In Re Koebrich

REGAN, J.

Petitioner, an inmate of Folsom State Prison, seeks by habeas corpus to obtain his release therefrom, contending :

1. Judgment was pronounced and sentence imposed upon him without counsel or a knowing waiver of counsel, and the trial court failed to advise petitioner of his constitutional rights, and

2. His probation was illegally revoked.

On January 13, 1958, petitioner, represented by counsel, was found guilty, after a trial by jury, of violating section 11500 of the Health and Safety Code (possession of narcotics). Imposition of judgment and sentence was suspended and petitioner was placed on five years’ probation as a condition of which he served eight months in the county jail.

On April 22, 1959, petitioner was returned to the superior court for revocation of his probation. Petitioner appeared without counsel, no counsel was provided for him, and after his probation was revoked he was arraigned for judgment and

[679]

sentence, and was sentenced to state prison for the term prescribed by law.

On September 7, 1961, petitioner’s parole was authorized by the Adult Authority. On October 4, 1965, he was convicted for a violation of section 11501 of the Health and Safety Code (sale of heroin). Petitioner was represented by counsel, tried before a jury, was found guilty and sentenced to state prison for the term prescribed by law. Petitioner does not attack the 1965 conviction, which was affirmed on appeal, but does contend that he did not knowingly and intelligently waive counsel when he was arraigned for judgment and pronouncement of sentence for the 1958 conviction at the time of the revocation of his probation.

The Attorney General concedes petitioner’s contention that he did not intelligently waive counsel when he was arraigned for judgment and pronouncement of sentence but urges that petitioner’s ‘1 inexcusable delay” bars him now from attacking the 1959 conviction, citing

In re Swain,

34 Cal.2d 300, where the court states (at p. 304 [209 P.2d 793]) : “We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts. ’ ’