Birch, In re

• Decision Date: 26 October 1973
• Docket Number: Cr. 16771
• Citation: 110 Cal.Rptr. 212,10 Cal.3d 314,515 P.2d 12
• Parties: , 515 P.2d 12 In re James Robert BIRCH on Habeas Corpus.
• Court: California Supreme Court

Page 212

110 Cal.Rptr. 212

10 Cal.3d 314, 515 P.2d 12

In re James Robert BIRCH on Habeas Corpus.

Cr. 16771.

Supreme Court of California In Bank.

Oct. 26, 1973.

As Modified Nov. 20, 1973.

[10 Cal.3d 315] Warren I. Wolfe, Los Angeles, for petitioner.

Roger Arnebergh, City Atty., and David M. Schacter, Deputy City Atty., for respondent.

TOBRINER, Justice.

In July 1972 petitioner, James Birch, appeared before the Los Angeles Municipal Court without counsel and entered a plea of guilty to the misdemeanor charge of violating Penal Code section 647, subdivision (a), which proscribes engaging in '. . . lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.' ¹ Birch now seeks a writ of habeas corpus, challenging the validity of his guilty plea on several grounds. As discussed below, we have concluded that petitioner's conviction must be set aside because the record does not reveal that Birch was properly advised prior to his plea either of his right to counsel or of the sex registration requirement flowing directly from a conviction under section 647, subdivision (a).

The record is meagre as to the events which culminated in petitioner's arrest but, according to petitioner's allegations, the facts are as follows. At approximately 1:30 a.m. on the morning of July 24, 1972, petitioner and three friends, after having consumed a six-pack of beer, came to the Taco Bell restaurant located at Lassen and Sepulveda in Los Angeles. Although the restaurant was closing for the night, they arrived in time to order some food. Petitioner desired to use the restroom but was informed that it had been cleaned and closed for the night. After returning to his car to eat, he was forced to relieve himself. He left the car and urinated while standing next to to the vehicle and facing a retaining wall which was approximately 40 feet from the restaurant and encompassed it on three sides. The parking area was illuminated by one lamp located 50 feet from petitioner. Unknown to him, two police officers sitting in an unmarked car on Lassen Street observed him and proceeded to place him under arrest for lewd and dissolute conduct.

On July 27, 1972, petitioner appeared without counsel in the Los Angeles Municipal Court for arraignment and entry of plea. The record does not clearly indicate precisely what transpired in court before petitioner entered his guilty plea. The reporter's transcript, containing a transcription of the oral proceedings, reveals only that the trial judge advised petitioner of the charge against him, asked how he pled, and upon petitioner's response of 'Guilty,' suspended the imposition of sentence upon condition that petitioner serve five days in jail. ² The transcript contains nothing which demonstrates that petitioner was advised of his right to counsel or any other constitutional right, nor does it reveal that petitioner ever waived any of such rights. The clerk's docket entry, by contrast, contains handchecked, rubber-stamped entries which purport to indicate that petitioner 'expressly waived' his right to counsel and various other constitutional rights, and that 'after inquiry by court, the court found such waivers were knowingly, intelligently and understandingly made . . .' ³ Despite this conflict, the documents in the record do concur on several points: petitioner did plead guilty to violating section 647, subdivision (a) of the Penal Code, and imposition of sentence was suspended upon the condition that petitioner remain on summary probation for one year and spend the first five days in county jail. Petitioner served the five days in jail and, as a result of the conviction, he must comply with Penal Code section 290 which compels all those who have been convicted of sex offenses, including violation of section 647, subdivision (a), to register as sex offenders.

By the present writ of habeas corpus, petitioner challenges the validity of his conviction, alleging that he was not advised of his right to counsel, right to trial by jury, right to confront witnesses or the privilege against self-incrimination prior to entering his plea of guilty. Further, he contends that, as a matter of law, the conduct which resulted in his arrest does not constitute lewd and dissolute conduct within the meaning of section 647, subdivision (a).

