PEOPLE v. BLOUNT (1998)

I. INTRODUCTION

On September 29, 1994, Dedric Blount (Blount) was convicted by a jury of two counts of second degree robbery.   Blount admitted two prior prison term enhancement allegations and was sentenced to eight years in state prison.   On October 3, 1996, this court reversed and remanded this case to the trial court for retrial of the enhancement findings.  (People v. Blount (Oct. 3, 1996) A069498 [nonpub. opn.] (hereafter, Blount I )).   On February 13, 1997, a jury found the two prior prison term enhancement allegations to be true.   On March 5, 1997, Blount was again sentenced to eight years in state prison.

In this appeal, Blount contends the trial court (1) committed reversible error by instructing the jury with CALJIC No. 2.90, regarding the prosecutor's burden of proving guilt beyond a reasonable doubt, and (2) miscalculated Blount's pre-sentence credits.   In a petition for writ of habeas corpus, which we consider along with the appeal, Blount contends he was denied effective assistance of counsel at his trial on the prior prison term enhancement allegations because his attorney failed to investigate and challenge the validity of his prior conviction for violating section 11352 of the Health and Safety Code on the ground that it was based on an involuntary guilty plea.   We hold that the trial court did miscalculate Blount's pre-sentence credits but we reject Blount's other contentions and affirm the judgment.

II. STATEMENT OF FACTS

The facts relating to Blount's 1994 robbery convictions are irrelevant to the issues on appeal.   As we noted in Blount I, the information charging Blount with the 1994 robberies also alleged Blount suffered two prior convictions for which he served two separate prison terms.  (Blount I, supra, typed opn. at pp. 1-2.)   The sole issue in Blount I was whether the trial court's failure to admonish Blount “at all regarding his right of confrontation and the privilege against self-incrimination, and its failure to admonish him more explicitly concerning his right to a jury trial on the charged enhancements, constitut[ed] reversible error.”  (Blount I, supra, typed opn. at p. 5.) We held that it did.¹

After our decision in Blount I, Blount received a trial on the prior prison term enhancement allegations.   Trial commenced on February 13, 1997, and the jury deliberated and returned a verdict that same day.   The jury found Blount was previously convicted for violating (1) Health and Safety Code section 11352 on or about February 13, 1990, and (2) Health and Safety Code section 11350 on or about April 13, 1992, and that he served separate terms in state prison for each of these violations.

III.A-B.**

IV. THE HABEAS PETITION

A. Background

 Blount contends he was denied the effective assistance of counsel because his trial attorney in the enhancement trial did not challenge the constitutionality of his 1990 conviction for violating Health and Safety Code section 11352 (the section 11352 prior).²  Blount maintains that if counsel had challenged his section 11352 prior, it would have been stricken because it is based on an involuntary guilty plea.   The plea was involuntary and unconstitutional, Blount now contends, because Blount was allegedly not advised at the time that, by pleading guilty to the section 11352 offense, Blount would have to comply with registration requirements set forth in section 11590 of the Health and Safety Code (the section 11590 registration requirement).³

 Because we review Blount's claim pursuant to a habeas petition, our review is not confined to the appellate record.  (See, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 218, 233 Cal.Rptr. 404, 729 P.2d 839;  People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1438, 18 Cal.Rptr.2d 371.)   Blount supports his claim with his own declaration which states that, when he pleaded guilty to the section 11352 prior and was sentenced for that crime, he was not advised by counsel or anyone else that he would have to register as a narcotics offender because of the conviction.   Blount states that he would not have pleaded guilty to the section 11352 prior if he had known about the section 11590 registration requirement.   Blount further declares that counsel who represented him in the enhancement trial in the present case did not ask him whether he was aware of the section 11590 registration requirement at the time he pleaded guilty to the section 11352 prior.

Blount has also submitted (a) the “Advisement and Waiver of Constitutional Rights and Declaration in Support of Defendant's Motion to Change Plea” that was filed in connection with the taking of Blount's plea to the section 11352 violation, and (b) the transcript of the municipal court hearing at which Blount entered his plea in that prior action.   Neither of these documents indicate that Blount was advised of the section 11590 registration requirement.

