Chester, In re

• Decision Date: 01 May 1959
• Docket Number: Cr. 6058
• Citation: 52 Cal.2d 87,338 P.2d 431
• Court: California Supreme Court
• Parties: In re Jean L. CHESTER, on Habeas Corpus.

Page 431

338 P.2d 431

52 Cal.2d 87

In re Jean L. CHESTER, on Habeas Corpus.

Cr. 6058.

Supreme Court of California, In Bank.

May 1, 1959.

Rehearing Denied May 27, 1959.

Winters & Winters, Robert K. Winters, Benicia, Beeman & Johnson and William L. Beeman, Vallejo, for petitioner.

Edmund G. Brown, Atty. Gen., Doris H. Maier and J. M. Sanderson, Dep. Atty. Gen., for respondent.

McCOMB, Justice.

Jean L. Chester, an inmate of the California Medical Facility, Vacaville, petitioned for a writ of habeas corpus. We issued an order to show cause and appointed a referee to take evidence and make findings on these questions: (1) Was petitioner advised of his right to counsel at the preliminary examination? (2) Did he intelligently waive his right to counsel at the time of the preliminary hearing when he knew, or should have known, of his right thereto? (3) Was petitioner advised of his right to counsel and to have counsel appointed for him in the proceedings in the superior court? (4) Did he intelligently waive his right to counsel in the superior court when he knew, or should have known, of his right thereto?

The referee found (1) that petitioner was not advised of his right to counsel at the preliminary hearing held on June 18, 1947, but that he was fully advised of such right at his arraignment in the justice court on May 28, 1947; (2) that petitioner waived his right to counsel at the time of his arraignment when he knew, or should have known, of his right thereto; (3) that petitioner was advised as to his right to have counsel appointed to represent him when he was arraigned in the superior court; and (4) that petitioner waived his right to counsel when he knew, or should have known, of his right thereto.

We are thus presented with this question: Does the record disclose (a) that petitioner was advised of his right to have counsel appointed to represent him when he was arraigned in the superior court and (b) that he waived his right to counsel at the time of his arraignment when he knew, or should have known, of his right thereto?

Yes. These rules are here applicable: (1) In a habeas corpus proceeding, after judgment, based on an alleged denial of the right to counsel, the court record of the proceedings on arraignment creates a presumption of verity. (In re Connor, 16 Cal.2d 701, 707 et seq., 108 P.2d 10. ^* (2) The provisions for arraignment at the preliminary examination are in integral part of such examination. (Pen.Code, § 858 et seq.; In re Tedford, 31 Cal.2d 693, 192 P.2d 3.)

In the present case, the minute entry on the docket of the magistrate's court where petitioner was arraigned on May 28, 1947, reads as follows: 'Defendant duly arraigned, being by the Court informed of all his legal rights including * * * his right to counsel at all stages of the proceedings. * * *'

In addition to the presumption that petitioner was informed of his legal right to counsel at all stages of the proceedings, the referee had before him the testimony of Judge Brusatori, who testified in response to a question as to whether he informed defendants of their right to counsel, '* * * Then I would advise them it was their right to be represented by counsel at all stages.' He further testified that he did not inform petitioner of his right to counsel at the preliminary hearing on June 16, 1947, since petitioner had already been informed at the arraignment.

In addition, petitioner himself admitted that he was informed at the arraignment of such right. The question and petitioner's answer were as follows: 'Q. What, if anything, was said to you in regard to an attorney to defend you? A. He said I had the right to hire an attorney.'

Also, with respect to the preliminary hearing, petitioner testified as follows: 'Q. Would you tell the court what was said at that preliminary hearing? A. In what manner? Q. Just in regard to an attorney. A. He said that he saw I was in court without a lawyer, and that if I wanted was willing to go ahead on it, and I said, yes, sir, I was.'

Petitioner further testified that he knew he had a right to an attorney at the superior court hearing. The following question asked petitioner and his answer thereto, relative to the superior court hearing, appear in the record: 'Q. Did you know at that time that you had the right to an attorney? A. I knew that I could hire an attorney, yes, sir.'

With respect to whether petitioner was informed of his right to have counsel appointed for him in the superior court if he was without funds, the record discloses that there was evidence before the referee which supports his finding that petitioner was so advised. Judge Butler, who presided at the superior court hearing, testified as follows: 'Q. Will you state whether or not it is true that when arraigning a defendant, and that defendant answered that he did not have counsel, will you state whether or not it is true that you offered to appoint counsel for that defendant? A. I varied the practice. If a defendant had no counsel I would ask him if he wished time in which to send for counsel of his own choosing; if he said 'no,' then I would ask him if he had means to pay counsel, if he said he had none, then I would say, the Court will appoint counsel for you.'

Judge Brusatorio testified relative to Judge Butler's custom of informing defendants of their right to counsel, as...