# Petition — California v. Austin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1497%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 956 ## Text Gupreme Court, U. & FILED JAN 2% 1980 IN THE SUPREME COURT OF THE UNITED STATES , 1979 0. 2971041 | MICHAEL RODAK, JR., CLERNE. State of California, Pettittoner VS. 4 Robert Stanley Austin, Respondent Petition For Writ of Certiorari To The Appellate Department Of The Superior Court For the County of Los Angeles, California John A. Vander Lans City Prosecutor Robert. R. Recknagel Assistant City Prosecutor Gerry L. Ensley Deputy City Prosecutor By Gerry L. Ensley Attorneys for Petitioner. People of the State of California 400 W. Broadway Long Beach, California 90802 Telephone: (213) 437-0711 ae a cor ae : i i es 2% + a eee AR $ et a & . 3 : pt Rae vs & > aes F i eet Be IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. eeesenpezeeeeaeeeaese State of California, Lad . Petitioner — vs. Robert Stanley Austin, Respondent Petition For Writ of Certiorari To The Appellate Department Of The Superior Court- For the County of Los Angeles, California John A. Vander Lans City Prosecutor Robert. R. Recknagel Assistant City Prosecutor Gerry L. Ensley : Deputy City Prosecutor. By Gerry L. Ensley Attorneys for Petitioner. People of the State of California 400 W. Broadway 90802 Mi Long Beach, California - Telephone: (213) 437-0711 SUBJECT INDEX Opinions Below Jurisdiction Questions Presented Constitutional Provisions Involved Statement Reasons For Granting The Writ Conclusion Appendix CITATIONS Cases: Boykin v. 08.206 Alabama, 395 ¢ Faretta v. California, 422 U.S. 806, 835 Gideon v. Wainwright, 372: U.Sc2398 Gunn v. University Committee 399:..U.S...383, 390 -n..6 In re Birch, (1973) 10 Cal.3d 314,319, 321 [110 Cal.Rptr. 212,515 P 2d 12] Cases: In re Johnson, (1965) 62 Cal.2d 325, 331-333 [42 Cal.Rptr. 228, 398 P.2d 420] In re Tah], (1969) 1 Cal.3d iat Cal.Rptr. 572%, 460 P.2d Johnson v. Zerbst, 304 U.S. 276, 298 People v. Black (1978) 68 I11. App.3d [385 N.E.2d 899, 903]. People v. Enciso (1972) 25 Cal. App.3d 49, 57 [101 Cal.Rptr. 590, 594]. People v. Fabricant (1979) 91 Cal.App.3d 706, 712 [154 Cal. Rptr. 340, 343]. People v. Salazar (1977) 74 Cal. App.3d 875, 889 (141 say tad olal 493,, 761}. ; People v. Torres (1979) 96 Cal. App.3d 14 [157 Cal.Rptr. 560]. Perez v. Ledesma, 401 U.S. 82, 87 n.3 Public Service Commission v. ad Lines, 306 U.S. 204, Cases: : Page Russell v. State (1978) Ind.App. 23,25 378 N.E.2d 872, 881-882, Garrard, P.J. Stanley v. State (1977) 240 Ga. 18 341 [241 S.E.2d 173,177]. CONSTITUTIONAL, STATUTORY 28 U.S.C. 1257(3) 3 Vehicle Code § 23102(d) ul MISCELLANEOUS American Bar Association Project 17 on Criminal Justice, Standards Relating to the Defense PUREED 5 § 5.2. Miller, “Faretta v. California: 22 . The Law Helps Those Who Help Themselves,” 28 Hast L.J. 283, 297-299 (1976) Sue LAS Se OSB ee PCA a, 4° eee IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1979 No. eesetcesespeeeeese State of California, Petitioner vs. Robert Stanley Austin, Respondent Petition For Writ of Certiorari To The Appellate Department : Of The Superior Court For The County of Los Angeles, California The Long Beach Prosecutor, on behalf of the State of California, prays that a writ of certiorari issue to review the judgment of the Appellate Department of the Superior Court, Los Angeles County, California, entered October 22, 1979. 2 OPINIONS BELOW The opinion of the Appellate Department of the Superior Court, Los Angeles County, California, is unreported. We append it herewith as Appendix A. The federal constitutional issue to be reviewed was initiated by People v. Torres (1979) -96 Cal.App.3d 14 [157 Cal.Rptr. 560] in which we were also counsel of record. Our petitions for rehearing and hearing in the Supreme Court of California were therein denied. We chose not to petition for certiorari in Torres because of the technical deficiency in the appel- late record wherein the criminal defendant was’ denied the relief which the instant defendant has gained. Our inadvertent "success" in Torres prevented us from seeking further review therein. Public Service Commission v. Brashear Lines, 306 U.S. 204, 206; Gunn v. University Committee, 399 U.S. 383, 390 n. 53 Perez v. Ledesma, 401 U.S. 82, 87 n. 3. 