Van Brunt, In re

Decision Date10 May 1966
Docket NumberCr. 3996,4003
Citation51 Cal.Rptr. 136,242 Cal.App.2d 96
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re Kenneth Earl VAN BRUNT on habeas corpus. In re Hugh R. VIZZARD on habeas corpus.

W. Austin Cooper and Philip V. Sarkisian, Court Appt. Counsel, Sacramento, for petitioner.

Thomas C. Lynch, Atty. Gen., by Doris H. Maier, Asst. Atty. Gen., by Edsel Haws and Daniel J. Kremer, Deputy Attys. Gen., Sacramento, for respondent.

FRIEDMAN, Justice.

Kenneth Van Brunt and Hugh Vizzard were committed to state prison in 1958 following their pleas of guilty to an armed robbery. In petitions for habeas corpus they attack their convictions, alleging primarily deprivation of their constitutional right to representation by legal counsel. A related issue is raised by the contention that at their preliminary examination the committing magistrate effectually deprived them of the protection of article I, section 8, of the California Constitution and Penal Code section 859a, which prevent a felony defendant from pleading guilty at his preliminary examination unless he is represented by an attorney. 1 Through court- appointed counsel they have stipulated that their petitions be considered together.

Van Brunt and Vizzard, then parolees from the California Youth Authority, were arrested in San Francisco on May 29, 1958. A Colt automatic pistol was found in their car. Both were 19 years old at the time but had managed to crowd extensive criminal experience into their brief years. Fresno police suspected them of holding up a Western Union office in Fresno on the night of May 19 and interviewed them at the San Francisco jail. In the course of the discussions defendants offered a 'deal' according to which they would 'plead' if the Fresno authorities would recommend their commitment to the Youth Authority. The officers rejected any deal. Petitioners then made full confessions. They related how they had acquired the Colt automatic pistol, borrowed a car in Bakersfield, then driven to Fresno to commit a holdup. As they drove past the Fresno office of Western Union late at night they saw a man counting money. They went in. Three persons were in the front office, another in the rear. Vizzard held a pistol on the four victims while Van Brunt trussed them up. They took approximately $1,800 and left, returning to Bakersfield. Van Brunt used much of his share of the loot to pay off gambling debts. Vizzard purchased a Mercury automobile with most of his share of the holdup profits and the pair drove to San Francisco.

Unknown to them, their confession to the Fresno police was recorded on tape. They were not informed that they had a right to counsel and to silence. Their conversation, however, demonstrates that they were completely aware that they need tell the officers nothing. Both told the officers that they wanted to get to court as soon as possible, where they would take the stand and relate the facts of the robbery.

Petitioners were not masked during the Western Union robbery. They had been identified by three of the victims. The Colt pistol found in their automobile in San Francisco was the weapon used in the robbery in Fresno.

Petitioners were returned to Fresno and appeared in the Fresno municipal court on June 12, 1958. A certified copy of the minutes recites that petitioners were 'duly informed of the charge against them and of all their legal rights * * * and questioned as to their ability to hire counsel.' Ascertaining that Van Brunt had no ability to employ an attorney, the magistrate appointed Mr. Jefferson E. Hahesy as his attorney. The magistrate decided that Vizzard had 'money or property' to hire counsel and refused to appoint counsel for him. 2 Although the magistrate fixed a date 11 days later, June 23, as the date for the preliminary examination, both defendants were brought before the same magistrate on the very next day, June 13. A deputy district attorney was present. Mr. Hahesy, Van Brunt's court-appointed counsel, was absent. According to his affidavit, Mr. Hahesy was not informed of the accelerated proceeding against his client and had no knowledge of it. The following colloquy occurred:

'THE COURT: Hugh R. Vizzard and Kenneth Van Brunt. The Court has been informed that you want to waive your preliminary hearing by taking the stand under oath and making a statement which admits the offense. Before you tell me whether or not you want to do this, I must explain your legal rights and I will also explain the same to you, Mr. Van Brunt. You have a right to have a hearing in this court to see whatever evidence the People have against you and to see whether there is sufficient evidence against you to justify this Court in sending the matter to the Superior Court. If you have an attorney and don't want that hearing, you and the attorney can come into court and state you don't want the hearing and the Court will make the order without any defense or any statements at all, but if you have no attorney, the only way you can waive your preliminary hearing is to make--be sworn and make a statement under oath which admits the facts with which you are charged. If you do this, it must be voluntary, the People, the district attorney have a right to cross examine you after you have taken the stand; and if you are going to plead not guilty in the Superior Court, I don't think you will want to do this. If your intention is to plead guilty there, I see no harm in your doing it. If you had an attorney, I think he would so advise you.

