People v. Harmon

A jury found defendant guilty of violation of section 4500 of the Penal Code (assault with malice aforethought by force likely to produce great bodily injury, committed by one undergoing a life sentence in a state prison). Section 4500 as it read at the time of the commission of the assault and at the time of judgment herein (Stats. 1941, ch. 106, § 15) made the death penalty for such offense mandatory. This appeal from the judgment of death is taken pursuant to subdivision (b) of section 1239 of the Penal Code.

After judgment defendant asked that his court-appointed trial counsel be relieved. At a subsequent superior court hearing to settle the reporter’s transcript, defendant was represented by another counsel, also court-appointed. This court, on defendant’s request for counsel on appeal, appointed yet another attorney, who has since been relieved at defendant's request. Defendant in propria persona presents the following contentions: (1) he did not have opportunity to consult privately with counsel prior to trial; (2) the trial judge erroneously refused defendant’s request for change of trial counsel after defendant’s counsel indicated that he “was not willing to help in…

I agree with the majority opinion insofar as it holds that the evidence sustains the finding of guilt, and I further agree that there were no prejudical errors in the trial of that issue. But I am of the view that the portion of the proposed opinion that holds that Harmon is not entitled to have his punishment fixed under section 4500 of the Penal Code as it now reads is erroneous.

The majority opinion correctly points out that, when this crime (assault likely to produce bodily harm committed by one under a life sentence) was committed, and when Harmon was tried, convicted, and judgment was entered, section 4500 of the Penal Code made the death penalty mandatory. The majority opinion also correctly points out that while this appeal was pending, there became effective an amendment to section 4500 by which it is now provided that where, as here, the victim does not die as a result of the assault, the trier of the fact, in its discretion, may impose a penalty less than death.

The question thus presented is, under what statute is Har *28 mon to be punished—-the old severe one, or the one mitigating the punishment? The majority opinion holds that Harmon must be punished under the old…

A jury found defendant guilty of violation of section 4500 of the Penal Code (assault with malice aforethought by force likely to produce great bodily injury, committed by one undergoing a life sentence in a state prison). Section 4500 as it read at the time of the commission of the assault and at the time of judgment herein (Stats. 1941, ch. 106, 15) made the death penalty for such offense mandatory. This appeal from the judgment of death is taken pursuant to subdivision (b) of section 1239 of the Penal Code.

After judgment defendant asked that his court-appointed trial counsel be relieved. At a subsequent superior court hearing to settle the reporter's transcript, defendant was represented by another counsel, also court- appointed. This court, on defendant's request for counsel on appeal, appointed yet another attorney, who has since been relieved at defendant's request. Defendant in propria persona presents the following contentions: (1) he did not have opportunity to consult privately with counsel prior to trial; (2) the trial judge erroneously refused defendant's request for change of trial counsel after defendant's counsel indicated that he "was not willing to…