3 Our instant case has reversed the con- viction for failure to give the Faretta “dangers and disadvantages" advisement at a pretrial plea of guilty; Torres had affirmed its conviction. JURISDICTION The judgment of the Appellate Depart- ment of the Superior Court, Los Angeles County, California was made and entered October 22, 1979, and a correct copy thereof is appended herein at Appendix A. Our request for certification of the in- stant decision to the California Court of Appeal was made and denied on November 8, 1979. A correct copy thereof is appended herewith as Appendix B. The jurisdiction of this Court is invoked under 28 U.S.C. 1257(3). 4 QUESTIONS PRESENTED It has never been the practice of any California court (nor any other state or federal court that we are aware of) to require the giving of the Faretta “dangers and disadvantages" advisement to criminal defendants outside of the adver- sary trial context. In the. pretrial, plea of guilty context California requires mandatory advisement of (1) the right to the presence of counsel and/or appointed counsel (hereinafter the "Gideon advise- 5 The instant decision has reversed the conviction of a defendant who while unrepresented pleaded guilty at arraign- ment to a misdemeanor charge, admitting the allegation of a prior conviction (maximum $1000 fine. and/or 1 year in ‘jail, minimum 48 hours in jail and $250 fine) of driving a vehicle under the influence of alcohol. [California Vehicle Code §23102(d)]. This reversal was required because of the recent decision of People v. Torres, supra, construing the federal Faretta Sixth Amendment right to appear pro se to extend to the arraignment/plea of . ment"), (2) jury trial, (3) confrontation of witnesses, and (4) against self-incri- mination. These four advisements collecti- vely are called hereinafter the Boykin- Tahl advisements, after California's application of Boykin v. Alabama, 395 U.S. 238; in In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 499]; In re Birch (1973) 10 Cal.3d 314, 319, 321 [110 Cal.Rptr. 212, 515 P.2d 12]. Other advisements are also given, e.g., com- pulsory process, speedy trial, etc., but failure to give them is not deemed re- versible constitutional error. guilty as well as the adversary trial context. Therefore, in California all pro se pleas of guilty must include in addition to Boykin-Tahi the Faretta "dangers and disadvantages" advisement, indeed, must require that to be the initial waiver so that defendant's pro se status is thereafter constitutionally "valid" during the defendant's subse- quent receipt and waiver of the Boykin- Tahl advisements. The questions pre- sented are: 6 1. Whether the Sixth Amendment's right to proceed pro se in the adversary trial context ‘also extends to the pre- trial plea of guilty context. 2. Whether the “dangers and disadvan- tages” advisement requisite for knowing assertion of pro se representation at trial (Faretta v. California, 422 .S. 806, 835) is also required at arraignment in the plea of guilty context. (Johnson v. Zerbst, 304 U.S. 276, 298; Boykin v. _ Alabama, supra). 3. Whether federalism is violated by requiring states to adopt specific feder- ally defined’ procedures and advisements - for Sixth Amendment approval of a plea of guilty. 4. Whether Faretta's "dangers and disadvantages" advisement can be severed from the adversary trial context to do service pretrial as a Sixth Amendment augmentation to Boykin-Tahl. 5. Whether some combination of advise- ments other than the joinder of Faretta with Boykin-fahl is constitutionally adequate for a plea of guilty in state 7 court, e.g., deletion of both the Gideon and Faretta advisements. Faretta v. California, 422 U.S. 806, 835: "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associ- ated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. [citations]. 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 mage aware of the dangers and disadvagttages of self-represen- tation so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.'" (Emphasis added). “Although not stated in the [Sixth] Amendment in so many words, the right to self-representation -- to make one's own defense person- ally -- is thus necessarily implied by the structure of the Amendment.” Id. 422 U.S. at 819. 