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

Ex parte TURRIETA. Petition of Albert M. BENDICH and H. Leroy Cannon, for and on behalf of Lucy Turrieta, for a Writ of Habeas Corpus.*

Cr. 3758.

Decided: February 17, 1960

Albert M. Bendich, Staff Counsel American Civil Liberties Union of Northern California, San Francisco, H. Leroy Cannon, Pittsburg, Cal., for petitioners. Stanley Mosk, Atty. Gen., Arlo E. Smith, John S. McInerny, Deputy Atty. Gen., John A. Nejedly, Dist. Atty. of Contra Costa County, Walnut Creek, Samuel D. Mesnick, Deputy Dist. Atty., San Francisco, for respondents.

The question presented by this proceeding in habeas corpus is whether a defendant who waived her right to counsel when arraigned, pleaded guilty, and was placed on probation without being sentenced, thereby waived her right to counsel for the purpose of a subsequent proceeding in the same matter in which, following revocation of her probation, she was senteced to jail. We hold that she did not.

On November 1, 1957, Lucy Turrieta pleaded guilty in the justice court of the Pittsburg District, Contra Costa County, to two charges of petty theft. The minutes in each case recite that ‘she was informed of her legal rights.’ An affidavit of the judge states ‘that without qualification the court states that the court admonished said Lucy Turrieta as to her right to an attorney at the said arraignment; that further the court would delay the proceedings if she desired time to obtain counsel; that Lucy Turrieta indicated that she did not want time to obtain counsel and did not ask the court to appoint counsel * * *.’ The minutes are presumed to speak the truth, and it is also presumed that official duty was regularly performed. People v. Crawford, 176 Cal.App.2d 564, 1 Cal.Rptr. 811, and cases there cited.

The petition filed December 9, 1959, states, on information and belief, that petitioner was not advised as to her rights at all. At the oral argument, on January 26, 1960, an affidavit of the petitioner, sworn, to on January 22, was presented, in which, for the first time, it is flatly alleged that she was not advised as to her rights when she pleaded guilty. We find however, that she was so advised and did waive her right to counsel.

On December 3, 1957, the court found Turrieta guilty, but did not sentence her. Instead, she was placed on probation for two years. On November 6, 1959, her probation was revoked for violation of the terms thereof, and the court sentenced her to six months in the county jail. The minutes of this proceeding contain no recital except the following: ‘Probation revoked, 6 months County Jail.’ An affidavit of the judge states ‘that it is the normal and customary practice of said court to admonish defendants at all stages of any criminal proceedings as to their rights to representation by counsel; that the court has no specific recollection of admonishing * * * Lucy Turrieta on November 6 of * * * [her] right to counsel to [sic] the change in probation status hearing aforementioned; that, however, the court assumed [assumes?] that it followed its normal and customary practice in these probation hearings.’ However, the petition directly states that she was not advised of her right to counsel, on November 6, 1959. The petition also states that petitioner is authorized by the district attorney of Contra Costa County to adivse this court that a verbal [sic; we suppose that this means oral] stipulation has been made with petitioner that at the revocation proceedings no mention was made of the subject of counsel whatsoever. Counsel opposing the writ assume in their argument that the subject was not mentioned, and we treat the case accordingly.

There can be no doubt that, when a party is convicted, but not sentenced, and is placed on probation, and thereafter probation is revoked and sentence is imposed, the constitutional right to counsel applies to the sentencing proceeding. It was directly so held in In re Levi, 39 Cal.2d 41, 244 P.2d 403; In re Roberts, 40 Cal.2d 745, 255 P.2d 782; In re Boyce, 51 Cal.2d 699, 336 P.2d 164, and People v. Fields, 88 Cal.App.2d 30, 198 P.2d 104. See also People v. Banks, 53 Cal.2d 370, 1 Cal.Rptr. 669. The right does not apply to revocation of probation (In re Davis, 37 Cal.2d 872, 236 P.2d 579; In re Dearo, 96 Cal.App.2d 141, 214 P.2d 585. Cf. People v. Fields, supra, 88 Cal.App.2d 30, 198 P.2d 104; In re Levi, supra, 39 Cal.2d 41, 244 P.2d 403), but only to the pronouncing of judgment and sentence. The reasons for requiring that a defendant be advised of his right to counsel and either then freely waive that right or be represented by counsel when sentence is pronounced are fully set forth in In re Levi, supra, and we do not repeat them.

