Elsholz, Application of

• Citation: 228 Cal.App.2d 192,39 Cal.Rptr. 356
• Decision Date: 25 June 1964
• Docket Number: Cr. 3625
• Court: California Court of Appeals
• Parties: Application of William E. ELSHOLZ For a Writ of Habeas Corpus.

Page 356

39 Cal.Rptr. 356

228 Cal.App.2d 192

Application of William E. ELSHOLZ For a Writ of Habeas Corpus.

Cr. 3625.

District Court of Appeal, Third District, California.

June 25, 1964.

As Modified on Denial of Rehearing July 16, 1964.

Hearing Denied Aug. 20, 1964.

Robert J. Nareau, Woodland (court appointed), for petitioner.

Stanley Mosk, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., Edward Hinz, Jr., Deputy Atty. Gen., for respondent.

PER CURIAM.

Petitioner is now serving a one-year sentence in the Yolo County Jail, having been committed by an order of the Justice Court of the Washington Judicial District following revocation of probation. After an unsuccessful application in the Yolo County Superior Court, he seeks habeas corpus here. The People's return to our order to show cause brought before us the transcript of oral testimony taken and documentary exhibits introduced in the course of the superior court habeas corpus proceeding.

On October 26, 1961, petitioner's former wife filed a complaint in the Justice Court of the Washington Judicial District, Yolo County, charging him with failure to support his four minor children, a violation of Penal Code, section 270, and a warrant was issued. Defendant was arrested in Stockton in early November 1962. Mr. Norman W. Shaw, Jr., a Stockton attorney, arranged for petitioner's release on bail on a promise to appear on Friday, November 9, 1962. According to his verified petition, petitioner appeared at the Justice Court of the Washington Judicial District on November 9, 1962, and spoke to a woman clerk, who told him that no appearance was necessary at that time since the warrant had not been returned to the court. The clerk then telephoned Durwood Prather, an investigator for the Yolo County District Attorney, and arranged to have petitioner see Prather later that day. During their interview Prather told petitioner that unless he became current in his child support payments, Prather would recommend to the judge that petitioner receive a year in jail and three years on probation. Petitioner recites that he then returned to Stockton and was informed by attorney Shaw that the matter had been successfully terminated. On May 12, 1964, petitioner was arrested as a probation violator and appeared in the chambers of the judge of the Washington Judicial District Court, where he was informed by the judge that petitioner on an earlier occasion pleaded guilty to the nonsupport charge, had been placed on three years' probation, which petitioner had now violated, and that he was sentencing petitioner forthwith to one year in the county jail. Petitioner alleges that at no previous time had he ever personally or through counsel appeared before that judge and that the judge had never sentenced or placed him on probation. Petitioner further alleges that the judge of the justice court did not direct petitioner's supervision by the probation officer nor did he furnish petitioner with a copy of any paper informing him of his obligations as probationer, nor did he order defendant to report either to the court or the probation officer.

The original misdemeanor complaint is before us. Handwritten in red pencil on the complaint is the following notation: 'Guilty plea 11-9-62-1 year susp. on condition def. pay through D.A. office the amount of $160.00 per mo. for the support of his children 1st payment to be made on or before the 1st of Dec. 1962 and on the 1st day of each mo. thereafter--def. placed on probation for a period of 3 years.'

The complaint contains a second red pencil notation reading as follows: 'Def. brought into court 5-14-64 His probation revoked and Def sentenced to 1 year in Co Jail.'

At the habeas corpus hearing in the superior court, petitioner's testimony corresponded substantially with the allegations of his petition. He stated that on November 9, 1962, he appeared at the justice court in Broderick, that the woman clerk told him that no court appearance had been scheduled, that she called Prather, the District Attorney's investigator in Woodland, that petitioner then drove to Prather's office in Woodland (which is approximately 15 miles from Broderick), that Prather told him he would recommend 'one year jail and three years probation' and told petitioner to go home. He testified that he did not appear before the judge on that date or at any time until May 14, 1964, when his probation was revoked.

Received in evidence by stipulation was an affidavit of Norman Shaw stating in substance that it was the bail bondsman who had specified November 9, 1962, as the date for petitioner's court appearance; that upon returning to Stockton, petitioner told him that he had appeared at the office of the Justice Court but he had not been arraigned because the warrant had not yet been returned from San Joaquin County; that Shaw then discussed the situation with Prather and with either a clerk or the judge of the Washington justice court in Broderick and was informed that no further appearance in the case would be necessary; that Shaw himself made no appearance on behalf of petitioner. On November 14, 1962, Shaw addressed a letter to the judge of the justice court requesting exoneration of bail.

The judge of the justice court testified. He stated that he had no independent recollection of the matter, except as to the revocation of probation on May 14, 1964. The red pencil notations on the complaint were in the judge's handwriting. According to practice, the clerk, frequently not in the courtroom during proceedings, extracted docket entries from such notations made by the judge.

November 9, 1962, was a Friday. Prather, the district attorney's investigator, testified that normally he was in Broderick, the location of the Washington district justice court, on Tuesdays and Thursdays, that normally he would be at his office in Woodland on Fridays; that he had no independent recollection of petitioner; that according to his records petitioner appeared at Prather's office during the morning of November 9, 1962. He denied ever causing a guilty plea to be entered for a defendant.

In revoking petitioner's probation, the justice court judge had before him an affidavit of B. D. White, an investigator in the district attorney's office. The affidavit recited: 'That said defendant received a copy of said [probation] order and certified that he had received said copy of said order, had read the same and understood the terms thereof; * * *.' Notwithstanding this sworn statement, Mr. White admitted at the hearing that there was no written probation order, that defendant did not receive a copy of any such order and did not certify that he received the same or knew the contents thereof.

California law demands that a defendant be personally present at an arraignment, although in misdemeanor cases he may appear by counsel. (Pen.Code, secs. 977, 1429.) If he appears without counsel he must be informed of his right to counsel. (Pen.Code, sec. 987.) When a defendant pleads guilty in a municipal or justice court, the court must fix a time, not less than six hours nor more than five days after the plea, for pronouncing judgment, unless the defendant waives the postponement. (Pen.Code, sec. 1449.) A justice court must maintain a docket in which must be entered all orders and proceedings in criminal cases. (Pen.Code, sec. 1428.)

In view of these fundamental and well-known requirements, petitioner's claim of in absentia plea and sentence is serious. In this habeas corpus action the record of proceedings in the justice court...