FRIEDMAN, J.
Habeas corpus, attacking a 1960 conviction of escape from state prison (in violation of Penal Code section 4530). Petitioner is also held under earlier commitments for offenses such as bad checks, burglary and forgery.
Like the applicants in
In re Van Brunt
(3 Crim. 3996, 4003)
ante,
p. 96 [51 Cal.Rptr. 136], and
In re Grayson
(3 Crim. 4016)
ante,
p. 110 [51 Cal.Rptr. 145], this day filed, petitioner appeared before a magistrate and made a courtroom confession which served as the basis of his commitment to the superior court. He contends that he was inadequately advised of his right to counsel and did not intelligently waive it at the preliminary examination and on the occasion of his arraignment and sentencing; also, that the superior court failed to comply with Penal Code section 1200 by inquiring whether he had any legal cause to show why judgment should not be pronounced.
Petitioner was first brought before the magistrate on the escape charge on February 15, 1960. The magistrate made a formula statement of legal rights, including the standard
phraseology of entitlement to counsel “at all stages of the proceeding. ’ ’ The magistrate failed to comply with Penal Code section 859, which required him to inform petitioner of the availability of court-appointed counsel. (See
Bogart
v.
Superior Court,
60 Cal.2d 435, 439 [34 Cal.Rptr. 850, 386 P.2d 474].) The dialogue between the magistrate and petitioner following a reading of the complaint is set out in the margin.
Following that dialogue, petitioner was sworn and took the witness stand. Before he testified, the court stated: “You understand that under the law you cannot be compelled to testify against yourself or make a statement concerning this matter unless you wish to do so freely and voluntarily?” To this question petitioner responded in the affirmative and also indicated that he would like to make a statement concerning the charge. He then testified to the circumstances of his escape from a state prison. The magistrate then ordered him bound over to the superior court.
In the absence of any showing that petitioner had other knowledge of his right to court-appointed counsel, the court’s failure to inform him of that right makes it impossible to hold that an intelligent waiver of counsel occurred. While petitioner’s expressed wish for a “speedy trial” might possibly be interpreted as an expression of implied waiver, the courts indulge in every reasonable presumption against such a waiver.
(People
v.
Douglas,
61 Cal.2d 430, 434-435 [38 Cal.Rptr. 884, 392 P.2d 964]; see also
In re James,
38 Cal.2d 302 [240 P.2d 596].) Since the record shows no valid waiver of counsel at the preliminary examination, the accused’s self-incriminatory statement supplied no evidentiary
support for a lawful commitment.
(McCarthy
v.
Superior Court,
162 Cal.App.2d 755 [328 P.2d 819];
People
v.
Williams,
124 Cal.App.2d 32 [268 P.2d 156].) His self-incriminatory statement was inadmissible in evidence in any later trial.
(People
v.
Mora,
120 Cal.App.2d 896 [262 P.2d 594], disapproved on another point by
People
v.
Van Eyk,
56 Cal.2d 471, 477 [15 Cal.Rptr. 150, 364 P.2d 36].)
For the reasons set forth in
In re Van Brunt, supra, aaite,
p. 96, petitioner's preliminary examination was not a critical stage in his prosecution; thus inadequate protection of his right to counsel does not evoke the Fourteenth Amendment guarantee of due process. (See also
Wilson
v.
Harris,
351 F.2d 840.)
Objection to an illegal commitment is waived by the accused’s failure to move to set aside the information. (Pen. Code, §§ 995, 99
6; People
v.
Phillips,
229 Cal.App.2d 496, 504 [40 Cal.Rptr. 403].)
In re Tedford,
31 Cal.2d 693 [192 P.2d 3], demonstrates that such a waiver will be imposed even though the accused was not represented by counsel in the superior court, provided he has intelligently waived representation by counsel in the latter court. The question in this case is thus narrowed to petitioner’s claim that he did not competently waive counsel in the superior court.
Petitioner, without counsel, appeared for arraignment in the superior court on February 17, 1960. On that occasion Penal Code sections 987 and 1018 established certain formal requirements as a means of protecting Ms right to counsel.
Constitutional considerations demanded not only that he be formally apprised of his rights, but that he have an intelligent conception of the consequences of his waiver of counsel and plea of guilt.
(In re Johnson,
62 Cal.2d 325, 334 [42 Cal.Rptr. 228, 398 P.2d 420];
People
v.
Douglas, supra,
61 Cal.2d at pp. 434-435.) A court “cannot accept a waiver of counsel
from anyone accused of a serious public offense without first determining that he ‘understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted. ’ ”
(In re James, supra,
38 Cal.2d at p. 313;
People
v.
Chesser,
29 Cal.2d 815, 822 [178 P.2d 761, 170 A.L.R. 246].) The principal portion of the oral proceedings on the occasion of petitioner’s arraignment and sentence is set out below.
