People v. Torres

96 Cal. App. 3d 14, 157 Cal. Rptr. 560, 1979 Cal. App. LEXIS 2035

• Court: California Court of Appeal
• Decided: August 13, 1979
• Docket: Crim. 34504
• Status: Published

Opinions

Opinion

THOMPSON, J.

This is an appeal from a municipal court conviction based upon a plea of guilty entered by Ruben G. Torres to a charge of indecent exposure (Pen. Code, § 314, subd. 1). Having granted certification from a decision of the appellate department of the superior court which reverses the judgment, we consider one narrow issue: the extent to which the docket entries of the municipal court accepting a plea to a misdemeanor in the absence of counsel must, in addition to recording advice of right to counsel and intelligent waiver of the right, also affirmatively state that the defendant was advised of the dangers and disadvantages of self-representation.

We conclude that while in some but not all misdemeanor charges an intelligent waiver of counsel requires advice from the court on the record of the danger of self-representation, the advice need not be memorialized in docket entries; a docket entry recording advice of right to counsel, the availability of publicly financed counsel to a defendant who is indigent, and intelligent waiver of the right is not fatally deficient. Accordingly, and because the procedural posture of the appeal at bar precludes examination of the record underlying the docket entry, we affirm the judgment, leaving Torres his right to pursue the matter if he wishes by way of proceedings in habeas corpus where an adequate record for review may be developed.

Torres was charged with lewd conduct in violation of subdivision 1 of Penal Code section 314. At arraignment, he waived his right to counsel and entered a plea of guilty. The municipal court sentenced him to six months in the county jail. Docket entries of the municipal court state that Torres was advised of his right to counsel at public expense and his other constitutional rights, and that he waived them. The docket also recites a trial court finding that the waiver was knowing and intelligent.

Torres filed a notice of appeal and proceeded by way of settled statement. The engrossed statement on appeal to which Torres interposed no objection denominates the issues on appeal as: (1) Torres’ lack of fluency in the English language precluded his intelligent understanding of the nature of the proceedings and the consequences of his plea; (2) the trial court failed to advise Torres that his plea might result in deportation proceedings and interfere with an effort to convert his alienage to citizenship; (3) Torres was not advised that the conviction resulting from his plea would require that he register as a sex offender; and (4) the trial court abused its discretion in imposing the maximum sentence. The factual portion of the engrossed statement refutes Torres’ claims of lack of advice concerning the consequences of his plea to his alienage or liability to deportation. It does not support his contention of lack of fluency.

In his brief to the appellate department of the superior court, Torres preserved the issues recited in the engrossed statement and added another to the effect that his waiver of counsel was not a knowing and intelligent one. His contention as to the added issue is based upon a lack of advice of the collateral consequences of the plea. Torres’ contention that the sentence is excessive is not supported by any argument at all.

The appellate department accepted Torres’ contention contained in his added claim that his waiver of counsel was not an intelligent one. That court concluded that the docket entries in the case at bar are fatally defective for failure to include the statement that the defendant “was advised of the dangers and disadvantages of self-representation.” Pursuant to rule 62(a), California Rules of Court, we granted certification, thus transferring the case to this court.

A person accused of a misdemeanor where imprisonment is the punishment is entitled to counsel as a constitutional right. (Argersinger v. Hamlin (1972) 407 U.S. 25 [32 L.Ed.2d 530, 92 S.Ct. 1178].) The right attaches at the phase of the proceedings where a plea of guilty is entered. (Williams v. Kaiser (1945) 323 U.S. 471, 474-476 [89 L.Ed. 398, 401-403, 65 S.Ct. 363]; In re Johnson (1965) 62 Cal.2d 325, 329 [42 Cal.Rptr. 228, 398 P.2d 420]; Blake v. Municipal Court (1966) 242 Cal.App.2d 731, 733-735 [51 Cal.Rptr. 771] [one-day county jail sentence on plea of guilty to a traffic offense].) A defendant may waive his right to counsel if the waiver is a knowing and intelligent one. (People v. Floyd (1970) 1 Cal.3d 694, 703 [83 Cal.Rptr. 608, 464 P.2d 64], cert. den. 406 U.S. 972 [32 L.Ed.2d 672, 92 S.Ct. 2418].) A waiver of.counsel where the charge is a serious one is knowing and intelligent only if preceded by an admonition that self-representation is perilous. (People v. Fabricant (1979) 91 Cal.App.3d 706, 712 [154 Cal.Rptr. 340].)

