Dellasala, In re

• Decision Date: 27 January 1977
• Docket Number: Cr. 15632
• Citation: 66 Cal.App.3d 453,136 Cal.Rptr. 99
• Court: California Court of Appeals Court of Appeals
• Parties: In re Anthony Joseph DELLASALA, on habeas corpus.

Page 99

136 Cal.Rptr. 99

66 Cal.App.3d 453

In re Anthony Joseph DELLASALA, on habeas corpus.

Cr. 15632.

Court of Appeal, First District, Division 1, California.

Jan. 27, 1977.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for appellant (The People).

Frank W. Dice, Public Defender, David A. Barish, Deputy Public Defender, Salinas, for petitioner (Dellasala).

ELKINGTON, Associate Justice.

Charged in a municipal court case numbered 48019 with being intoxicated in a public place in violation of Penal Code section 647, subdivision (f), Anthony J. Dellasala requested appointment of an attorney and a jury trial. The court 'denied appointed counsel on the ground the offense wasn't of a sufficiently serious nature.' The charge was thereafter tried before a jury, in another department of the court, and in the absence of Dellasala as permitted by Penal Code section 1043 in a misdemeanor case. Dellasala was found guilty, and was thereafter sentenced 'to 180 days in County Jail with 120 suspended for three years on certain conditions.'

By his 'Petition for Writ of Habeas Corpus and Prohibition' to the superior court, Dellasala sought only to have his sentence set aside on the authority of Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. He claimed no fault in his trial or conviction. The superior court by a 'Judgment' granted the petition, ruling that: 'The defendant cannot be imprisoned in case No. 48019; sentence must be restricted to that applicable to infractions. Except as stated herein, any restraint on action in case No. 48019 is removed.' The People have appealed from the judgment.

The critical issue is whether Dellasala was denied a constitutional right by the court's refusal to appoint an attorney.

The question is squarely answered by the nation's high court in Argersinger v. Hamlin, supra, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. There the court said:

'We hold . . . that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. ( ) That is the view of the Supreme Court of Oregon, with which we agree. It said in Stevenson v. Holzman, 254 Or. 94, 102, 458 P.2d 414, 418: 'We hold that no person may be deprived of his liberty who has been denied the assistance of counsel as guaranteed by the Sixth Amendment. This holding is applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances. The denial of the assistance of counsel will preclude the imposition of a jail sentence. '' Pp. 37--38; fns. omitted, 92 S.Ct. p. 2012.

'Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. We will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts. ( ) The run of misdemeanors will not be affected by today's ruling. But in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit of 'the guiding hand of counsel' so necessary when one's liberty is in jeopardy.' P. 40, 92 S.Ct. p. 2014; see also People v. Hosner, 15 Cal.3d 60, 70, 123 Cal.Rptr. 381, 538 P.2d 1141; Gordon v. Justice Court, 12 Cal.3d 323, 328, 115 Cal.Rptr. 632, 525 P.2d 72, (cert. den., 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 415); Thomas v. Superior Court, 54 Cal.App.3d 1054, 1057--1058, 126 Cal.Rptr. 830; People v. Prince, 55 Cal.App.3d Supp. 19, 26--34, 127 Cal.Rptr. 296.

It thus is manifest that since Dellasala had been denied appointed counsel by the municipal court, the superior court's ruling that he 'cannot be imprisoned in case No. 48019' was in accordance with law as announced by Argersinger v. Hamlin.

But our inquiry is not ended. Several additional points are raises by the Attorney General.

It is first urged that the Writ of prohibition did not lie, (1) for the reason that sentence had already been imposed and there were 'no further judicial proceedings to restrain,' and (2) because Dellasala 'had the remedy of appeal from the municipal court's judgment and no showing was made demonstrating the inadequacy of this clearly available remedy at law.' We need not pass upon these contentions, for we treat the superior court proceedings as in habeas corpus alone. Denial of counsel to one criminally accused is a violation of a fundamental constitutional right. (Argersinger v. Hamlin, supra; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.) And habeas corpus will lie whenever one is held under a sentence which violates his fundamental constitutional rights. (In re Foss, 10 Cal.3d 910, 916--917, 112 Cal.Rptr. 649, 519 P.2d 1073; In re Johnson, 3 Cal.3d 404, 410, 90 Cal.Rptr. 569, 475 P.2d 841; In re Perez, 65 Cal.2d 224, 229, 53 Cal.Rptr. 414, 418 P.2d 6; Neal v. State of California, 55 Cal.2d 11, 16, 9 Cal.Rptr. 607, 357 P.2d 839, (cert. den., 365 U.S. 823, 81 S.Ct. 708, 5 L.Ed.2d 700).)

It is next urged that if our conclusion is that Dellasala was unconstitutionally sentenced to imprisonment, 'the proper relief is to return the parties to the status quo ante.' By this the Attorney General means that a new trial should be held, this time with Dellasala represented by appointed counsel. But the suggestion runs afoul of the federal and state constitutional proscription of double jeopardy; Dellasala has already been tried and convicted for his offense by a competent court and jury. (See Bunnell v. Superior Court, 13 Cal.3d 592, 601--602, 119 Cal.Rptr. 302, 531 P.2d 1086.) Without his consent (which he expressly withholds) he may not again be tried on the same charge. (Cardenas v. Superior Court,...