Bartlett, In re

• Decision Date: 11 February 1971
• Docket Number: Cr. 4327
• Citation: 93 Cal.Rptr. 96,15 Cal.App.3d 176
• Court: California Court of Appeals Court of Appeals
• Parties: In re George Martin BARTLETT on Habeas Corpus.

Page 96

93 Cal.Rptr. 96

15 Cal.App.3d 176

In re George Martin BARTLETT on Habeas Corpus.

Cr. 4327.

Court of Appeal, Fourth District, Division 2, California.

Feb. 11, 1971.

Rufus W. Johnson, San Bernardino, under appointment by the Court of Appeal, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Laurence M. Sarnoff and Russell Iungerich, Deputy Attys. Gen., for respondent.

OPINION

GARDNER, Presiding Justice.

The petitioner is presently serving a sentence for violation of section 11500 of the Health & Safety Code, with a prior narcotics conviction (violation of section 11721 of the Health & Safety Code, a misdemeanor). ¹ He was sentenced on the instant charge on August 11, 1958. ² The judgment in the prior misdemeanor was pronounced January 15, 1957, and the records pertaining to this conviction have been destroyed.

Petitioner has served in excess of ten years, the maximum sentence which could be imposed, absent the prior misdemeanor conviction. He seeks release by writ of habeas corpus on two grounds:

I.

PETITIONER'S PRESENT INCARCERATION IS BASED UPON A SENTENCE AGGRAVATED AS A RESULT OF HIS PRIOR PLEA OF GUILTY TO THAT PORTION OF SECTION 11721 SUBSEQUENTLY HELD UNCONSTITUTIONAL IN ROBINSON V. CALIFORNIA, 370 U.S. 660, 82 S.CT. 1417, 8 L.ED.2D 758. 758.

Initially, petitioner concedes that only the addiction portion of section 11721 was declared unconstitutional, but contends that the offense to which he pleaded guilty specifically alleged addiction only and not use.

It has previously been determined that a writ of habeas corpus will not issue if the conviction attacked rests upon a sufficient ground other than the invalid portion of the statute involved. (In re Perez, 65 Cal.2d 224, 231, 53 Cal.Rptr. 414, 418 P.2d 6; Erlich v. Municipal Court, 55 Cal.2d 553, 559, 11 Cal.Rptr. 758, 360 P.2d 334; In re Bell, 19 Cal.2d 488, 498--499, 122 P.2d 22.) The case of In re Becerra, 218 Cal.App.2d 746, 32 Cal.Rptr. 910, held that section 11721 was severable and that when the defendant has pleaded guilty to a charge of violation of section 11721 in the conjunctive, i.e., where the complaint charges both the use of narcotics and addiction that such misdemeanor conviction may be property used in aggravating the sentence imposed under section 11500. (See also In re Smith, 2 Cal.3d 508, 86 Cal.Rptr. 4, 467 P.2d 836; In re Carlson, 64 Cal.2d 70, 48 Cal.Rptr. 875, 410 P.2d 379.)

In this case, unlike Becerra, the records of the Fresno Municipal Court where the misdemeanor conviction took place have now been destroyed. Therefore, the case is very similar to In re Carlson, supra, in which the identical issue was presented with substantially the same factual situation, i.e., the destruction of the misdemeanor complaint. In Carlson, the writ was denied on the basis of declarations of two deputy city attorneys that the form in use at the time of the plea was in the conjunctive. As opposed to that was the declaration of the petitioner that he pleaded guilty only to the charge of addiction. He further alleged that if the arrest report were available, it would show that he was arrested by reason of needle marks and for no other cause. However, the court secured a copy of the arrest report and held that this report refuted that statement. The report showed that petitioner and four other men were apprehended in the act of administering heroin to themselves, that petitioner at the time of the arrest had blood running from one of the several needle marks on his arms and that petitioner then and there stated that he had only taken a few drops of heroin out of the eye dropper when officers arrived. The court stated: 'While the arrest report clearly does not constitute persuasive evidence as to the content of the complaint by which petitioner was charged, it does show that, contrary to petitioner's declaration, no support for his position is to be found therein.' (In re Carlson, Supra, 64 Cal.2d 70, 75, 48 Cal.Rptr. 875, 878, 410 P.2d 379, 382.)

The Supreme Court further stated: 'The necessity that a resolution of properly presented constitutional questions be made in spite of difficulties imposed by the passage of time requires a present determination on the basis of available evidence. (Citations.)' (In re Carlson, Supra, p. 75, 48 Cal.Rptr. p. 879, 410 P.2d p. 383.) Based upon the above evidence and faced with the necessity of making a present determination on the available evidence, the court in Carlson held that the petitioner had failed to present evidence sufficient to sustain his burden of proof and, therefore, denied the petition.