B. Standard of Review

 The right to effective assistance of counsel is guaranteed by both the federal and California Constitutions.  (People v. Ledesma, supra, 43 Cal.3d at p. 215, 233 Cal.Rptr. 404, 729 P.2d 839.)   Blount carries the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance.  (People v. Garrison (1989) 47 Cal.3d 746, 788, 254 Cal.Rptr. 257, 765 P.2d 419.)   “The claim of ineffective assistance of counsel involves two components, a showing the counsel's performance was deficient and proof of actual prejudice.”  (Id. at p. 786, 254 Cal.Rptr. 257, 765 P.2d 419;  People v. Ledesma, supra, 43 Cal.3d 171, 233 Cal.Rptr. 404, 729 P.2d 839.)

To be deficient, counsel's performance must have fallen “ ‘below an objective standard of reasonableness ․ under prevailing professional norms.’ ”   (People v. Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839.)   In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of “second-guessing.”  (Ibid.) Further, except in circumstances not here relevant, prejudice must be affirmatively proved.  “ ‘The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ”  (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218, 233 Cal.Rptr. 404, 729 P.2d 839.)

When presented with a petition for writ of habeas corpus, our task is to determine “whether the petition states a prima facie case for relief-that is, whether it states facts that, if true, entitle the petitioner to relief-and also whether the stated claims are for any reason procedurally barred.”   (People v. Romero (1994) 8 Cal.4th 728, 737, 35 Cal.Rptr.2d 270, 883 P.2d 388.)

C. Analysis

Blount's efforts to establish deficient performance and prejudice hinge on his assertion that the section 11352 prior would have been stricken if challenged.   To explain why this assertion is inaccurate, and why Blount's ineffective assistance of counsel claim fails, we will first accurately define the error which allegedly occurred when Blount pleaded to the section 11352 violation.   Then we address the distinct issue of whether a criminal defendant may collaterally attack a prior conviction on the ground Blount contends his trial counsel in the present case should have asserted.

1. The trial court has a duty to advise a criminal defendant of the consequences of his plea.

Blount contends that a trial court's failure to advise a criminal defendant of the section 11590 registration requirement when accepting a plea to a section 11352 violation constitutes automatically reversible constitutional error.   The People do not challenge this contention and thus implicitly concede that failure to advise about the section 11590 registration requirement constitutes “Boykin/Tahl ⁴ error.”   We spend the time to correct this misconception because the nature and consequences of the alleged error are crucial to our analysis of whether the section 11352 prior could have been collaterally attacked in this case.

“ ‘It has long been recognized that under the federal Constitution a defendant's plea of guilty to a criminal charge is only valid if it is voluntarily and knowingly made.’  [Citation.]   In Boykin v. Alabama [, supra,] 395 U.S. 238 [89 S.Ct. 1709], the United States Supreme Court held that an appellate court may not presume from a ‘silent record’ that a defendant has voluntarily and intelligently waived the constitutional rights which he implicitly relinquishes by entering a plea of guilty.”  (People v. Wright (1987) 43 Cal.3d 487, 491, 233 Cal.Rptr. 69, 729 P.2d 260.)   Our Supreme Court “construed Boykin to require the record to reveal ‘on its face’ that the trial court, before accepting a guilty plea, expressly advised the accused and obtained his or her waiver of the full panoply of constitutional rights:  the rights to trial by jury, to confront and cross-examine witnesses and against self-incrimination.”  (Id. at pp. 491-492, 233 Cal.Rptr. 69, 729 P.2d 260, citing In re Tahl, supra, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.)   A trial court's failure to give these express advisements on the record and to obtain adequate waivers is referred to as Boykin/Tahl error.   Recently, our Supreme Court rejected the previously applied rule that Boykin/Tahl error mandates automatic reversal.   (People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)   Rather, a plea is valid notwithstanding Boykin/Tahl error “if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.”  (Id. at p. 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315.)

