People v. Phillips

• Decision Date: 02 September 1964
• Docket Number: Cr. 4412,4413
• Citation: 40 Cal.Rptr. 403,229 Cal.App.2d 496
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. William Ross PHILLIPS, Defendant and Appellant (two cases).

Page 403

40 Cal.Rptr. 403

229 Cal.App.2d 496

PEOPLE of the State of California, Plaintiff and Respondent, v. William Ross PHILLIPS, Defendant and Appellant (two cases).

Cr. 4412, 4413.

District Court of Appeal, First District, Division 1, California.

Sept. 2, 1964.

Neal L. Petersen, San Francisco (under appointment of the District Court of Appeal), for appellant.

Stanley Mosk, Atty. Gen., Robert R. Granucci, Charles W. Rumph, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from a conviction for possession of forged checks for payment of money (Pen.Code, § 475), and conspiracy to commit forgery (Pen.Code, §§ 182 and 470), the main question presented is whether defendant's right to counsel has been infringed upon. For the reasons that follow, we have concluded that defendant suffered an improper deprivation of counsel and that therefore the judgments appealed from must be reversed. ¹ Accordingly, we see no reason to discuss defendant's remaining contention that the trial court denied him due process in refusing to subpoena witnesses. ²

Defendant's claim of the infringement of his right to counsel is predicated upon events occurring at the preliminary hearing occurring on November 5, 1962. Defendant was arraigned before a magistrate on October 29, 1962. There is no record of the arraignment proceedings, other than the clerk's minutes. ³ The minutes do not indicate whether defendant was informed of his right to the aid of counsel, but they disclose that he appeared without counsel and that the preliminary examination was set for November 2, 1962. The record discloses that thereafter, on October 30, 1962, defendant was present in court without counsel when the preliminary examination as to certain codefendants came on for hearing. At that time the court inquired of Attorney John R. Lamoreaux, who represented two of the other defendants, whether he represented defendant as well. Lamoreaux replied: 'If the money is there by five o'clock Thursday, I will be representing him Friday. It is as basic as that.' The minutes also disclose that on October 31, 1962, defendant appeared in court without counsel and that his preliminary hearing was reset for November 5, 1962. ⁴ These minutes bear the notation: 'Waives statutory time. * * * Defendant to have Counsel John Lamoreaux.' When the preliminary examination came on for hearing on November 5, defendant stated to the court that he desired to waive the preliminary hearing. When asked by the court if he was appearing in 'pro per' he answered 'Yes.' The trial court then advised defendant that he could not waive preliminary hearing if he was not represented by counsel and that it would not accept the waiver. The judge inquired of defendant if he had been offered counsel at the time of his arraignment, to which inquiry defendant responded that he 'figured' he didn't need counsel if he waived preliminary hearing. Defendant, when again told by the court that it could not take his waiver, requested a one-hour continuance to obtain counsel. The court refused the continuance, but granted a 10-minute recess in order to permit one of the counsel to confer with his clients who were codefendants. After the recess the court announced for the record 'that Mr. Phillips is appearing in pro per. * * *' After a hearing at which a number of prosecution witnesses testified defendant was held to answer to the charges in the superior court. ⁵

At the time of arraignment in superior court a motion was made by defendant under section 995 of the Penal Code to set aside the information on the ground, among others, that he had been deprived of the right of counsel at the preliminary hearing. ⁶ The motion was denied.