8 “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. . . «. Leaving aside the proposi- tion that controlling case law emanating from the United States and California Supreme Courts mandates rejection of that position. . People v. Torres (1979) 96 Cal.App. 3d 14 n.1 [157 Cal. Rptr. 560, 562 n.1], emphasis added. "A waiver of counsel where the charge is a serious one is knowing and intelligent only if preceded by an admonition that self-repre- sentation is perilous. (People v. Fabricant (1979) 91 Cal.App.3d 706, 712, 154 Cal.Rptr. 340.)" Id. 157 Cal.Rptr. at 562-563. “ . . [T]he burden is on the People to show that defendant was '. . . made aware of the dangers and disadvantages of self-repre- sentation, so that the record will establish that “he knows what he is doing and his choice 9 is made with eyes open." [citation]" (Faretta v. California (1975) 422 U.S. 806, 835, 95 $.Ct. 2525, 2541, 45 L. Ed.2d 562)" Feorrs v. Fabricant (1979) 91 Cal.App.3d 706, 712 [154 Cal. Rptr. 340, 343]. "The Faretta court's acknow- ledgement of the requirement that a defendant must be posses- sed of sufficient information concerning the perils of self- representation . . . has not changed the law governing the manner in which the process of intelligent waiver must appear in the record." People v. Torres, supra, 157 Cal.Rptr. at 565. "The statement on appeal expressly states that appel- lant [Austin] was not advised of the dangers and disadvantages of self-representation as required by Faretta v. California [citation]. The docket does not contradict this. In People v. Torres [citation] the Court of Appeal addressed a factual situation closely analogous to the facts of this case. 10 r ‘ . After discussing waiver of counsel in municipal courts, the Torrea opinion goes on to state: 'If, ti.erefore, the record on appeal of the case at bar compel - ted the conclusion that Torres was not advised of the dangers of self-representation, reversal of the judgment would be required. ' .. [citation]. We do not reach any other issues." People v. Austin, unpublished slip opinion, p. 2, lines 1-21; emphasis added. STATEMENT Our facts are undisputed. Respondent was arrested about midnight on February 9, 1979 and charged that date with driving his automobile under the influence of alco- hol. A prior similar conviction occuring November 16, 1978, was also charged. At his arraignment, February 9, 1979, Respondent was given en masse an oral statement of his legal rights by the muni- cipal court judge. Mass courtroom arraign- ment of misdemeanor arrestees was approved in California by In re Johnson (1965) 62 Cal.2d 325, 331-333 [42 Cal.Rptr. 228, 398 P.2d 420]. 11 Among the orally recited rights were the following: right to counsel and appointed counsel, continuance to hire counsel, public defender, speedy trial (statutory time limits), public trial by court or jury, reasonable bail, con- frontation and cross-examination of witnesses, to silence, remain off the stand, compulsory process for witnesses (for those pleading guilty the 4 Boykin- Tahl rights are repeated), immediate sentencing, sentencing considerations, probation, dismissal after probation. Each misdemeanor defendant is then individually arraigned and asked if he understood the earlier statement of rights. Those pleading guilty are again (a third time) reminded that such a plea is a waiver of the 4 Boykin- Tahl rights. Thereafter each individual plea is taken. Procedures vary somewhat among judges but generally follow the foregoing, which was obtained from Judge Zeiger, the instant arraigning judge, regarding his practice in February, 1979. Court reporters are not custo- marily used in the Long Beach Municipal 12 Court; one was not used herein. Respondent was present in court on February 9, 1979, and heard the fore- going statement of rights. He there- after chose to plead guilty and admit the veracity of the alleged prior con- viction. He was never. advised of the “dangers and disadvantages" of repre- senting himself at arraignment. He personally and expressly waived counsel pursuant to the “Gideon advisement" as part of his Boykin-Tahl waivers. Prior to sentencing Respondent moved to set aside the plea as constitutionally defective inter alia for fzilure to advise of the "dangers and disadvantages" of self-representation. The trial court denied the motion, and Respondent appealed. The Appellate Department of the Superior Court reversed, declaring itself bound by Torres in requiring advisement of Faretta’s “dangers and disadvantages" warning at arraignment, and declared the instant plea of guilty constitutionally defective. (Appendix A). 