In re Johnson, supra, 62 Cal.2d 325, 336, delineates the procedure to be followed by an arraigning municipal court in accepting a waiver of counsel by a defendant charged with a misdemeanor. There our Supreme Court states: “We must recognize that the typically crowded arraignment calendars of our courts pose urgent problems in the administration of justice in California. This is particularly true of those courts in large municipalities which are called upon to deal with an unending stream of traffic violations, drunk cases, vagrancies, and similar petty offenses. While there can be no impairment of the fundamental constitutional rights of any defendant, however minor his crime, in certain situations there may be a choice of valid ways to implement these rights. Where such is the case—and constitutional rights are respected—the convenience of the parties and the court should be given considerable weight. For example, probably the vast majority of citizens haled into court on traffic violations share the judge’s interest in prompt disposition of their cases, feeling themselves sufficiently inconvenienced by having to make personal appearances in the first place. To require the judge to orally examine each such defendant at length for the purpose of determining his capability of defending himself would seem to be an idle and time-wasting ritual. Compliance with the spirit of the constitutional mandate that an intelligent waiver of counsel must affirmatively appear in the record may be efficiently achieved in such cases in a variety of acceptable ways.” (Fn. omitted.) Johnson continues, however, that where there is a potential seriousness of the charge then “the court should [make] a reasonable effort, before accepting [the accused’s] plea[] of guilty, to determine whether he [understands] his predicament and [has intelligently waived his right to counsel].” (62 Cal.2d at p. 337.)

We construe Johnson as stating the controlling California law. Where the misdemeanor charged is simple and the exposure to punishment is slight then the arraigning judge may accept a waiver of counsel without first advising that self-representation is unwise. There are, after all, some offenses classified as misdemeanors that are so petty and simple in character that representation by counsel is not the wisest choice although it may be constitutionally permitted if the accused elects to act unwisely. As to those offenses, a warning of the right to counsel given to arraigned defendants en masse suffices. (See also Blake v. Municipal Court, supra, 242 Cal.App. 731, 733-734.) In the situation of serious or complex offenses, the admonition of the perils of self-representation must be given.

The charge in the case at bench qualifies as both serious and complex. Torres’ plea of guilty to it resulted in his being sentenced to six months in jail and his being exposed to the requirement that he register as a sex offender. The legal interpretation of subdivision 1 of Penal Code section 314 is very much narrower than what the layman would read the statute to proscribe. (In re Smith (1972) 7 Cal.3d 362 [102 Cal.Rptr. 335, 497 P.2d 807].)¹

If, therefore, the record on appeal of the case at bar compelled the conclusion that Torres was not advised of the dangers of self-representation, reversal of the judgment would be required. The record, however, does not compel that conclusion. The case reached the reviewing courts upon an engrossed statement. Rule 184(a), California Rules of Court, which governs appeals to the appellate department, provides that if the condensed statement submitted by the appellant as the first step in the preparation of an engrossed statement purports to cover only a portion of the oral proceedings, the appellant shall state the points to be raised on appeal and shall be precluded from presenting any grounds for reversal not embraced within the points stated by him. Here the engrossed statement is sketchy. While covering the factual material involved in the “points on appeal” enunciated within it, it makes no reference to trial court proceedings related to waiver of counsel. While the record does not include Torres’ condensed statement, we must assume, in light of his failure to object to the engrossed statement, that the latter’s recitation of “points on appeal” is correct.

Hence, unless the failure of the docket entries of the arraigning municipal court to recite that Torres was advised of the perils of self-representation is fatal to the judgment of conviction based upon his plea of guilty, the judgment must be affirmed. Our analysis of controlling case law leads us to the conclusion that the absence of the docket entry is not fatal.

Counsel for the prosecution and for Torres both refer to a trial court admonition of the dangers and disadvantages of self-representation as a “Faretta” warning. In their assumption that the admonition is the creation of the Faretta court, they follow the lead of at least one California decision. (People v. Lopez (1977) 71 Cal.App.3d 568, 572 [138 Cal.Rptr. 36].) As we read the cases, the assumption is inaccurate. Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] declared only one new principle—that a defendant in a criminal case is guaranteed the right of self-representation by the United States Constitution so that a lawyer cannot be forced upon him. In explaining the quantum of that right and its relation to the subject of intelligent waiver of the obverse right to counsel, the Faretta court did say: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” (422 U.S. at p. 835 [45 L.Ed.2d at pp. 581-582].) The Faretta court’s acknowledgement of the requirement that a defendant must be possessed of sufficient information concerning the perils of self-representation when he elects that course was not new to Faretta, however. It dates at least from Adams v. U.S. ex rel. McCann (1942) 317 U.S. 269, 279 [87 L.Ed. 268, 274-275, 63 S.Ct. 236, 143 A.L.R. 435], We thus view the controlling law concerning the nature of the record to support the validity of a defendant’s waiver of counsel as that which has developed in the 27 years since Adams. Faretta’s revival of the Adams standard for intelligent waiver of counsel has emphasized the inappropriateness of a mini-bar examination as the test of capacity to waive counsel (see People v. Shields (1965) 232 Cal.App.2d 716, 722 [43 Cal.Rptr. 188]), but it has not changed the law governing the manner in which the process of intelligent waiver must appear in the record.

