Bogart v. Superior Court

California Supreme Court Nov 14, 1963 No. L. A. 27357Published

Before: Tobriner

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Holding. The court held that the magistrate failed to comply with the statutory requirements of Penal Code section 859 by failing to ascertain the defendant's desire for counsel or his ability to obtain it, thereby invalidating the commitment. Consequently, the court issued a peremptory writ of prohibition to restrain further prosecution under the existing information.

Issues

Did the magistrate fail to comply with the statutory requirements of Penal Code section 859 regarding the right to counsel?
Did the defendant waive his right to counsel?
Does the fact that the defendant is an attorney shift the burden of initiating the request for counsel to the accused?

Disposition. remanded

Quotations verified verbatim against the opinion

“Section 859 imposes upon the court the affirmative duty to ascertain whether defendant desires counsel, and in such instance, to assign counsel if defendant is unable to procure representation.”

“The initiative does not shift because the accused happens to be an attorney.”

“Failure of the committing magistrate properly to inform an accused of his right to counsel furnishes the basis for a ruling that the defendant has not been legally committed.”

TOBRINER, J.

This ease presents the single question whether defendant Peter Bogart, an attorney and a member of the bar of this state, suffered a denial of his statutory right to counsel at the preliminary hearing. For the reasons that follow, we have concluded that the trial court did not comply with the fundamental and recognized statutory requirements in this regard and that prosecution under the existing information should therefore be restrained.

The criminal complaint charges Peter Bogart and his wife June with multiple counts of forgery (Pen. Code, § 470) as well as grand theft (Pen. Code, § 484). Five counts relate to

[438]

the use of fictitious names on credit applications at two Los Angeles department stores and the receipt of merchandise from the stores by use of the false names. The five remaining counts deal with procurement of unemployment benefits by the use of fictitious names. The Municipal Court of Los Angeles held an extended preliminary hearing on the matter; the superior court granted defendant Peter’s motions to dismiss the counts regarding unemployment insurance as to him. (Pen. Code, § 995.) As a result those counts are now directed solely to June.

Since, as we have stated, we believe that Peter suffered an improper deprivation of the right to counsel, and since this error invalidated the commitment, we see no reason to discuss the remaining manifold contentions of his petition. Nor do we find any need at this juncture to consider the contentions raised on behalf of June.

We first show that thé magistrate presiding at the preliminary hearing failed to ascertain Peter’s desire for assistance of counsel or his ability to obtain it. The magistrate, further, failed to assign such desired counsel. We then demonstrate the fallibility of the People’s arguments that Peter failed properly to assert the statutory right to counsel and that he in fact waived counsel.

The right to counsel is, of course, a basic one, expressly proclaimed in article I, section 13, of the California Constitution. To effectuate that right the Legislature has enacted many provisions as to commitment procedure. (Pen. Code, §.§ 858, 859, 860, 866.5.) In particular, section 859 provides: The magistrate shall immediately deliver to him a copy of the complaint,

Bogart v. Superior Court

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TOBRINER, J.

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