Our Supreme Court has also held that, “[i]n all guilty plea and submission cases the defendant shall be advised of the direct consequences of conviction such as the permissible range of punishment provided by statute, registration requirements, if any (e.g., [Pen.Code,] § 290;  Health & Saf.Code, § 11590), and, in appropriate cases the possibility of commitment pursuant to Welfare and Institutions Code, sections 3053, 3051, or 6302.”  (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.)   Thus, for example, “[w]here the registration requirement of section 11590 is applicable, the defendant must be properly advised of it as a direct consequence of conviction.”  (People v. Cotton (1991) 230 Cal.App.3d 1072, 1084, 284 Cal.Rptr. 757;  see also People v. McClellan (1993) 6 Cal.4th 367, 376, 24 Cal.Rptr.2d 739, 862 P.2d 739 & fn.  8 (McClellan ).)

 However, “the requirement that an accused be advised of the consequences of the plea is not constitutionally compelled and failure to advise as to consequences constitutes error which requires that the plea be set aside only if prejudice is demonstrated.”  (People v. Edelbacher (1989) 47 Cal.3d 983, 1031, 254 Cal.Rptr. 586, 766 P.2d 1;  People v. Cotton, supra, 230 Cal.App.3d at p. 1084, 284 Cal.Rptr. 757;  see also People v. Walker (1991) 54 Cal.3d 1013, 1022-1023, 1 Cal.Rptr.2d 902, 819 P.2d 861;  People v. Wright, supra, 43 Cal.3d at p. 496, 233 Cal.Rptr. 69, 729 P.2d 260.)   To establish prejudice resulting from the trial court's misadvisement of the consequences of a plea, the defendant must show that he “would not have entered the plea of guilty had the trial court given a proper advisement.  [Citations.]”  (McClellan, supra, 6 Cal.4th at p. 378, 24 Cal.Rptr.2d 739, 862 P.2d 739;  In re Moser (1993) 6 Cal.4th 342, 352, 24 Cal.Rptr.2d 723, 862 P.2d 723.)   Further, a trial court's misadvisement concerning the consequences of a guilty plea is subject to waiver.   (McClellan, supra, 6 Cal.4th at p. 377, 24 Cal.Rptr.2d 739, 862 P.2d 739;  People v. Walker, supra, 54 Cal.3d 1013, 1 Cal.Rptr.2d 902, 819 P.2d 861.)

The Supreme Court's opinion in McClellan illustrates how the waiver doctrine works when a defendant alleges error resulting from misadvisement of the penal consequences of a plea.  (McClellan, supra, 6 Cal.4th 367, 24 Cal.Rptr.2d 739, 862 P.2d 739.)   The McClellan defendant pleaded guilty to assault with intent to commit rape.   In accepting defendant's plea, the trial court did not advise the defendant that he would be required to register as a sex offender.   The court of appeal ruled the trial court violated the defendant's plea agreement by imposing the registration requirement as a part of the sentence.   The Supreme Court disagreed, holding the defendant waived the claim of error by failing to object to the registration requirement at the sentencing hearing.   The McClellan court reasoned that the probation report recommended that the defendant be ordered to register as a sex offender, that trial counsel was obviously aware of that recommendation and that no objection to the registration requirement was made at the sentencing hearing.   (McClellan, supra, 6 Cal.4th at p. 377, 24 Cal.Rptr.2d 739, 862 P.2d 739.)   The court also found appellant failed to establish prejudice notwithstanding an assertion in his notice of appeal that he would not have pleaded guilty had he known of the registration requirement.  (Id. at p. 378, 24 Cal.Rptr.2d 739, 862 P.2d 739.)

