Perez, In re

Decision Date21 September 1966
Docket NumberCr. 10031
Citation418 P.2d 6,65 Cal.2d 224,53 Cal.Rptr. 414
CourtCalifornia Supreme Court
Parties, 418 P.2d 6 In re George Anthony PEREZ on Habeas Corpus. In Bank

George Anthony Perez, in pro. per., and Robert Y. Bell, Ukiah, under appointment by the Supreme Court for petitioner.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Robert R. Granucci, Deputy Attys. Gen., for respondent.

TRAYNOR, Chief Justice.

Petitioner attacks the validity of a judgment of the Los Angeles County Superior Court imposing concurrent sentences for two counts of lewd acts against children (Pen.Code, § 288), one count of oral copulation (Pen.Code, § 288a), and one count of kidnapping (Pen.Code. § 207). Judgment was pronounced on March 28, 1963, while petitioner was confined in San Quentin State Prison.

In 1959 the Los Angeles court found petitioner guilty of the four crimes, suspended the criminal proceedings, held sexual psychopathy hearings, and committed petitioner to a state hospital for treatment. In 1960 he was returned to the superior court, the criminal proceedings were resumed, imposition of sentence was suspended, and petitioner was placed on probation for five years.

In August 1962 petitioner pleaded guilty in Orange County to statutory rape. The Orange County Superior Court suspended the criminal proceedings and, after sexual psychopathy hearings, committed petitioner to the Department of Mental Hygiene and ordered him delivered to the state prison for an indeterminate period. (Welf. & Inst.Code, §§ 5512, 5518.) In February 1963 he was received at San Quentin State Prison under the Orange County commitment. He does not question the validity of that commitment.

In June 1963 at the request of a correctional counselor, petitioner signed a document stating that the Los Angeles County Superior Court was authorized to impose sentence in his absence on the 1959 convictions. This document, quoted in the margin, 1 does not mention petitioner's right to counsel at the time of pronouncement of judgment and sentencing. A few days after petitioner signed this document he received a notice that he had been sentenced by the Los Angeles court and that his term on the four concurrent sentences commenced April 23, 1963.

In April 1966 petitioner in propria persona filed the instant petition for habeas corpus. We issued an order to show cause on the basis of his allegations that he had not understandingly waived his right to be present and represented by counsel when judgment was pronounced.

Respondent urges that petitioner is not entitled to relief because he did not apply for the writ of habeas corpus until almost three years after he received notice that the Los Angeles court had imposed the sentence now attacked. Petitioner's delay in applying for the writ is sufficiently explained by his allegations that when he entered the state prison he had not completed the seventh grade in school and knew nothing of legal rights or procedures, and that he has diligently used the limited opportunities available to prisoners for legal research and the preparation of legal documents. (See In re James (1952) 38 Cal.2d 302, 309, 240 P.2d 596.)

At the time the Los Angeles court imposed sentence, section 1203.2a of the Penal Code (Stats. 1943, ch. 321, p. 1316) provided, and as since amended (Stats. 1963, ch. 2079) now provides, that when a defendant who was released on probation without imposition of sentence 'is committed to a prison in this State for another offense' the court that granted probation, upon being notified of defendant's commitment to prison, 'shall' impose sentence or make some other order terminating its jurisdiction in defendant's case. Petitioner's confinement in prison was not under a commitment based on a judgment of conviction of crime but was under the Orange County commitment as a sexual psychopath. That commitment, however, was 'for another offense' within the meaning of Penal Code Section 1203.2a since the proceedings leading to such commitments of mentally disordered sex offenders begin with and rest on the conviction of a 'criminal offense' (Welf. & Inst.Code, § 5501). Moreover, the commitment to a state prison as a sexual psychopath brought petitioner within the purpose of section 1203.2a. That section precludes outstanding probationary orders against one confined in a state prison and the uncertainty that would prevail as to when and whether the court that granted probation will seek to impose sentence on the prisoner. Fairness to one committed to a state prison and proper administration by the prison officials and the Adult Authority require that such outstanding convictions be reduced to judgment or be otherwise finally disposed of by termination of the trial court's jurisdiction. These considerations apply to one committed to a state prison as a sexual psychopath who would not benefit by hospital care as well as to one sentenced to prison as a convicted felon.