As we shall explain, we have concluded that petitioner's initial contention is meritorious since the record does not sufficiently demonstrate that petitioner was advised of his right to counsel. Moreover, we shall explain that, in the absence of counsel, the court bore the duty to inform petitioner prior to receiving his plea that, as a result of a conviction of violating Penal Code section 647, subdivision (a), petitioner would be ordered to register as a sex offender pursuant to state law. The record contains no evidence to suggest that any such advice was given. For each of these reasons, petitioner's conviction must be reversed. ⁴ In analyzing petitioner's contentions, we begin with article 1, section 13 of the California Constitution, which guarantees that 'In criminal prosecutions, in any court whatever, the party accused shall have the right . . . to have the assistance of counsel for his defense . . ..' Penal Code section 987, subdivision (a), one of a series of statutory provisions implementing our state constitutional right to counsel, ⁵ provides that '(i)n a noncapital case, if the defendant appears for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desires the assistance of counsel. . . .'; in addition, the court must also inform the defendant 'that the court will appoint an attorney to represent him if he is unable to afford one.' (In re Smiley (1967) 66 Cal.2d 606, 615, 58 Cal.Rptr. 579, 584, 427 P.2d 179, 184.) Such advice must be given to defendants charged with misdemeanors as well as with felonies (e.g., Id. at p. 614, 58 Cal.Rptr. 579, 427 P.2d 179, In re McCoy (1948) 32 Cal.2d 73, 76, 194 P.2d 531) and is equally obligatory when a defendant indicates a desire to plead guilty as when he intends to enter a plea of not guilty. (E.g., In re Johnson (1965) 62 Cal.2d 325, 333--334, 42 Cal.Rptr. 228, 398 P.2d 420.)

Moreover, in scrutinizing waivers of counsel by defendants requesting to plead guilty, we have directed trial courts to assume an active, protective role to ensure that both the defendant's waiver of counsel and his guilty plea are knowingly and understandingly made. Thus, we have indicated that when confronted by a defendant who wishes to plead guilty without counsel, the trial judge, before accepting the waiver and plea, should first determine that the defendant "understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, (and) the punishments which may be exacted." (In re Johnson (1965) 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 235, 398 P.2d 420, 427, quoting In re James (1952) 38 Cal.2d 302, 313, 240 P.2d 596; see People v. Chesser (1947) 29 Cal.2d 815, 822, 178 P.2d 761; People v. Hardin (1962) 207 Cal.App.2d 336, 340, 24 Cal.Rptr. 563.) If an unrepresented defendant is unaware of the primary and direct consequences of his imminent conviction, his plea of guilty cannot reasonably be found to have been 'knowingly and voluntarily' entered.

Applying these principles to the instant case, we must first determine whether petitioner was, in fact, properly informed of his constitutional right to counsel. The record in this case is devoid of any evidence that the court informed petitioner of his right to counsel as required by Penal Code section 987. As we have seen, absolutely nothing in the brief reporter's transcript indicates that any such advice was given (see fn. 2, Supra); further, no specific notation in the clerk's docket declares that defendant was so advised. ⁶ The People contend, however, that we can infer from the docket entry's handchecked, rubber-stamped notation indicating that petitioner Waived his right to counsel (see fn. 3, Supra) that petitioner was also Informed of his right to counsel. In the first place, of course, this docket entry is directly contradicted by the reporter's transcript, which shows no such waiver. Moreover, even if the fact of defendant's waiver were established, such waiver would in no way indicate that defendant had been properly advised of his right to counsel. The waiver, if it were indeed tendered, could well have resulted from improper or incomplete advice. To avoid just such uncertainties we have made clear that to be adequate 'docket entries (must) specifically (list) the rights of which the defendant is actually advised. . . . 'No amount of circumstantial evidence that the person may have been aware of the right will suffice to stand in its stead. . . .' (Citation.)' (In re Smiley (1967) 66 Cal.2d 606, 617, 58 Cal.Rptr. 579, 586, 427 P.2d 179, 186.) Inasmuch as the present record fails explicitly to demonstrate that petitioner was informed of his right to counsel, the present conviction cannot stand.

Moreover, the instant record is inadequate to support the challenged conviction on yet another ground. As noted above, past cases have indicated that in addition to advising a defendant of the right to counsel, the trial court has a responsibility to determine, before accepting a defendant's waiver of counsel and plea of guilty, than an unrepresented defendant 'understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, (and) the punishments which may be exacted.' (In re Johnson (1965) 62 Cal.2d 325, 335, 42 Cal.Rptr. 228, 235, 398 P.2d 420, 427, quoting In re James (1952) 38 Cal. 302, 313, 240 P.2d 596; see People v. Hardin (1962) 207 Cal.App.2d 336, 341--343, 24 Cal.Rptr. 563; cf. In re Tahl (1969) 1 Cal.3d 122, 132, 133 fn. 7, 81 Cal.Rptr. 577,...