The dialogue between petitioner and the court preceding the reading of the information filled the formal demands of Penal Code sections 987 and 1018, although hardly to the overflow stage. Whether the exchange of statements measured up to the constitutional demand for intelligent waiver is another matter. The courts appraise the intelligence of a layman’s waiver of counsel by considering the character of the offense and the capacities of the accused. (See
In re Johnson, supra,
62 Cal.2d at p. 335.) The quantum of information needed to supply the accused an awareness of the consequences of his waiver increases in direct ratio to the complexity of his predicament. In cases such as
James
and
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FRIEDMAN, J.
Habeas corpus, attacking a 1960 conviction of escape from state prison (in violation of Penal Code section 4530). Petitioner is also held under earlier commitments for offenses such as bad checks, burglary and forgery.
Like the applicants in
In re Van Brunt
(3 Crim. 3996, 4003)
ante,
p. 96 [51 Cal.Rptr. 136], and
In re Grayson
(3 Crim. 4016)
ante,
p. 110 [51 Cal.Rptr. 145], this day filed, petitioner appeared before a magistrate and made a courtroom confession which served as the basis of his commitment to the superior court. He contends that he was inadequately advised of his right to counsel and did not intelligently waive it at the preliminary examination and on the occasion of his arraignment and sentencing; also, that the superior court failed to comply with Penal Code section 1200 by inquiring whether he had any legal cause to show why judgment should not be pronounced.
Petitioner was first brought before the magistrate on the escape charge on February 15, 1960. The magistrate made a formula statement of legal rights, including the standard
phraseology of entitlement to counsel “at all stages of the proceeding. ’ ’ The magistrate failed to comply with Penal Code section 859, which required him to inform petitioner of the availability of court-appointed counsel. (See
Bogart
v.
Superior Court,
60 Cal.2d 435, 439 [34 Cal.Rptr. 850, 386 P.2d 474].) The dialogue between the magistrate and petitioner following a reading of the complaint is set out in the margin.
Following that dialogue, petitioner was sworn and took the witness stand. Before he testified, the court stated: “You understand that under the law you cannot be compelled to testify against yourself or make a statement concerning this matter unless you wish to do so freely and voluntarily?” To this question petitioner responded in the affirmative and also indicated that he would like to make a statement concerning the charge. He then testified to the circumstances of his escape from a state prison. The magistrate then ordered him bound over to the superior court.
In the absence of any showing that petitioner had other knowledge of his right to court-appointed counsel, the court’s failure to inform him of that right makes it impossible to hold that an intelligent waiver of counsel occurred. While petitioner’s expressed wish for a “speedy trial” might possibly be interpreted as an expression of implied waiver, the courts indulge in every reasonable presumption against such a waiver.
(People
v.
Douglas,
61 Cal.2d 430, 434-435 [38 Cal.Rptr. 884, 392 P.2d 964]; see also
In re James,
38 Cal.2d 302 [240 P.2d 596].) Since the record shows no valid waiver of counsel at the preliminary examination, the accused’s self-incriminatory statement supplied no evidentiary
support for a lawful commitment.
(McCarthy
v.
Superior Court,
162 Cal.App.2d 755 [328 P.2d 819];
People
v.
Williams,
124 Cal.App.2d 32 [268 P.2d 156].) His self-incriminatory statement was inadmissible in evidence in any later trial.
(People
v.
Mora,
120 Cal.App.2d 896 [262 P.2d 594], disapproved on another point by
People
v.
Van Eyk,
56 Cal.2d 471, 477 [15 Cal.Rptr. 150, 364 P.2d 36].)
For the reasons set forth in
In re Van Brunt, supra, aaite,
p. 96, petitioner's preliminary examination was not a critical stage in his prosecution; thus inadequate protection of his right to counsel does not evoke the Fourteenth Amendment guarantee of due process. (See also
Wilson
v.
Harris,
351 F.2d 840.)
Objection to an illegal commitment is waived by the accused’s failure to move to set aside the information. (Pen. Code, §§ 995, 99
6; People
v.
Phillips,
229 Cal.App.2d 496, 504 [40 Cal.Rptr. 403].)
In re Tedford,
31 Cal.2d 693 [192 P.2d 3], demonstrates that such a waiver will be imposed even though the accused was not represented by counsel in the superior court, provided he has intelligently waived representation by counsel in the latter court. The question in this case is thus narrowed to petitioner’s claim that he did not competently waive counsel in the superior court.
Petitioner, without counsel, appeared for arraignment in the superior court on February 17, 1960. On that occasion Penal Code sections 987 and 1018 established certain formal requirements as a means of protecting Ms right to counsel.
Constitutional considerations demanded not only that he be formally apprised of his rights, but that he have an intelligent conception of the consequences of his waiver of counsel and plea of guilt.
(In re Johnson,
62 Cal.2d 325, 334 [42 Cal.Rptr. 228, 398 P.2d 420];
People
v.
Douglas, supra,
61 Cal.2d at pp. 434-435.) A court “cannot accept a waiver of counsel
from anyone accused of a serious public offense without first determining that he ‘understands the nature of the charge, the elements of the offense, the pleas and defenses which may be available, or the punishments which may be exacted. ’ ”
(In re James, supra,
38 Cal.2d at p. 313;
People
v.
Chesser,
29 Cal.2d 815, 822 [178 P.2d 761, 170 A.L.R. 246].) The principal portion of the oral proceedings on the occasion of petitioner’s arraignment and sentence is set out below.
