People v. Prince

• Decision Date: 09 January 1976
• Docket Number: Cr. A
• Citation: 55 Cal.App.3d Supp. 19,127 Cal.Rptr. 296
• Court: California Superior Court
• Parties: 55 Cal.App.3d Supp. 19 The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Henry PRINCE, Defendant and Appellant. 13378. Appellate Department, Superior Court, Los Angeles County, California

Page 296

127 Cal.Rptr. 296

55 Cal.App.3d Supp. 19

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Henry PRINCE, Defendant and Appellant.

Cr. A. 13378.

Appellate Department, Superior Court, Los Angeles County, California.

Jan. 9, 1976.

[55 Cal.App.3d Supp. 22] Paul Henry Prince, in pro per., for defendant and appellant.

John E. Howard, Acting Dist. Atty., and Daniel L. Bershin, Deputy Dist. Atty., for plaintiff and respondent.

Clark, White & Breslin and Robert C. Clark, Los Angeles, as amici curiae.

OPINION AND JUDGMENT

HOLMES, Judge.

This case, and nine companion cases, decided this day, that were consolidated for briefing, involve the novel and important questions: (1) Is it necessary for the record on appeal to show that the trial court expressly advised an unrepresented defendant accused of a public offense classified as an infraction, ¹ as distinguished from a misdemeanor or felony, that he has the right to be represented by privately retained counsel; ² and, if so, (2) is it necessary that the record reflect an express, knowing and intelligent waiver by such defendant of counsel before he may validly enter a plea of guilty or nolo contendere or be brought to trial by the court without representation by counsel. ³

We decide that in such cases it is not necessary for the record to disclose an express admonition of defendant by the court of defendant's right to employ counsel or a knowing and intelligent waiver of counsel, unless special circumstances are disclosed that make lack of such a showing unreasonable.

The Sixth Amendment of the Constitution of the United States declares that '(i)n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.'

Section 15 of article I of the California Constitution declares that '(t)he defendant in a criminal cause has the right . . . to have the assistance of counsel for the defendant's defense, to be personally present with counsel . . ..' ⁴

In the case of In re Johnson (1965) 62 Cal.2d 325, 42 Cal.Rptr. 228, 398 P.2d 420 defendant was one of a large number of defendants, charged with traffic offenses, assembled in the arraignment court. He was not represented by an attorney. The judge made an opening statement of constitutional rights to the assembled defendants, then arraigned each individually. The defendant Johnson pleaded guilty to five traffic complaints ⁵ and was sentenced to 5 Consecutive maximum terms of 180 days in jail. On appeal the defendant conceded that the judge's opening statement of constitutional rights included the subject of right to counsel, but the record reflected no express waiver by defendant.

After quoting the California Constitution's guarantee of right to counsel ⁶ the court in In re Johnson said, at page 329, 42 Cal.Rptr. at page 230, 398 P.2d at page 422:

'. . . (T)here 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, 93 A.L.R.2d 733); People v. Douglas (1964) 61 Cal.2d 430, 434(1) (38 Cal.Rptr. 884, 392 P.2d 964)) is, in California at least, nor 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.)'

The Johnson case preceded establishment in 1968 of the category of 'infractions,' distinguished from misdemeanors, as a class of crimes and public offenses. (Pen.Code, § 16.)

The Johnson court recognized and discussed the problem of adequate advisement of right to counsel at time of arraignment in traffic courts. At pages 332--333, 42 Cal.Rptr. at page 233, 398 P.2d at page 425 the court said:

'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 defendants of their right to counsel. Within the ambit of the constitutional guarantees, therefore, a certain leeway is permissible in handling these important but essentially preliminary matters. No hard and fast rule, no ideal procedure, will accommodate the diverse problems facing our arraignment courts today; rather, the circumstances of each method of informing defendants of their rights should, if challenged, be carefully weighed in the constitutional balance. Thus in In re Newbern (1959) Supra, 168 Cal.App.2d 472, 476(4a)--477(4b), 335 P.2d 948, the court found a denial of constitutional rights where more than 200 prisoners confined in four jail tanks were 'advised' of their rights by an unseen and unknown deputy public defender speaking to them in Orwellian manner over a public address system from a microphone in a corridor of the jail. By contrast, in In re Sheridan (1964) 230 Cal.App.2d 365, 368--369 (40 Cal.Rptr 894), no denial of constitutional rights was found where the defendants were assembled in the courtroom for the announced purpose of being advised of their rights, and that advice was read to them by the clerk at the behest and in the presence of the judge. In the present case the advice as to rights was given in open court, and was given by the judge personally rather than through his clerk. No constitutional defect appears thus far in the proceedings.'

