IN RE: Kenneth James WELLS on Habeas Corpus.

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Court of Appeal, Third District, California.

IN RE: Kenneth James WELLS on Habeas Corpus.

Cr. 4383.

Decided: August 23, 1967

Philip V. Sarkisian, Sacramento, for petitioner. Thomas C. Lynch, Atty. Gen., by Daniel J. Kremer and Nelson Kempsky, Deputy Attys. Gen., Sacramento, for respondent.

Part of petitioner's history is described in People v. Wells, 112 Cal.App.2d 672, 246 P.2d 1023. In 1948, in the Los Angeles Superior Court, he pleaded guilty to lewd and lascivious conduct with a child under 14. (Pen.Code, § 288.) After the plea the court suspended the criminal proceedings, adjudged petitioner a sexual psychopath (or, in present parlance, a mentally disordered sex offender) and committed him to a state hospital. After one and one-half years in the hospital petitioner was returned to court and put on probation. Slightly more than a year later that was evidence of new misconduct with children. On January 8, 1952, the court revoked probation and sentenced him to prison. The judgment was affirmed on appeal. (People v. Wells, supra.)

Petitioner was paroled in June 1960. In November 1960 he appeared in the Santa Barbara Superior Court and pleaded guilty to a child molestation charge in violation of Penal Code section 647a, subdivision (1). The crime was a felony since he had a previous conviction under section 288. The Santa Barbara court did not proceed under Welfare and Institutions Code section 5501, subdivision (c), which requires determination of the person's status as a mentally disordered sex offender if he is convicted of a felony sex offense involving a child under 14.1 Instead, the court on November 29, 1960, sentenced petitioner to state prison, the term to run concurrently with his unexpired term. Petitioner did not appeal.

Petitioner attacks his 1952 Los Angeles conviction, alleging that at the 1948 preliminary examination in the municipal court he was not informed of his right to counsel and did not have the aid of counsel; that at his 1948 arraignment in the superior court he did not personally plead guilty to a violation of Penal Code section 288, rather, that his attorney ‘stipulated’ to the plea. These allegations are unsupported. We are informed that efforts to secure reporter's transcripts of the 1948 proceedings have been unsuccessful. A clerk's transcript prepared in connection with his appeal from the 1952 judgment contains a minute entry of his 1948 arraignment in the superior court, reciting that he appeared with the public defender, withdrew prior pleas of not guilty and not guilty by reason of insanity, entered a plea of guilty and admitted his prior conviction. A reporter's transcript of the 1951 sentencing proceeding demonstrates that he appeared in court with private counsel, who later represented him on appeal.

Petitioner fails to explain his delay of 19 years in attacking the 1948 proceedings and the absence of any complaint in the course of his appeal from the 1952 conviction. (See In re Dixon, 41 Cal.2d 756, 759, 264 P.2d 513; In re Swain, 34 Cal.2d 300, 304, 209 P.2d 793.) His present counsel suggests that he was ignorant of his rights, unaware that they had been violated and thus unable to inform his counsel. Despite such excuses, there is a necessity for setting some practical limit to the period in which an investigation of such claims may be undertaken. (In re Streeter, 66 A.C. 35, 41, 56 Cal.Rptr. 824, 423 P.2d 976.)

It is difficult to accept petitioner's unsupported claim that, by failing to inform petitioner of his right to counsel, the committing magistrate departed from the routine, standardized and well-known procedures established by Penal Code section 859.2 Even if the claim is given credence, it does not require setting aside the judgment. Petitioner does not charge lack of effective legal representation in the superior court or on appeal. In a felony prosecution in California the preliminary examination before a committing magistrate is not a ‘crucial stage,’ and a violation of the defendant's constitutional right to counsel at that stage does not infect the ultimate conviction with constitutional vices, so long as the defendant has the effective aid of counsel in the superior court. (In re Van Brunt, 242 Cal.App.2d 96, 109, 51 Cal.Rptr. 136, disapproved on other grounds by In re Smiley, 66 A.C. 634, 635, 654, 58 Cal.Rptr. 579, 427 P.2d 179; see also White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Wilson v. Harris, 9 Cir., 351 F.2d 840; Wells v. State of California, D.C., 234 F.Supp. 467.)

Penal Code section 1018 establishes the general requirement that every plea must be put in by the defendant himself in open court. Even assuming the truth of petitioner's claim that he did not personally voice his plea of guilty in 1948, the record shows that he was present with his court-appointed attorney when his earlier pleas were withdrawn and a guilty plea entered; that no objection to the plea was made at any time, not even when defendant appeared in 1952 with private counsel and was arraigned for judgment. Under these circumstances petitioner authorized and adopted the plea of guilt; the alleged absence of a personally voiced plea supplies no ground for vacating the judgment. (In re Martinez, 52 Cal.2d 808, 815, 345 P.2d 449.)