The dialogue between petitioner and the court preceding the reading of the information filled the formal demands of Penal Code sections 987 and 1018, although hardly to the overflow stage. Whether the exchange of statements measured up to the constitutional demand for intelligent waiver is another matter. The courts appraise the intelligence of a layman’s waiver of counsel by considering the character of the offense and the capacities of the accused. (See
In re Johnson, supra,
62 Cal.2d at p. 335.) The quantum of information needed to supply the accused an awareness of the consequences of his waiver increases in direct ratio to the complexity of his predicament. In cases such as
James
and
Chesser,
the accused were charged with murder, a serious crime, divided into degrees, characterized by legal complexities and vulnerable to a variety of defenses quite beyond the ken of most laymen.
Here, the charge was serious but simple. At the time of petitioner’s escape and sentence, Penal Code section 4530 called for a one-year minimum term, to commence upon completion of any uncompleted terms.
Actually he was ineligible for parole for two years after return to prison. (Pen. Code, § 3044, prior to amendment in 1963.) Since section 4530 specified no maximum, his maximum possible term was life imprisonment. (Pen. Code, § 671.) Thus petitioner faced an extremely serious charge. The facts, however, were obvious and uncomplicated. Petitioner, a prisoner at the Tehachapi Institution for Men, had climbed over the fence, entered an
automobile where his wife awaited him, was arrested in Arkansas a few weeks later on a forgery charge, served several years in an Arkansas prison and had been released to the California authorities, who returned him to Kern County to face the escape charge. Of all offenses in the lexicography of crime, petitioner’s was as simple as any. Theoretically he had available to him conceivable defenses going to the question of criminal intent and responsibility. (See Pen. Code, § 26.) There is not the slightest hint in the record that any such defenses existed. Petitioner was 27 years old at the time, rational, endowed with a grammar school education amplified by extensive experience with crime, criminal proceedings and penal institutions. His responses to the court were lucid and well conceived. Except in one respect, the record displays an accused person who was conscious of his predicament, whose waiver of counsel and plea of guilt were motivated by an intelligent recognition that contest was utterly futile.
Petitioner’s understanding was incomplete in one respect. We cannot draw from the oral proceedings any inference that he knew of the possibility of life imprisonment. The court did not discuss the possible penalty before his plea of guilty. When, after imposition of sentence, petitioner inquired as to the possible term, he was given erroneous information, following which the statute was read to him. Even a reading of the statute would not convey to a layman recognition of the maximum life term. The record justifies the belief that when petitioner left the courtroom he was still unaware that his waiver and plea had subjected him to possible confinement or conditional parole for the rest of his life.
Though judges should not undervalue other men’s lives, this court has concluded that petitioner’s ignorance of the maximum life sentence does not nullify his waiver. His was not a case in which representation by counsel might open an array of defenses. (Contrast
In re James, supra,
38 Cal.2d 302.) A successful motion to set aside the information would have resulted in a second and adequately conducted preliminary examination.
(In re Van Brunt,
supra;
People
v.
White,
213 Cal.App.2d 171, 176 [28 Cal.Rptr. 656].) An appeal to clemency would have been fruitless, for petitioner was ineligible for probation and there was no alternative to a prison sentence. (Pen. Code, § 1203.) On the facts available here, a lawyer would have been thoroughly justified in advising him to plead guilty, to return to prison, behave well and hope for
an early parole.
A closely related area of constitutional inquiry is that which appraises the adequacy of legal representation supplied the accused. In that area the courts adhere to the rule that a defense attorney’s actions are vulnerable to a charge of inadequacy only if they cost the accused a crucial defense.
(People
v.
Nicolaus,
(Cal.) 48 Cal.Rptr. 353, 409 P.2d 193;
People
v.
Ibarra,
60 Cal.2d 460, 464 [34 Cal.Rptr. 863, 386 P.2d 487].) If an unrepresented defendant’s waiver of counsel costs him no potential defense or amelioration, his constitutional claims mount no higher than those of one represented by counsel. For all that the record shows here, there was nothing a lawyer, however talented, could have done for petitioner, Lack of legal advice and courtroom representation cost him nothing. Thus, despite his ignorance of the maximum possible sentence, his waiver of counsel was supported by enough awareness and understanding to sustain it against constitutional attack.
As in
In re Grayson, supra,
3 Crim. 4016,
ante,
p. 110, this day filed, the trial court failed to inquire whether the accused had “legal cause” why judgment should not be pronounced, although required to do so by Penal Code section 1200. Possibly, in view of the plea of guilt, the court’s remark that there was “nothing else open to the court” except imposition of a prison sentence and petitioner’s express agreement with that remark amounted to substantial compliance. In any event, since there had been an adequate waiver of counsel, omission of the statutory inquiry supplies no ground for collateral attack on the judgment.
(In re Turrieta,
54 Cal.2d 816, 820-821 [8 Cal.Rptr. 737, 356 P.2d 681];
In re Grayson, supra.)
The order to show cause is discharged and the writ denied.
Pierce, P. J., and Bray, J.,
concurred.