In Re Peterson

[981]

Opinion

ALARCON, J. pro tem.

*

The petitioner, Palmer Odean Peterson, has filed a petition for a writ of habeas corpus in which he seeks to be released from the custody of the Sheriff of Los Angeles County resulting from his imprisonment following his conviction in the Municipal Court of the South Bay Judicial District for driving under the influence of intoxicating liquor and driving at a time when his license was revoked or suspended.

The petitioner sets forth several grounds in his petition which he contends compel his release from further incarceration.

We have concluded that the petitioner was denied the right to counsel as to the charge set forth in count III of the complaint. Accordingly, we will restrict our discussion to that single issue.

A defendant charged with a misdemeanor is entitled to the assistance of counsel at all stages of the proceedings.

(In re Johnson,

62 Cal.2d 325, 329 [42 Cal.Rptr. 228, 398 P.2d 420];

In re Smiley,

66 Cal.2d 606, 614-615 [58 Cal.Rptr. 579, 427 P.2d 179]; see also Pen. Code, §§ 859 and 987a; Gov. Code, § 27706.) To make the right to counsel meaningful the defendant must be made aware that he has a right to counsel and that the court will appoint counsel if he is unable to afford one.

(In re Smiley, supra,

66 Cal.2d 606, 614-615.) Waiver of the right to counsel will not be presumed from a silent record.

(Carnley

v.

Cochran,

369 U.S. 506, 515-516 [8 L.Ed.2d 70, 76-77, 82 S.Ct. 884].) In those cases where defendant claims a denial of counsel, the record must affirmatively show that he was advised of his right to counsel and that he made an intelligent and understanding waiver of his constitutional right.

(Carnley