In this case, the docket is of no assistance since it merely shows the charge of violation of section 11721 of the Health & Safety Code. However, the arrest report states as follows: 'After being sentenced to jail on vagrancy charge this man was found to have fresh needle marks on his arm, and was examined by Agent Stemm and then admitted he has been taking shots of heroin, the last two being yesterday. Complaint issued by DA and warrant obtained and served on subject in jail.' Although not persuasive, a reasonable inference can be drawn from this report that petitioner was charged with either use or use and addiction conjunctively.

More persuasive is the district attorney's copy of the complaint filed in 1957. This copy of the complaint is consistent in time, name and charge with the docket mentioned above and has a proper foundation as to authentication. The allegation in the complaint is that 'The said defendant, on or about the 11th day of January 1957, at and in the said County of Fresno, State of California, wilfully and unlawfully Used and is addicted to the use of narcotics, to wit, HEROIN.' (Emphasis added.)

A presumption of regularity attaches to a judgment collaterally attacked. (Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461; In re Smith, Supra, 2 Cal.3d 508, 510, 86 Cal.Rptr. 4, 467 P.2d 836; In re Carlson, Supra, 64 Cal.2d 70, 75, 48 CalRptr. 875, 410 P.2d 379; In re Bell, Supra, 19 Cal.2d 488, 500, 122 P.2d 22.) This presumption places the burden upon a petitioner to prove that his conviction was based on the unconstitutional portion of the statute under which he was convicted.

Petitioner has presented no evidence sufficient to overcome the presumption of regularity which attached to the judgment or the showing offered by the Attorney General that he pleaded guilty to both the use of and addiction to narcotics.

II.

THE PETITIONER'S 1957 MISDEMEANOR CONVICTION IS INVALID BECAUSE THE RECORD DOES NOT DISCLOSE A PERSONAL WAIVER OF THE RIGHT TO COUNSEL, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONFRONTATION AND THE RIGHT AGAINST INCRIMINATION.

Initially, petitioner seeks retroactive application of Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. However, In re Tahl, 1 Cal.3d 122, 130, 81 Cal.Rptr. 577, 460 P.2d 449, held that Boykin was to be given prospective application only. Prior to Boykin, '* * * it was not necessary that acceptance of a guilty plea be preceded by a specific waiver of the right to a jury trial, or any other right (except the right to counsel, where none was present).' (In re Tahl, Supra, 1 Cal.3d 122 129, fn. 4, 81 Cal.Rptr. 577, 582, 460 P.2d 449, 554.)

Therefore, we pass to petitioner's final contention that his 1957 conviction is constitutionally invalid in that he was neither afforded the services of counsel nor did he waive the right thereto.

In 1957, Penal Code, § 858, stated in pertinent part: 'When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.'

The docket states that the petitioner was informed of his legal rights. Petitioner does not contend that he was not advised of his right to counsel-- only that the right to counsel was not waived. On the basis of this record, this court may safely assume that the petitioner was properly apprised of his right to counsel.

However, all parties concede that petitioner was not represented by counsel in the 1957 proceeding. The docket so indicates, petitioner so alleges, the Attorney General makes no contrary allegation.

Nevertheless, petitioner asserts that he did not make a knowing and intelligent waiver of his right to counsel. The Attorney General does not present any evidence to the contrary. The docket is silent on the subject. In the face of a silent record, we cannot assume a waiver.

'(1) '* * * '(C)ourts indulge every reasonable presumption against waiver' of fundamental rights.' (Carnley v. Cochran, 369 U.S. 506, 514, 82 S.Ct. 884, 889, 8 L.Ed.2d 70; quoting from Johnson v. Zerbst, 304 U.S. 458, 464--465, 58 S.Ct. 1019, 82 L.Ed. 1461 (146 A.L.R. 357); accord, In re Johnson, Supra, 62 Cal.2d 325, 334, 42 Cal.Rptr. 228, 398 P.2d 420.) (2) 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' (Carnley v. Cochran, Supra, 369 U.S. 506, 516, 82 S.Ct. 884, 890; (8 L.Ed.2d 70) accord, In re Johnson, Supra, 62 Cal.2d 325, 334, 42 Cal.Rptr. 228, 398 P.2d 420.)' (In re Woods, 64 Cal.2d 3, 7, 48 Cal.Rptr. 689, 692, 409 P.2d 913, 916.)

Therefore, we cannot find that the petitioner made a knowing and intelligent waiver of his right to counsel at the time of his 1957 misdemeanor conviction. However, the Attorney General presents three theories under which this lack of an intelligent waiver may not inure to the benefit of the petitioner.

A.

THE WOODS-COFFEY RULE.

As his first theory, the Attorney General contends that:

(1) In re Woods, Supra, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913, held...