Johnson, In re

• Decision Date: 28 January 1965
• Docket Number: Cr. 8387
• Citation: 62 Cal.2d 325,42 Cal.Rptr. 228,398 P.2d 420
• Court: California Supreme Court
• Parties: , 398 P.2d 420 In re Norris E. JOHNSON on Habeas Corpus.

Page 228

42 Cal.Rptr. 228

62 Cal.2d 325, 398 P.2d 420

In re Norris E. JOHNSON on Habeas Corpus.

Cr. 8387.

Supreme Court of California, In Bank.

Jan. 28, 1965.

George L. Vaughn, Jr., Los Angeles, for petitioner.

Roger Arnebergh, City Atty., Los Angeles, Philip E. Grey, Asst. City Atty., William E. Doran and James H. Kline, Deputy City Attys., for respondent.

MOSK, Justice.

In this matter we issued an order to show cause on an application for habeas corpus filed by Attorney George L. Vaughn, Jr., on behalf of Norris E. Johnson (hereinafter called petitioner), who was confined in the Los Angeles County Jail under multiple judgments of conviction for various traffic offenses. Pending our disposition of the case we ordered petitioner released on bail, pursuant to his application therefor.

Petitioner's principal contentions are (1) that the manner in which he was informed of his right to counsel was constitutionally inadequate, and (2) that no valid waiver of that right is shown. We have concluded tht the first of these points is without merit but that the second is well taken and hence warrants the relief sought.

On October 15, 1963, five misdemeanor complaints were filed against petitioner. Each complaint charged him with driving a vehicle upon the highways with knowledge of the fact that his operator's license had been revoked (Veh. Code, § 14601), plus a number of other Vehicle Code violations. ¹ On November 18, 1963, petitioner was arrested on the foregoing charges and was held overnight in jail. On the morning of November 19 he was brought before Judge Vincent N. Erickson in Division 51 of the Los Angeles Municipal Court. Apparently petitioner was one of a large number of defendants charged with traffic offenses and assembled in Judge Erickson's courtroom that morning. There is evidence in the record from which it can be inferred that petitioner was without counsel; that Judge Erickson made an opening statement of constitutional rights to all the defendants collectively, then proceeded to arraign each defendant individually; that petitioner, while unrepresented by counsel, entered pleas of guilty to the offenses charged in the five complaints; that Judge Erickson did not sentence petitioner immediately but required him to wait until the other cases had been concluded at which time the judge imposed consecutive sentences of 180 days on each of the five counts of driving with a revoked license, a total of 900 days, plus suspended sentences on the remaining counts.

Article I, section 13, of the California Constitution declares in relevant part that 'In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel.' (Italics added.) Under this provision there can be no doubt that the fundamental constitutional right to the assistance of counsel at all stages of the proceedings (see Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; People v. Douglas (1964) 61 A.C. 472, 476(1), 38 Cal.Rptr. 884, 392 P.2d 964) is, in California at least, not limited to felony cases but is equally guaranteed to persons charged with misdemeanors in a municipal or other inferior court. (In re Masching (1953) 41 Cal.2d 530, 532(2), 261 P.2d 251; In re McCoy (1948) 32 Cal.2d 73, 76(1), 194 P.2d 531; In re Jingles (1946) 27 Cal.2d 496, 498(1), 165 P.2d 12; see also Pen.Code, § 686, subd. 2, and § 690.)

Implementing this constitutional declaration, Penal Code, section 858 requires that 'When the defendant is brought before the magistrate upon an arrest, either with or without warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings.' Correlative to this duty to inform the defendant are the further requirements that the magistrate must thereupon 'ask him if he desires the aid of counsel, and allow him a reasonable time to send for counsel' and 'If the defendant desires and is unable to employ counsel, the court must assign counsel to defend him.' (Pen.Code, § 859.) ² Again, if the defendant is without counsel at the time for arraignment 'he must be informed by the Court that it is his right to have counsel before being arraigned, and must be asked if he desires the aid of counsel. If he desires and is unable to employ counsel, the Court must assign counsel to defend him.' (Pen.Code, § 987.) Each of these statutory requirements, moreover, must be observed in such a manner as to promote rather than defeat the constitutional intent, for 'the very purpose of the duty thus enjoined upon the court to advise an accused is to preserve to him a right which the Constitution has conferred upon him.' (In re Turrieta (1960) 54 Cal.2d 816, 820(3), 8 Cal.Rptr. 737, 739, 356 P.2d 681, 683.)