'Now, is it your desire, after I have stated your rights, to waive your preliminary hearing by being sworn and making a statement under oath?

'DEFENDANT VIZZARD: Yes.

'THE COURT: And that's true of you, Mr. Van Brunt, also?

'DEFENDANT VAN BRUNT: Yes.

'THE COURT: Very well. Mr. Vizzard--will you both stand and be sworn? I will take your statements one at a time, but you can be sworn together.'

Both the defendants then took the witness stand and made sworn judicial confessions. The deputy district attorney elicited additional statements on cross-examination. Both were bound over to the superior court. The minutes of the municipal court recite that the accused requested permission to waive a preliminary examination; that the deputy district attorney consented; that the court granted the request; that the defendants then testified 'on behalf of the People;' that the court ordered the defendants held to answer. Petitioners appeared in the superior court for arraignment on June 17. Mr. Hahesy was present and was appointed to represent both defendants. They immediately entered pleas of guilty and requested probation. At a subsequent court appearance Mr. Hahesy urged petitioners' youth as a reason for Youth Authority commitment or a county jail term; probation was denied; petitioners were arraigned for judgment in the presence of Mr. Hahesy as their legal counsel and were sentenced to prison.

The writ of habeas corpus is available to set aside a conviction when the procedure leading to conviction violates the defendant's constitutional right to counsel. (In re James, 38 Cal.2d 302, 309--313, 240 P.2d 596.)

California law holds that persons accused of crime in any court of the state have a constitutional right to representation by counsel. (Cal.Const., art. I, § 13; In re Newbern, 53 Cal.2d 786, 790, 3 Cal.Rptr. 364, 350 P.2d 116; People v. Mattson, 51 Cal.2d 777, 788--790, 336 P.2d 937; In re James, supra, 38 Cal.2d at p. 310, 240 P.2d 596.) The right to counsel extends to the preliminary examination before a committing magistrate. (Cal.Const., art. I, § 8; Pen.Code, §§ 858--860; Bogart v. Superior Court, 60 Cal.2d 436, 440, 34 Cal.Rptr. 850, 386 P.2d 474.) The California right includes judicial appointment of counsel when the accused is financially unable to employ an attorney. (Pen.Code, § 859; In re Newbern, supra, 53 Cal.2d at p. 790, 3 Cal.Rptr. 364, 350 P.2d 116.) A committing magistrate must initiate an inquiry into the defendant's desire to be represented by counsel and his ability to procure counsel and, if the defendant is unable to do so, assign competent counsel to conduct the defense. (Bogart v. Superior Court, supra, 60 Cal.2d at p. 439, 34 Cal.Rptr. 850, 386 P.2d 474; People v. Diaz, 206 Cal.App.2d 651, 661, 24 Cal.Rptr. 367.)

The California right to counsel is paralleled by certain protections which the federal Constitution extends to accused persons in state criminal proceedings. The Fourteenth Amendment makes the Sixth Amendment's guarantee of counsel obligatory upon the states, requiring publicly supplied legal representation for indigent felony defendants. (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.) When, under state procedures, the preliminary examination before a committing magistrate represents a critical stage in the prosecution, the federally protected right of counsel extends to the preliminary examination. (White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193; Wells v. State of California, D.C., 234 F.Supp. 467.) 3

Article I, section 8, of the State Constitution and Penal Code section 859a (fn. 1, supra) preclude a guilty plea before a magistrate when the accused does not have the protection of counsel. Similarly, Penal Code section 860 permits a waiver of preliminary examination only when the defendant is represented by counsel. (People v. White, supra, 213 Cal.App.2d 171, 28 Cal.Rptr. 656.) Established law requires rejection of the claim that petitioners' courtroom confessions were equivalent to prohibited pleas of guilt. Penal Code section 866.5 impliedly sanctions an unrepresented defendant's examination under oath at the preliminary hearing, provided he has first been advised of and waived his right to counsel. 4 In re Berry, 43 Cal.2d 838, 843--844, 279 P.2d 18, holds that the accused's voluntary confession before the magistrate After a waiver of counsel relieves the prosecution of the...

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