In re Sgro

Petitioner is held under a judgment of conviction entered on his plea of guilty of burglary (Pen. Code, § 459), which the court found to be in the second degree. In his petition in propria persona for a writ of habeas corpus petitioner charges that his conviction was obtained in violation of his constitutional right to counsel.

Petitioner asserts that he was 19 years of age at the time he was charged with the commission of the burglary for which he is now imprisoned; that he appeared in court without counsel and entered a plea of guilty; that he was not asked by the court if he had counsel, or if he wished to be represented by counsel at this proceeding or at any other time; and that he did not understand or freely waive his constitutional right to counsel. We issued an order to show cause why the writ should not be granted and appointed a referee to take evidence and make findings. The referee found that petitioner “did understand his right to counsel and freely waived it when he pleaded guilty on July 3, 1958.” Petitioner has filed objections to these findings.

After a review of the proceedings below, we have concluded that the findings of the referee are correct and that…

I dissent. This case is not, fundamentally, different from In re Martinez, ante, p. 808 [ 345 P.2d 449 ], this day decided. I dissent on the same grounds set forth in my dissent to that opinion.

In this ease, upon proper request, the municipal court appointed an attorney for the accused. Later, at the preliminary hearing, the accused appeared without his attorney who had not been notified of his appointment. The court and prosecutor knew that an attorney had been requested and *822 appointed. The accused requested that the appointment be vacated. The court vacated the appointment.

Once an attorney has been properly appointed he cannot be removed from the case except as provided in sections 284 and 285 of the Code of Civil Procedure. The court obviously knew that some action had to be taken because it entered a vacating order. If the attorney had been removed as provided in those sections, then, before a plea of guilty could be accepted, the provisions of section 1018 of the Penal Code had to be complied with. They were not.

As pointed out in my dissent in the Martinez case, the three code sections constitute a proper implementation by the Legislature of the constitutional right…