When the Los Angeles County Superior Court pronounced judgment in 1963, section 1203.2a of the Penal Code purported to permit imposition of sentence in the absence of and without notice to one who had been released on probation and was thereafter committed to a state prison for another offense. 2 Pronouncement of judgment however, is a critical stage in the criminal prosecution when the constitutional rights 'to appear and defend, in person and with counsel' (Cal.Const., art. I, § 13) apply, and a judgment pronounced in violation of those rights can be attacked by habeas corpus. (In re Levi (1952) 39 Cal.2d 41, 46, 244 P.2d 403; In re Roberts (1953) 40 Cal.2d 745, 748, 255 P.2d 782; In re Boyce (1959) 51 Cal.2d 699, 336 P.2d 164; In re Klein (1961) 197 Cal.App.2d 58, 63, 17 Cal.Rptr. 71.)

There are substantial reasons for the presence of accused and the aid of counsel at the pronouncement of judgment. There may be good cause why judgment should not be pronounced (Pen.Code, § 1200), e.g., the accused may be insane or have cause to offer in arrest of judgment or for a new trial (Pen.Code, § 1201); he may have evidence and argument in mitigation of punishment was a choice of sentence is available; when probation has been revoked in his absence he may be able to show that it should be reinstated. Without the help of counsel most defendants would not know of and would be helpless to present these matters. Also they might allow the time for appeal to run in ignorance of the right to appeal and of grounds for reversal. (In re Levi (1952) supra, 39 Cal.2d at pp. 45--46, 244 P.2d 403; In re Turrieta (1960) 54 Cal.2d 816, 819, 8 Cal.Rptr. 737, 356 P.2d 681; In re Klein (1961) supra, 197 Cal.App.2d at [418 P.2d 10] p. 65, 17 Cal.Rptr. 71; In re Jordan (1966) 242 A.C.A. 277, 281, 51 Cal.Rptr. 221; see also People v. De Waele (1964) 224 Cal.App.2d 512, 515, 36 Cal.Rptr. 825.)

Thus, In re Klein, supra, 197 Cal.App.2d at pp. 62, 65, 17 Cal.Rptr. 71, specifically held that pronouncement of judgment under the provision of section 1203.2a purporting to authorize sentencing in the absence of defendant violated the rights 'to appear and defend, in person and with counsel' (Cal.Const., art. I, § 13), and that acceptance of probation by the accused did not imply acquiescence in that provision of section 1203.2a and waiver of those constitutional rights. 3 Here, as in Klein, the record shows no actual waiver of those rights by petitioner when he accepted probation. The waiver relied on by respondent was made when petitioner signed the document quoted supra, footnote 1, after judgment had been pronounced on March 28, 1963, in his absence. Respondent argues that by signing that document, with its express recital authorizing imposition of sentence in his absence, petitioner impliedly waived his right to the aid of counsel at the time of sentence. We have refused to imply a waiver of the right to counsel from the mere presence of the accused when judgment is pronounced (In re Levi, supra, 39 Cal.2d at pp. 46--47, 244 P.2d 403; In re Roberts, supra, 40 Cal.2d at p. 748, 255 P.2d 782; In re Boyce, supra, 51 Cal.2d at p. 700, 336 P.2d 164; In re Turrieta, supra, 54 Cal.2d at p. 820, 8 Cal.Rptr. 737, 356 P.2d 681); similarly here, a waiver of the right to counsel will not be implied from petitioner's execution of a document that recites only a waiver of the right to personal presence and does not mention the right to counsel.

Since petitioner was not afforded the opportunity to have assistance of counsel when the Los Angeles court pronounced sentence, its judgment cannot stand, and we need not resolve the factual question presented by petitioner's allegations that his waiver of the right to be present in person was incompetent because he signed the document without understanding its effect.

Nothing in the present record shows any defect in the finding of the Los Angeles court that petitioner was guilty of the four crimes. In such a case the subsequent unconstitutional procedure at the time of sentence ordinarily would not lead to loss of power to impose a valid sentence. The prisoner would be returned to the trial court to be arraigned for judgment with the opportunity there to show cause why judgment should not be pronounced. (In re Levi, supra, 39 Cal.2d 41, 47, 244 P.2d 403.) Section 1203.2a as it read when petitioner was sentenced (Stats.1943, ch. 321, p. 1316) provided, however, that unless the superior court imposed sentence within 30 days after it was notified of the defendant's confinement in a state prison the court was 'deprived thereafter of any jurisdiction over the defendant' in the case in which the order of probation was made. If this last quoted provision of section 1203.2a as it formerly read remained in effect despite the invalidity of the provision permitting imposition of sentence in the defendant's absence and despite the section's omission of any provision securing the defendant's right to counsel, petitioner and others similarly...

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