Berry, Application of

• Decision Date: 25 January 1955
• Docket Number: Cr. 5573
• Citation: 279 P.2d 18,43 Cal.2d 838
• Court: California Supreme Court
• Parties: Application of Tyler W. BERRY on Habeas Corpus.

Page 18

279 P.2d 18

43 Cal.2d 838

Application of Tyler W. BERRY on Habeas Corpus.

Cr. 5573.

Supreme Court of California, In Bank.

Jan. 25, 1955.

Rehearing Denied Feb. 24, 1955.

Tyler W. Berry, in pro. per., and Leonard P. Burke, Sacramento, and Keith Lamb, Sacramento, under appointment by the Supreme Court, for petitioner.

Edmund G. Brown, Atty. Gen., Doris H. Maier, Deputy Atty. Gen., for respondent.

SPENCE, Justice.

Petitioner, an inmate of the State Prison at Folsom, seeks his release on habeas corpus. This court issued an order to show cause upon petitioner's claim that the superior court was without jurisdiction to pronounce judgment against him because he was not represented by counsel at the preliminary hearing, and because his plea of guilty, entered in the superior court while he was not represented by counsel, was made as the direct result of a prolonged period of incarceration, during which period he was held incommunicado.

The petition was filed in propria persona, and thereafter this court appointed counsel who filed a brief and argued herein on behalf of petitioner. A stipulation of facts has been filed, setting forth the nature of the charges against petitioner and the proceedings culminating in his imprisonment. Affidavits have also been filed in denial of petitioner's claim that he was held incommunicado. No counter-affidavits have been submitted. As the record thus stands, we find no merit in petitioner's challenge of the legality of his confinement.

On July 15, 1952, petitioner was arrested in Santa Rosa for being drunk in violation of a city ordinance. He pleaded guilty and was sentenced to seven and one-half days in the county jail. Some six weeks earlier petitioner had been returned from the Nevada State Penitentiary (where he had been confined for a forgery conviction) to the Sonoma County authorities, pursuant to his waiver of extradition, on a warrant and complaint charging him with the violation of Penal Code, section 476a (issuing a check without sufficient funds or credit, with intent to defraud). The offense was reduced to petty theft. On arraignment, petitioner was advised of and waived his right to counsel; he pleaded guilty and the matter was referred to the probation officer. Then on June 20 he was sentenced to six months in the county jail, sentence was suspended, and he was released on probation for one year, conditioned upon his making restitution, being employed, and avoiding the use of intoxicating liquor.

On July 21, 1952, while serving the above-mentioned jail sentence for being drunk, petitioner was booked for another violation of Penal Code, section 476a. A few days later a complaint was filed against petitioner for the violation of Penal Code, sections 484-488 (theft); petitioner was brought into court on this latter charge; after being informed, he waived his rights and pleaded guilty; but he was never sentenced in view of a dismissal thereafter filed. While this latter theft charge was pending and on August 21, 1952, a complaint was filed against petitioner in the Santa Rosa Recorder's Court on the Penal Code, section 476a violation here involved. Petitioner was arraigned, informed of his rights to counsel, and he signed an 'Affidavit Waiving Time and Confessing Guilt.' This affidavit recites that the complaint was read to petitioner; that he was advised that the did not have to make any statement in the matter and that he was voluntarily making one; that he was guilty of the offense charged, waived time to prepare for a preliminary examination, and consented to an immediate hearing. It further recites that on July 12, 1952, in Santa Rosa petitioner issued a check for $25, payable to a certain market and against a bank where he had no account and no credit arrangement, as he well knew; that the check was issued with intent to defraud; that he made this statement with knowledge that it would be used, and he consented thereto, as evidence upon a preliminary examination in the pending action; that he had read the statement and its recitals were true. The affidavit was received in evidence, and petitioner was held to answer in the superior court.

On August 22, 1952, the information on this fraudulent check offense was filed in the superior court. Petitioner was arraigned that day. The reporter's transcript of the proceedings ¹ shows that petitioner then, after full instruction by the judge (Hon. Hilliard Comstock, Sonoma County, Superior Court), waived his right to counsel and time to plead, and entered a plea of guilty. Thereupon the matter was referred to the probation officer and continued to August 25, 1952, for report and the imposition of sentence. The reporter's transcript of the proceedings on this latter day ² shows that probation was denied and petitioner was sentenced to imprisonment for the term prescribed by law. No appeal was taken.

