People v. Hardin

• Citation: 24 Cal.Rptr. 563,207 Cal.App.2d 336
• Decision Date: 31 August 1962
• Docket Number: Cr. 4033
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Elvis Jackson HARDIN, Defendant and Appellant.
• Court: California Court of Appeals

Page 563

24 Cal.Rptr. 563

207 Cal.App.2d 336

PEOPLE of the State of California, Plaintiff and Respondent, v. Elvis Jackson HARDIN, Defendant and Appellant.

Cr. 4033.

District Court of Appeal, First District, Division 3, California.

Aug. 31, 1962.

Rehearing Denied Sept. 25, 1962.

Robert H. Miller, San Francisco, (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny, Derald E. Granberg, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Justice.

The question in this case is whether appellant, who pleaded guilty to a charge of violation of section 32 of the Penal Code and who was sentenced to the state prison, had validly waived the right to counsel. The information filed against appellant charged that defendant 'on or about June 12, 1961, at Pittsburg in Contra Costa County, State of California, did then and there unlawfully and wilfully and feloniously and with knowledge that the crime of burglary, a felony, was committed by RODNEY CRISMORE, did harbor, conceal and aid said Rodney Crismore, with the intent that said Rodney Crismore should avoid and escape from arrest, trial, conviction and punishment for said felony.'

On July 17, 1961, appellant appeared in the superior court, before another judge than the one who later sentenced him, for. arraignment. The district attorney informed the judge that appellant was 18 years of age and that his parents were in court. The court asked them to come forward but only one, the mother, was interrogated and responded. The following is a transcription of the proceedings: 'MR. WALKER: No. 7539, People of the State of California against Elvis Jackson Hardin. This is the time and place set for arraignment in this matter. May the record show the defendant is present in court, Your Honor. He is eighteen years of age. It is my understanding his parents are in court here today. THE COURT: Would you come forward? May we have your name, please, your name? MRS. PAUL G. JACKMAN: Mrs. Paul G. Jackman. THE COURT: You are the mother of Elvis Hardin? MRS. PAUL G. JACKMAN: Yes, sir. J-a-c-k-m-a-n. THE COURT: You consent that he proceed at this time, now, with this matter? MRS. PAUL G. JACKMAN: (Nods head in affirmative manner.) THE COURT: You have to answer out loud. The question I asked you is: Are you willing to have him proceed at this time on this matter? MRS. PAUL G. JACKMAN: Yes, Your Honor. THE COURT: Mr. Walker * * * MR. WALKER: Yes, Your Honor? THE COURT: * * * is Penal Code Section 32 a charging crime? Does he have to be an accessory to a particular crime? MR. WALKER: It is my understanding, it would be a charging crime, Your Honor, with the other crime shown. THE COURT: I suppose that is right because 33 talks about the punishment. All right. Mr. Hardin, the District Attorney of this County has filed an information against you charging you with a crime of a felony, to wit: accessory after the crime. You are advised that it is your right to have the services of a lawyer to represent you at all stages during these proceedings. Do you want the services of a lawyer? ELVIS HARDIN: No, sir. THE COURT: You understand if you don't have sufficient money, funds or property with which to hire a lawyer, the Court will appoint one to represent you without any charge to you? ELVIS HARDIN: (Nods head in affirmative manner.) THE COURT: You understand that fact? ELVIS HARDIN: Yes, sir. THE COURT: Is it still your statement you want to proceed without a lawyer? ELVIS HARDIN: Yes, sir. THE COURT: And, Mrs. Jackman, is that your desire as well? MRS. PAUL G. JACKMAN: I left it up to him, Your Honor. THE COURT: It is your son. MRS. PAUL G. JACKMAN: I know, but I don't have much say-so about it. THE COURT: All right, the clerk will proceed with the arraignment.' Thereupon, the clerk handed the defendant a copy of the information and a transcript of the preliminary hearing, asked him if the name charged was his true one, to which appellant replied, 'Yes, sir,' and read the information. The clerk asked appellant how he pleaded and appellant replied, 'Guilty.' The district attorney asked that the matter be referred to the probation department; this was done, and August 7 was the date set for sentence. Thereupon, appellant's mother asked if bail could be reduced so that appellant could go to work, and the district attorney stated that apparently there were people who were willing to help appellant who had come to the district attorney's office and that, considering the age of defendant and the fact that he could go to work, he had no objection to reduction in bail. The judge reduced bail from $1,000 to $500.

On August 7, 1961, the defendant appeared in propria persona for hearing in the matter of probation and for pronouncing of judgment. A minute order was made stating that the court had fully considered the report of the probation officer and, being fully advised in the premises, ordered that defendant be denied probation. Thereupon, appellant was arraigned for judgment, and in reply to the question whether he had any cause to show why judgment should not be pronounced against him, replied that he had none, and he was sentenced to state prison. His notice of appeal reads: 'I was convicted of Accesority after the fact. and sentence to prison on Aug. 7, 1961. I wish to appeal my case.'

Appellant's right to counsel in a criminal prosecution is guaranteed by the Constitution of California, article I, section 13, and by the Fourteenth Amendment to the Constitution of the United States (Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70). The right to counsel may be waived (except in cases where the maximum punishment is death or life imprisonment without possibility of parole), but no plea of guilty of any other felony shall be accepted from a defendant who does not appear with counsel unless the court shall first fully inform him of his right to counsel and unless the court shall find that the defendant understands his right to counsel and freely waives it, and then, only if the defendant has expressly stated in open court, to the court, that he does not wish to be represented by counsel (Pen.Code, § 1018). The court cannot accept a waiver of counsel from anyone accused of a serious public offense without first determining that he understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, and the punishments which may be exacted (In re James, 38 Cal.2d 302, 313, 240 P.2d 596); and the education, experience, mental competence and conduct of the accused are elements in determining whether there has been an intelligent waiver of counsel (People v. Chesser, 29 Cal.2d 815, 822, 178 P.2d 761).

Considering, first, the personal capacity of the accused, we find no more than that he is 18 years of age, he uttered no words except 'Yes, sir,' 'No, sir' and 'Guilty,' that his notice of appeal gives some evidence of illiteracy, and that his mother could be of little help in counselling him. The judge who sentenced appellant may have acquired knowledge of his capacity to understand the proceedings and the effect of his plea of guilty from the probation report, but the court made no finding in that respect after reading the report (the report itself is not before us), and, of course, the judge who accepted the plea had no such...