Turrieta, In re

• Citation: 356 P.2d 681,8 Cal.Rptr. 737,54 Cal.2d 816
• Decision Date: 15 November 1960
• Docket Number: Cr. 6641
• Court: United States State Supreme Court (California)
• Parties: , 356 P.2d 681 In re Lucy TURRIETA on Habeas Corpus.

Page 737

8 Cal.Rptr. 737

54 Cal.2d 816, 356 P.2d 681

In re Lucy TURRIETA on Habeas Corpus.

Cr. 6641.

Supreme Court of California, In Bank.

Nov. 15, 1960.

Albert M. Bendich, San Francisco, and H. Leroy Cannon, Pittsburgh, for petitioner.

Stanley Mosk, Atty. Gen., Arlo E. Smith and John S. McInerny, Deputy Attys. Gen., John A. Nejedly, Dist. Atty., Contra Costa County, Martinez, and Samuel H. Mesnick, Deputy Dist. Atty., for respondents.

WHITE, Justice.

Albert M. Bendich and H. Leroy Cannon seek a writ of habeas corpus for and on behalf of Lucy Turrieta, hereinafter referred to as the petitioner, on the ground that she was not properly advised of her right to counsel (California Constitution, Art. I, § 13) in proceedings for sentencing following the revocation of her probation after conviction.

The petitioner, on November 7, 1957, in justice court, pleaded guilty to two charges of petty theft. The record shows that she was advised of her legal rights, and an affidavit of the trial judge satisfactorily discloses that she, at that time, waived counsel. On December 3, 1957, proceedings were suspended, and she was placed on probation for two years. On November 6, 1959, almost two years later, her probation was revoked for violation of one of the conditions thereof, and the court then sentenced her to six months in the county jail. The petition states, and opposing counsel do not dispute, that the petitioner was not advised of her right to counsel at the time sentence was pronounced.

While the constitutional right to counsel does not apply to a revocation of probation (see In re Davis, 37 Cal.2d 872, 236 P.2d 579; In re Dearo, 96 Cal.App.2d 141, 214 P.2d 585), there can be no doubt that the right applies to proceedings for the pronouncement of judgment after revocation of probation granted without imposing sentence. In re Boyce, 51 Cal.2d 699, 336 P.2d 164; In re Roberts, 40 Cal.2d 745, 255 P.2d 782; In re Levi, 39 Cal.2d 41, 244 P.2d 403. The right, however, is subject to waiver and the question in the present case is whether the petitioner, having waived her right to counsel in November, 1957, thereby waived her right for the purpose of the subsequent proceeding, two years later, wherein sentence was imposed.

There are good reasons why a defendant should be advised of his right of counsel and either then freely and understandingly waive that right or be represented by counsel when sentence is pronounced. It may at that time be shown that there is good cause to believe that a defendant is insane (Pen.Code, § 1201, subd. 1), that a new trial should be ordered (Pen.Code, §§ 1181, 1201, subd. 2), or that a motion in arrest of judgment should be granted (Pen.Code, §§ 1185, 1201, subd. 2). In re Levi, supra, 39 Cal.2d 41, 45, 244 P.2d 403. Moreover a defendant has a right to appeal from the judgment. The average defendant, however, without the aid of counsel, is helpless to establish legal cause why judgment should not be pronounced against him, or properly to take his appeal. For these reasons and others the assistance of counsel at the time of sentencing is necessary in order to accord to the defendant the full advantage of his constitutional rights unless, as stated, a knowledgeable waiver of those rights has been intelligently made.

The petitioner in the present case is a twenty-four year old mother of four, and with welfare assistance, is the sole support of her family. She was married in 1952, and her husband deserted her two months later. One child was born of that marriage. She since has had two children by a Mexican national, who is not longer in this country. One of the conditions of her probation imposed in December, 1957, was that she 'not establish any other extra marital relationships.' The revocation of probation followed the birth of her fourth child in October, 1958. The petitioner is relatively uneducated, having left school in the eighth grade. The probation report discloses that she lacked an understanding of the legal consequences of the proceedings, and her statement appears therein as follows: 'I don't unestard (sic) why I am hear (sic) and I don't remember anything I did in the year 1956 or what I told then (sic) at the welwarelf (sic) in pittaburg (sic).' The petitioner has had no prior experiences in the criminal courts.

It appears that this court has not yet held that a defendant's rights are unduly infringed by the failure to advise him of his right to counsel where there has been an admonition as to that right and a waiver thereof earlier in the proceedings. In fact, in our recent decisions on related issues wherein we have granted relief we have noted in doing so that there had been no prior waiver of counsel (In re Boyce, supra, 51 Cal.2d 699, 700, 336 P.2d 164; In re Roberts, supra, 40 Cal.2d 745, 748, 255 P.2d 782; In re Levi, supra, 39 Cal.2d 41, 47, 244 P.2d 403), and on this point the cited cases are technically distinguishable. It would seem obvious that in the normal course of events a defendant is not entitled to be advised of his legal rights at every stage of criminal proceedings. The Penal Code requires that the trial court so advise a person only upon his first appearance before the committing magistrate (Pen.Code, §§ 858, 859) and when he is arraigned before the trial court (Pen.Code, § 987). Apart from statutory requirements, however, the constitutional right to the assistance of counsel would be meaningless in the absence of a knowledge of that right and an intelligent waiver thereof, and the very purpose of the duty thus enjoined upon the court to advise an accused is to preserve to him a right which the Constitution has conferred upon him. In the present case, under the factual background thereof, it would seem manifest that the petitioner was unaware of her right to counsel at the time she was sentenced. The record reveals that she was confused and incapable of legally propecting herself. The advice given two years earlier, while technically in the same proceeding, was disassociated in time and the specific act for which this petitioner was before the court, at least in her own mind. If she remembered at all that she had been advised of her right in earlier proceedings, certainly she must have been confused as to whether she was then entitled to counsel. That right would indeed be without real substance if we were to hold that it had been properly made available to her.

The conclusion at which we have arrived...