABE, Justice pro tem.

MUSSELL, Acting P. J., and GRIFFIN, J., concur.

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