 McClellan and the other controlling authority we have summarized confirms that the trial court certainly does have a duty to advise a criminal defendant about the penal consequences of a conviction, including any registration requirement, when taking that defendant's plea.   Although failure to provide the advisement is error, it is not, as Blount argues and the People seemingly concede, Boykin/Tahl error or any other type of constitutional error.   Blount's contention that failure to advise about the penal consequences of a plea constitutes automatically reversible error is also wrong.   Rather, a defendant can obtain direct relief only if he (1) “interpose [s] a timely objection to imposition of the registration requirement,” and (2) “ demonstrate[s] he would not have pleaded guilty in the event he had been advised properly with regard to this consequence.”   (McClellan, supra, 6 Cal.4th at p. 381, 24 Cal.Rptr.2d 739, 862 P.2d 739.)

2. Blount's trial counsel did not perform ineffectively by failing to collaterally attack the section 11352 prior.

 A separate issue from whether Blount could have obtained a reversal in the prior action because of the alleged error with respect to the taking of his plea is whether Blount may collaterally attack the validity of the section 11352 prior in the present case.   Blount contends his right to move to strike the prior is clearly established by People v. Sumstine (1984) 36 Cal.3d 909, 914-919, 206 Cal.Rptr. 707, 687 P.2d 904 (Sumstine ), which held that a defendant may move to strike a prior because of alleged Boykin/Tahl error.   We disagree for two independent reasons.

First, as discussed above, the failure to advise a criminal defendant about a registration requirement does not constitute Boykin/Tahl error or any other kind of constitutional error.   Neither party has cited authority suggesting that a prior conviction can be collaterally challenged because of non-constitutional error.   We question the validity of such a challenge because, as our Supreme Court recently explained, the procedure for moving to strike a prior conviction was instituted in California courts as a means of challenging the constitutional validity of that prior.  (Garcia v. Superior Court (1997) 14 Cal.4th 953, 959-960, 59 Cal.Rptr.2d 858, 928 P.2d 572 (Garcia ).)   And, the justification for such a challenge is the well-recognized maxim that “a prior conviction that has been determined to be constitutionally invalid may not be used to enhance the punishment for a subsequent offense.”  (Id. at p. 959, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   Indeed, in Sumstine, the case upon which Blount primarily relies, the court expressly “conclude[d] that a defendant seeking to challenge a prior conviction on any ground must allege actual denial of his constitutional rights.”   (Sumstine, supra, 36 Cal.3d at p. 922, 206 Cal.Rptr. 707, 687 P.2d 904;  see also, id. at pp. 916-919, 206 Cal.Rptr. 707, 687 P.2d 904.)

Blount contends that, notwithstanding the controlling authority we discuss above, failure to advise about a penal consequence renders the resulting plea unknowing, involuntary and unconstitutional.   Even if we could be persuaded that misadvisement of a penal consequence might conceivably affect the constitutionality of a plea, there is a second reason why Blount's habeas corpus claim fails.   A month before Blount's trial on the prior prison term allegations, our Supreme Court severely restricted a criminal defendant's right to move to strike a prior conviction alleged as an enhancement.  (Garcia, supra, 14 Cal.4th 953, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

Garcia held that a criminal defendant is not entitled to move to strike a prior criminal conviction on the ground of ineffective assistance of counsel in the prior proceeding.  (Garcia, supra, 14 Cal.4th at p. 956, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   In reaching this holding, the Supreme Court expressly found that there is no federal or state constitutional right to collaterally challenge the constitutional validity of a prior conviction in proceedings involving a subsequent offense, except on the ground that the conviction was obtained in violation of a defendant's right to counsel (i.e., for Gideon ⁵ error).  (Garcia, supra, 14 Cal.4th at pp. 963-964, 59 Cal.Rptr.2d 858, 928 P.2d 572;  see also Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (Custis ) [the sole ground upon which a defendant in a federal sentencing proceeding may collaterally attack a prior state court conviction used to enhance his sentence is for Gideonerror].)  The Garcia court also found that relevant policy considerations prohibit “a judicially established rule of procedure” permitting a defendant to collaterally attack a prior conviction which is to be used to enhance his punishment on the ground that the prior conviction was obtained in violation of his right to effective assistance of counsel.  (Garcia, supra, 14 Cal.4th at p. 964, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

