Haro, In re

• Decision Date: 15 September 1969
• Docket Number: Cr. 12782
• Citation: 71 Cal.2d 1021,458 P.2d 500,80 Cal.Rptr. 588
• Court: California Supreme Court
• Parties: , 458 P.2d 500 In re Carlos HARO on Habeas Corpus.

Page 588

80 Cal.Rptr. 588

71 Cal.2d 1021, 458 P.2d 500

In re Carlos HARO on Habeas Corpus.

Cr. 12782.

Supreme Court of California In Bank.

Sept. 15, 1969.

Carlos Haro, in pro per., and John A. Montag, Los Angeles, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Nelson P. Kempsky, Deputy Atty. Gen., for respondent.

TOBRINER, Justice.

In 1957 Carlos Haro (hereinafter referred to as defendant) pleaded guilty to possession of heroin (Health & Saf. Code, § 11500) and admitted a September 20, 1955, misdemeanor conviction of use of, or being under the influence of, marijuana (Health & Saf. Code, § 11721). The court sentenced him to imprisonment in the state prison for the term prescribed by law. Because of the prior misdemeanor conviction, defendant's sentence, pursuant to former Health and Safety Code, section 11712, is automatically increased from a maximum of 10 years to 20 years. In this habeas corpus proceeding defendant challenges the validity of his prior misdemeanor conviction and the resultant increased penalty.

The 1955 complaint was filed against defendant in Los Angeles County charging defendant with violation of Health and Safety Code, section 11721, a misdemeanor, and alleging that 'the accused did willfully and unlawfully use and (was) addicted to the unlawful use of narcotics.' We do not have the benefit of a transcript of the proceedings at arraignment or sentencing at this time because those records have been destroyed. The municipal court docket sheet states: 'Sep. 1, 1955 Cause called. Judge John G. Barnes presiding. Both parties ready. People represented by J. C. Denny (D.C.A.). Defendant represented by Lothair Schoenheit (a deputy public defender). Defendant in court, duly arraigned, informed of the charges against him and of his legal rights. Defendant gives true name as charged and enters his plea of not guilty to the offense charged. Defendant in open court personally demands jury trial. Trial set for September 20, 1955, at 9 A.M. in Division 7. Bail fixed in the sum of $2,500.00. Defendant committed.'

When defendant appeared on the date set for jury trial, the docket sheet indicates that he was 'represented in pro per.' At that time defendant withdrew his plea of not guilty and entered his plea of guilty. A letter incorporated in the file from Judge Parks Stillwell, presiding in that department, states: 'As I recall, it was not my practice to advise defendants at this stage of their right to be represented by counsel, and this would be true whether I was aware of prior representation or not. The defendants had been advised or their rights at arraignment, and we accepted anyone's plea of guilty, whether represented or not, without any further advice re his right to counsel. There was, at that time, no thought that such representation was required in misdemeanor cases.' On that date the court sentenced defendant on his plea of guilty to five years probation with the first 180 days to be spent in county jail.

Subsequently, in 1957, as we have noted, defendant pleaded guilty to the charge of possession of heroin. He admitted the 1955 prior conviction; on June 3, 1957, the court sentenced defendant to the state prison for the term prescribed by law. On July 1, 1957, he commenced his term of two to twenty years. Without the prior conviction defendant could not have been subjected to imprisonment for more than 10 years and his term would have expired July 1, 1967.

On May 9, 1968, defendant petitioned the Superior Court for the County of Sacramento, the county of confinement, for habeas corpus; on July 11, 1968, the court issued such a writ, returnable on July 26, 1968. On that date the court held its hearing; defendant testified that at the time of the misdemeanor prosecution in 1955 he did not have the benefit of representation by counsel, that the court did not appoint counsel to represent him, and that he did not tell the court that he waived representation by counsel. Upon defendant's plea of guilty he received a six months jail sentence. Defendant further testified that he did not learn of the effect of the prior misdemeanor conviction until he arrived at the state prison; he then discovered that the prior conviction added 10 years to his sentence, i.e., that the maximum term increased from 10 years to 20 years.

Upon questioning by his counsel, defendant, a Mexican-American, testified that he had received only a fifth-grade education. The judge then questioned him as follows:

'THE COURT: Now, you have told the Court that you were arrested for a violation of 11721, you went to court and entered a plea of nor (sic) guilty. You knew enough to do that, didn't you?

