In Re Grayson
This text of 242 Cal. App. 2d 110 (In Re Grayson) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Habeas corpus, attacking a 1956 conviction of second degree robbery. Like the petitioners in In re Van Brunt (3 Crim. 3996, 4003) ante, p. 96 [51 Cal.Rptr. 136], this day filed, the petitioner appeared without counsel at his preliminary examination and made a courtroom confession. In this case, however, before permitting the accused to take the stand, the magistrate fully and fairly informed him of his right to legal representation, including court-appointed counsel, warned him that any statement could be used against him and ascertained that he did not want an attorney. 1 Petitioner then took the witness stand, confessed the robbery but claimed he had only simulated possession of a gun. A prosecution motion to strike the weapon allegation was granted. The magistrate ordered petitioner held to answer.
Continuing to act without counsel, petitioner appeared in *112 superior court, entered a plea of guilty and sought probation. At the time fixed petitioner appeared without counsel, the court denied probation and imposed sentence of imprisonment. A transcript of the sentencing demonstrates that the court failed to comply with Penal Code section 1200, which requires that at the time of sentencing the court inquire of the defendant whether he has “any legal cause to show” why judgment *113 should not be pronounced. 2
Petitioner did not appeal from the judgment. He now attacks the preliminary examination, claiming bewilderment and confusion and asserting that the magistrate accepted a waiver of counsel without first ascertaining that he understood the nature and consequences of his waiver. He attacks the conviction on the theory that a criminal judgment pronounced without the statutory allocution should be set aside on habeas corpus when the defendant is not represented by counsel.
There are two reasons why petitioner’s attack on the preliminary examination must fail. In the absence of a motion to set aside the information, any invalidity in the proceedings before commitment was waived. (Pen. Code, §§ 995, 996; People v. Elliot, 54 Cal.2d 498, 503-505 [6 Cal.Rptr. 753, 354 P.2d 225]; In re Tedford, 31 Cal.2d 693, 694 [192 P.2d 3].) Second, petitioner’s claim of absence of intelligent waiver of counsel is contradicted by the record. The transcript shows that petitioner clearly and unhesitatingly responded in the negative when the magistrate asked whether he wanted an attorney; that he was alert to deny possession of a gun and to achieve reduction of the charge from first to second degree robbery; that his statements to the court were lucid, logical and responsive. Petitioner’s prior criminal record exhibits a person with some familiarity with court appearances and criminal procedure. The magistrate had fully and understandably advised him of the choices available to him. His subse *114 quent plea of guilty in the superior court is entirely consistent with a rational and conscious choice to waive counsel at the preliminary examination. The record supplies a substantial basis for the conclusion that the waiver of counsel was made by one who had an intelligent conception of the consequences of his act. (In re Tedford, supra.)
Since petitioner intelligently waived counsel, the procedure by which he took the stand and admitted his crime provided the evidentiary basis for a lawful commitment. (Pen. Code, § 866.5; In re Berry, 43 Cal.2d 838, 843-844 [279 P.2d 18]; In re Van Brunt, supra.)
Efforts of the Attorney General to secure a transcript of the superior court arraignment have proved unavailing. Petitioner does not attack the arraignment procedure. On that occasion the court was required to advise him of his right to counsel and to permit a plea of guilty only if satisfied of an intelligent waiver. (Pen. Code, §§ 987, 1018; In re James, 38 Cal.2d 302, 313 [240 P.2d 596].) We presume that the court properly performed its duty and received an effective waiver of counsel before accepting petitioner’s plea of guilt. (In re Johnson, 62 Cal.2d 325, 330 [42 Cal.Rptr. 228, 398 P.2d 420].)
Omission of the inquiry as to legal cause required by Penal Code section 1200 is fatal to the judgment if the defendant has been deprived of counsel on the occasion of sentencing. (In re Levi, 39 Cal.2d 41, 45 [244 P.2d 403]; People v. De Waele, 224 Cal.App.2d 512, 515 [36 Cal.Rptr. 825].) If the defendant is represented by counsel or has made an effective waiver, omission of the inquiry is only an error of law, not necessarily prejudicial. (People v. Thomas, 45 Cal.2d 433, 438 [290 P.2d 491]; People v. Straw, 209 Cal.App.2d 565, 567 [26 Cal.Rptr. 461].) As pointed out in In re Turrieta, 54 Cal.2d 816, 820 [8 Cal.Rptr. 737, 356 P.2d 681], no infringement of the defendant’s right to be represented at sentencing occurs when a valid waiver of counsel has taken place at an earlier stage of the proceedings. The statement of an unrepresented defendant’s right to counsel need not be repeated every time he comes to court; generally, where a defendant has intelligently waived counsel he must take some affirmative steps to reinstate his right. (In re Turrieta, supra, 54 Cal.2d at p. 821.) Petitioner makes no claim that he did not effectively waive counsel at the time of his arraignment and plea of guilty. When he appeared later for sentence, the court was not required to ask him whether his waiver still held good. Having *115 elected to represent himself, petitioner was not entitled to privileges and indulgences greater than those provided to defendants represented by counsel. (People v. Mattson, 51 Cal.2d 777, 794 [336 P.2d 937].) His failure to object to the court’s omission of the allocution was the product of his own choice, not the product of a denial of representation. Even were the question of prejudice available on habeas corpus, omission of the allocution where the defendant had entered an informed plea of guilt and probation had been neither granted nor revoked, was only an error of form and not prejudicial.
The order to show cause is discharged and the writ denied.
Pierce, P. J., and Bray, J., * concurred.
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242 Cal. App. 2d 110, 51 Cal. Rptr. 145, 1966 Cal. App. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-grayson-calctapp-1966.