13 Our petition for certification for higher review by the California Court of Appeal was denied, thus rendering the Appellate Department opinion final for. all California purposes. (Appendix 8B). Recently we obtained temporary stay of enforcement of Torres to stop wholesale invalidation of all pro se plea of guilty convictions, thousands of which began to be declared unconstitutional as soon as Torres became final. The stay exists pending your determination regarding this Petition for Certiorari. Respondent has been out of custody on bail through- out these proceedings. REASONS FOR GRANTING THE WRIT The decision below should be reviewed because it (following forres) erroneously interprets both (1) the substance of the Paretta Sixth Amendment right and (2) the function of the "dangers and disadvantages" advisement to require said advisement as a constitutional prerequisite for a plea of guilty in a state court. na 14 Thereby is that advisement severed from its constitutional purpose, t.e., to assure voluntary constitutional assertion of the Faretta pro se right at trial, and applied in its severed capacity as an unwitting augmentation to the well- settled pronouncements of Boykin-Tahl (constitutional advisements and waivers pursuant to a plea of guilty in state court). Not only is that a misreading of Faretta, but were the reading correct, it still is non-sequitur that states could not be free to tailor their own advisements during the plea of guilty so as to comply with Faretta wtthout giving the “dangers and disadvantages" advisement. 1. Faretta-Caltfornta, supra, was never intended to apply in the non- adversary (plea of guilty) context. The Faretta right guarantees the constitu- tional assertion of one's individualism (usually to the detriment of substantial justice) for a defendant in an adversary criminal trial. The "dangers and disad- vantages" advisement, as prerequisite to knowing assertion of the Faretta | 15 right, protects society's constitutional interest in fairness and defendant's constitutional interest in voluntariness. In the plea of guilty context the interests of fairness (justice) and voluntariness are protected by the Gideon advisement as part of the Boykin- Taht waivers. : The Faretta pro se right, while fully applying to pretrial adversary evidenti- ary hearings, cannot apply to arraignment because arraignment is never an adversary evidentiary hearing. Since the substan- tive Faretta pro se right does not exist at arraignment, the “dangers and dis- advantages" advisement -- necessary for «% constitutionally "voluntary" assertion of the substantive Faretta right (Johnson v. Zerbst, supra) -- likewise does not exist therein. 2. Faretta cannot exist at the plea “of guilty because it is impossible for a defendant to assert his right to individualiem (". . . to go to jail under his own banner," Blackmun, Jes dissenting, Faretta, supra, 422 U.S. at 849) when he has chosen to plead 16 guilty. Faretta is the Sixth Amendment right to carry one's own adversary banner in front of the trier of fact despite the injustice which may result. How can that interest in individualism be asserted in the plea of guilty context, where defen- dant has chosen to forego the possession of any “banner” at all? By choosing not to contest the charge(s), a defendant cannot have any constitutionally protect- able interest in asserting his individu- alism. The Gideon advisement protects defendant's interest in justice/fairness and assures that his waiver of counsel is knowing and voluntary (Boykin-Tahl). Having protected defendant's interest in justice/fairness, and no defense interest in personal autonomy being thereafter possible, we never reach the issue of Faretta. We express no opinion as to whether Boykin v. Alabama, supra, needs augmenting. We note only that this case does not pre- sent that issue. Irrespective of the desirability veZ non of expanding the Boykin advisements, they cannot be expanded (as was done herein) by wholesale 17 adoption of foreign Faretta principles, which were designed to protect wholly different constitutional interests. 3. Faretta is not necessary at arraignment to protect defendant's volition in choosing to plead guilty or not guilty, since the plea must be entered by defendant personally irrespec- tive of the presence of counsel. The defendant alone must decide what plea to enter, whether to waive jury trial, and whether to testify on his own behalf; all other decisions are “the exclusive province of the lawyer." American Bar Association Project on Criminal Justice, Standards Relating to,the Defense Func- tien, § 3.2. 