Allen, In re, Cr. 12718

Decision Date19 June 1969
Docket NumberCr. 12718
Citation71 Cal.2d 388,455 P.2d 143,78 Cal.Rptr. 207
CourtCalifornia Supreme Court
Parties, 455 P.2d 143 In re Jennifer Grey ALLEN on Habeas Corpus.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and John T. Murphy, Deputy Atty. Gen., for respondent.

Leon E. Shiells, Menlo Park, as amicus curiae on behalf of respondent.

BURKE, Justice.

In July 1968 petitioner's sentence was suspended and she was placed on probation following her plea of guilty to possession of a restricted dangerous drug without prescription. (Health & Saf.Code, § 11910.) By application for habeas corpus the attacks as invalid one of the terms and conditions specified by the court in its order granting probation. As will appear, we have concluded that the condition complained of was improper, is severable and does not affect the other terms and conditions of probation.

1. Availability of Habeas Corpus.

At the outset it may be noted that habeas corpus is a proper remedy to effect release from the restraint of probation orders. (In re Osslo (1958) 51 Cal.2d 371, 376, 334 P.2d 1, cert. den. 357 U.S. 907, 78 S.Ct. 1152, 2 L.Ed.2d 1157.)

2. Validity of Condition of Probation.

The condition of probation under attack is the requirement that the petitioner 'reimburse the County of San Mateo for court-appointed counsel through the Probation Department.'

Section 1203.1 of the Penal Code provides for the terms and conditions which a court may impose in the granting of probation and prescribes the statutory limits upon the exercise of the trial court's discretion in connection therewith. Since the section does not expressly authorize the imposition of the particular condition under attack here we must assume that the court deemed it authorized under the omnibus clause 'and Other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer * * *.' (Italics added.)

In Gideon v. Wainwright (1963) 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, the United States Supreme Court stated that not only certain precedents, to which it alluded, but 'also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.'

We may take judicial notice that judges in San Mateo County and in certain other counties have made use of the method utilized in the case at hand of reimbursing the county's treasury for funds expended in supplying counsel for indigents. Although this concern for the financial burdens imposed upon the counties for such costs is commendable we believe that as knowledge of this practice has grown and continues to grow many indigent defendants will come to realize that the judge's offer to supply counsel is not the gratuitous offer of assistance that it might appear to be; that, in the event the case results in a grant of probation, one of the conditions might well be the reimbursement of the county for the expense involved. This knowledge is quite likely to deter or discourage many defendants from accepting the offer of counsel despite the gravity of the need for such representation as emphasized by the court in Gideon, supra. Although in the instant case there is no indication in the record that petitioner was discouraged from exercising her constitutional right to counsel for, in fact, she requested and received counsel, neither does the record show that she was forewarned of the possibility that she might become indebted to the county for the cost of such service. The fact that such knowledge might have deterred her, and could well deter others, gives rise to our concern as to the validity of such a condition of probation. The government is without constitutional authority to impose a predetermined condition on the exercise of a constitutional right or penalize in some manner its use. (See Gardner v. Broderick (1968) 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (police officer would be discharged unless he waived immunity from prosecution); Uniformed Sanitation Men Ass'n v. Commissioner (1968) 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (garbage men would be discharged unless they testified at a hearing investigating their activities); Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (adverse comment unless defendant testified); United States v. Jackson (1968) 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (federal statute provided that if defendant waived a jury the death penalty could not be imposed).) Thus, in finding unconstitutional the statute in Jackson, supra, the court declared that 'Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitional rights. Cf. United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Shelton v. Tucker, 364 U.S. 479, 488--489, 81 S.Ct. 247, 252, 5 L.Ed.2d 231. The question is not whether the chilling effect is 'incidental' rather than intentional; the question is whether the effect is unnecessary and therefore excessive.' (390 U.S. at p. 582, 88 S.Ct. at p. 1216, 20 L.Ed.2d at p. 147.)

We conclude that the imposition of the condition under attack constitutes an impediment to the free exercise of a right guaranteed by the Sixth Amendment to the Constitution and as with respect to other impediments or forms of compulsion against the exercise of such rights may not be permitted by the courts.

In speaking of the right of an indigent to counsel the Supreme Court stated in Miranda v. Arizona (1966) 384 U.S. 436, 472--473, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694, 1 'If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the...

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