In the case at bar the first question to be resolved is whether petitioner was adequately informed of his rights under the foregoing constitutional and statutory provisions. The facts in this respect are somewhat unclear, as no reporter recorded the proceedings in Judge Erickson's court on the morning of November 19, 1963. On the one hand, petitioner alleges that he 'was not informed of his Constitutional rights or of the laws of the State of California or that he was entitled to be represented by counsel before he entered the purported pleas of guilty * * *.' In support of this allegation petitioner has presented an affidavit of one Charles Robert Franklin, ³ who avers that he was in custody with petitioner on November 18, 1963; that the next morning they were both taken to Division 51 of the Los Angeles Municipal Court; and that 'We were never told by the Judge that we had a right to a lawyer or anything about constitutional or legal rights.' On the other hand, the official docket entry reflecting the proceedings of November 19 on the five complaints filed against petitioner recites in relevant part: 'Defendant in court, duly arraigned, informed of the charges against him and of his legal rights.' (Italics added.) There is a presumption, of course, that in preparing this docket entry official duty was regularly performed (Code Civ.Proc. § 1963, subd. 15), and on collateral attack such an entry must ordinarily be deemed to speak the truth. (In re Chester (1959) 52 Cal.2d 87, 89(1), 338 P.2d 431, citing In re Connor (1940) 16 Cal.2d 701, 707-708(5-7), 108 P.2d 10.)

Even if true, however, 'The entry in the docket does not state how, when or in what manner * * * the defendant was informed of his constitutional rights' (In re Newbern (1959) 168 Cal.App.2d 472, 476(4A) 335 P.2d 948, 951), nor does it specify which of his various rights were thus made known to him. Here, as in Newbern, 'the constitutional rights of the petitioner being involved we may look to the entire record to ascertain the meaning of the entry.' (Id. at p. 476(3), 335 P.2d at p. 951.) Appended to the return are two affidavits describing the custom of Judge Erickson in the situation before us. Evidence of a custom or practice of the arraigning judge may be considered in a habeas corpus proceeding for the purpose of explaining or filling certain gaps in the official record. (In re Elsholz (1964) 228 A.C.A. 221, 225(2), 39 Cal.Rptr. 356; see In re Chester (1959) supra, 52 Cal.2d 87, 90-91, 338 P.2d 431.) Although Judge Erickson was unable to recall the particular events now in issue, his declaration states 'That it was my custom and practice at the opening of each morning and afternoon court session to make a detalled statement of constitutional rights, including the right of a defendant to be represented by legal counsel at all stages of the proceedings, and if a defendant in custody did not have an attorney, the right to be represented by the Public Defender, to all of the defendants collectively, including those in custody; That on November 19, 1963 a Deputy Public Defender was in the said courtroom or available on call in said courtroom at all times that Division 51 was in session.' The declaration of his deputy clerk, Mr. Campbell, is to the same effect. ⁴

We need not be detained by the apparent factual conflict between the Franklin affidavit and the docket entry as explained and amplified by the affidavits of Judge Erickson and Mr. Campbell. In the most recent document filed by petitioner his application for a hearing in this court he appears to have abandoned the allegation that no information whatever was given concerning his right to counsel, and now concedes in effect that Judge Erickson made an opening statement on this subject to all the defendants in the courtroom collectively before proceeding to the arraignments. Petitioner contends, however, that such a statement was inadequate to discharge the above-discussed constitutional and statutory duties of a magistrate to inform the defendants of their right to counsel. The argument is that a collective statement to a group of defendants may possibly not be heard by those farther from the bench because of 'the many physical vagaries of a crowded courtroom'; and even though heard, it may not be understood by those of below-average intelligence or linguistic comprehension. A constitutional issue, however, will not be decided on the basis of speculation or hypotheses not shown to affect the parties before the court. (In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305.) Here petitioner neither alleges nor shows that he personally failed to hear and understand Judge Erickson's statement. In the absence of such a showing we must presume, in accordance with common experience, that what is spoken with the intent of being heard by those in the speaker's presence is in fact so heard, and that what is heard is understood. ⁵

It bears emphasizing that the statutory directives (Pen.Code, §§ 858, 859, 987) do not specify the precise manner in which the courts are to apprise ...