# People v. Holland

> California Supreme Court · December 29, 1978 · 23 Cal. 3d 77

URL: https://www.frixlaw.com/law-library/cases/9602411

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. TIMOTHY NEAL HOLLAND, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 29, 1978
- **Citations:** 23 Cal. 3d 77; 151 Cal. Rptr. 625; 588 P.2d 765; 1978 Cal. LEXIS 335
- **Precedential status:** Published
- **Opinion:** Dissent by Clark
- **Judges:** Bird, Clark
- **Cited by:** 50 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by People v. Mendez, 19 Cal. 4th 1084 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9602411

## Opinion text

CLARK, J., Dissenting.
The question presented is whether defendant was denied the means of exercising his constitutional right to retain counsel of choice by the People’s failure to return $685 defendant allegedly entrusted to the police for safekeeping when he was arrested.
*90 In an evidentiaiy hearing held pursuant to a habeas corpus proceeding this question might be reliably resolved, but it cannot be on the record available in this appeal.
Suppose the $685 had been returned to defendant. It constituted his “life savings.” (Ante, p. 81.) Would he have been able to retain private counsel for that sum?
Defendant was charged with two counts of selling cocaine (Health & Saf. Code, § 11352) and one count of possessing peyote (Health & Saf. Code, § 11350). To anyone familiar with the going rate for legal services and with the understandable reluctance of counsel to undertake a case of this sort unless the fee is paid in advance, it would appear most unlikely defendant would have been able to retain an attorney to represent him on these three felony charges for $685. Certainly defendant never represented to the court that he had found an attorney willing to represent him if only his $685 were returned. 1
The cases relied upon by the majority must be distinguished. The sum involved in People v. Vermouth (1974) 42 Cal.App.3d 353 [ 116 Cal.Rptr. 675 ] was 10 times the amount withheld here. The procedure followed in United States ex rel. Ferenc v. Brierley (E.D.Pa. 1970) 320 F.Supp. 406 should have been adopted here. In that habeas corpus proceeding an evidentiary hearing was held on the question whether the withholding of the sum involved prevented the relator from hiring private counsel.
The judgment should be affirmed.
The majority note that in the statement filed with his notice of appeal pursuant to Penal Code section 1237.5 defendant alleged that “ ‘[b]etween March 28, 1975, and April 12, 1975, two private attorneys . . . negotiated on separate occasions directly with the District Attorney’s office on my behalf for the return of my money so that I might retain their services.’ ” {Ante, p. 83, fn. 4.)
This statement pursuant to section 1237.5 was, of course, made subsequent to the entry of judgment. Therefore, allegations made in the statement, like allegations made in an affidavit in support of a motion for a new trial, are not part of the record on appeal for the purpose of reviewing the propriety of action taken by the trial court prior to the entry of judgment and without the benefit of the statement. (See, Ward v. Litowsky (1970) 5 Cal.App.3d 437, 439-440 [ 85 Cal.Rptr. 278 ]; see also Gutierrez v. Superior Court (1966) 243 Cal.App.2d 710, 729-730 [ 52 Cal.Rptr. 592 ]; People ex rel. Dept. Pub. Wks. v. Brusati (1963) 223 Cal.App.2d 643, 644-645 [ 35 Cal.Rptr. 820 ].) Moreover, a reviewing court could not simply take the allegations at face value. They would at most serve to frame the issue to be resolved in an evidentiary hearing held pursuant to a habeas corpus proceeding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9602411. Public record. Not legal advice.