It is urged that in Levi, Roberts and Boyce the defendant had actually been represented by counsel in all prior proceedings in this case, and that those cases only stand for the proposition that in such a case he is also entitled to have his counsel present when judgment and sentence are pronounced. It is asserted that if a defendant waives his right to counsel when he is arraigned, that waiver continues throughout all subsequent proceedings in the case, no matter how remote in time nor how serious to the defendant the consequences of a later action of the court may be. There is excepted from this supposed rule only a case in which the defendant, when sentence is to be pronounced, affirmatively demands his right to counsel. No authority is cited that supports this position. In Roberts and Boyce the fact that the defendant had been represented in the earlier proceedings is mentioned, but no weight is given to that fact in the opinions. In Levi the fact appears in the record of the case, but is not even mentioned in the opinion. Moreover, it seems to us that all of the reasoning in Levi runs counter to the position urged, and we therefore reject it. When a defendant is brought before the court for sentence, following revocation of probation, his need for counsel is then just as great if he waived his right to counsel in prior proceedings as it is if he was represented by counsel in such prior proceedings. The opinion in Levi points out the substantial rights that he has at such a time, and the extent of his need for advice and assistance in exercising those rights. See 39 Cal.2d at pages 45–46, 244 P.2d at pages 405–406. The opinion in People v. Banks, supra, 53 cal.2d 370, at page 387, 1 Cal.Rptr. 669, at page 680 points out the serious consequences which first attach when sentence is pronounced. It would be a work of supererogation for us to repeat what is said by the Supreme Court in those cases.

We do not think that either In re Connor, 16 Cal.2d 701, 108 P.2d 10, or In re Martinez, 52 Cal.2d 808, 345 P.2d 449, supports the position suggested. Connor stands for no more than this: that when the right to counsel is waived at the start of the trial of a defendant he does not have the right, when the trial is partially completed, to change his mind and demand counsel. Martinez holds that the defendant in the case did in fact waive his right to counsel at the time he pleaded guilty, but that nevertheless, because he had been represented by counsel at prior stages of the proceedings, the court should not have accepted the waiver because sections 284 and 285 of the Code of Civil Procedure dealing with change of counsel, and Penal Code, section 1018, were not complied with. The case illustrates how zealously our courts guard the right of a defendant to be represented by counsel at every stage in the proceedings against him. People v. Gonzales, 151 Cal.App.2d 112, 311 P.2d 53, also cited, deals only with the question as to whether defendant had in fact waived his right to counsel, as does In re Jingles, 27 Cal.2d 496, 165 P.2d 12. The same is true of In re Tedford, 31 Cal.2d 693, 192 P.2d 3, where the right to counsel was waived at the arraignment, and sentence was not pronounced until 18 days later, a continuance having been granted for that period.

At the oral argument it was suggested that we should tolerate in justice court proceedings involving petty misdemeanors, an undefined degree of laxity in relation to the waiver of the right to counsel that we would not tolerate in connection with more serious offenses in the superior courts. This notion finds no support in the Constitution, and we emphatically reject it. When essential constitutional rights are in issue, the petty offender before a so-called inferior court is the equal of any other citizen, and entitled to the full protection of the Constitution, not just to a part of that protection, grudgingly given and imperfectly applied. As the Constitution itself states (Article I, section 13) ‘In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel.’ (Italics supplied.) The accused who stands before a justice court for sentencing does not thereby become a second class citizen, entitled only to second class justice.

We do not discuss other grounds stated in the petition. On December 4, 1959, we denied a prior petition in which the same grounds were urged. I Crim. No. 3755. We granted a hearing in this matter solely for the purpose of considering the question discussed in this opinion, the present petition being the first in which the question was adequately presented.

Turrieta is not entitled to be restored to her liberty; the adjudication of guilt was valid. The trial court still has jurisdiction to pronounce a valid judgment. If she should be again sentenced, time served under the invalid judgment will be credited upon the new commitment. In re Levi, supra, 39 Cal.2d 41, 47, 244 P.2d 403, 406.

Turrieta is remanded for resentencing or for other proceedings in a manner not inconsistent with this opinion.

DUNIWAY, Justice.

BRAY, P. J., and TOBRINER, J., concur.

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