People v. Shaver

• Decision Date: 06 January 1966
• Docket Number: Cr. 4792
• Citation: 239 Cal.App.2d 213,48 Cal.Rptr. 572
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Eugene SHAVER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 572

48 Cal.Rptr. 572

239 Cal.App.2d 213

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Eugene SHAVER, Defendant and Appellant.

Cr. 4792.

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

Jan. 6, 1966.

Daniel H. Dibert, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Jennifer L. Bain, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Justice.

Appellant pleaded guilty to violations of Health & Safety Code sections 11501 and 11530. He was committed to the medical facility at Vacaville, for treatment as a drug addict, but was returned to court as not a proper subject for treatment. He moved for permission to change his plea to not guilty. This was denied and appellant was committed to the state prison. He appeals.

Facts and Decision On In Propria Persona Appearance

Appellant's principal point is that it was mandatory for the trial court it permit the change of plea, because it was made when he was not represented by counsel, under the provisions of section 1018 of the Penal Code. The section reads: 'Unless otherwise provided by law every plea must be put in by the defendant himself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall any plea of guilty of any other felony be accepted from any 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 the then, only if the defendant has expressly stated in open court, to the court, that the does not wish to be represented by counsel. On application of the defendant at any time before judgment the court may, and in case of a defendant who appeared without counsel at the time of the plea the court must, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. * * *' (Emphasis added.) It is true that at the moment of making the plea of guilty appellant was not represented by counsel, but this was because of his insistence, despite forceful admonition of the court, that he represent himself and that he plead guilty.

It is useful to relate the sequence of events in order to show the judge's meticulous attention to the rights of appellant at all times. Originally, appellant pleaded not guilty. He informed the court that there was a conflict of interest between him and his codefendant, and asked that each have his own counsel. The judge acceded and appointed an attorney for appellant alone after getting assurance the appellant was satisfied with the attorney selected. Following this, appellant wrote to the judge asking to be brought before the court, and this was done. Appellant told the judge that he wished to change his plea; that his counsel told him he had no defense; that although counsel wished him to wait for a week in case some charges might be dropped by the district attorney, appellant did not wish to remain in jail for the week; and that he wished the court appointed attorney to be dismissed and desired to 'go on my own.' The judge told him of the desirability of having counsel and offered to appoint new counsel for appellant. The judge ascertained appellant's age (24) and his education (eleventh grade), and that he had been through the courts before. Finally, the court found that appellant intelligently waived counsel and accepted the plea of guilty. The minutes stated that appellant appeared in propria persona. Appellant asked to be committed to the California Rehabilitation Center and the judge granted the request.

But appellant contends that the words 'for good cause' in the underlined part of section 1018 refer only to cases in which the defendant was represented by counsel at the time of plea, that there is no requirement of a showing of good cause where the defendant did not have counsel at the time of plea, and that it was mandatory on the court to permit the change of plea to not guilty. Appellant cites People v. Ector, 231 Cal.App.2d 619, 42 Cal.Rptr. 388, in which it was held that the trial court was obliged to allow the change of plea, even if a showing of good cause were not made. There are, however, essential differences between the Shaver case and the Ector case. In Ector, as noted in the court's opinion (pp. 622-623, 42 Cal.Rptr. 388), the defendant had not asked to appear in propria persona; in Shaver, the defendant has positively asked to be allowed to do so. In Ector, counsel remained of record but the change of plea to guilty was made in counsel's absence; in Shaver, counsel had been dismissed on request of the defendant. In Ector, there was the possibility that appellant did not have the experience and capacity to understand whether he was pleading guilty to a felony and not a misdemeanor; in Shaver, defendant was on parole and had been before the courts, and there was no suggestion that he did not know what he was doing. In Ector, there had been no compliance with the requirement that the court fully inform defendant of his right to counsel; in Shaver, the court specifically and positively informed defendant of this right. In Ector, there was no statement to the judge that there was no defense to the charges; in Shaver, the defendant's counsel had informed his client and then informed the court in defendant's presence that there was no defense prior to the entry of the plea of guilty. In Ector, the plea was to a certain extent prompted by the questions of the court in the absence of counsel; in Shaver, the initiative toward making the plea was taken by defendant himself in his letter to the court. In Ector, there was no finding that defendant understood his right to counsel and freely waived it; in Shaver, there was an express finding that the defendant intelligently waived counsel. Under all the circumstances the word 'intelligently' would include 'freely.'

It is our conclusion that when an accused pleads guilty to a felony other than one for which the maximum punishment is death or life imprisonment without possibility of parole, without counsel, but when the court has first fully informed him of his right to counsel and has found that he understands this right and freely waives it, and the accused has expressly stated in open court that he does not wish to be represented by counsel (requirements contained in the second sentence of section 1018), it is not mandatory upon the court to permit the plea of guilty to be withdrawn and a plea of not guilty substituted. In People v. Mattson, 51 Cal.2d 777, 336 P.2d 937, it was held that a court cannot force a competent defendant to be represented by an attorney except where statutes expressly require such representation, which the court stated to be Penal Code section 859a (defendant not represented by counsel cannot plead guilty before the magistrate), section 860 (only 'a defendant represented by counsel' can waive his right to a preliminary examination before the magistrate), section 1018 (court cannot receive plea of guilty to crime for which maximum punishment is death or life imprisonment without possibility of parole unless defendant is represented by counsel). (The court in the Ector case relied in part on ...