4. If the substantive Faretta right and its obligatory “dangers” warning apply to situations outside the adver- sary evidentiary hearing context, such as arraignment, there is no reasonable limitation by which Faretta can be restrained from expanding to “occupy the field" now held by Gideon. The Miranda warning, e.g., will now have to include a Faretta warning in addition 18 to the Gideon advisement. cf. Stanley v. State (1977) 240 Ga.. 341 [241 S.E.2d. 473.6: 177]. 5. Even if arguendo the substantive pro se right attaches at arraignment, it does not follow that pre-advisement thereof need be made. The “dangers and disadvantages" advisement is triggered only by affirmative assertion of the pro se right at an adversary evidenti- ary hearing, t.e., when defendant appears pro se at such a hearing and announces “ready to proceed." Defendant has there- by chosen to assert his pro se right (without advisement of the existence of the pro se constitutional right), and this triggers the Faretta "dangers" warning to make the pro se assertion sonstitutionally "voluntary" (Johnson v. Zerbst, supra). But Faretta does not require blanket advisement of the “dangers” warning at arraignment because defendant is not “asserting” anything. The Torres opinion mistakenly assumes that the pro se defendant at arraign- ment is necessarily “asserting” his waiver of counsel. The Gideon advisement 19 assures that defendant's appearance pro se is constitutionally valid, z.e., his waiver of counsel is knowing and volun- tary. Waiving counsel is not the same as asserting the pro se Faretta right, which thereafter requires the "dangers" warning. A defendant can appear pro se totally ir- respective of whether he waives counsel. "Standby counsel" protects defendant's Gideon interest (counsel/fairness) while defendant simultaneously asserts his Faretta pro se right at an adversary evi- dentiary hearing. (Theoretically no "dangers" warning need be given in "stand- by" or “advisory” or “hybrid” counsel cases because defendant's interest in fairness is not being sacrificed. ) Waiving counsel without asserting defen- dant's self-interest in individualism, Z.e., pleading guilty at arraignment, does not trigger the “dangers” warning because no individualism is being asserted, nor can be. 6. Torres erroneously construed the Faretta “dangers” warning to be the equivalent of informing a defendant of 20 his pro se right (which it clearly does not), which existence-informing function (advisement) is constitutionally required for knowing voluntary waiver of the right (Johnson v. Zerbst, supra; Boykin v. Alabama, supra). Perceiving that the Gideon advisement and the Faretta "dangers" warning protect the identical interest in defendant's justice/fairness, indeed, they are obverse sides of the same coin -- one stating affirmatively the existence of the right to counsel, the other warning negatively against waiver thereof -- and seeing that the Gideon advisement is necessary for knowing waiver of counsel, Torres mistakenly ex- tended the Faretta "dangers" warning, analogous to Gideon, for knowing "waiver" of the Faretta pro se right. Since the Gideon advisement is clearly required by Boykin-Tahl in the plea of guilty con- text, so also, reasoned Torres, is the "dangers" warning. But this puts the cart before the (nonexistent) horse. The horse is nonexistent because the substantive Faretta pro se right does not exist at arraignment. One need not 21 be advised of a right which has no exis- tence at the time of the advisement. cf. Reasons 1-4 herein. The cart is before it because the Faretta “dangers” warning does not advise of the existence of the pro se right. To the contrary, it advises against assertion of that pro se right. An obverse Faretta advisement, advising of the existence of the pro se right -- not the “dangers and disadvantages" warning -- has been consistently rejected in California. ef. People v: Enciso (1972) 25 Cal.App.3d 49, 57 [101 Cal.Rptr. 590, 594], decided by the same court which decided Torres, and People v. Salazar (1977) 74 Cal.App.3d 875, 889 [141 Cal. Rptr. 753, 761]. The confusion engendered by Faretta's Boykin-like "record" requirement of advise- ment of the "dangers" warning, without requiring Zerbet-like advisement of the existence of the right to self-represen- tation (thus vitiating any knowing waiver of the substantive pro se right) clearly calls for explanation by this Court. It is easy to misconstrue the