The Garcia court found that permitting collateral challenges based on ineffective assistance of counsel would not promote, but rather would undermine, the important policies of efficient and effective judicial administration of justice.   Such claims would often require (1) factual investigations of prior counsel's conduct and strategic decisions, (2) reconstruction of remote events, and (3) review of potentially voluminous records.   The Garcia court contrasted this inefficient and ineffectual procedure with the comparatively straightforward procedure for resolving challenges based on Gideon error.  (Id. at pp. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   The potential for disruption and delay in the former situation would seriously undermine the orderly administration of justice.  (Garcia, supra, 14 Cal.4th at p. 965, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

The Garcia court was also concerned by the adverse impact on the important interest in promoting the finality of judgments.  “ ‘[I]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures' and inevitably delay and impair the orderly administration of justice․   By challenging the previous conviction, the defendant is asking a district court ‘to deprive [the] [state court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judgmen[t].’ ”  (Garcia, supra, 14 Cal.4th at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572.)

 Thus, policy concerns compelled the Garcia holding that “a defendant whose sentence for a noncaptial offense is subject to enhancement because of the prior conviction may not employ the current prosecution as a forum for challenging the validity of a prior conviction based upon alleged ineffective assistance of counsel in the prior proceeding.”  (Garcia, supra, 14 Cal.4th at p. 966, 59 Cal.Rptr.2d 858, 928 P.2d 572.)   At the time of Blount's trial on the prior prison term allegations, Garcia had set forth the guidelines for determining the scope of a criminal defendant's right to move to strike a prior alleged as an enhancement.   Blount's trial counsel in the present case could reasonably have interpreted Garcia as prohibiting using the motion to strike procedure to collaterally challenge the section 11352 prior on the ground that Blount was not advised of the section 11590 registration requirement.

A judicially-established rule of procedure authorizing a collateral challenge on the ground of misadvisement of a penal consequence would substantially undermine the policy considerations identified in Garcia.   Although a transcript of the plea proceeding from the prior action may reveal whether the trial court failed to disclose a consequence of the plea, a review of that transcript would likely not resolve the issues of waiver and prejudice, issues which would have to be addressed in the pending action in order to determine whether there was reversible error in the prior action.

Resolving the waiver issue could require the trial court in the pending action to revisit such issues as (1) whether the defendant waived his right to object to the misadvisement in light of a reference to the penal consequence in the defendant's probation report, a sentencing pleading or because of a subsequent reference to the consequence at the sentencing hearing and (2) whether the defendant's counsel in the prior proceeding may have personally informed his or her client of the omitted consequence.

Assessing prejudice from the error in the prior proceeding would be even more problematic.   With the passage of time, the determination whether a defendant would have pleaded guilty to a prior had he known of an undisclosed penal consequence becomes increasingly difficult if not impossible to make.   In the present case, for example, the only evidence of prejudice that has been submitted is Blount's recently-drafted declaration.   In an analogous context, our Supreme Court has recognized the limited usefulness of such evidence.  (In re Alvernaz (1992) 2 Cal.4th 924, 938, 8 Cal.Rptr.2d 713, 830 P.2d 747 (Alvernaz ).)   The petitioner in Alvernaz alleged he was denied effective assistance of counsel because his trial attorney gave inaccurate advise about the consequences of rejecting a plea offer.   The Alvernaz court rejected this claim on the ground petitioner failed to carry his burden of establishing prejudice, i.e., he failed to make “a credible, independently corroborated prima facie showing of a reasonable probability that he would have accepted the plea offer but for his trial counsel's alleged inaccurate advice.”  (Id. at p. 946, 8 Cal.Rptr.2d 713, 830 P.2d 747.)   In reaching this conclusion, the Alvernaz court expressly found that the petitioner's declaration stating that he would have accepted the plea offer had he received adequate advice was “self-serving and thus insufficient in and of itself to establish prejudice.”  (Id. at p. 945, 8 Cal.Rptr.2d 713, 830 P.2d 747.)

