Albert Barreras Vigil was, by indictment, accused of two counts of selling heroin. It was alleged that he had served prison terms following a conviction of larceny of an automobile, assault with a deadly weapon, burglary, and violation of section 666, Penal Code, a felony. He was represented by a deputy public defender in a nonjury trial. He admitted the prior convictions and was convicted on both counts. Probation was denied and he was sentenced to state prison. He appealed in propria persona from the judgment. He applied to this court for appointment of counsel on the appeal; after reading the record and ascertaining that the appeal was without merit, the application was denied; after 30 days' notice duly given to defendant, no brief has been filed.
Defendant made two sales of heroin to a police officer; he did not testify or offer any other defense. His appeal is frivolous. Joseph A. Gunn, an undercover narcotics officer of the Los Angeles Police Department, accompanied by one Richard Sapion encountered defendant on a street in Los Angeles, at which time defendant walked up to them and after a brief conversation gave the officer five capsules which were proved to contain heroin, and was paid $10 by the officer. Ten days later the officer, in company with Mrs. Sapion, encountered the defendant in the same locality and on this occasion the officer gave defendant a $10 bill and received five capsules which contained heroin. Mr. and Mrs. Sapion were acquainted with defendant. Questioned where they could be located the officer testified that he did not know their address
This is but another of the numerous hopeless appeals in which applications for appointment of counsel have been denied.
It has been advocated that counsel must be appointed whenever requested (see first concurring opinion People v. Brown, 55 Cal.2d 64 [9 Cal.Rptr. 836, 357 P.2d 1072].) The argument in favor of this procedure is not that representation is a matter of right, but that the courts (all District Courts of Appeal and all other reviewing courts) are not competent, without the aid of paid counsel, to examine a record on appeal and determine whether the appeal may possibly have merit or is unquestionably frivolous.
Each court must have its own policy, and while these may differ, it is not to be presumed that any court would knowingly deprive an appellant of a substantial right in the matter of an appeal.
We must say, on behalf of the District Courts of Appeal, other than our own, that any low estimate of their ability does them an injustice. With rare exceptions the membership of those courts has been drawn from the ranks of lawyers in private practice, and trial judges. Over the years they have demonstrated to the satisfaction of the legal profession, and the public at large, an ability to perform the duties of the office.
Division Three of the Second District was created in 1941. The six members of the court who have served from time to time formerly served upon the superior court. They had had a combined experience in the practice, both civil and criminal, including four years as deputy public defender, of 121 years, and as judges of trial courts a total experience of 87 years. They have served upon the court a total of 62 years. The court has received able assistance from members of the voluntary committees on criminal appeals of the Los Angeles County Bar Association and the Criminal Courts Bar Association in the examination of records for the discovery of grounds of appeal. It is a type of service that has been traditional with the profession from the earliest times, and the fact that it has been rendered gratuitously has not detracted from its value.
We cannot believe that all the courts have been wrong in exercising discretion, based upon an examination of the record, with respect to appointment of counsel on appeal. This court is not in favor of burdening the state with the expense of counsel fees in obviously hopeless cases.
The judgment is affirmed.
Vallée, J., and Ford, J., concurred.