Petitioner premises his first argument for relief on the proposition that he was not represented by counsel at the preliminary hearing and yet the magistrate accepted his plea and waiver of preliminary examination contrary to sections 859 and 860 of the Penal Code. He argues that these irregularities deprived the superior court of jurisdiction to proceed in the matter. However, both the docket of the committing magistrate and the 'Affidavit Waiving Time and Confessing Guilt' disclose on their face that petitioner was fully advised of his constitutional rights prior to signing the latter document in open court. He had full opportunity to object to any of the proceedings at that time; he had the right to request the appointment of counsel in his behalf and to contest the validity of the charge. Petitioner was familiar with this type of proceeding, having a few weeks previously been prosecuted on a like charge, when he adopted the same procedure of waiving his right to counsel, pleaded guilty to the offense as reduced to petty theft and was fulfilling his one-year probation term when he was charged with the present fraudulent check offense. Pen.Code, § 476a. He voluntarily made his written confession or statement before the magistrate, acknowledging commission of the offense, consented to the statement's use as evidence in the proceedings, and expressed his desire for an 'immediate hearing.' This was competent and sufficient evidence upon which to hold petitioner to answer. It was not necessary to swear witnesses to prove facts which the accused voluntarily confessed. People v. Cokahnour, 120 Cal. 253, 254, 52 P. 505; In re Stroff, 132 Cal.App. 351, 353, 22 P.2d 770. Such proceedings satisfied the constitutional requirement of a preliminary examination. Const. Art. I, § 8.

The magistrate's order at the conclusion of petitioner's preliminary arraignment did not purport to be a certification to the superior court as upon a plea of guilty from a defendant not represented by counsel, Pen.Code §§ 859a-860, but was simply 'a holding of' petitioner 'to answer, followed by the filing of an information.' People v. Nation, 108 Cal.App.2d 829, 831, 239 P.2d 891, 892. The filing of the information gave the superior court jurisdiction to proceed in the matter. Ex parte McConnell, 83 Cal. 558, 23 P. 1119.

Moreover, having failed to object to the proceedings and having failed to move to set aside the information under the provisions of section 995 of the Penal Code (the exclusive method provided by law for challenging the legality of the commitment), the irregularity of proceedings before the magistrate and the insufficiency of the evidence at a preliminary hearing are waived. Such alleged defects or irregularities may not be raised for the first time upon habeas corpus. Pen.Code, § 996; Ex parte McConnell, supra, 83 Cal. 558, 23 P. 1119; In re Tedford, 31 Cal.2d 693, 694, 192 P.2d 3; In re Razutis, 35 Cal.2d 532, 534-535, 219 P.2d 15; In re Basham, 24 Cal.App.2d 285, 286, 74 P.2d 781.

As further ground for relief, petitioner contends that he was denied his constitutional right to representation by counsel, U.S.Const. Fourteenth Amend.; Cal.Const. Art. I, § 13; that this denial was the direct and prejudicial cause of his conviction, which was based upon his plea of guilty in the superior court; and that any apparent waiver of his right to counsel may not be regarded as an effective waiver because it was the direct result of thirty-six days of incarceration, during which time he was denied an opportunity to consult with counsel. Accordingly, petitioner cites the established rule that a prisoner held on a criminal charge has a constitutional right to the aid of counsel, and that habeas corpus may be used to assure private consultation with counsel. In re Snyder, 62 Cal.App. 697, 699-700, 217 P. 777. Refusal to grant a prisoner's request for counsel prior to arraignment and a plea of guilty constitutes a denial of 'fundamental civil rights.' In re McCoy, 32 Cal.2d 73, 76, 194 P.2d 531, 533.

Petitioner claims that during the period of his incarceration on this offense, thirty-six days in the county jail July 21 to August 25, 1952 he was held incommunicado; that during such confinement his many requests for permission to contact an attorney were repeatedly denied or ignored by the officers in charge; and that finally after some five weeks of frustrated efforts to communicate with an attorney and in desperation because of a crippling rheumatoid arthritic condition, which was causing him great physical pain, he sent for the assistant district attorney and agreed, despite his alleged innocence, to plead guilty so that he could be given an immediate court hearing. He was taken to court the next day, August 21, the preliminary hearing was held, and then followed the superior court proceeding culminating in his conviction and sentence on August 25, 1952.

However, the record contains no evidence which would support petitioner's claims. Rather, the showing is all to the contrary. At the time of argument before this court, the...