That law does not require that the Adams admonition appear in the docket. It may be memorialized at any place in the record of the proceedings. (In re Johnson, supra, 62 Cal.2d 325, 331.) In an appropriate procedural posture, as in habeas corpus, the record may be amplified by extraneous evidence of what occurred. (In re Johnson, supra, 62 Cal.2d 325, 331; see also In re Smiley (1967) 66 Cal.2d 606, 617 [58 Cal.Rptr. 579, 427 P.2d 179]; but cf. In re Hochberg (1970) 2 Cal.3d 870, 876-879 [87 Cal.Rptr. 681, 471 P.2d 1].)

Here, because the appeal has proceeded on an engrossed statement in which the issue of intelligent waiver of counsel is not one of those preserved for appeal, we are unaware of the nature of proceedings in the trial court supporting the facially sufficient docket entry that Torres was advised of his right to counsel, at public expense if needed, that he waived that right, and that the waiver was knowing and intelligent. Torres, as the appellant, is obligated to supply us with a record adequate to decide the issues raised by him or to explain why such a record cannot be supplied. He has done neither. Efforts of both Torres and the prosecution to fill the gap in the record by declarations are unavailing. That documentation is beyond the record and, while it may be cognizable in a subsequent proceeding in habeas corpus, it is not part of the record on appeal.

Torres’ other contentions being refuted or unsupported, we hence conclude that because of the nature of the record the judgment must be affirmed. Lest we establish a long standing principle which gives carte blanche to deviations from the procedural rules governing appeals, Torres must be left with his remedy by extraordinary writ, a procedure which is not now before us.

The judgment is affirmed.

Lillie, Acting P. J., concurred.

1 The prosecution and amici curiae on its behalf paint a picture of fiscal disaster and administrative chaos unless this court adopts an all-encompassing principle to the effect that a trial court is never obligated at arraignment to advise a person accused on any misdemeanor of the hazards of self-representation. They would permit such advice if the arraigning judge thought it wise, but never require it.

Leaving aside the proposition that controlling case law emanating from the United States and California Supreme Courts mandates rejection of that position, it is in effect an insult to municipal court judges.

The misdemeanor arraignment process is not a job for an automaperson or for the unskillful judge; it calls upon the best of judicial performance. Judges arraigning persons charged with misdemeanors do not simply recite incantations of constitutional rights from a script as would a recording. They do not assess punishment upon a stream of people pleading guilty as would a checker total the tab at a supermarket. Arraigning judges of the municipal court represent a primary contact of the judicial system with the public and as such the exemplars of the California judiciary. They must work rapidly to apply individual treatment to individual accuseds by separating the individual’s case from a vast mass of others, treating it for the moment as the most important one. Working in a volume-generated charged atmosphere, the arraignment judge must both do justice and insure the appearance that it is being done. The job requires a great deal of talent and application to do it right; as much talent and application as does the job of appellate judge in the opinion of we who have done both.

With exceptions far fewer than in most other walks of life, California municipal court judges conducting arraignments have exhibited the necessary high degree of talent and application. They have complied with Johnson’s mandate of individualized treatment with respect to waivers of counsel in cases appropriate for it. We see not the slightest reason to suspect that their administration of misdemeanor arraignment courts will dissolve into chaos because those judges continue to apply constitutionally mandated principles.

The fiscal argument is similarly misplaced. Setting aside its gloss, the argument is, in effect, that if persons charged with a serious or complex misdemeanor are advised of the perils of self-representation, they will not waive counsel. The contention thus asks us to countenance, in the name of fiscal responsibility, a process which insures that some waivers of counsel will not be intelligently and knowingly made. It would substitute an incomplete ritualistic incantation for preservation of constitutional rights. If in fact there is an increased call upon the public fisc from following the law, it is unavoidable. It also seems recoupable, all or in substantial part, by the adoption in California of a management technique directly applicable to the arraignment process which has proved successful in Arizona. (See Eliot, The Video Telephone in Criminal Justice: The Phoenix Project (1978) 55 U.Det.J.Urb.L. 721.)