Petitioner seeks relief based upon the Santa Barbara court's omission of proceedings under Welfare and Institutions Code section 5501, subdivision (c). He requests release from custody, not treatment. A violation of section 5501, subdivision (c), would not be ground for release, but at most might conceivably entail petitioner's return to the superior court for proceedings con forming to that statute. (See, however, In re McInturff, 37 Cal.2d 876, 881, 236 P.2d 574.) The error, if any, deprived petitioner of no constitutional right and does not compel vacation of the judgment. (In re Martinez, supra, 52 Cal.2d at p. 814, 345 P.2d 449.)

We have concluded that under the circumstances the omission of proceedings under section 5501, subdivision (c), calls for no relief whatever. Petitioner is in prison by force of his 1952 Los Angeles commitment as well as the 1960 Santa Barbara commitment. On December 16, 1960, the Adult Authority suspended his parole on the Los Angeles commitment and on March 27, 1961, revoked it. Had the Santa Barbara court initiated proceedings under the Welfare and Institutions Code, the suspension and revocation of parole by the Adult Authority would have displaced those proceedings, requiring petitioner's immediate return to prison. (People v. Ballin, 66 A.C. 71, 73, 56 Cal.Rptr. 893, 424 P.2d 333; In re Gallegos, Cal.App., 60 P.2d 900.) The institution or pendency of proceedings under the Welfare and Institutions Code would not have barred execution of the remainder of petitioner's preexisting sentence. (People v. Redford, 194 Cal.App.2d 200, 205–206, 14 Cal.Rptr. 866; see also People v. Rummel, 64 Cal.2d 515, 518 Cal.Rptr.785, 413 P.2d 673; In re Swearingen, 64 Cal.2d 519, 522, 50 Cal.Rptr. 787, 413 P.2d 675.) Had the Santa Barbara court conducted proceedings under the sex offenders law even to the point of committing him to a hospital, the termination of his parole would have interrupted his proceedings and required his return to prison.

Thus, although the Welfare and Institutions Code did not specifically declare petitioner ineligible for treatment as a mentally disordered sex offender, the statutory powers of the Adult Authority made him ineligible as soon as his return to prison was ordered. (Cf People v. Victor, 62 Cal.2d 280, 295, 42 Cal.Rptr. 199, 398 P.2d 391.)3

A reporter's transcript of the 1960 sentencing proceeding demonstrates that the Santa Barbara court failed to comply with Penal Code section 1200 by asking whether the accused had legal cause why judgment should not be pronounced. Petitioner assigns this failure as a ground of relief. Since petitioner had entered an informed plea of guilty and was not deprived of counsel, the omission violated no constitutional right and supplies no basis for habeas corpus relief. (In re Grayson, 242 Cal.App.2d 110, 114, 51 Cal.Rptr. 145.) In any event, petitioner had pleaded guilty and expressed a desire for immediate sentencing; the court gave him opportunity to make a statement, and he was ineligible for probation as a twice-convicted felon. Thus, if there was noncompliance, it was only in form not substance.

The petition for habeas corpus is denied and the order to show cause discharged.

FOOTNOTES

1.  Welfare and Institutions Code section 5501, subdivision (c), provides: ‘When a person is convicted of a sex offense involving a child under 14 years of age and it is a felony, the court shall adjourn the proceeding or suspend the sentence, as the case may be, and shall certify the person for hearing and examination by the superior court of the county to determine whether the person is a mentally disordered sex offender within the meaning of this chapter.’

2.  Penal Code section 859 directs the magistrate to deliver a copy of the complaint to the defendant, inform him of his right to the aid of counsel, ask him if he desires the aid of counsel and allow him a reasonable time to send for counsel.

3.  The ineligibility of prior offenders was made somewhat more explicit by the 1963 amendment of Welfare and Institutions Code section 5500.5, which bars persons ineligible for probation from treatment as mentally disordered sex offenders. Since petitioner stood before the Santa Barbara court with two prior felony convictions, he was and is ineligible for probation. (Pen.Code, § 1203.) Should the Adult Authority now place petitioner on parole, section 5500.5 would prevent a new proceeding under the Welfare and Institutions Code.

FRIEDMAN, Associate Justice.

PIERCE, P. J., and REGAN, J., concur.

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