'WITNESS: Yes, sir, right.

'THE COURT: I suppose you put up bail, didn't you?

'WITNESS: I did that because they were giving years, not--

'THE COURT: What's that?

'WITNESS: They were giving years, instead of six months. They were giving years, so--

'THE COURT: So you did put up bail, didn't you?

'WITNESS: Yes.

'THE COURT: Then you entered a plea of not guilty?

'WITNESS: Yes.

'THE COURT: Then you were at large for some time, weren't you?

'WITNESS: At large?

'THE COURT: Well, you came back two weeks later and entered a plea of guilty, didn't you?

'WITNESS: Yes.

'THE COURT: And you knew precisely what you were doing all of the time.

'WITNESS: No, I didn't know what I was doing. I wanted county jail time and go through with it.

'THE COURT: The motion for Writ of Habeas Corpus is denied.'

In our decision in In re Caffey (1968) 68 Cal.2d 762, 765 fn. 3, 69 Cal.Rptr. 93, 441 P.2d 933, we indicated that a defendant properly applied for a writ of habeas corpus in the county in which he was imprisoned. We further stated that when the defendant had alleged facts which, if true, would entitle him to resentencing, the court should transfer the case to the court rendering the judgment of conviction for a hearing on the merits (In re Woods (1966) 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce (1966) 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918; In re Tucker (1966) 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921).

The Attorney General questions the desirability of a ruling compelling the court in which a prisoner files a writ that challenges the validity of his confinement to transfer the action to another county. He cites the traditional jurisdiction of the court in the county of confinement to handle habeas corpus and argues for the exercise of discretionary power of that court as to the transfer of the case rather than a compulsory requirement that it do so. We see no reason to change the Caffey rule. ¹ In cases involving the validity of prior convictions which would affect the sentence originally ordered, we believe that once the court of the county of confinement makes a preliminary determination that the prisoner has alleged facts which, if true, would entitle him to resentencing, that court must transfer the case to the county of sentencing for an evidentiary hearing to determine the truth of the alleged facts. If defendant demonstrates the invalidity of a prior conviction, the same court must then reconsider and redetermine the sentence. The sentencing court, rather than the court of the county of confinement, normally is more familiar with the facts of the case, including the basis of sentencing and the prior convictions that may affect that sentence.

In the present case, the Superior Court for Sacramento County, instead of transferring the action to the County of Los Angeles upon defendant's allegations of these facts, conducted its own hearing on the merits of defendant's petition. Although the Sacramento court theoretically erred in failing to transfer the case to Los Angeles for an evidentiary hearing, the parties have stipulated that we may review the record to determine whether the Sacramento court properly concluded that defendant's prior conviction was valid. Moreover, if defendant's showing is correct, he is now eligible for release; nothing remains for the sentencing court upon which to rule.

As we shall hereinafter explain in more detail, the evidence submitted to the Sacramento Superior Court indicates that defendant was not represented by counsel at the time of his change of plea and sentencing in 1955, tht he did not intelligently and understandingly waive his right to counsel, and that, therefore, the prior conviction was invalid. Under such circumstances, defendant, having at this date served the maximum term for conviction of possession of heroin for a defendant without any prior valid narcotics conviction, should be discharged.

The cases hold tht defendant is entitled to representation by counsel at the time of arraignment, plea, and sentencing, and that any waiver of counsel at such times must be an intelligent and understanding one. Thus in In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420, we passed upon a situation in which defendant pleaded guilty to five charges of driving with knowledge that his license had been revoked (Veh.Code, § 14601). At the time of the arraignment, plea, and sentencing, all of which occurred on the same day, defendant did not have the benefit of representation by counsel. This court reviewed and rejected the argument that defendant impliedly had waived his right to counsel by failing to request it and by pleading guilty to the charges.

In Johnson we said: 'To begin with, 'it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' (Carnley v. Cochran (1962) 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 and cases there cited.) Petitioner's failure to make such a request, accordingly, cannot be deemed a waiver of this constitutional right. Nor is the entry of a guilty plea conclusive of a waiver; the holding of a state court that by pleading guilty a defendant will...