People v. Navarro

• Citation: 243 Cal.App.2d 755,52 Cal.Rptr. 686
• Decision Date: 28 July 1966
• Docket Number: Cr. 2501
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Cresencio Chavez NAVARRO, Defendant and Appellant.

Page 686

52 Cal.Rptr. 686

243 Cal.App.2d 755

PEOPLE of the State of California, Plaintiff and Respondent, v. Cresencio Chavez NAVARRO, Defendant and Appellant.

Cr. 2501.

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

July 28, 1966.

[243 Cal.App.2d 756] Charles E. Ward, Public Defender, and Dyson Wm. Cox, Deputy Public Defender, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard D. Huffman, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

In March 1962 a criminal complaint was filed against defendant charging him in two counts with violations of section 487, Penal Code (Grand Theft). A preliminary hearing was set for March 27, 1962, at which time defendant was sworn and gave testimony regarding and admitting his participation in the crimes charged. The Judge of the Municipal Court held defendant to answer in the Superior Court. On March 30, 1962, an information was filed charging defendant with violations of section 487, Penal Code. At the arraignment in the Superior Court an attorney was appointed to represent defendant. Defendant entered pleas of guilty to the charged counts after which defendant's counsel moved to suspend further criminal proceedings for the purpose of a determination of drug addiction. The court so ordered. As a result of the drug addiction proceedings, defendant was committed to the Narcotics Rehabilitation Center at Norco. Later and in July 1965, defandant filed a petition for a Writ of Habeas Corpus, which was granted and defendant released from the Rehabilitation Center. The criminal proceedings were reinstituted with a resultant judgment of conviction and a sentence to the state prison. From this judgment defendant appeals.

On this appeal defendant's sole contention is that he was denied counsel at the preliminary hearing because he did not intelligently waive the right to counsel, citing to us People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Von Moltke v. Gilles, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461.

Dorado, supra, concerned the admissibility of an extrajudicial statement wherein the defendant had not been advised of his constitutional rights to counsel and his right to remain silent and whether, not knowing his rights, he waived them. The Supreme Court of California said 62 Cal.2d at page 353, 42 Cal.Rptr. at page 179, 398 P.2d at page 371:

'As the court in Killpatrick v. Superior Court (1957) 153 Cal.App.2d 146, 150, 314 P.2d 164, 166, said in discussing the privilege against self-incrimination, 'The defendant * * * cannot be charged with a waiver of the privilege unless it appears that he was aware of its existence and its surrounding safeguards and voluntarily and intelligently elected to refrain from asserting it."

Because of the facts in Von Moltke, supra, being so diametrically opposed to the present facts, it can stand for no authority to aid defendant.

In Zerbst, supra, a duty is placed upon the trial judge to determine '* * * whether there has been an intelligent waiver of right to counsel * * *,' and 'must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.' (See also People v. Chesser, 29 Cal.2d 815, 822, 178 P.2d 761; In re Johnson, 62 Cal.2d 325, 335, 42 Cal.Rptr. 228 398 P.2d 420; In re Woods, 64 Cal.2d 3, ¹ 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce, 64 Cal.2d 11, ² 48 Cal.Rptr. 694, 409 P.2d 918.) Under Zerbst the waiver must be an intelligent and competent waiver by the accused and the high court suggests '* * * it would be fitting and appropriate for the determination to appear upon the record.'

Escobedo, supra, concerned itself with extra-judicial statements made without advice of counsel to law enforcement officers without being advised of his constitutional rights and later admitted into the evidence at the trial.

Although a plea of guilty is an admission of the defendant's guilt and of every element of the crime charged, People v. Jones, 52 Cal.2d 636, 651, 343 P.2d 577; People v. Emigh, 174 Cal.App.2d 392, 393, 344 P.2d 851, it does not preclude an appeal which raises issues of 'irregularities * * * going to the jurisdiction or legality of the proceedings * * *.' (Stephens v. Toomey, 51 Cal.2d 864, 870, 338 P.2d 182, 185; People v. Lockridge, 233 Cal.App.2d 743, 745, 43 Cal.Rptr. 925.) Thus on this appeal after a plea of guilty, we must examine the record to determine if such irregularities or jurisdictional and legal issues are involved. A denial to be represented by counsel or a waiver of other constitutional rights not knowingly, inteligently, properly or competently made would bring this appeal within the cited exceptions.

At the preliminary hearing with a reporter and defendant's mother present, defendant was told in unstilted simple language the various constitutional rights which the Constitutions of the United States and California and decisional law enumerate as guarantees to a defendant. These pronouncements were made to defendant by taking each right in turn, explaining it to him and then questions were put to defendant regarding the particular right then under consideration. The defendant gave clear and specific answers to the questions as to each constitutional right. In each answer it is clear defendant understood the question and gave a lucid reply indicating he waived the specific right. As to several rights explained to and answered by defendant, repetitive questions and answers were asked and answered. Defendant's mother being present, she was asked questions and the answers were given by her. From these questions and answers it appears she had previously talked to her son about his right to counsel, his right to remain silent and she understood that her son was waiving his rights and wanted to make a truthful statement of the events in question. It was explained to defendant and his mother that if defendant made a statement he would, in effect, be a witness against himself, a court reporter would 'take down' all that was done and said and later the testimony might be used against him. To these statements defendant personally, expressly and on the record replied he did understand, and understanding, he waived the rights. At the conclusion of this rather lengthy procedure, the judge stated: 'If it is your wish you may stand, raise your right hand and take the oath.' Defendant was sworn after which the following occurred:

'Q Mr. Navarro, do you realize that if you intend to plead guilty (sic) at any later time in these proceedings that it would be very foolish for you to say anything at this time, because anything you say is being taken down by the court reporter and could be used against you in a later proceeding? You understand that?

'A Yes.

'Q Do you also understand that no one, and especially no law enforcement officer, has any right or privilege to use any force or threats of force or violence to induce you to make a statement?

'A Yes, sir.

'Q Has anyone, and especially any law enforcement officer, used any force against you or threats of force against yourself or your family in order to induce you to make this statement?

'A No, sir.

'Q So it's free and voluntary, is that correct?

'A That's right.

'Q Do you understand that no one, and especially no law enforcement officer, has any right to promise you any...