McCarthy v. Superior Court In and For Contra Costa County

• Decision Date: 13 August 1958
• Citation: 162 Cal.App.2d 755,328 P.2d 819
• Parties: Earl Reed McCARTHY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondents. Civ. 18322.
• Court: California Court of Appeals Court of Appeals

Page 819

328 P.2d 819

162 Cal.App.2d 755

Earl Reed McCARTHY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF CONTRA COSTA, Respondents.

Civ. 18322.

District Court of Appeal, First District, Division 2, California.

Aug. 13, 1958.

Hearing Denied Oct. 10, 1958.

David N. Bortin, Concord, for petitioner.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for respondent.

KAUFMAN, Presiding Justice.

Petitioner seeks both a writ of prohibition to restrain the respondent court from proceeding to trial after preliminary examination, and a writ of mandate to compel the respondent court to order the production and inspection of a certain statement made by the petitioner to police officers immediately after his arrest.

I. The Writ of Prohibition.

Petitioner was charged with a violation of Penal Code, section 447a (Arson) and at the preliminary hearing was held to answer. Defendant was not represented by counsel at the preliminary examination. Petitioner moved the respondent court for an order setting aside the information pursuant to Penal Code, sec. 995, on the ground that he had not been legally committed by a magistrate. The respondent court denied the motion and will proceed with the trial unless restrained.

The relevant portion of the preliminary examination is as follows:

'Mr. Sellar: And Mr. McCarthy has indicated a willingness to tell his story in this matter. It is my understanding he was arraigned yesterday.

Is that correct?

'The Court: This is true.

'Mr. Sellar: May he tell his story under the proper adminition?

'The Court: Do you wish to admonish him?

'Mr. Sellar: If the Court so directs me, I will.

'The Court: All right.

Mr. Sellar: Mr. McCarthy, if you are willing to tell your story to the Court, the Court has asked me to tell you that if you do it, you must do it freely and voluntarily without any promises of immunity or reward. In other words, nobody can make a deal with you or do this or do that if you tell your story. Do you understand that?

'The Defendant: Yes, I understand.

'Mr. Sellar: And everything you say will be taken down by the court reporter here and it would result in your being convicted of the crime of which you are charged. Now, you understand everything I have said?

'The Defendant: Yes, I do.

'Mr. Sellar: Now, understanding that, are you still willing to tell your story to the court?

'The Defendant: Yes.

'Mr. Sellar: All right. Would you stand and be sworn?

'The Court: Are you willing to testify without the advice of Counsel?

'The Defendant: Sure.'

Petitioner contends that because the court did not inform the accused of the right of counsel, ask him if he desired counsel, and allow him reasonable time to send for counsel, the preliminary examination deviated from the Constitutional and statutory requirements so as to infect with illegality any order of commitment based upon the examination, citing In re James, 38 Cal.2d 302, 240 P.2d 596; Tupper v. Superior Court, Cal.App., 324 P.2d 356; People v. Williams, 124 Cal.App.2d 32, 268 P.2d 156; and Penal Code, section 866.5. The prosecution contends that because petitioner was advised of his right to counsel at the arraignment on the preceding day, he knowingly and voluntarily waived his right to counsel at the preliminary examination, and the presumption of regularity of previous proceedings, citing People v. Greene, 108 Cal.App.2d 136, 238 P.2d 616; People v. Rebolledo, 93 Cal.App.2d 261, 209 P.2d 16.

Our State Constitution, Article I, Sections 8 and 13, guarantees the right of every person charged with crime in any court whatever 'to appear and defend, in person with counsel.' In obedience to this constitutional mandate, the Legislature enacted Penal Code, sections 858, 859, and more recently in 1953, section 866.5. This section reads as follows:

'The defendant may not be examined at the examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.' [Emphasis supplied.]

The language of the statute is clear and apparently based on theory that a valid, intelligent waiver of a fundamental right cannot be made until after a defendant has been advised of his right to counsel. This view is supported by the only interpretation of this section, to date, in People v. Williams, 124 Cal.App.2d 32, 268 P.2d 156, 157. In that case, the defendant was informed of his right to counsel under Penal Code, section 858 at the arraignment which occurred the day before the preliminary hearing. At the preliminary hearing he was not again informed of his right to counsel in accordance with section 866.5 of the Penal Code, but only asked by the court: 'You didn't want to hire an attorney to represent you, is that right.' The defendant answered that, 'He had 'no money to hire one." The court, in substance, held that the defendant was ablebodied and could work so that there was no justification for appointing an attorney at the taxpayer's expense. The appellate court upheld an order setting aside the information on the ground that the defendant had not been legally committed.

In the instant case, there is nothing in the record to show what took place during the petitioner's arraignment. The prosecution argues that in the absence of an affirmative showing to the contrary, it must be presumed that official duty was performed. However, the cases relied upon by the prosecution on this point, predate Penal Code, section 866.5 and its interpretation in the Williams case. As pointed out above, in that case the record clearly indicated that the defendant had been advised of his rights under Penal Code, section 858 at the arraignment. We think section 866.5 is clearly applicable in this case as a statutory right is a part of the due process of law to which a defendant is entitled. The defendant was not advised of his right to counsel at the preliminary and therefore did not waive his right.

The prosecution also makes much of the petitioner's familiarity with legal procedures and his mental ability to protect his rights. In People v. Napthaly, 105 Cal. 641, 39 P. 29, the defendant was a lawyer and the record indicated that he knew of his right to counsel and asked for a continuance to procure counsel. It was argued that these facts obviated the necessity of informing the defendant of his rights. The court set aside the information, pointing out that the rights of individuals under the Constitution are not to be gauged by their profession or occupation. Nor, may we add, can they be gauged by an individual's presumed knowledge thereof. We think that here, as in the Tupper and Williams, cases, supra, there was a plain and palpable violation of a fundamental right which rendered the commitment illegal.

It follows that a peremptory writ of prohibition should issue herein.

II. The Writ of Mandate.

The issuance of the peremptory writ of prohibition in this case does not make moot the petitioner's request for the writ of mandate, as the prosecution has indicated its intention of recharging the petitioner. Petitioner seeks a writ of mandate to compel the respondent court to order the production and inspection of a statement made by the petitioner after his arrest. His affidavit alleges that he was 'physically and mentally ill and in great distress of body and mind, and * * * unable to recall what he said in said statement * * * but has advised his attorney to the best of his recollection truthfully, fully and fairly as to the contents of the statement * * *.' Counter-affidavits of a detective, a deputy sheriff and the district...