In re Johnson

Petition for habeas corpus after conviction in the municipal court on a guilty plea to a charge of disorderly conduct, wherein it is claimed that the conviction resulted from violation of petitioner’s constitutional right to counsel.

On December 23, 1963, petitioner appeared in the Santa Barbara Municipal Court without counsel for arraignment on a charge of violating section 647, subdivision (f), of the Penal Code, a misdemeanor. The judge informed petitioner that he was charged with disorderly conduct and that the complaint “alleges that on the 22nd day of December, 1963, in the County of Santa Barbara, you were found in a public place under the influence of intoxicating liquor.” The judge then inquired, 11 Do you want to hire a lawyer, Mr. Johnson ? ’ ’ to which petitioner replied, “No, sir.” Petitioner responded in the affirmative to the further inquiry, “Are you ready to plead now?”, and entered a plea of guilty. The judge then asked petitioner if he wanted a chance on probation, and, after receiving another affirmative answer, sentenced petitioner to six months in the county jail but suspended sentence and placed him on probation for two years with conditions that he be a law-abiding citizen and refrain from the use of intoxicating beverages.

On June 25, 1965, petitioner was charged in the same court with another misdemeanor (furnishing beer to a 19-year-old boy in violation of Bus. & Prof. Code, § 25658, subd. (a)), was convicted on his plea of guilty before another judge, and was sentenced to pay a fine. On the same day he appeared again without counsel before the judge who had imposed the 1963 sentence. His probation was revoked and he was committed to the county jail in accordance with the sentence previously imposed.

Petitioner challenges the earlier conviction on the grounds that he was not adequately advised of his constitutional right to counsel, that there was no valid waiver of the right, and that he was not informed of his right to refuse probation.

The right to counsel is guaranteed by both the state and federal Constitutions, and includes the court appointment of counsel for an accused who is financially unable to employ counsel. (In re Newbern, 53 Cal.2d 786 [ 3 Cal.Rptr. 364 , 350 P.2d 116 ]; Gideon v. Wainwright, 372 U.S. 335 [ 83 S.Ct. 792 , 9 L.Ed.2d 799 , 93 A.L.R.2d 733 ].) It is the

We recognize that petitioner was not required to make any claim or showing in the trial court of financial inability to employ counsel in order to here complain of the court’s failure to advise him of the right to court-appointed counsel. But it must be borne in mind that if he is entitled to redress it is because he was deprived of the right to such counsel and not simply because he was inadequately advised. The right to court-appointed counsel is a conditional one; it exists only if the accused is financially unable to employ counsel. Accordingly, in this proceeding if petitioner asserts his constitutional right to court-appointed counsel was infringed, it is incumbent upon him to allege or show that he was without ability to employ counsel since it must be made to appear that the right exists before there can be any claim of deprivation. In the recent case of In re Johnson, 62 Cal.2d 325 , 331-332 [ 42 Cal.Rptr. 228 , 398 P.2d 420 ], the Supreme Court disposed of a claim that the manner in which the defendant was informed of his right to counsel was constitutionally inadequate as follows: “Judge Erickson made an opening statement on this subject to all defendants in the courtroom collectively. . . . Petitioner contends, however, that such a statement was inadequate to discharge the above discussed constitutional and statutory duties of a magistrate to inform the defendants of their right to counsel. The argument is that a collective statement to a group of defendants may possibly not be heard by those farther from the bench because of ‘the many physical vagaries of a crowded courtroom’; and even though heard, it may not be understood by those of below-average intelligence or linguistic comprehension. A constitutional issue, however, will not be decided on the basis of speculation or hypotheses not shown to affect the parties before the court. [Citation.] Here petitioner neither alleges nor shows that he personally failed to hear and understand Judge Erickson’s statement.”

The contention that there was no valid waiver of the right to counsel because the judge did not first determine whether petitioner understood the nature of the charge, the elements of the offense, the pleas and defenses which may have been available, or the punishment which may have been exacted, also cannot prevail. Apparently, petitioner relies on People v. Chesser, 29 Cal.2d 815 [ 178 P.2d 761 , 170 A.L.R. 246 ], and In re James, 38 Cal.2d 302 [ 240 P.2d 596 ], both of

The crucial question in any case is whether the defendant “intelligently and understandingly” waived his right to counsel—i.e., that he was fully aware of the nature of the proceedings and had an intelligent conception of the consequences of his act. (People v. Chesser, supra, p. 822; In re Tedford, 31 Cal.2d 693 , 695 [ 192 P.2d 3 ]; In re James, supra, p. 313; In re Newbern, supra, 168 Cal.App.2d 472 ; Johnson v. Zerbst, 304 U.S. 458 [ 58 S.Ct. 1019 , 82 L.Ed. 1461 , 146 A.L.R. 357 ].) “The determination of whether there has been an intelligent waiver of counsel involves a consideration of the nature of the charge, the facts and circumstances of the case, and the education, experience, mental competence and conduct of the accused.” (People v. Chesser, supra, p. 822; Johnson v. Zerbst, supra, p. 464.) In the present case, petitioner, who had four previous arrests for the same offense within two years and had appeared in court at least once previously, expressly waived counsel and entered a plea of guilty. The transcript of the arraignment proceedings discloses that he was intelligent, responsive and fully aware of

Finally, petitioner complains that he was not advised of his right to refuse probation. The statutes are silent concerning the right to reject probation or any duty to inform a defendant of that right. (In re Osslo, 51 Cal.2d 371 [ 334 P.2d 1 ].) Yet, even assuming that such a duty exists, there was substantial compliance therewith in this case. Petitioner was asked if he wanted probation and gave an affirmative reply. After explaining the terms of probation, the judge inquired, “All right?” and petitioner replied, “Yes, sir.” It is also interesting to note that in an affidavit filed in support of his application for the writ, petitioner stated he accepted probation because he thought he would not be fined and because he wanted to stop his drinking. Moreover, it is inconceivable that petitioner would have considered the conditions of probation more onerous than the sentence imposed, a fact borne out by initiation of the present proceeding.

The writ is discharged and petitioner is remanded to the custody of the Sheriff of the County of Santa Barbara.

Herndon, Acting P. J., and Fleming, J., concurred.