Employing the comparison used by the Garcia court, the procedure for evaluating a misadvisement of penal consequences claim is obviously more akin to the procedure for evaluating an ineffective assistance challenge than it is to the straightforward process for determining whether Gideon error occurred in the prior proceeding.   Permitting the defendant sufficient time to gather evidence from the prior proceeding and perhaps from prior counsel to establish not only that he was misadvised, but also that the claim of error was not waived and caused him prejudice, would significantly delay the pending proceeding.   Further, requiring the trial court to determine such potentially stale issues would impose a significant administrative burden on it.

The other policy factor identified in Garcia, promotion of finality of judgments, also weighs strongly against permitting a collateral attack because of alleged misadvisement of a penal consequence with respect to the prior plea.   The Garcia court emphasized, as has the United States Supreme Court, that the interest in finality “ ‘bear[s] extra weight in cases in which the prior convictions ․ are based on guilty pleas, because when a guilty plea is at issue, “the concern with finality served by the limitation on collateral attack has special force.” ’ ”  (Id. at p. 962, 59 Cal.Rptr.2d 858, 928 P.2d 572, quoting Custis, supra, 511 U.S. at pp. 496-497, 114 S.Ct. 1732.)

Returning to our ineffective assistance of counsel analysis, Blount complains that his trial counsel in the present action did not ask him whether he was advised about the section 11590 registration requirement when he pleaded to the section 11352 prior.   Whether or not counsel should have made such an inquiry, Blount has failed to prove deficient performance because there are two solid reasons why Blount's counsel could reasonably have concluded that the section 11352 prior could not be challenged on the ground that Blount was not advised about the section 11590 registration requirement:  (1) misadvisement of the penal consequences of a plea is not a constitutional error and, therefore, cannot be the basis of a motion to strike;  (2) the principles established in Garcia necessarily preclude collateral attacks on convictions charged as enhancements based upon alleged misadvisement of the penal consequences of a plea entered in the prior proceeding.   On the basis of these conclusions, we also hold that Blount has failed to carry his burden of establishing the prejudice prong of his ineffective assistance claim.   He has not established a reasonable probability that, if not for counsel's alleged errors, the outcome of the present proceeding would have been different.

V. DISPOSITION

This case is remanded to the trial court for the limited purpose of re-computing Blount's jail and prison time credits.   In all other respects, the judgment is affirmed and the petition for a writ of habeas corpus is denied.

FOOTNOTES

1.   The People's request that we take judicial notice of the clerk's transcript from Blount I is denied since we find in unnecessary to refer to that transcript in order to dispose of the issues on appeal.

FOOTNOTE.   See footnote *, ante.

2.   The petition also contains a cursory allegation that Blount's appellate counsel in Blount I also rendered ineffective assistance of counsel by failing to challenge the validity of the section 11352 prior.   We summarily reject this contention since it is completely unsupported by any factual or legal analysis.Major portions of the legal analysis that has been submitted to support Blount's petition were apparently borrowed from a different matter in which a defendant was allegedly not advised of the registration requirement triggered by his plea to a charge of indecent exposure.   Blount's present counsel not only failed to adequately update that analysis, he also failed to modify the facts to comport with the present case.   We strongly disapprove of this practice.

3.   Health and Safety Code section 11590, subdivision (a), provides:  “Except as provided in subdivisions (c) and (d), any person who is convicted in the State of California of any offense defined in Section ․ 11352 ․ shall within 30 days of his or her coming into any county or city, or city and county in which he or she resides or is temporarily domiciled for that length of time, register with the chief of police of the city in which he or she resides or the sheriff of the county if he or she resides in an unincorporated area.”   The exceptions contained in subdivisions (c) and (d) do not apply to Blount.

4.   Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449.

5.   Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

HAERLE, Associate Justice.

KLINE, P.J., and LAMBDEN, J., concur.