The court held, in Johnson, that it was not necessary in that case to decide whether the defendant had been informed of his right to counsel, because the defendant conceded that the trial judge made an opening statement on the subject to all defendants in the courtroom before arraignment. The Supreme Court held that collective advisement was sufficient absent proof of its inadequacy in the case of an individual defendant. (62 Cal.2d, at p. 332, 42 Cal.Rptr. 228, 398 P.2d 420.)

We read the above-quoted discussion, in Johnson, as holding that in Misdemeanor cases, as in felonies, a defendant must be 'apprised' by the court of his right to assistance of counsel, either individually or collectively and that compliance with that requirement will not be presumed from a silent record.

However, creation of the category of public offenses denominated 'infractions' in 1968, and prohibition of incarceration as a penality for violation thereof necessitates re-examination of the necessity for admonition and waiver of counsel, insofar as it relates to Infractions, in light of the developing procedural law relating to prosecution of petty offenses.

Having held that the defendant was adequately informed of his right to counsel, the Jonnson court turned to the question of whether the defendant had waived that right. In Johnson, as in the cases here under review, the record reflected no express waiver. The Johnson court held to be 'crucial' a showing that defendant intelligently and understandingly waived his right to counsel and that waiver may not be presumed either from the fact that an unrepresented defendant pleads guilty or from a record that is silent on the subject.

Stating that waiver of counsel may not be accepted from a defendant charged with a 'serious' offense without first determining that he understands the nature and elements of the offense and the pleas, defenses and punishments potentially involved, the Johnson court addressed itself to the practical problem of reconciling the need for an understanding and intelligent waiver of the right to counsel with the need for expeditious administration of justice in inferior courts called upon to deal with 'an unending stream of traffic violations, drunk cases . . . and similar petty offenses.' (62 Cal.2d 336, 42 Cal.Rptr. 235, 398 P.2d 427.) The court expressed the view that in those courts and under such circumstances the constitutional necessity for meaningful waiver of counsel should be viewed in light of the convenience of the parties and the court. The court said at page 336, 42 Cal.Rptr. at page 235, 398 P.2d at page 427:

'While there can be no impairment of the fundamental constitutional rights of any defendant, however minor his crime, in certain situations there may be a choice of valid ways to implement these rights. Where such is the case--and constitutional rights are respected--the convenience of the parties and the court should be given considerable weight. For example probably the vast majority of citizens haled into court on traffic violations share the judge's interest in prompt disposition of their cases, feeling themselves sufficiently inconvenienced by having to make personal appearances in the first place. (n. omitted.) To require the judge to orally examine each such defendant at length for the purpose of determining his capability of defending himself would seem to be an idle and time-wasting ritual. Compliance with the spirit of the constitutional mandate that an intelligent waiver of counsel must affirmatively appear in the record may be efficiently achieved in such cases in a variety of acceptable ways.' ⁷

In Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 the court demonstrated continuing vitality of the Johnson rule of convenience in cases involving minor offenses. At page 303, 110 Cal.Rptr. at page 340, 515 P.2d at page 284 the court said:

'The Johnson decision thus teaches that in evaluating the procedures utilized in inferior courts For advising defendants of their rights and obtaining 'on the record' waivers, the realities of the typical municipal and justice court environment cannot be ignored, and that, so long as the spirit of the constitutional principles are respected, 'the convenience of the parties and the court should be given considerable weight.' (Id., see In re Smiley (1967) 66 Cal.2d 606, 622 (58 Cal.Rptr. 579, 427 P.2d 179).)' (Emphasis added.)

The question presented by ...