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Court of Appeal, Second District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Randolph MADDOX, Jr., Defendant and Appellant.

Cr. 12907.

Decided: June 05, 1967

William Randolph Maddox, Jr., in pro. per. Thomas C. Lynch, Atty. Gen., Raymond M. Momboisse and Frank O. Bell, Jr., Deputy Attys. Gen., for respondent.

This is an appeal from a judgment of conviction of attempted escape from the custody of a deputy sheriff in violation of section 4532, subdivision (b), and section 664 of the Penal Code.

In an information filed on December 27, 1965, defendant was charged in count I with attempting to escape from the custody of Deputy Sheriff Sanders by force and violence on or about November 10, 1965, while he (the defendant) was charged with a crime, namely, violations of sections 209 and 211, Penal Code; in count II defendant was charged with a violation of section 243, Penal Code, in that he did on November 10, 1965, commit a battery upon Deputy Sheriff Sanders when such officer was engaged in the performance of his duties. Defendant was duly arraigned on January 10, 1966, after continuances granted at his request. The public defender was appointed to represent defendant. On January 14, 1966, defendant pleaded not guilty and trial was set for February 23, 1966. A motion of defendant to appear in propria person was denied. On the latter date the cause was called for trial and on defendant's motion the matter was continued to March 28, 1966. On March 10, 1966, the proceedings were advanced on calendar and the public defender moved that he be relieved of representing the defendant. That motion was denied without prejudice. The public defender was ordered to, and did, deliver to defendant a copy of the preliminary transcript. On March 28, 1966, the cause came on for trial and upon motion of defendant the public defender was released from representing defendant and defendant was permitted to proceed to represent himself. This was permitted only after the judge thoroughly explained to defendant that he should continue with the public defender representing him, that it was unwise to attempt under the circumstances to represent himself. Defendant moved for a continuance and the motion was denied. Defendant then made a motion to disqualify the judge and that motion was denied. A jury was impaneled and sworn to try the case. After several days of trial, the jury on March 31, 1966, returned a verdict of guilty as to each count as charged in the information. The defendant was sentenced on count I.

‘The defendant is sentenced on Count I to the State Prison for the term prescribed by law, but the sentence on Count I is ordered stayed pending the appeal, if there is an appeal as to Count II, and pending the service of any time that the defendant serves on Count II, if he serves any, and until that judgment and sentence is completely complied with or reversed on appeal. If it is, then sentence on Count I will be ordered executed.

‘The sentence on Court II, the violation of Section 243 of the Penal Code, is to run consecutively with all other terms that the defendant has been convicted of or is ordered to serve.’

A timely notice of appeal was filed.

A résumé of some of the facts is as follows: On November 10, 1965, appellant was on trial for kidnapping for the purpose of robbery and on two counts of robbery in department 119 of the Superior Court in Los Angeles County, Brunswig Building, fifth floor. While being transported to said courtroom of said court by Officer Sanders, defendant struck the officer with his right fist and knocked the officer down and attempted to secure the officer's keys. Apparently defendant landed several blows on the officer resulting in a cut lip and an abrasion inside the mouth of Sanders. Officer Sanders called for officer assistance and shortly thereafter other officers appeared and saw defendant standing over Officer Sanders, who was then bleeding and out of breath. Defendant swung at one of the other officers and struck him in the groin with his knee.

The defense was that defendant was handcuffed too tightly and that the officer had stepped on his foot.

Appellant now asserts that he was denied the right to represent himself at the trial, that the motion for continuance was improperly denied, the motion to disqualify the judge was improperly denied, he was denied the right to compel the attendance of witnesses at the trial, was forced to discuss his case in the presence of the prosecutor and was not allowed to interview a witness before she was placed on the witness stand.

There is no merit to any of appellant's contentions.

The record discloses that appellant did represent himself at the trial at his own request but against the suggestion of the learned judge.

Appellant was represented by counsel from January 10, 1966, to the date of trial, March 28, 1966. During this period of time defendant refused to cooperate with counsel with reference to the case at hand. A copy of the transcript of the proceedings had at the preliminary hearing was delivered to defendant some 18 days before the date of trial. At the start of the trial appellant wanted a continuance to the end that he could have subpoenaed certain witnesses whom he thought would be helpful to him. The judge ordered subpoenas issued for all of the witnesses named by appellant.

Appellant asserts that he was not permitted to go to the law library. The record recites that on the second day of trial defendant made a demand to be afforded the use of the law library. Under the circumstances appellant had no enforceable right to engage in legal research. (See In re Chessman, 44 Cal.2d 1, 10, 279 P.2d 24; In re Ferguson, 55 Cal.2d 663, 667, 12 Cal.Rptr. 753, 361 P.2d 417; In re Cathey, 55 Cal.2d 679, 695, 12 Cal.Rptr. 762, 361 P.2d 426.) The request for a continuance to the end that he could go to the library was not improperly denied. (People v. Chessman, 38 Cal.2d 166, 174, 238 P.2d 1001.)

Appellant made his motion to disqualify the judge under the provisions of section 170, subd. 6, Code of Civil Procedure. The provisions of this section were not complied with in any respect. Appellant's motion was made on the day the trial started and was not supported by affidavit or statement under oath. (See People v. Hillery, 65 Cal.2d 795, ——,* 56 Cal.Rptr. 280, 423 P.2d 208.

Appellant's supposed witnesses consisted of ‘20 Deputy Sheriffs' or ‘[T]he Deputy Sheriffs on duty on or about the 10th of November in the Brunswig Building over there, * * *’ Defendant at no time indicated that he knew the names of such proposed witnesses or the probable whereabouts of such persons. It is not the function of the prosecution or the court to locate or assist an accused in locating a witness or witnesses whose name and address is unknown. (See People v. Sullivan, 206 Cal.App.2d 36, 41, 23 Cal.Rptr. 558; People v. Bailey, 91 Cal.App.2d 578, 580, 205 P.2d 418.

When the appellant was requesting that witnesses be subpoenaed, the court asked appellant to reveal the probable testimony of such witnesses whom he was asking the court to subpoena in his behalf. The judge told appellant that if he was advised, or if it was explained what appellant expected to prove by the witnesses, the judge would subpoena them. Appellant stated that he did not want to disclose his defense to the prosecutor. The judge was in order in requesting the appellant to make some showing. This the defendant did not do. (See People v. Fernandez, 222 Cal.App.2d 760, 768–769, 35 Cal.Rptr. 370.)

Lastly, appellant called a Betty Anderson to testify in his behalf. He requested an interview with her before she testified and the court denied the request. She testified, in answer to questions by appellant, that she was in department 119 of the superior court on November 10, 1965, and saw appellant there, that appellant appeared to be nervous and she could not remember whether he was suffering from any ‘bleeding or swelling or anything.’ Appellant made no showing then, nor does he now make any pretense of showing, as to what Betty Anderson could have, or would have, testified had he been able to ‘interview’ her before she testified. She testified to nothing which was pertinent to the question at hand—that is, as to whether appellant did attempt to escape and did inflict blows upon the deputy sheriff in his effort to make his escape.

In any event, it is clear that if there was any error in the trial, it was nonprejudicial and the judgment should be affirmed. (Cal.Const., art. VI, § 13.)

The judgment is affirmed.


FOOTNOTE.  FN* Advance Report Citation: 65 A.C. 849, 856.

FOURT, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.