Faretta "dangers" warning as the equivalent of 22 Zerbst'’s existence-informing advisement necessary for waiver thereof, which lat- ter advisement must be contained in the record and specifically articulated pur- Suant to Boykin-Tahl for a valid plea of guilty. The most difficult issue presented herein is not Faretta's "dangers" advise- ment at arraignment, which is clearly erroneous -- the Gideon advisement al- ready performs that function -- but the obverse advisement: the advisement of the constitutional right to forego coun- sel. Does Johnson v. Zerbst, supra, require advisement of the existence of the pro se right (not the "dangers" advisement) for there to be valid waiver of the pro se right by defendants who exercise their Gideon right to counsel? The answer is probably “yes", but it depends upon whether counsel representa- tion, as opposed to self-representation, is the “natural state" of the accused since Faretta. Cf. Miller, "Faretta v. California: The Law Helps Those Who Help Themselves," 28 Hast. L.dJ. 283, 297-299 (1976) and cases cited therein. Pe age eee \ He A variation on the federal “optional notice" rule was recently decided in Indiana, requiring advisement of the pro se right (not the "dangers" advise- ment) at arraignment. Russell v. State (1978), Ind.App. 378 N.E.2d 872, 881-882, Garrard, P.J., concurring. We suggest the Indiana rule, giving contradictory Gideon and pro se advisements, to be inferior to the pre-Torres California rule, giving only the Gideon advisement at arraignment. cf. Reason 7 hereafter. Clearly, states ought not to be allowed to decide for themselves which is the "natural state" of the accused, t.e., with or without counsel. The Sixth Amend- ment precludes that. But it does not preclude the states from tailoring their own advisements within the scope of the substantive constitutional rights. Torres must be reversed by this Court not only because it grossly misconstrued Faretta, but so that the states are in- formed that Faretta does not require _ wholesale renovation of state arraignment procedures at a cost of millions of con- victions obtained by pro se plea of ems vA at 24 guilty. Lacking prospective limitation, Torres has now used Faretta to render un- constitutional all California convictions entered by way of pro se plea of guilty. The slaughter is in the millions. Cf. appendices to Justice Hanson's concurring opinion in Torres, 157 Cal.Rptr. at 573- 575. On the other hand, states must be instructed that Faretta is not merely a super-waiver of counsel, thus allowing them to ignore the giving or recording of the separate "dangers and disadvantages" advisement when a criminal defendant appears pro se at a state adversary evidentiary hearing. "Illinois has never required that defendant be advised speci- fically of the dangers and dis- advantages of self-representation . in addition to the admonitions of Rule 401(a) [waiver of counsel]." People v. Black (1978) 68 I11.App.3d 309 [385 N.E.2d 899, 903]. Faretta is not modern augmentation to the waiver of counsel; it is the asser- tion of an independent constitutional = EE 25 right. The vast majority of state decisions regarding Faretta have con- strued the "dangers" warning as merely — adjunct to waiver of counsel, and there- fore largely dispensed with it. This needs your immediate correction, as state courts are thereby violating an express provision of Faretta, infecting their pro se trials with reversible error. 7. Indiana's recent resolution of which combination of constitutional ad- visements should be given at arraignment (Russell v. State, supra) reiterates viable state alternatives in formulating the advisements. Torres (and Austin herein) erroneously assume that the Sixth Amendment requires the Faretta "dangers" advisement at arraignment. While Torres and its progeny Austin are clearly wrong, nevertheless it is pro- bably true that (as with Indiana) some form of advisement of the constitutional right to proceed pro se is required. Johnson v. Zerbst, supra. What should be the form of the consti- tutional advisements at arraignment? Clearly the states should be free to 26 draft their own combinations of advise- ments. Torres precludes any such state autonomy: “If, therefore, the record on appeal of the case at bar com- pelled the conclusion that Torres was not advised of the dangers of self-representation [at ar- raignment], reversal of the judgment would be required." People v. Torres, supra, 