The right to counsel is basic. It is guaranteed by the Sixth Amendment which is applicable in criminal trials in the state courts (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799), and by article I, section 13, of the California Constitution. (See People v. Douglas, 61 A.C. 472, 476, 38 Cal.Rptr. 884, 392 P.2d 964; Bogart v. Superior Court, 60 Cal.2d 436, 438, 34 Cal.Rptr. 850, 386 P.2d 474; see also Pen.Code, § 686, subd. 2.) To implement this right the Legislature has enacted several provisions relating to commitment procedure. These are Penal Code, ⁷ sections 858, 859, 860 and 866.5, the pertinent provisions of which we set out in the footnote. ⁸ Under sections 858 and 859, applicable to arraignments (see People v. Terry, 57 Cal.2d 538, 555, 21 Cal.Rptr. 185, 370 P.2d 985), it is the duty of the magistrate to initiate an inquiry into the desire of a defendant to be represented by counsel, to inquire into his ability to procure counsel, and, in the event of his inability to do so, to assign competent counsel to conduct his defense. (People v. Diaz, 206 Cal.App.2d 651, 661, 24 Cal.Rptr. 367; Bogart v. Superior Court, supra, 60 Cal.2d p. 438, 34 Cal.Rptr. 850, 386 P.2d 474.) Section 860 has reference to what is commonly called the preliminary hearing (referred to in the section as 'the examination') at which evidence is taken to determine whether probable cause exists for holding the defendant to answer in the superior court. (People v. Terry, supra, 57 Cal.2d p. 554, 21 Cal.Rptr. 185, 370 P.2d 985.) 'The evident purpose of the provisions of sections 859 and 860 is to assure that the accused is afforded every reasonable opportunity to secure and be represented by counsel of his own choice before the magistrate begins the 'examination,' i. e., before the introduction of any evidence or the examination of any witnesses before the magistrate.' (People v. Terry, supra, 57 Cal.2d p. 554, 21 Cal.Rptr. p. 194, 370 P.2d p. 994.) This language, obviously, also applies to section 858.

In the present case, it is not claimed by defendant that when arraigned on October 29 he was not, as required by section 859, informed of his right to the aid of counsel, or that he was not allowed a reasonable time to obtain counsel, or that, if he was unable to employ counsel, none was assigned to him by the court. In the absence of any claim by defendant that he was deprived of his legal rights at such arraignment we may presume that the magistrate discharged his statutory duties. (Code Civ.Proc. § 1963, subd. 15; People v. Greene, 108 Cal.App.2d 136, 140-141, 238 P.2d 616; People v. Downer, 57 Cal.2d 800, 812, 22 Cal.Rptr. 347, 372 P.2d 107.) The claim of prejudice herein asserted is specifically directed to the proceedings at the preliminary hearing.

Defendant contends that it was the magistrate's duty to again inform him of his right to counsel when the preliminary examination came on for hearing on November 5. This contention is without merit. A defendant is not entitled to be advised of his rights at every stage of criminal proceedings, the requirement of the Penal Code being that a person be so advised only upon his first appearance before the committing magistrate (§§ 858, 859), and when he is arraigned before the trial court (§ 987). (In re Turrieta, 54 Cal.2d 816, 820, 8 Cal.Rptr. 737, 356 P.2d 681.) Section 860 provides, however, that if a defendant requires the aid of counsel at the preliminary examination he must be allowed to send for counsel before the examination proceeds. The statute provides that a reasonable time shall be given to secure the appearance of counsel and further provides that the magistrate may postpone the examination for not less than two nor more than five days for that purpose.

In the case at bench, although defendant announced at the outset that he was appearing in propria persona, it is apparent from the record that he was doing so because he intended to waive preliminary hearing and didn't believe he needed an attorney for that purpose. When the magistrate advised him that he could not waive the examination unless he was represented by counsel, as is provided in section 860, defendant promptly requested a continuance of one hour to secure counsel. It then became the magistrate's duty to give defendant a reasonable time to send for counsel. We doubt that defendant could have obtained counsel in an hour's time, but it certainly was not an unreasonable request on his part. As previously noted, the court refused to grant defendant any continuance at all, the recess granted being for the convenience of other parties. While defendant could have availed himself of this interim to send for counsel, no one can safely argue, not is it so contended by the People, that a 10-minute recess is a reasonable time within which to obtain counsel and prepare for a preliminary examination. Therefore, when the magistrate summarily denied defendant's request for the continuance of one hour he abused his discretion.

After the recess the magistrate did not inquire of defendant whether he had obtained counsel or whether he desired an attorney to be appointed, but merely announced for the record that defendant was appearing in propria persona. Under the circumstances, we think it was then incumbent upon the court, at the very least, under its affirmative duty to safeguard defendant's rights to have offered him court appointed counsel. Although, as we have pointed out above, there is no requirement to inform a defendant of his rights to counsel at every stage of criminal proceedings, there is, apart from statutory requirements, the constitutional right to the assistance of counsel. This fundamental right is recognized thusly in Turrieta: 'Apart from statutory requirements, however, the constitutional right to the assistance of counsel would be meaningless in the absence of a knowledge of that right and an intelligent waiver thereof, and 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.' (P. 820 of 54 Cal.2d, p. 739 of 8 Cal.Rptr., p. 683 of 356 P.2d 683.) In the present case, defendant's right to counsel was clearly brought...