157 Cal. Rptr. at 564. If this Court decides that counsel representation is no longer (since Faretta) the "natural state" of the accused, states should be allowed to re- frain from giving the Gideon advisement at arraignment. Giving both the Gideon ~ and the pro se (not the “dangers") ad- visements would necessarily engender con- fusion because of the contradictory nature of those advisements. Cf. our Petition for Hearing to the California Supreme Court in Torres. Review should be undertaken herein to clarify that states are not precluded from experimenting in their combinations of constitutional advisements at arraignment 27 but are nevertheless required to give and memorialize for the record the “dangers and disadvantages" advisement for defen- dants who appear pro se at adversary evidentiary hearings. CONCLUSION For the foregoing reasons certiorari should be granted herein. DATED: December 14, 1979 John A. Vander Lans Robert R. Recknagel Gerry L. Ensley Attorneys for People of the State of California 400 W. Broadway Long Beach, California 90802 Telephone: (213) 437-0711 INDEX TO APPENDICES Opinion and Judgment of the Appellate Department of the Superior Court of the State of California for the County of Los Angeles Order Denying Certification Filed October 22, 1979 John R. Corcoran, County Clerk By L. Swart, Deputy APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES People of the State of California, CR A 17231 pe ei Court No. Plaintiff and }Municipal Court No. Respondent, L 66293 vs. ‘opinion AND Robert Stanley Austin} JUDGMENT ) ) Defendant and Appellant. ) Appeal by defendant from judgment of the Municipal Court. ast Thomas Zeiger, Judge. Judgment reversed and cause remanded to trial court with instructions. For Appellant - Steven M. Shaw For Respondent - John A. Vander Lans, City Prosecutor; By Gerry L. Ensley, Deputy City Prosecutor -000- Appellant, without counsel entered a guilty plea to a charge of violating Vehicle Code section 23102, subdivision (a) (driving under the influence). He also admitted having suffered a prior 2 conviction under the same code section. His claim on appeal is that the court erred in denying his motion to withdraw his guilty plea and his admission of the prior. We agree. The statement on appeal expressly states that appellant was not advised of the dangers and disadvantages of self-representation as required by Faretta v. California [1975] 422 U.S. 806. The docket does not contradict this. In People v. Torres [1979] 96 Cal.App.3d 14, the Court of Appeal addressed a factual situation closely analogous to the facts of this case. The Court held that the record there was inadequate to establish appellant's claim that he was not advised in accord with Faretta. The docket entries in the two cases .are almost identical. The distinguishing feature in this case is that the statement on appeal establishes that the warning was not given whereas in Zorres the statement on appeal was silent on this issue. Torres cites People v. Fabricant [1979] 91 Cal.App.3d 706, 712 for the proposi- 3 tion that, "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." (96 Cal.App.3d at p. 18.) _ After discussing waiver of counsel in municipal courts, the Torres opinion goes on to state: “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." (Id. at p. 20). We do not reach any other issues. The judgment is reversed and the case is remanded to the trial court with * instructions to permit the defendant to withdraw his plea of guilty to the vio- lation of Vehicle Code section 23102, subdivision (a) and to withdraw his admission of the prior conviction under the same statute, and to rear- raign him for plea on the original complaint. Judge Saeta We concur. Presiding Judge Cole Judge Dowds APPENDIX “B” Filed November 8, 1979 John R. Corcoran, County Clerk By L. Swart, Deputy APPELLATE DEPARTMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES People of the State )Superior Court No. of California, CRA 17231 ; Platnet sy and. \i"epsan oN" "°° Respondent, ORDER DENYING vs. )CERTIFICATION Robert Stanley Austin Defendant and Appellant. ~~ N THE COURT * The petition of defendant [ste] for certifi- cation of cause to the Court of Appeal in the above-entitled case having been filed and having been duly considered, Said petition is hereby denied. *Before Cole, P.J., Dowds, J. and Saeta, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1497%3A1. Public record. Not legal advice.